Professional Documents
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Unit 5-Office of Profit
Unit 5-Office of Profit
CONTENTS
1. Introduction
2. Rationale for the disqualification for holding an
Office of Profit
3. “Office of Profit” position in other Countries
4. “Office of profit” position in India
5. What is an ‘office’
a) Definitions
b) Sonia Issue
c) Parliament (Prevention of Disqualification)
Amendment Act, 2006
6. Joint parliamentary committee (recommendation)
7. Decision on Disqualification of MP’s and MLA’s
8. Conclusion
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Office of profit
1) Introduction –
In India, the concept of "office of profit" disqualifying the holder was
imported from Britain and it made its appearance for the first time in the Act
of 1909, which embodied the Morley-Minto Reforms proposals1. The
basic idea was — and remains — that the legislators should not be vulnerable
to temptations an executive can offer. The framers of the Constitution
thoughtfully incorporated Article 102 (1) and 191 (1), prescribing the
restrictions at the Central and State levels. In the Indian Constitution Art.102
and Art.191 deals with disqualification of members of Parliaments and state
legislature respectively.2
Art.102 (1) (a) provides for the disqualification of the membership of either
house of parliament and it reads as follows:-
“102. Disqualification for membership – (1) a person shall be
disqualified for being chosen as, and for being, a member of either
House of Parliament—
(a) 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;”3
There is a similar provision in the constitution for the disqualification of
membership of legislative assembly that is art.191 (1) (a).
A perusal of the above provision shows that three elements which are sine
qua non for attracting the above provision are that the person concerned must
hold an office -
(1) Under the Government of India or any State;
(2) The office should be an ‘office of profit’ and
(3) The office should be other than an office declared by parliament by law
not to disqualify its holder Article 102(1)(a) corresponds to Article 191(1)
(a) of the Constitution of India which lays down similar disqualifications
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Office of profit
AIR1992 SC 1959
6. Ashok Kumar Bhattacharyya v. Ajoy Biswas and Otrs. AIR 1985 SC 211.
7. AIR1954 SC 653.
8. Shivamurthy Swami vs. Agadi Sanganna Andanappa. (1971)3 SCC 870.
9. AIR1992 SC 1959
Office of profit
19 . 2nd report of joint committee on office of profit of the 14th Lok Sabha at para.13.
20 . 2006 (5) SCALE 511.
ROHIT KUMAR SHUKLA, first sem. LL.M.(LAW) BBAU, Lucknow Page 9
Office of profit
But in this case the main contention which raised by the petitioner was
that the post of Chairperson of the Council, and the conferment of the rank
of Cabinet Minister, were only "decorative"; that she did not receive any
remuneration or monetary benefit from the State Government; that she
did not seek residential accommodation, nor used telephone or medical
facilities; that though she traveled several times in connection with her work
as Chairperson, she never claimed any reimbursement; and that she had
accepted the Chairpersonship of the Council honorary and did not use any of
the facilities. Therefore the petitioner never had any intention to take benefit
from these.
But this contention of petitioner is not maintainable because Supreme Court
in case of Divya Prakash v. Kultar Chand Rana and Anr.21 said that
the test to be applied in these conditions is “It is whether he can sue for or
otherwise claim the scale of pay fixed by the resolution of the
Board.”22 Court also held that “it is not matter whether the person is taking
the salary or not when entitled to that salary.” And in the case of Jaya
Bachan she was clearly entitled for that money.
It is also necessary to bear in mind that the Government is undertaking
several projects and activities including commercial activities through the
corporations and local bodies exercising some control over such corporations
or bodies. In that view of the matter they may come within the meaning of
the "State” envisaged in Article 12 but that may not be a decisive factor in
deciding the issue.23 As it is clear from the above discussion that the person
must holds an office under the government. Now the question arises what is
an ‘office’ or which is considers being an ‘office’?
5) What is an ‘office’:-
a) Definitions -
The office has not been defined either in the Constitution or in the
Representation of People Act.
AIR1992 SC 1959
Office of profit
24 . (1922) 2 A.C. 1.
25 . (1969) 3SCC 268.
26 . [1969]. 2SCR 422.
27 . (1942) A.C 561.
Office of profit
28 . AIR1968 SC 1495.
29 . AIR 2002 SC 742.
accepted by Supreme Court in Mahadeo’s30case and held that the petitioner is
holding an office of profit who is appointed by the Karnataka government to
a one man commission for studies of the problems of the Kannadigas in the
Border areas of Kerala, Maharastra, Andhra Pradesh, Goa and Tamil Nadu’s.
b) Sonia Issue
Congress President Sonia Gandhi was a member of Lok Sabha. She was
appointed as the Chairperson of National Advisory Council by the UPA
government. She also held several posts under the government. Complaints
were registered against her, and she chose the safe route of resignation. So
that she could continue her impression of being the statue of sacrifice and
morality.
The list of holders of office of profit is too long. Complaints against more
than 40 MP’s are registered in the Election Commission. Lok Sabha Speaker
Somnath Chatterjee himself comes within the purview of disqualification.
Hundreds of member of different state legislature hold offices of profit,
somehow or the other.
c) Parliament (Prevention of Disqualification) Amendment Act, 2006 -
India had the Parliament (Prevention of Disqualification) Act, 1950,
1951, and 1953 exempting certain posts from being recorded as offices
of profit. All these Acts were replaced by the Parliament (Prevention of
Disqualification) Act, 1959. By virtue of section 3 of the said Act, certain
offices did not disqualify their holders from being members of either
house. But due to above controversy by the Parliament (Prevention of
Disqualification) Amendment Act, 2006 excludes 45 posts held by Members
of Parliament from the operation of Article 102 with retrospective effect from
1959.31
Recently in 2009, In the case of Consumer Education and Research
Society V. Union of India, 32 Supreme Court clearly held that when the
amending act “retrospectively removed the disqualification with regard to
certain enumerated offices, any member who was holding such office of
profit, was freed from the disqualification retrospectively. As of the date of
the passage of the Amendment Act, none of the Members who were holding
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Bibliography -
1. Jain, Prof. M. P., INDIAN CONSTITUTIONAL LAW, Sixth Edition,
(LexisNexis Butterworths Wadhwa Nagpur,2010)
2. Kafaltiya, Anand Ballabh; DEMOCRACY AND ELECTION LAWS,
(Deep & Deep Publication Pvt. Ltd.,2003)
3. Shukla V.N.; Constitution of India; 10
th Edition; Eastern Book
Company
th
4. Dr. Basu D.D.; Introduction to the Constitution of India; 19 Edition;
Wadhwa Nagpur.
th
5. P.M Bakshi, THE CONSTITUTION OF INDIA; 17 Edition(2006)
6.Dr.Parnajape, N.V.;INDIAN LEGAL AND CONSTITUTIONAL
HISTORY,(CLA,Reprient Edition,2002)
Websites –
1. http://en.wikipedia.org/wiki/Office_of_profit, accessed on 07th October
2010,time;04:00 PM
2. http://jurisonline.in/2010/03/office-of-profit/ accessed on 07th
October 2010,time;04:15 PM
3. http://www.hindu.com/2006/04/14/stories/2006041402231400.htm
accessed on 07th October 2010,time;04:30 PM