Topic: Office of Profit

Clause (a) of Article 102 of the Constitution of India says a person shall be disqualified for

• Election as a member of Parliament and

• for being (continuing) 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. However, other than an office declared by Parliament by law not to disqualify its holder.
The aim of the provision is to

• prevent conflict of interest between the members of parliament and the executive. To explain, the job of the MP is to hold the executive answerable which he can not do if he is himself a part of the executive. However, there are exceptions. The classical example is that of a Minister. It cannot be avoided. The reason is that ours is a parliamentary system where executive is drawn from Parliament.

• secure independence of the MPs. It is not possible if the legislator is a member of the executive.

• ensure that Parliament does not contain persons who have received favours or benefits from the executive and who consequently might be amenable to its influence.

In sum, if the legislators hold office of profit under the government, they have to toe the line of government and cannot act independently. Any government, especially a coalition, is seen to be doing everything to retain legislators in their group. Offering government positions is one such method to gain their support.

Parliament (Prevention of Disqualification) Act, 1950, 1951, and 1953 were made exempting certain posts from being considered as offices of profit. It is the privilege of the Parliament to do so regarding all Central executive posts. All these Acts were consolidated by the Parliament (Prevention of Disqualification) Act, 1959. By virtue of section 3 of the 1959 Act, certain offices did not dis4ualify their holders from being members of either houses of Parliament as they were declared non-profit. Lists of non-profit offices have been mentioned in Part H of the Schedule to the Parliament (Prevention of Disqualification) Act, 1959. Holders of these non-profit offices are not disqualified from being legislators or from contesting to be members of Parliament.

The exemption from the definition of ‘office of profit’, however, has been done by Parliament on a case by case and ad hoc basis and not on the basis of any universal definition. In fact there is neither a Constitutional nor statutory definition of “office of profit” One source of clarity on the expression are the rulings of courts. Another source are the Election Commission rulings. The latter is consulted by the President and the Governor in the disqualification of members of parliament and State Legislature respectively.

The process of scrutiny and classification of offices of profit is an ongoing one For example, when Pranab Mukherjee became Deputy Chairperson of the Planning Commission under Prime Minister P.V. Narasimha Rao, the office was exempted by adding it to the list in the Parliament (Prevention of Disqualification) Act, 1959. On the recommendations of the JPC, it is the Parliament that declares whether an office is non-profit or otherwise. Parliament may do so with retrospective application, according to the Supreme Court verdict in Kanta vs Menak Chandra case 1970.
As new offices are set up frequently, the need to declare them as offices of profit or non-profit is a continuous one. Otherwise, lack of clarity threatens to paralyse the Parliament and vitiate the relation between the legislature and the executive. Therefore, a Joint Committee on office of profit has been constituted consisting of 10 members from the Lok Sabha and five members from the Rajya Sabha. The function of the Committee is to study the newly set up bodies and see if holding of these offices should be a disqualification for a person to be elected or continue to be a member of Parliament. Criteria adopted to determine an office to be an office of profit are the following:

• whether Government exercises control over the appointment and removal from the office and over the performance and functions of the office;

• whether the holder draws any remuneration other than the ‘compensatory allowance’ as defined in section 2(a) of the Parliament (Prevention of Disqualification) Act, 1959;

• whether the body in which an office is held, exercises executive, legislative or judicial powers or confers powers of disbursement of funds, allotment of lands, issue of licences, etc. or gives powers of appointment, grant of scholarships, etc.; and

• whether the body in which an office is held enables the holder to wield influence or power by way of patronage.

If the reply to any of the above criteria is in the affirmative then the holder of office in question incurs disqualification.

If the emoluments drawn by the holder are in the nature of honorarium or compensation, it is not an office of profit. Similarly, advisory posts are generally not considered office of profit. The most important yardstick is that it should be post that the Government appoints and removes.

However, in Ashok Kumar Bhartacharya vs Ajoy Biswas case (1985) the Supreme Court held that to determine whether a person held an office under the Government, each case must be measured and judged in the light of the relevant provisions and sections.

