76 Practice and Procedure of Parliament

CHAPTER VI

Office of Profit

The concept of disqualification of a holder of an Office of Profit under the

Government for being chosen as, and for being, a Member of Legislature originated
from the need of a democratic Government to limit the control or influence of the
Executive over the Legislature.1 The provision is designated to protect the democratic
fabric of the country. Further, holding of certain offices was considered incompatible
with membership of legislatures due to physical impossibility of a person attending
at two places, or heavy duties being attached to those offices. Exception was, however,
made in the case of Ministers and other members of Government – with a view to
having an effective coordination between the Executive and the Legislature.
Constitution of India vide articles 102(1) and 191(1) provides for disqualification
of a person for being chosen as and for being a member of either House of Parliament
and State Legislature if he holds an Office of Profit under the Union or the State
unless the Parliament or the State Legislature declares by law that such office does
not disqualify its holder.
Unless otherwise declared by Parliament by law, a person is disqualified for
being chosen as, and for being, a member of either House of Parliament if he holds
any office of profit under the Government of India or the Government of any State2.
If any question arises as to whether a member of Parliament has become subject to
any of the disqualifications laid down in the Constitution, including the one whether
he is holding an office of profit or not, the question is referred for the decision of the
President and his decision is final. However, before giving any decision on any such
question, the President is required to obtain the opinion of the Election Commission
and shall act according to such opinions3. It is important to note that in this matter
the President does not act on the advice of his Council of Ministers.
The underlying object of this constitutional provision is to secure the
independence of the members of Parliament or a State Legislature and to ensure that
Parliament or the State Legislature does not consist of persons who have received
favours or benefits from the Executive Government and who consequently, being

1. Third Report of the Joint Committee on Offices of Profit (Second Lok Sabha)
2. Art. 102(l)(a). The corresponding provision for State Legislatures is art. 191(l)(a). The Constitution
(Forty-second Amendment) Act, 1976, amended article 102(l)(a) of the Constitution, relating to
‘Office of Profit’. According to the amended article, a person shall be disqualified for being
chosen as, and for being, 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 as is declared by Parliament by
law to disqualify its holder. However, article l02(l)(a), as it stood prior to the enactment of the
Constitution (Forty-second Amendment) Act, 1976 was restored by the Constitution (Forty-fourth
Amendment) Act, 1978.
3. Art. 103 as substituted by the Constitution (Forty-second Amendment) Act, 1976, and the
Constitution (Forty-fourth Amendment) Act, 1978.
 Office of Profit 77

under an obligation to the Executive, might be amenable to its influence. Obviously,

the provision has been made in order to eliminate or reduce the risk of conflict
between duty and self-interest among the legislators4.
If the Executive Government were to have untramelled powers of offering to a
member any appointment, position or office which carries emoluments of one kind or
the other with it, there would be a risk that an individual member might feel himself
beholden to the Executive Government and thus lose his independence of thought and
action and cease to be a true representative of his constituents5.
Any restrictions which Parliament may deem necessary to impose upon its
members have to be contained in legislation that is in a form easily interpreted by, and
readily available to, those who may be directly affected.
Although certain enactments had been passed by Parliament, keeping in view
the provisions of article 102 (1)(a), it was widely felt that none of the acts met
comprehensively the needs of the situation6. In this background and following the
presentation from members of Parliament, Speaker G.V. Mavalankar, in consultation
with the Chairman of the Rajya Sabha appointed, on 21 August 1954, a Committee
on Office of Profit under the Chairmanship of Pt. Thakur Das Bhargava to:
study various matters connected with disqualification of members and
to make recommendations in order to enable the Government to consider the
lines along which a comprehensive legislation should be brought before the
House; and
collect facts, data and make suggestions as to how the matter should
be dealt with7.
The Committee (hereinafter referred to as the Bhargava Committee), in their
Report, had observed that ordinarily members of Parliament should be encouraged to
go on such Committees which are of an advisory character and represent the local or
popular point of view in a manner which will effectively influence the officials’ point
of view. Members of Parliament by virtue of their membership are in a position to
say and represent certain matters with some authority and confidence, and their views
are likely to go a long way in influencing the view-point of officials. It is at the same
time felt that consistent with the above view, members of Parliament should not be
permitted to go on Committees, Commissions, etc. which jeopardise their independence
or which will place them in a position of power or influence or in a position where
they receive some patronage from Government or are themselves in a position to
distribute patronage8.

