HIMANSHI GAREWAL

4th Year, BA.,LLB(Hons.)

BA0160018
ELECTION LAW
CASE COMMENTARY

JAYA BACHCHAN V/s. UNION OF INDIA, AIR 2006 SC 2119

INTRODUCTION

Disqualification of the member from either house of parliament on grounds of “office of profit”
is executed on the prime reason to tarnish the executive influence on the member, to ensure
independence and separation of powers. Disqualification of members of either house of
parliament on grounds of “office of profit” is stipulated in the Articles 102(1)(a) and 191(1)(a) of
the Indian Constitution. At present there is no explicit definition of “office of profit” yet for
guidance several definitions have been carved by the judiciaries. Following it, judiciary
interpretation of Articles 102(1)(a) and 191(1)(a) have three key considerations:

1. There is an office
2. Such office is potential in yielding profit
3. The office is under the control of State or Central government

In the case of Ramakrishna Hegde v. State of Karnataka1Ramakrishna was appointed as Deputy

Chairman of Planning Commission. The respondent claimed there is apparent profit attached to
the office as the petitioner has the position of cabinet rank thus eligible for several allowances,
inclusive of furnished free accommodation, chauffeur driven car and had the facility to travel the
world as State Guest. The Court ruled that allowances provided to the Ramakrishna is in the
embodiment of compensatory allowances and mere rank of Ramakrishna as cabinet minister does
not conclude he had pecuniary gain.

1
AIR 1993 Kant 54.
In the case of Divya Prakash v. Kultar Chand Rana and Another2 The respondent was appointed
as Chairman of the State Board of Education in honorary status. The election of respondent was
challenged on the grounds of office of profit. It was vehemently contented that although the
respondent did not receive any salary but the post had the scale of pay. The Court held that, the
respondent salary did not yield profit and moreover it was asserted by the Apex Court that, the
respondent held the rank in honorary status. Thus, prior to the Jaya Bachchan case, courts have
meticulously scrutinized every aspect pertaining to the office of profit to bring fair, reasonable
and justifiable disqualification on grounds of office of profit.

CASE BACKGROUND

List of Parties:

Petitioner: Jaya Bachchan

Respondent: Union of India

Judges:

Y.K Sabharwal

C.K Thakker

R.V. Raveendran

Decided at: Supreme Court of India

2
AIR SC 1975 SC 1067.

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SUMMARY OF FACTS

● The Government of Uttar Pradesh appointed Jaya Bachchan as the Chairperson of Uttar
Pradesh Film Development Council and appointed her as Cabinet Minister.
● With the elite ranks the facilities and scale pay provided to Jaya Bachchan are stated as
follows:
1. Honorarium at Rs 5000 per month
2. Daily allowance of Rs 600 per day within State and Rs. 750 per day outside state.
Rs. 10,000 for entertainment allowance.
3. Staff car with drivers. Residence and offices equipped with phones. One P.A and
two class IV employees.
4. Body guard
5. Free accommodation and free medical facilities to her and her family members.
6. Free accommodation in government circuits and houses and hospitality.

● Election Commission after referring to relevant facts and law held the rank of chairperson
wield by the petitioner is office of profit under the aegis of government of Uttar Pradesh.
Thus disqualified the petitioner from the house of Rajya Sabha.
● The petitioner contended that such facilities are decorative in nature and she never
utilized any facilities and claimed remuneration. Petitioner asserted she had travelled
several times but never claimed reimbursement. Further, she wields the ranks in honorary
status.

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LEGAL PROVISIONS

Article 102(1)(a) of the Indian Constitution

Article 191(1)(a) of the Indian Constitution

ISSUE RAISED

Whether Jaya Bachchan can be disqualified on account of wielded ranks of Chairperson of

Council and Cabinet Minister?

CRUX OF THE JUDGMENT

The Apex Court held that, the ranks wielded by the petitioner and facilities accorded to her such
as payment of honorarium, daily allowances in form of compensatory allowances, staff car with
driver and rent free accommodation are explicitly in the form of remuneration and a source of
pecuniary gain. Thus qualified for the office of profit. The Court emphasised, in pursuance to
determine whether the office yield profit, the utmost importance should be looked into the aspect
that “pecuniary gain is receivable” in nexus with the office thus in that circumstance the office
become office of profit, irrespective the pecuniary gain received or not. If the office carries with
it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual
expenses, then the office will be an office of profit for the purpose of Article 102(1)(a).3 This
principle has been settled since over half a century starting from Ravanna Subanna v. G.S

Kaggeerappa4 to Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa.5 Thus, the

3
Jaya Bachchan v. Union of India AIR 2006 SC 2119.
4
AIR (1954) SC 653.
5
(1971) 3 SCC 870.

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contention raised by the petitioner that she did not utilize any facilities and pay scale stood to be
declined by the Apex Court.

