Office of profit

CONTENTS

This Topic of Assignment is divided in to eight sub-topics, viz.-

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

1 . Dr.Parnajape, N.V.;INDIAN LEGAL AND CONSTITUTIONAL HISTORY,(CLA,Reprient

Edition,2002), p.278
2 . Jain, M. P. INDIAN CONSTITUTIONAL LAW, Sixth Edn, (2010). P.38

3. P.M Bakshi, THE CONSTITUTION OF INDIA. p.113.

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 Office of profit

for being chosen as or for being a member of the Legislative Council or

Assembly of a State4.
The expression “office of profit” has not been defined in the Constitution or
in the Representation of the People Act, 1951. Its ambit has to be inferred
only from pronouncements of courts and other competent authorities, like
the Election Commission and the President. The object of the provision
is to secure independence of members of parliament and do not contains
persons who have received favors or benefits from the executive and who
consequently being under an obligation to executive, might be amenable to its
influence.
2) Rationale for the disqualification for holding an Office of Profit-
The underlying concept behind these two articles is the principle of
separation of power between the functionaries of a state like legislative,
judiciary and executive. The principle of separation of powers enjoins that
the three organs of the government- the executive, the legislature and the
judiciary should be separate from each other. This is to ensure the isolation,
immunity or independence of one branch of government from the actions
or interference of another and to ensure checks and balances. The object
of enacting Articles 102(1)(a) and 191(1)(a) is that there should not be any
conflict between the duties and interests of an elected member and to see that
such an elected member can carry on freely and fearlessly his duties without
being subjected to any kind of governmental pressure, thereby implying that
if such an elected person is holding an office which brings him remunerations
and if the Government has a voice in his functions in that office, there is
every likelihood of such person succumbing to the wishes of the Government.
These Articles are intended to eliminate the possibility of such a conflict
between duty and interest so that the purity of legislature is unaffected.5The
true principle behind this provision in Article 102(1) (a) is that there should
not be any conflict between the duties and the interest of an elected member.6
Article 102(1) (a) of the Constitution says that a person shall be disqualified
for being chosen as, and for being, a Member of either House of Parliament:
4 .Jain, M. P. INDIAN CONSTITUTIONAL LAW, Sixth Edn, (2010). P.33
Satrucharla Chandrasekhar Raju v.Vyricherla Pradeep Kumar Dev and another.
5.

AIR1992 SC 1959
6. Ashok Kumar Bhattacharyya v. Ajoy Biswas and Otrs. AIR 1985 SC 211.

ROHIT KUMAR SHUKLA, first sem. LL.M.(LAW) BBAU, Lucknow Page 3

• If he holds any office of profit under the Government (Centre or state) other
than an office declared by Parliament by law not to disqualify its holder.
• An office of profit need not necessarily confer pecuniary benefit; it is
sufficient if it bestows administrative and executive powers.
This provision is thus designed to protect the democratic fabric of the
country from being corrupted by executive patronage and also secures the
independence of MPs from the influence of the Government so that they
discharge their functions without fear or favor. The presumption is that if
a legislature receives benefits from the Executive than he may not be able
to independently scrutinize the actions of the Government. The provision
is thus designed to protect the democratic fabric of the country from being
corrupted by executive patronage. It ensures that the parliament does not
contain persons who may be obligated to the government and be amenable to
it influence because they are receiving favors and benefits from it.

3) “Office of Profit” position in other Countries

In United Kingdom (U.K) the law evolved in England in the context of
struggle between the Crown and the House of Commons which was not the
case here in India. The House of Commons Disqualification Act, 1957 (re
enacted in 1975) replaced disqualification for holding ‘an office of profit
under the Crown’ by disqualification attached to the holding of specified
offices. There are essentially three broad reasons for disqualification:
1. The physical impossibility for certain office holders of attendance at
Westminster;
2. The risk of patronage, and