4. Deorao Laxman Anande v. Keshav Laxman Borker, A.I.R. 1958 Bombay 314; see also Hansa
Jivaraja Mehta v. Indubhai B. Amin, 1 E.L.R. 171.
5. In the matter of Vindhya Pradesh Legislative Assembly Members, 4 E.L.R. 422(43 1).
6. These enactments were: the Parliament (Prevention of Disqualification) Act, 1950; the Parliament
(Prevention of Disqualification) Act, 1951; and the Prevention of Disqualification (Parliament and
Part C States Legislatures) Act, 1953.
7. Report of the Committee on Offices of Profit (Bhargava Committee), Part I, p. 2.
8. Ibid., Part 1, p. 33. Also see, Lok Sabha Secretariat: Office of Profit under the Government :
A Disqualification for Membership of Parliament, 1997.
78 Practice and Procedure of Parliament

The Committee recommended, inter alia, the introduction of a

comprehensive Bill having schedules enumerating the different offices which
should not incur disqualification, offices to which exemption was to be granted,
and offices which would disqualify9. The Bhargava Committee felt that since
a schedule of that nature could never be exhaustive or complete and frequent
scrutiny would have to be made in cases of new bodies as well as the
existing ones, a standing Parliamentary Committee should be appointed to
undertake the work of such continuous scrutiny10.
In pursuance of the recommendations of the Bhargava Committee, the
Government introduced in the Lok Sabha the Parliament (Prevention of Disqualifi-
cation) Bill on 5 December 1957. It was referred to a Joint Committee of the Houses
and its Report was presented to the Lok Sabha on 10 September 1958.
The Bill, as introduced, did not contain any Schedules as recommended by the
Bhargava Committee. The Joint Committee felt that the enactment should contain a
Schedule enumerating the Government Committee whose membership would disqualify.
The Joint Committee, accordingly, proposed a Schedule to the Bill, Part I of which
enumerated the Committees, membership of which would entail disqualification and
Part II, the Committees in which the office of Chairman, Secretary, or member of the
Standing or Executive Committee would entail disqualification. The Joint Committee
reiterated the recommendation of the Bhargava Committee for the appointment of a
standing Parliamentary Committee to undertake the work of continuous scrutiny of
the Schedule and of examining new offices11.
The Bill, as further amended and passed by Parliament, received the assent of
the President on 4 April 195912.
Keeping in view the cardinal principle that the disqualifications for membership
should be on as wide a basis as possible, the three chief principles which operate as
the main considerations affecting the law on the subject are:
incompatibility of certain non-ministerial offices with membership of
the House (which must be taken to cover the question of a member’s relations
with, and duties to, his constituents);
the need to limit the control or influence of the Executive Government
over the House by means of an undue proportion of office holders being
members of the House; and

9. Ibid., p. 39.
10. Ibid., p. 38.
11. Report of the Joint Committee on the Parliament (Prevention of Disqualification) Bill, 1957, p.
vii.
12. The Parliament (Prevention of Disqualification) Act, 1959, repealed the earlier enactments on the
subject. Besides the Parliament (Prevention of Disqualification) Act, 1959 that takes various
offices outside the purview of articles 102(1)(a) and 191(1)(a), specific provisions exist by way
of declaratory clauses made in particular enactments to the effect that offices created thereunder
are deemed not to be an Office of Profit within the meaning of these articles. Some of these
enactments include the Coffee Act, 1942, the Rubber Act, 1947, the Press Council Act, 1978, and
the Wakf Act, 1995. [P.D.T. Achary : The Law on Offices of Profit, The Parliamentarian, 2007,
(Issue Three, India), p. 39].
 Office of Profit 79