DETAILED COMMENTARY

Whether Jaya Bachchan can be disqualified on account of wielded ranks of Chairperson of

Council and Cabinet Minister?

The Judgement of the Apex Court is not plausible. As it is a well known fact that the definition
for “office for profit” is nowhere defined anywhere. Yet, from the Articles 102 and 191 of the
Indian Constitution wielding office for profit is one a requirements for disqualification, thus three
points needs to be satisfied for execution of disqualification:

1. There is an office
2. The office has the potential for yielding profit
3. The office is under the Central and State government

It is undebatable that Chairperson for Film Development Council of state is an office. In addition
Jaya Bachchan has been sanctioned to the rank of Cabinet Minister that explicitly comes under
the aegis of office. In pursuance, she has been accorded with several requisite facilities, these are,
Honorarium of Rs. 5000 per month, daily allowance at Rs. 600 each day within the State and Rs.
750 each day outside the State. She was entitled to Rs. 10,000/- for entertainment expenditure.
Staff car with driver, offices and residence equipped with telephones. One P.A, 2 class IV
employees and bodyguard. Facilities such as free accommodation and medical treatment
facilities for her and family members. While on tour she received free accommodation in
government circuit houses/ guest houses and hospitality. The above mentioned facilities cannot
be efficiently said as yielding profit entirely. In accordance with Section 2(a) in The Parliament
(Prevention of Disqualification) Act, 1959 defines “compensatory allowance” as

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 “means any sum of money payable to the holder of an office by way of daily allowance [such
allowance not exceeding the amount of daily allowance to which a member of Parliament is
entitled under [the Salary, Allowances and Pension of Members of Parliament Act, 1954 (30 of
1954)],any conveyance allowance, house rent allowance or travelling allowance for the purpose
of enabling him to recoup any expenditure incurred by him in performing the functions, of that
office6”

In addition, in absence of definition to “office of profit” there have been several judicial derived
definitions for the guidance. In the case of Shibu Soren v. Dayanand Sahay And Others7 The
Apex Court held that, the office of profit connotes pecuniary gain, other than as “compensation”
that defray his out of pocket expenses, that have the potential to bring that person under the
influence of the executive, who is bestowing such benefit on him. Thus, if a member is receiving
compensatory allowance, that person shall not be disqualified on grounds of “office of profit”

In the instant case, Jaya Bachachan was receiving facilities in the embodiment of compensatory
allowance and essentially for the purpose of official duties. Facilities such as Honorarium, daily
allowances come under the aegis of compensatory allowances. Staff cars with drivers, offices
and residences equipped with telephones are provided with the intention for the use of official
duties. As the positions of Chairpersonship and Cabinet Minister require immediate responses
and arduous works for which these facilities are indeed propitious. As Jaya Bachchan herself
admitted that she has travelled several times in association with her works as Chairperson. Free
accommodation provided and medical treatment provided are to be used when carrying out
official duties. It is pertinent to note that the positions of Chairperson and Cabinet Minister are
honorary positions. It is carried out for the welfare of society and public interest. Allotment of
facilities such as free accommodation and medical facilities are provided in embodiment of
compensatory allowances. Further, the rank of these positions are honorary in nature, when a
person exercising duties for the welfare of society and public interest allotment of such facilities

6
The Parliament (Prevention of Disqualification) Act, 1959, § 2(a), No. 10, Acts of Parliament, 1959(India).
7
2001 (7) SCC 425.

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become indispensable in pursuance for the safety and hassle free works. Likewise, Chairperson
and Cabinet Ministers have immense works for which they are required to have tours. In such
official cases allotment of free accommodation in government circuit houses and hospitality are
indispensable. Nature of works exercised by Chairperson and Cabinet Ministers the allotment of
such facilities are necessary for their safety and hassle free. Thus these facilities are in
embodiment of compensatory allowances and essentially exercised during their official duties.
Seemingly, compensatory allowances do not incur pecuniary gain. Moreover, previously in the
other cases the Apex Court has set a precedent that pecuniary gain must be substantial that it has
the tendency to bring that person under the influence of the executive, who is bestowing such
benefit on him. The said facilities provided to Jaya Bachchan immensely lack executive
influence on her as these facilities have no power to have executive influence on her. These
facilities are merely provided for official purposes essentially for safety and hassle free works.
Thus, the pecuniary gain cannot be said to have incurred. Hence, the Apex Court has erred by
interpreting the said facilities as non-compensatory allowances and as deriving pecuniary gain.