3. The conflict of constitutional duties.

Under section 1 of the House of Commons Disqualification Act, 1975, the

disqualifying offices fall into six categories:
1. A great variety of judicial offices, listed in schedule 1 of the Act. The
principle is that no person may hold full-time judicial office and be a
practicing politician;
2. Employment in the civil service of the Crown, whether in an
established or temporary capacity, whole time or part time. The
 disqualification extends to members of the civil service of Northern
Ireland and the diplomatic service. Civil servants who wish to stand for
election to Parliament are required by civil service rules to resign before
becoming candidates;
3. Membership of the regular armed forces of the Crown;
4. Membership of any police force maintained by a police authority,
or the National Criminal Intelligence Service, or the National Crime
Squad;
5. Membership of the legislature of any country or territory outside
the Common-wealth, except the Republic of Ireland. It is likely that
members of a legislature other than that of the Irish Republic would be
debarred by their status as aliens from membership of the Commons;
6. A great variety of disqualifying offices arising from chairmanship
or membership of commissions, boards, administrative tribunals,
public authorities and undertakings; in a few cases, the disqualification
attaches only to a particular constituencies. As these offices cover such
a wide range, each office is specified by name. The schedule may be
amended by Order in Council made following a resolution approved by
the House of Commons. This power obviates the need for amendment
by statute as and when new offices are created.
In the United States Article 35 of the U.S. Constitution mentions the phrase
and defines it thus:
"An office to which fees, a salary or other compensation is attached is
ordinarily an office of profit."
In the Australian Constitution section 44 prescribes certain
disqualifications which render a person incapable of being chosen or of
sitting as a member of either House. The section is as follows:
(iv) Holds any office of profit under the Crown, or any pension payable
during the pleasure of the Crown out of any of the revenues of the
Commonwealth: or
But sub-section (iv) does not apply to the office of any of the Queen’s
Ministers of State for the Commonwealth, or of any of the Queen’s Ministers
for a State, or to the receipt of pay, half-pay, or a pension by any person as an
officer or member of the Queen’s navy or army, or to the receipt of pay as an
officer or member of the naval or military forces of the Commonwealth by
any person whose services are not wholly employed by the Commonwealth.
4) “Office of profit” position in India
The term ‘office of profit’ is not defined nowhere in the constitution and it left
on the judiciary to interpret the term, the term ‘profit’ means some pecuniary
gain attached to the office. Supreme Court in India in plethora of cases gives
guideline to consider whether a given office is an office of profit or not.
These guidelines are:-
The remuneration which the persons gets while holding the office must not
be compensatory in nature that it is not like that enabling him to carry out day
to day expenses. This sum should not be considered as accruing any profit
to the holder. This test is upheld by the Supreme Court in case of Ravabba
Subanna vs. G. S. Kaggeerappa.7 The word 'profit' connotes the idea
of pecuniary gain. If there is really a gain, its quantum or amount would not
be material; but the amount of money receivable by a person in connection
with the office he holds may be material indicating whether the office really
carries any profit…".8
In case of Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and
another9the Supreme Court after examining a catena of authorities, it
was opined:
“(1) The power of the Government to appoint a person in office or
to revoke his appointment at its discretion. The mere control of the
Government over the authority having the power to appoint, dismiss, or
control the working of the office employed by such authority does not
disqualify that officer from being a candidate for election as a member
of the Legislature.
(2) The payment from out of the Government revenues are importa nt
factors in determining whether a person is holding an office of profit or
not of the Government. Though payment from a source other than the
Government revenue is not always a decisive factor.

7. AIR1954 SC 653.
8. Shivamurthy Swami vs. Agadi Sanganna Andanappa. (1971)3 SCC 870.

9. AIR1992 SC 1959
 Office of profit

The incorporation of a body corporate and entrusting the functions

(3)

to it by the Government may suggest that the statute intended it to

be a statutory corporation independent of the Government. But it is
not conclusive on the question whether it is really so independent.
Sometimes, the form may be that of a body corporate independent of
the Government, but in substance, it may just be the alter ego of the
Government itself.
(4) The true test of determination of the said question depends upon
the degree of control the Government has over it, the extent of control
exercised by very other bodies or committees, and its composition, the
degree of its dependence on the Government for its financial needs
and the functional aspect, namely, whether the body is discharging any
important Governmental function or just some function which is merely
optional from the point f view of the Government."10
Supreme Court in case of Shivamurthy Swami vs. Agadi Sanganna
Andanappa11 said the test which may be applied to determine whether
an office is “office of profit” under the state government thus:-
“(1) whether the Government makes the appointment;
(2) whether the Government has the right to remove or dismiss the
holder;
(3) whether the Government pays the remuneration;
(4) what are the functions of the holder and
(5) Does the Government exercise any control over the performance of
those functions?”12
The Supreme Court has justified this judgment and applied it in case of
Surya Kant Roy v. Imamul Hai Khan13in this case the main contention was
whether the chairman of a Board under the Bihar and Orissa Mining
Settlement Act, 1920 can be considered as holding an office of profit. The
Court noticed the tests laid down in Shivamurthy Swami's case14and
observed that the