the essential condition of a certain number of Ministers being members

of the House for the purpose of ensuring control of the Executive by
Parliament13.
For the duration of each Lok Sabha, a Joint Committee on Offices of Profit is
set up to examine the composition and character of all ‘Committees’ subsequent to the
ones examined by the Joint Committee to which the Parliament (Prevention of
Disqualification) Bill, 1957, has been referred, membership of which may disqualify
a person for being chosen as and for being a member of Parliament, and make
necessary recommendation in that regard14.
Before the constitution of this Committee, it was left to the Government to
make necessary proposals in this connection in the shape of a Bill which was brought
before Parliament. The main criterion taken into consideration by the Government to
examine whether an office was an office of profit or not was the emoluments that a
member was likely to receive if he held such an office. It was not a satisfactory
position, insofar as other aspects of the matter such as position, power or patronage
enjoyed by the holder of that office were also relevant factors to be taken into account
even though there might not be any monetary advantage to the holder. Further, any
Act on the subject could never be comprehensive inasmuch as, though it would
crystalise the position on a particular date, cases might arise thereafter needing scrutiny.
The Bhargava Committee had proposed that this matter should be taken out of the
sphere of the Executive and vested in a Parliamentary Committee which could take
an overall view, both politically and legally. Accordingly, the position was being kept
under constant review by the Joint Committee on Offices of Profit which made
recommendations in the matter from time to time15.
Some of the important recommendations made by the Committee were:
In order to obviate the danger of members of Parliament incurring
disqualification, Government should issue instructions16 to all the Public
Undertakings, whether fully or partially owned by them, to provide in their
rules that M.P.s serving on them shall not be entitled to any sum of money

13. Report from the Select Committee on Offices or Places of Profit under the Crown, H.C. 1941, p. 13.
14. The Joint Committee on Offices of Profit (JCOP) was constituted for the first time during the
Second Lok Sabha in August 1959. Thereafter, it was constituted in June 1962 (3rd L.S.), June
1967 (4th L.S.), July 1971 (5th L.S.), December 1980 (7th L.S.), May 1985 (8th L.S.), May 1990
(9th L.S.), September 1991 (10th L.S.), August 1996 (11th L.S.), July 1998 (12th L.S.). December
1999 (13 L.S.), August 2004 (14 L.S.) and December, 2009 (15th L.S. (No such Committee was
constituted during the Sixth Lok Sabha).
15. For detailed working of the (JCOP) see Chapter XXX—Parliamentary Committees. The Joint
Committee presented five Reports each during the terms of the Second and the Third Lok Sabha,
seven Reports during the Fourth Lok Sabha, nineteen Reports during the Fifth Lok Sabha, twelve
Reports during the Seventh Lok Sabha, nine Reports during the Eighth Lok Sabha, thirteen
Reports during the Tenth Lok Sabha, three Reports during the Eleventh Lok Sabha, one Report
during the Twelfth Lok Sabha, eight Reports during Thirteenth Lok Sabha and eleven reports
during the Fourteenth Lok Sabha. During the Fifteenth Lok Sabha, eleven reports were presented.
16. The Government of India issued such instructions vide Ministry of Finance (Deptt. of Expenditure)
O.M. No. F. 6 (26)-E 1V/39, 5-9-1960.
80 Practice and Procedure of Parliament