Shibu Soren case 2001

Another relevant case is hat of Shibu Soren, the Jharkhand Mukti Morcha (S) leader. Apex court gave its verdict in 2001. The Supreme Court set aside the election of Shibu Soren, to Rajya Sabha in June 1998, on the ground that he was holding an office of profit under the State Government as chairman of the interim Jharkhand Area Autonomous Council (JAAC). The council was setup under the JAAC Act, 1994 at the time of his filing of his “nomination papers” and Soren was thus disqualified to contest election to Rajya Sabha.

Role of Election Commission

Under current law, if a contesting candidate is already holding an office of profit under the control of the government, it is a disqualifying factor. If this factor is noticed and the office holder wins the election, it is for the losing candidate to challenge the election before the High Court within one year: Before elections, it is the duty of the Election Commission and its officers to look into the nominations and study whether they hold any post which would disqualify them for contesting elections. Already, a ‘regular’ government employee cannot contest elections.
Post-election, if a legislator is appointed to an office of profit under government control, the complaint has to be refered to the Election Commission which has jurisdiction to enquire and recommend steps to the President or Governor, who bound by its recommendation.

Disqualification of Jaya Bachhan and Later

In 2006, President Kalam disqualified Rajya Sabha MP Jaya Bachchan on a petition by a Congress party worker who sought her disqualification on the ground that she was Chairperson of the UP Film Development Corporation, an office of profit. She was elected to the Upper House in 2004. She resigned the post before filing her papers and was reappointed after her election. Thus, at the time of election, she was qualified. But when she became the Chairperson, she was eligible for disqualification. The petition was referred to the Election Commission for verification and sending a report to the President. EC recommended that should be disqualified.

The recommendation was binding on the President.

Under Article 103 of the Constitution, “if any question arises as to whether a Member of either House of Parliament has become subject to any of the disqualifications mentioned in Article 102, the question shall be referred for the decision of the President and his decision shall be final. Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.”
Later many such petitions were filed with the President and the Governors of various states (Art. 102 and 191 respectively) about various MPs and MLAs holding offices of profit and so should be disqualified. It had the potential to create a Constitutional crisis as so many MPs and MLAs were in danger of having to vacate their seats and bye elections having to be held.

The Parliament (Prevention of Disqualification) Amendment Act 2006

Parliament passed the Parliament (Prevention of Disqualification) Amendment Bill, 2006. But President Kalam vetoed it under his powers (Art. 111).
The primary aim of the Bill was to shield the MPs holding offices that could be interpreted as office of profit. It did so by declaring that these offices were not offices of profit. The Bill allowed MPs to continue their membership in Parliament even while holding the offices that were alleged to be offices of profit another point is that the Bill gave retrospective effect to the offices contained in it from 1959. The Bill exempts 56 positions held by 40 members of Parliament.

President Kalam vetoed (suspensive) the Bill on the following considerations:

• there should be a comprehensive criterion that is “just, fair and reasonable” and could also be applied to all states and union territories in a “clear and transparent manner”.

• propriety of passing the legislation with, retrospective effect and

• the implications and propriety of including in the Bill such offices for which petitions for disqualification were already under process by competent authorities.

Parliament re-passed the Bill, by a simple majority, without any amendment. President Kalam gave his assent as he was bound to do so (Art. 111).
The Lok Sabba approved a motion to set tip a 15-member Joint Parliamentary Committee (JPC) for suggesting a comprehensive definition of office of profit. The JPC, comprising 10 members from Lok Sabha to be nominated by the Speaker and five from Rajya Sabha to be named by the Chairman, will examine the constitutional and legal positions relating to office of profit. Its terms of reference, comprising essentially of the issues raised by the President in his reference to Parliament, include formulating a comprehensive definition of the office of profit. The committee has also been mandated to examine the feasibility of adopting a system of law relating to the prevention of disqualification of MPs, as was the case in the UK. In the UK, when an office is created, it is declared an office of profit if it is one.

Go Back To Main Page