Introduction

A petition was filed by Jaya Bachchan in the Supreme Court under Article
32 of the Constitution against the decision of the president wherein the
President through exercise of his powers conferred under Art. 103(1) had
declared through notification dated 16th March, 2006 after taking advice
from the election commission as required under Art. 103(2), that the
petitioner was not eligible to be a member of Rajya Sabha as she was
occupying an “office of Profit”.

The Petitioner was appointed as the Chairperson of Uttar Pradesh Film

Development Council through a memorandum issued by Government of
Uttar Pradesh Dated 14th July, 2014 which also conferred and sanctioned on
her the rank of a cabinet minister. The Petitioner consequently became
entitled to certain benefits which included an Honorarium of Rs. 5000 per
month, Daily allowance of Rs. 600 in state and a daily allowance of Rs. 750
outside state, Rs. 10000 per month towards her entertainment expenditure
and further, she was even allowed a Staff car with a driver, telephone at
office and resident, one P.A, one P.S and two Class IV employees along with
a body guard and other benefits of medical treatment and accommodation
on the expenditure of the government.

The Petitioner had challenged the decision taken by the President under
Art. 103(1) as well as the advice rendered by the Election commission under
Art. 103(2) . The Court after hearing both the sides observed that the Post
of Chairperson of Uttar Pradesh Film Development Council was capable of
yielding pecuniary gains as well as it was not specifically prevented from
being a post of disqualification under Sec. 3 of Parliament (Prevention of
Disqualification) Act, 1959. Thus, the petitioner held an office of profit and
the impugned order and advice were constitutional. The Court consequently
dismissed the Petition.

Background
The Constitution, besides enlisting certain qualifications for becoming
Members of Parliament and Legislative Assembly, also envisages certain
disqualifications. One of these disqualifications is holding an “office of
profit”. In a democracy, it is ensured that there is proper separation of
power between the Executive, the Legislative and the Judiciary. For this, it
is important that only suitable legislators are elected to and remain in the
Parliament and the State Legislatures.1

The Constitution through its Art 102(1)(a) and Art. 191(1)(a) has laid down
a provision for disqualification of Members of parliament and State
Legislative Assemblies who hold an “office of profit”. The term “office of
Profit” has neither been defined in the Constitution nor the General clauses
Act. In order to fill the void and to ascertain the true nature and definition
of the term “office of Profit” a committee was formed in the year 1954
under the aegis of Pt. Thakur Das Bhargava. The Committee was popularly
known as Bhargava Committee. The Committee submitted its report in
which it recommended that owing to the dynamic nature of the term “office
of Profit” it is very difficult to define it, rather, Parliament should enact a
law exempting certain offices from being office of Profit. Consequently,
Parliament (Prevention of Disqualification) Act, 1959 was enacted.

In the absence of any definition as well as owing to the non-exhaustive list

of exempted offices listed under subsequent legislation, Judicial
Interpretations have been largely referred to fill the void. Furthermore, Sec
2(a) of the Parliament (Prevention of Disqualification) Act, 1959 which
envisages that if a legislator receives any other benefit apart from
“Compensatory allowance”, he stands disqualified.

In Divya Prakash v. Kultar Chand Rana2, the respondent was appointed as

chairman of State Board of School Education in an honorary capacity. His
1
Office of profit – Definition under Indian Constitution, [2018] at https://blog.ipleaders.in/office-of-profit
2
MANU/SC/0263/1974
election was challenged on the ground that he held an office of profit. It was
contended that although the respondent did not receive any salary but the
post carried a scale of pay. However, this argument was rejected by the
court. It was held that the respondent never received any profit by way of
salary and furthermore, he did not become entitled to any salary due to his
appointment in an honorary capacity. Importantly, the Board, which fixed
the pay scale for the post of Chairman, was not authorised to do so.