other than ‘compensatory allowance’ as defined in section 2(a) of the

Parliament (Prevention of Disqualification) Act, 195917.
The Parliament (Prevention of Disqualification) Act, 1959 should also
enumerate in its Schedule the bodies whose membership would disqualify a
person for being chosen as, or for being, a member of either House of
Parliament18.
The existing Parts I and II of the Schedule to the Parliament (Prevention
of Disqualification) Act, 1959 may be combined into one part so that the
Chairmen and Secretaries of all the bodies enumerated therein are excluded
from exemption from disqualification. A new part may be added in the
Schedule to the Act wherein those bodies may be specified whose Secretaries
alone are not exempted from disqualification19.
On 21 December 1973, the Government introduced in the Lok Sabha the
Parliament (Prevention of Disqualification) Amendment Bill, 197320. The Bill sought
to implement the recommendations of the Joint Committee made during the Second,
Third and Fourth Lok Sabha. Before introduction in the House, the Bill was considered
by the Joint Committee and revised in the light of its observations. The Bill was
passed by the Lok Sabha on 17 December 197421, and transmitted to the Rajya Sabha
on 18 December 1974. It was pending in the Rajya Sabha till 18 January 1977, when
on dissolution of the Lok Sabha, Bill lapsed as per the provision of article 107(5) of
the Constitution.
Again on 19 May 1983, the Ministry of Law, Justice and Company Affairs
forwarded a draft Parliament (Prevention of Disqualification) Amendment Bill, 1983
seeking to implement the recommendations of the Joint Committee on Offices of
Profit contained in their (forty) Reports presented upto 11 August 1982. The Joint
Committee considered the draft Bill and adopted their Tenth Report thereon on
27 April 1984 which was presented to the Lok Sabha and laid in the Rajya Sabha on
7 May 1984. The Bill inter alia sought to amend section 3 of the principal Act by
substituting two schedules instead of one and incorporating various bodies
recommended for disqualification. The draft Bill has not, however, been introduced
in the Parliament so far.
To give effect to the recommendations of the Committee made in their Second
Report (Tenth Lok Sabha), the Parliament (Prevention of Disqualification) Act, 1959
was amended in 1993.
Further amendments in the Act were also carried out in 199922, 200023 and
24
2006 . The Parliament (Prevention of Disqualification) Amendment Bill, 2013

17. 1 R (JCOP—2LS), p. viii, paras 17-18.

18. 3 R (JCOP – 2LS), p. 2, para 10.
19. 1 R (JCOP – 3LS), p. 4, para 18.
20. L.S. Deb., 21-12-1973, c. 241.
21. Ibid., 17-12-1974, c. 418.
22. Section 5 of The Leaders and Chief Whips of Recognised Parties and Groups in Parliament
(Facilities) Amendment Act, 1998.
23. Section 5 of The Leaders and Chief Whips of Recognised Parties and Groups in Parliament
(Facilities) Amendment Act, 2000.
24. The Parliament (Prevention of Disqualification) Amendment Act, 2006.
 Office of Profit 81

providing for protection to the Offices of National Commission for the Scheduled
Castes and National Commission for Scheduled Tribes separately, which hitherto
protected under one Commission i.e. National Commission for the Scheduled Castes
and Scheduled Tribes was passed by Rajya Sabha and Lok Sabha on 22 August 2013
and 06 September 2013, respectively.
In the usual sense of the word, an ‘office’ means “a right to exercise a public
or private employment and to take fees and emoluments thereunto belonging”25.
The expression “Office of Profit” only means an office which yields income or
profit. The word “office” has been a subject matter of judicial consideration as back
as in 1922. The expressions26 “office” or ‘employment’, defined by justice Rowlatt
as one subsisting permanent, substantial position – which had an existence independent
from the person who filled it, which went on, and was filled in succession by the
successive holders.
“Profit” normally connotes any advantage, benefit or useful consequences.
Generally, it is interpreted to mean monetary gain but in some cases benefits other
than monetary gain may also come within its meaning. “Office of Profit” is one to
which some power of patronage is attached or in which the holder is entitled to
exercise the executive functions, or which carries dignity, prestige or honour to the
incumbent thereof.
The expression “Office of Profit” has not been defined in the Constitution or
in the Representation of the People Act, 1951, or in the Parliament (Prevention of
Disqualification) Act, 1959, evidently because it is not easy to frame an all embracing
definition, covering all the different kinds of posts which exist under Government and
those which might hereafter be created. Broadly speaking, it signifies that Government
must not be in a position to seduce a member by placing him in a position where he
can exercise authority, where he thinks he is somebody important, even if he gets no
pecuniary remuneration27. However, courts and other authorities have enunciated certain
broad criteria in this connection in their judgments from time to time, and these are
set out as follows:
Three things have to be proved before a person can be held to incur
disqualification—that he holds an office; that it is an office of profit; and that
it is an office under the Government of India or the Government of a State28.
In order to bring a case for disqualification, the ‘element of profit’ is
not enough by itself. It must first be proved that what was held was an
‘office’.