10 . AIR1992 SC 1959 p.1964

11 . (1971) 3 SCC 870.
12 . (1971)3 SCC 870, p.875 para.14.
13 . AIR1975 SC 1053
R4O. H(1I9T7K1U)3MSACRCSH8U70K.LA, first sem. LL.M.(LAW) BBAU, Lucknow Page 7
1
Government did not pay the remuneration nor did the holder of the office
perform his functions for the Government and, therefore, he could not be said
to hold an office under the State Government.
In case of M.Ramappa v. Sangappa and Ors.15Supreme Court observed
that "Patels and Shanbhogs who are the holders of hereditary village offices
governed by the Mysore Village Offices Act, 1908 are officers who are
appointed to their offices by the Government though it may be that the
Government has no option in certain cases but to appoint an heir of the last
holder; that they hold their office by reason of such appointment only, that
they work under the control and supervision of the Government; that their
remuneration is paid by the Government out of Government funds and assets;
and that they are removable by the Government, and that there is no one else
under whom their offices could be held."
In case of Maulana Abdul Shakur vs. Rikhab Chand and others16it was held
that the a Manager of a School run by a Committee of Management formed
under the provisions of the Dargah Khwaja Saheb Act, 1955 does not hold
any ‘office of profit’ by applying the test that the concerned candidate was
neither appointed by the Government of India nor was he removable by it. It
was also found that his salary was not fixed or paid by the Government but
that the same was paid out of the funds of the Dargah endowment. Further in
case of Gurugovinda Basu v. Sankari Prasad 17 Supreme Court said that
the office under the government does not necessarily means service of
government. If the government has power to appoint, power to dismiss, the
power to control and give directions as to the manner in which the duties of
the office are to be performed, and the power to determine the question of
remuneration then also it can be said that the office is an ‘office of profit’
under the government.
The problem arises in the form, in which the gain is given suppose it may be
in the form of honorarium, remunerations, salary etc. but in case of Shibu
Soren vs. Dayanand Sahay & Ors18it was held by the Supreme Court that it is
the substance not the form which matters and even the quantum or amount
15 . AIR1958 SC 937.
16 . AIR1958 SC 52.
17 . AIR 1964 SC 254.

18 . AIR 2001 SC 2583.

ROHIT KUMAR SHUKLA, first sem. LL.M.(LAW) BBAU, Lucknow Page 8
of “pecuniary gain” is not relevant. In this case petitioner held his office 'at
the pleasure' of the State Government. As Chairman of the Interim Council
he was receiving an honorarium of Rs. 1750/- per months; Daily allowance
at the rate of Rs. 150/- per day for the period spent outside the headquarters
besides traveling expenses as prescribed; Daily allowance at the rate of Rs.
120/- per day for attending meetings of the interim council; Furnished rent
free accommodation (quarters) and A car with Driver. Therefore court held
that the petitioner is holding an office of profit. It was further held that it
is the substance and not he form which matters and even the quantum or
amount of "pecuniary gain" is not relevant - what needs to be found out
is whether the amount of money receivable by the concerned person in
connection with the office he holds, gives to him some "pecuniary gain",
other than an 'compensation' to defray his out of pocket expenses, which may
have the possibility to bring that person under the influence of the executive,
which is conferring that benefit on him.
The second report of the Joint Committee on office of profit of the 14th Lok
Sabha, the committee had clearly held that "the facilities of an office room
with telephone/fax/Internet, personal assistant and a staff car provided" to
a MP are not covered under the "Compensatory allowance" and as such the
holder of office would entail disqualification for being chosen as or for being
a Member of Parliament.19
Recently Supreme Court in case of Jaya Bachan v. Union of India (UOI)
and Ors.20 declared that the post of Chairperson of Uttar Pradesh Film
Development Council that is held by the petitioner as ‘office of profit’
because as the Chairperson of Uttar Pradesh Film Development Council the
petitioner is entitled to (i) Honorarium of Rs. 5,000/- per month; (ii) Daily
allowance @ Rs. 600 per day within the State and Rs.750/- outside the State.
Rs. 10,000/- per month towards entertainment, expenditure. (iii) Staff car
with driver, telephones at office and residence, one P.S., one P.A. and two
class IV employees.
(iv) Body Guard and night escort. (v) Free accommodation and medical
treatment facilities to her and family members. (vi) Free accommodation in
government circuit houses/guest houses and hospitality while on tour.

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.

21 . AIR 1975 SC 1067.

22 . AIR 1975 SC 1067, p.1069 para.4.

Satrucharla Chandrasekhar Raju vs.Vyricherla Pradeep Kumar Dev and another.

23 .

