Disqualification to contest ls election - office of profit

Querist : Anonymous (Querist) 04 May 2024 This query is : Resolved
Sir,
According to the Article 102 of Constitution of India a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder. But, under this clause the following explanation is provided.
Explanation- For the purpose of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.

Therefore a Minister in the Union Government/Government of India is not a disqualified person to contest the Lok sabha election and hence he can contest election without resigning his Minister post. Similarly a Minister in any State Government is not a disqualified person to contest the Lok Sabha election and hence he can contest election without resigning his Minister post.
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The Parliament has enacted very important Act (as required under the Article 102 of Constitution of India) to declare that certain offices of profit under the Government shall not disqualify the holders thereof for being chosen as, or for being, members of Parliament in the name of the Parliament (Prevention of Disqualification) Act, 1959.

According to the section 3 of the Parliament (Prevention of Disqualification) Act, 1959 any office held by a Minister, Minister of State or Deputy Minister for the Union or for any State, whether ex officio or by name shall not disqualify the holder of office though it is falls under the office of profits under the Government of India or the Government of any State for being chosen as, and for being, a member of Parliament.
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Here it is pointed out that according to the Article 102 of Constitution a Minister of Union Territory (Puducherry, Delhi and Jammu & Kashmir) is disqualified candidate for being chosen as, or for being, a Member of Parliament since a Minister of Union Territory is not holding the office of profit under the Union Government and any State Government.

Further it is pointed out that according to the Section 3 of Parliament (Prevention of Disqualification) Act, 1959 a Minister of Union Territory (Puducherry, Delhi and Jammu & Kashmir) has not been declared as an office that not disqualify the holder thereof for being chosen as, or for being, a member of Parliament.

Therefore a person holding the office of profit in the capacity of Minister in the Union territory Government is disqualified candidate for being chosen as, or for being, a member of Parliament.
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My query:
Recently the Election Commission of India has completed Lok Sabha in Puducherry union territory on 19-04-2024. In Puducherry one person holding the Home Minister, Education Minister, Power Minister, Industries Minister and etc in the Puducherry UT Government, who is actually a disqualified person for being chosen as, and for being, a member of either House of Parliament has filed nomination and contested the election as Bharatiya Janata Party’s candidate.

As an elector of Puducherry Parliamentary constituency I have lodged complaints with the Election Commission of India, Chief Electoral Officer, Puducherry and Returning Officer, Puducherry. But, no one authority has taken action on my complaint and given reply to me even though my complaints registered with ECI’s online portal.

In this connection I want to know the correct legal position on my contention in this matter i.e. whether my contention is wrong or right? If right can I file a PIL or Election Petition in the interest of public to cancel the election at Puducherry. Please clarify me sir.
Thanking you.
Yours truly,
P.Veerappan,
Puducherry.

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Quick Summary

This discussion clarifies the 'office of profit' rule under Article 102 of the Indian Constitution, which can disqualify individuals from contesting Lok Sabha elections. While Union and State Ministers are generally exempt due to the Parliament (Prevention of Disqualification) Act, 1959, Ministers in Union Territories like Puducherry, Delhi, and Jammu & Kashmir may still be disqualified as their offices aren't explicitly exempted. A specific case from Puducherry is raised where a Union Territory Minister contested elections, prompting a query about the legal position and potential actions like a Public Interest Litigation.

T. Kalaiselvan, Advocate (Expert) 05 May 2024
A very lengthy query.
You can consult a local lawyer who has experience on the subject and proceed as suggested.

kavksatyanarayana (Expert) 05 May 2024
Yes. You consult a local advocate in the matter.

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