25. Stroud’s Judicial Dictionary (1953 Edition).

26. Great Western Railways Co. v. Bater (1922) Tax Cases 231
27. See H.P. Deb., 24-12-1953, c. 3114.
28. Deorao Laxman Anande v. Keshav Laxman Borker, op. cit., see also Bhaironlal v. Doongarsidas,
A.I.R. 1959 Rajasthan 250; and S. Umrao Singh v. Darbara Singh, A.I.R. 1968 Punjab and
Haryana 450.
82 Practice and Procedure of Parliament

Further, the essential requirement is that the candidate himself must

hold the ‘office’. The ‘office’ cannot be held in benami29.
An “office of profit” means an employment with fees and emoluments
attached to it30. Hence, where pay or salary is attached to an office, it
immediately and indisputably makes the office an “office of profit”31.
In order that an office may be “an office of profit” it is not necessary
that there must be some sort of regularity of income; neither is it necessary
that there should be actual making of profit by the incumbent; it is enough
if the holder of the office may reasonably be expected to make a profit out
of it32.
The Rajasthan High Court held:
In order that an office may be an office of profit, it is not necessary
that there must be a fixed pay attached to the office. If the holder of the
office can charge any fee or remuneration for exercising the functions of his
office, he holds an office of profit33.
The word “profit” in the present context does not necessarily mean any
remuneration in cash, but it certainly means some kind of advantage or gain
which is tangible or which can be perceived. Hence, the mere influence
which one gains by virtue of his position as member of a Committee which
has no remuneration attached to it, is not profit within the meaning of article
102 or 191, and the member of such a Committee would suffer no
disqualification by being a member thereof34.
To constitute an “office of profit” for the purpose of incurring
disqualification, prestige and like advantages alone attached to the office will
not suffice. Pecuniary advantage is an essential element, and once there is or
there can be pecuniary gain, its quantum is immaterial35.
The expression “office of profit” has been held to mean an office
capable of yielding a profit or from which a man might reasonably be expected
to make a profit. The actual making of profit is not necessary. Profit means
gain or any material benefit, and the amount of such profit is immaterial36.
The essential characteristics of an “office of profit” are—it involves an
appointment by the State in one form or the other; it carries emoluments

29. Yugal Kishore Sinha v. Nagendra Prasad Yadav, A.I.R. 1964 Patna 543.
30. Bejaysingh v. Narbada Charan Lal, 2 E.L.R. 426; see also Ravanna v. Kaggudappa, A.I.R. 1954
S.C. 653 (657).
31. Bhargava Committee Report, Part I, p. 11.
32. Thakur Daoosing v. Ramkrishna Rathor, 4 E.L.R. 34.
33. Hotilal v. Rai Bahadur, 15 E.L.R. 55.
34. Chander Nath v. Kunwar Jaswant Singh, 3 E.L.R. 1947.
35. Shivaram Keoranthi v. Venkataramana Gowda, 3 E.L.R. 187, see also Upendra Lal v. Smt.
Narainee Devi, A.I.R. 1968 Madhya Pradesh 89.
36. Deorao Laxman Anande v. Keshav Laxman Borker, op. cit.
 Office of Profit 83