Secondly, Jaya Bachchan explicitly asserted that despite these facilities provided to her she never
utilized any of them. Appropriately, she admitted the positions of Chairperson and Cabinet
Minister in honorary status. She diligently carried out her duties without utilizing any of the
facilities provided to her. Her affluent status is not an issue that interevens. The prime point
highlighted by the Apex Court that, when pecuniary gain is receivable in nexus with office it
becomes “office of profit” irrespective of the said pecuniary gain received or not. Jaya Bachchan
was entitled to all such facilities, honorarium and daily allowances and she has the right to utilize
them. But she denied to use any such facilities hence waived her right. Jaya Bachchan being an
affluent person is capable herself for all these facilities. In its realistic manner, she has not
utilized any such facilities and did not claim for any reimbursement during exercising official
duties. Although she could claim such facilities, she did not. In a realistic viewpoint she was
entitled to facilities but she did not exercise any of such rights over facilities. In conclusion, in
literal sense she did not receive any pecuniary gain. Relying on the mere notion of

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“receivability” is not plausible. A person must have exercised the rights over facilities. A person
can choose to utilize facilities on their own expenses or exercise facilities accorded to them by
the government. When pecuniary gain is declined by her by choosing to utilize facilities at her
own expenses she cannot be said to utilize pecuniary gain arising from the office. The Apex
Court needs to have an holistic view in pursuance to bring justice to light. Jaya Bachchan's
intention can be evaluated by her choice for not utilizing any facilities provided to her on account
of her rank. It is evident that her intention was not for any pecuniary gain but to hold position
honorily. The prime reason for disqualifying a person from membership to either house of
Parliament on grounds of “holding office of profit” is to tarnish the possibility of executive
influence on the person, to ensure the independence and separation of powers. Facilities provided
to Jaya Bachchan have negligible potential to have executive influence on her. But, the prime
reason behind such facilities are ensuring safety and hassle free works exercised during official
duties. Thus, the Apex Court needs to scrutinize each aspect pertaining to issue of “office of
profit” such as:

1. Whether there is office

2. Whether such office has the potential of yielding profit
3. Whether such profit is under the State or Central government
4. Whether the facilities and pay scale provided are indispensable to the job title of the
holder
5. Whether the facilities and pay scale provided are in embodiment of compensatory
allowances or non-compensatory allowances
6. Whether these facilities and pay scale have the potential to have executive influence over
member
7. Whether the member has utilized any such facilities and pay scale in pursuance to state
pecuniary gain from office of profit
8. Whether the member was holding the rank as honorary position

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The Apex Court needs to expand the conditions justifiably for determining whether the member
has derived pecuniary gain from the office of profit. Thus, the Apex Court has erred to have an
holistic view in the case of Jaya Bcahchan that conclusively led to unjustifiable judgement. She
must not be disqualified primarily because there were negligible real threats of executive
influence over her and secondly while considering meticulously over facilities and pay scale
provided to her on account of her ranks are in embodiment of compensatory allowances, aimed
for safety and hassle free works while exercising official duties. Compensatory allowances
cannot have the competency to yield pecuniary gain from office of profit. Thus, the Apex Court
has erred in incorporating a holistic view in case of Jaya Bachchan to bring justice to light.

SUBSEQUENT DEVELOPMENT AND CONCLUSION

The chief development taken place in the sphere of “profit of office” is the amendment to “The
Parliament (Prevention of Disqualification) Act, 1959” now, the said Act defines explicitly
“compensatory allowances” assisting courts without ambiguity to determine whether the member
is provided any pay scale and facilities in embodiment of compensatory allowances. Thus,
excluding them from disqualification on the grounds of office of profit. Secondly, the Act
stipulates certain offices that are liberated from disqualification on grounds of office of profit.

As whole the Act aims at bringing disqualification on grounds of office of profit on justifiable
principles. Essentially, the Act stipulates exemption of Chairpersons of the National Commission
for the Scheduled Caste and National Commission for the Scheduled Tribes from incurring any
disqualification from being an MP. This amendment reflects the 89th amendment to the
Constitution that bifurcated the National Commission for the Scheduled Castes and Scheduled
Tribes into two independent Commissions. Thus, amendment to the Act was indispensable in
pursuance to exclude the Chairpersons of these two commissions from incurring any
disqualification from being an MP.

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Second chief development in the sphere of office of profit is “Joint Committee on Office of
Profit” that is a standing committee of Parliament whose primary objective is to examine offices
that should be granted exemption from disqualification under the Parliament (Prevention of
Disqualification) Act, 1959. The said committee recommended that the legislation pertaining to
profit of office must include a schedule that stipulates the offices that are exempt from
disqualification. The committee asserted that such a schedule can never be exhaustive because of
ever dynamic situations. Therefore, the Committee also proposed setting up of a Standing
Committee of the Parliament which would continuously scrutinise various offices.

Thus cases relating to the office of profit should be scrutinized meticulously to ensure fair,
reasonable and justifiable disqualification of members from both houses of Parliament, in that
pursuance the Court must observe every aspect of issues as above mentioned pertaining to the
office of profit.

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