In the Case of Ramakrishna Hegde v. State of Karnataka3 the petitioner, Mr

Hegde, was appointed as the Deputy Chairman of the Planning Commission.
According to the respondents, there was ‘profit’ attached to the office as he
enjoyed a Cabinet rank and got various allowances including well-furnished
free accommodation, chauffeur-driven car and could travel anywhere in
India having the facility of the State Guest.

However, the court held to the contrary as the allowances given to Hegde
were included within the meaning of “compensatory allowance” given in s.
2a of the Parliament (Prevention of Disqualification) Act. The respondents
could not prove that the petitioner had profited by gaining more than the
actual expenditure by way of allowances. Also, the court opined that
“Merely because the petitioner had some privileges as a State Guest or rank
of a Cabinet Minister, it cannot be said that he had pecuniary gain”.

Analysis

Jaya Bachchan v. Union of India4, in which the court held that the

Chairperson of the Film Development Council of a state holds an office of
profit as some pecuniary gain is receivable by virtue of the post even though
the said pecuniary gain may not actually be received. Here, the petitioner
has sanctioned the rank of Cabinet Minister and received a monthly

3
ILR 1992 KAR 3028
4
MANU/SC/2395/2006
honorarium, daily allowances, free accommodation, staff car, medical
treatment etc.

The petitioner, however, neither had received any payment nor did she use
any facilities that she was entitled to as the Chairperson. However, since
the post was capable of yielding profit to the petitioner, she held an office of
profit.

Two Fundamental factors emerged in this case:

a) The form of payment is not at all relevant as monetary gains can be easily
disguised as an honorarium;

b) it is irrelevant whether remuneration was actually( in-real) received by

the legislator, it is enough if such remuneration was even receivable.

“The view expressed by the Karnataka High Court in Ramkrishna

Hegde’s case does not appear to be good in law in view of the
pronouncement of the Supreme Court in Jaya Bachchan where it was held
that “payment of honorarium, in addition to daily allowances in the nature
of compensatory allowances, rent-free accommodation and chauffeur driven
car at State expense, are clearly in the nature of remuneration and a source
of pecuniary gain and hence constitute profit”. 5The Stand of Supreme Court
in this case is a clear example of Judicial Activism. The Court after taking
into account the practice of disguising pecuniary benefit in the term
“Compensatory Allowance” has taken a very modern approach which gives
due importance to the nature of the office.

The Petitioner in the present case had put reliance on 2 cases, a) Divya
Prakash v. Kultar Chand Rana & b) Umrao Singh v. Darbara Singh. The
Court satisfactorily answered as to why the Judgment of Divya Prakash case
5
Jaya Bachchan is in Good Company, K.N Bhat, [2006] at
https://www.tribuneindia.com/2006/20060309/main7.html
cannot be applied to the present case because the office of the petitioner in
that case had no remuneration altogether, However, Court failed to draw a
clear rationale as to why the Judgment of Umrao Singh would not be
followed. In Umrao Singh the question that arose for consideration was
whether payment of a monthly consolidated allowance for performing all
official duties and journeys concerning the work and a mileage allowance
for the journeys performed for official work outside the district and daily
allowances for the days of attendance of meetings/travel/halt, would convert
the office of Chairman of a Panchayat Samiti into an office of profit. This
Court held that these were allowances paid for the purpose of ensuring that
the Chairman did not have to spend money out of his own pocket for
discharging his official duties, and therefore, receipt of such allowances did
not make the office one of profit.

The Court could have taken a similar approach in the present case also as
the allowances which were conferred to the Petitioner were also to save the
petitioner to save her from paying expenses from her own pocket.

Conclusion

The Court took a very remarkable step in including every office of pecuniary
gains under the Purview of ‘office of Profit”. However, the Court could had
elaborated further as to how the facts of the present case was different from
the fact of the previous case. The Present Judgment is somewhat incomplete
and leaves a scope of further interpretation.

Aditya Shah

Skp182k0002