payable mostly periodically; it is for a limited period; it is terminable; it is

not assignable; it is not heritable; and the holder of the office must be sui
juris37.
The emoluments may be in the nature of pay, salary, honorarium, fees, daily
allowance, travelling allowance, reimbursement of expenses or compensatory allowance.
As already stated, where pay or salary is attached to an office, it
immediately and indisputably makes the office an “office of profit”38.
If consideration is paid in the shape of ‘sitting fee’ or ‘attendance fee’,
not being daily allowance, it becomes a ‘profit’ inasmuch as it does not even
purport to cover any actual expenses. Such consideration or remuneration is
deemed to constitute ‘profit’ even though, on detailed accounting, it may be
found that no financial advantage has, in fact, been gained by the member
in question39.
Travelling allowances do not act as a disqualification if one draws not more
than what is required to cover the actual out-of-pocket expenses. House rent allowance
and conveyance allowance are not profits as the allowances are utilised for the purposes
of paying the house rent and meeting conveyance charges; they do not give a pecuniary
benefit to the person to whom they are paid. If the quantum of daily allowances is
such as not to be a source of income, no disqualification shall be incurred40.
The payment of a ‘sitting fee’ of Rs. 25 in addition to travelling allowance/
daily allowance has been deemed to constitute ‘profit’41. Even when the amount
payable by way of sitting fee/daily allowance is well below the ‘compensatory
allowance’42, in coming to a conclusion whether an office ought to be exempted from
disqualification, the Joint Committee on Offices of Profit have taken into account,
besides ‘compensatory allowance’, other criteria such as whether the office involves
exercise of executive and financial powers and thereby enables the holder to wield
influence and patronage43. Where the holder of an office is not in a position to wield
this influence and patronage and is also not entitled to any remuneration other than
the ‘compensatory allowance’, he does not incur disqualification by receiving the
allowance.

37. Election Tribunal Ajmer, in Gulam Chand Chordia v. Thakur Narain Singh, 6 E.L.R. 397.
38. Bhargava Committee Report, Part I, p. 11.
39. Chief Election Commissioner, in the matter of Vindhya Pradesh Legislative Assembly Members,
4 E.L.R. 422.
40. Bhargava Committee Report, Part 1, pp. 11-12.
41. 5R (JCOP—4LS), para 16.
42. Compensatory allowance 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 Salaries and Allowances of Members of Parliament Act, 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 office—-see
Parliament (Prevention of Disqualification) Act, 1959, s. 2(a).
43. 1R (JCOP—5LS), para 26.
84 Practice and Procedure of Parliament

The Joint Committee on Offices of Profit have been following the undernoted
criteria for deciding the question as to which of the offices should disqualify and
which should not disqualify a person for being chosen as and for being a member of
Parliament:
(i) Whether the holder draws any remuneration like sitting fee, honorarium,
salary, etc., i.e. any remuneration other than the ‘compensatory allowance’ as
defined in section 2(a) of the Parliament (Prevention of Disqualification)
Act, 1959;
[The principle thus is that if a member draws not more than what is required
to cover the actual out-of-pocket expenses and does not give him pecuniary
benefit, it will not act as a disqualification];
(ii) 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
(iii) Whether the body in which an office is held wields influence or power by
way of patronage.
If reply to any of the above criteria is in the affirmative, then the offices in
question will entail disqualification44.
A person appointed to an office to which some remuneration is attached incurs
disqualification whether he accepts payment or not45.
The word “office” does not necessarily imply that it must have an existence
apart from the person who may hold it. There could be cases where in order to make
use of the special knowledge, talent, skill or experience of certain persons, posts are
created which exist only for so long as these persons hold them. It will be difficult
to hold that such persons are not holders of offices. Hence, the mere fact that a post
which a person holds will cease to exist as soon as he gives it up or that another
person cannot be appointed to that post is not a ground for holding that the person
does not hold an “office”46.
In this connection, the Supreme Court observed :
The word “office” has various meanings depending upon its context. The words “its
holder” occurring in article 102(1)(a) or 191(l)(a) indicate that there must be an office which
exists independently of the holder of the office. Further, the very fact that the Legislature of
a State has been authorised by article 191 to declare an office of profit not to disqualify its
holder, contemplates existence of an office apart from its holder. In other words, the Legislature
of a State is empowered to declare that an office of profit of a particular description or name
would not disqualify its holder and not that a particular holder of an office of profit would not
be disqualified47.

44. 10 R (JCOP—7LS), paras 10.5 and 10.6.