AIR1992 SC 1959
 Office of profit

Justice Rowlatt’s defines the word ‘office’ in case of Great Western

Railway Company v. Bater24and said the test to be applied is whether
“it was a subsisting, permanent, substantive position, which had an existence
independent from the person who filled it, which went on and was filled in
succession by successive holders;”.
In case of Kanta Kathura v. Manak Chand Surana25a Constitution
Bench of Supreme Court accepted the definition of Rowlatt justice and
applying the test held that a Special Government. But again in case of
Mahadeo
v. Shantibhai and Ors.26 the question for consideration was
whether appointment of a person on the panel of lawyers by Railway
Administration can be held to be an office and is that office is one for profit?
The Court, in that case referred to observation of Lord Wright of the House
of Lords in the case of Mcmillon v. Guest27, where Lord Wright has opined –
"The word 'office' is of indefinite content. Its various meanings cover four
columns of the new English Dictionary, but I take as the most relevant for
purposes of this case the following; a position or place to which certain
duties are attached, especially one of a more or less public character."
In the aforesaid case this Court while considering the appointment of the
person concerned and all terms and conditions came to the conclusion that
it is difficult to hold that he held any office of profit under the Government.
The Supreme Court in case of Statesman (Private) Ltd. v. H.R. Deb and
Ors,28 Said that:
“An office means no more than a position to which certain duties are
attached. According to Earl Jowitt's Dictionary a public office is one which
entitles a man to act in the affairs of others without their appointment or
permission.”
But finally Supreme Court in case of M.V. Rajashekaran and Ors. vs. Vatal
Nagaraj and Ors.29 accepted the test propounded by the Lord Wright
and

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

30 . AIR 1975 SC 1067, p.1069 para.4.

31. Jain, M. P. INDIAN CONSTITUTIONAL LAW, Sixth Edn, (2010). P.38-39
32 . (2009) 9 SCC 648
such offices had been declared to be disqualified by the President.”
6) Joint parliamentary committee (recommendation)33
The committee said, in its 186-page report, that it was essential to evolve the
principles and generic criteria before defining the term ‘office of profit.’ The
Committee suggested the definition of “office-of-profit” as: —
1. any office under the control of the Government of India, or the
government of a state, whether or not the salary or remuneration for
such office is paid out of the public revenue of the government of India
or of the government of state,
2. any office under a body, which is wholly or partially owned by the
government of India or the government of any state and the salary or
remuneration is paid by such body
3. any office the holder of which is capable of exercising executive
powers delegated by the government, including disbursement of funds,
allotment of lands, issuing of licenses and permits or making of public
appointments or granting of such other favors of substantial nature;
or legislative, judicial or quasi-judicial functions. Since the judicial
decisions gave varying interpretations depending upon the facts of each
case,
The best course appears to be to refer the matter to the Parliamentary
Joint Committee to examine the individual cases of the 40-odd MPs. The
committee could exempt the offices it thinks would attract disqualification
under Article 102(1a) of the Constitution of India. That Parliament is
competent to enact a law to remove a disqualification with retrospective
effect is settled as in Kanta Kathura v. Manak Chandra Surana. 34
7) Decision on Disqualification of MP’s and MLA’s:
There are separate provisions of disqualification for the Member of
Parliament and the member of state legislature. Article 84 prescribes
qualifications of the members of parliament. Article 103 lays down that any
dispute about the disqualification of Member of Parliament shall be referred
to the President who will take a decision on the advice of the Election
Commission and his decision shall be final. The Election Commission has
a great role as the President decides the matter after obtaining its opinion
33 . Report of joint committee on office of profit of the 14th Lok Sabha.
34 . (1969) 3SCC 268
and is accordance with that option and in case of disqualification on grounds
of defection, the matter will decided by the Speaker or Chairman of Rajya
Sabha as the case may be. In the case of member of state assembly article 191
would prevail and the decision of the Governor shall be final. In this case also
the opinion of the state Election Commission shall be sought.
8) Conclusion -
In the light of above mentioned discussion it becomes clear that the true test
to be applied to determine whether a person holds an office of profit or not
depends upon the extent of control the government exercises, whether the
government has power to appoint or dismiss, whether the salary paid out of
government fund or not, the salary which the person entitled to get must not
be compensatory in nature to bear out day to day expenses but it must confer
some gain to the person. One thing which must be bear in mind the objective
of disqualification is to avoid the conflict between the functionaries of state.
In the present scenario concept of separation of power becomes too thin
because the government function becomes so wide that it is not possible
for the government to work in its limited power which is given to the
government. And in these conditions it must be seen that there must not be
any conflict between the duties discharged by the person in their legislative
and executive capacity.Though our constitution have provisions that the
legislature could exempt any post to come under the preview of ‘office of
profit’ by making laws with retrospective effect. By giving such a wide
power to legislature it has constricted the scope of art.102 (1) (a) and
art.191 (1) (a). It becomes the usual practice of the governments which is in
majority to exempts the post on which there party members are appointed by
amending the laws.

-------------------
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