45. Bhargava Committee Report, Pt. I. p. 13.
46. Deorao Laxman Anande v. Keshav Laxman Borker, op. cit.
47. Smt. Kanta Kathuria v. Manak Chand Surana, A.I.R. 1970, S.C. 694.
 Office of Profit 85

The Allahabad High Court has held that the engagement of a person by the All
India Radio as a Part-Time Correspondent did not amount to his appointment to an
office, where the duties of Part-Time Correspondent were assigned to him in his
individual capacity for the time being and after the termination of his employment no
one was employed as Part-Time Correspondent48.
A person incurs disqualification only if he holds an office of profit under the
Government of India or the Government of a State49. No such disqualification is
incurred if the office is held under any local or other authority subject to the control
of the said Government. Holding office under statutory corporations need not
necessarily mean holding office under the Government even though the initial capital
of the corporations is contributed by the Government, the members of the corporation
are appointed by the Government and the Government have very large powers of
control and supervision over the activities of the corporation50.
However, the Supreme Court in A.K. Bhattacharya’s case51 seems to lay emphasis
on the measure and nature of control of the Government on the local body in
determining whether an office therein is an office of profit or not:
The principle behind the provision in article 102 (1) (a) is that there should not
be any conflict between the duties and the interest of an elected member. In order to
judge whether employees of any local authority or other authority under the control
of Government become holders of office of profit under the Government for the
purpose of article 102(1) (a), the measure and nature of control exercised by the
Government over the employee must be judged in the light of the facts and
circumstances in each case so as to avoid any possible conflict between his personal
interests and duties of the Government.
The object of enacting provisions like article 302(1)(a) is that a person who is
elected to Parliament or a Legislature should be free to carry on his duties fearlessly
without being subjected to any kind of governmental pressure. The measure of control
by the Government over a local authority should be judged in order to eliminate the
possibility of conflict between duty and interest and to maintain the purity of the
elected bodies.
It has also been held by the Supreme Court that all the determinative factors
need not be conjointly present. The critical circumstances, not the total factors, prove
decisive. A practical view, not pedantic basket of tests, should guide in arriving at a
sensible conclusion52.

48. Brahma Dutt v. Paripurna Nand Painuli A.I.R. 1972, Allahabad 340.
49. Art. 102(1)(a).
50. Madras High Court in Narayanaswamy Naidu v. Krishna Murthy, 14 E.L.R. 21.
51. Ashok Kumar Bhattacharya v. Ajoy Biswas, A.I.R. 1985, S.C. 211.
52. Madhukar G.E. Pankakar v. Jaswant Chobbidas Rajan, A.I.R. 1976, S.C. 2283.
86 Practice and Procedure of Parliament

The Supreme Court, in several decisions53, has laid down the tests for finding
out whether an office in question is an office under a Government and whether it is
an Office of Profit. Those tests are: (i) Whether the Government makes the appointment;
(ii) Whether the Government has the right to remove or dismiss the holder;
(iii) Whether the Government pays the remuneration; (iv) What are the functions of
the holder—Does he perform them for the Government; and (v) Does the Government
exercise any control over the performance of those functions54.
A distinction is ought to be made between the holder of an Office of Profit
under the Government and holder of a post or service under the Government.
To determine whether an office is under the Government, it is not necessary to
see whether the Government have some disciplinary or supervisory powers over the
incumbent of the office55.
For the purpose of determining whether an Office of Profit is under the
Government, primarily it has to be seen whether Government have the power to
appoint a person to that office and remove him from that office. In this connection,
the Supreme Court, in one of the cases, observed:
The power of the Government to appoint a person to an Office of Profit or to continue
him in that office or revoke his appointment at their discretion, and payment from out of
Government revenues, are important factors in determining whether that person is holding an
Office of Profit under the Government, though payment from a source other than Government
revenues is not always a decisive factor56.

Elaborating the case law on this point, the Supreme Court, in another case,
observed:
For holding an Office of Profit under the Government, one need not be in the service
of Government and there need be no relationship of master and servant between them.
The decisive test for determining whether a person holds any Office of Profit under the
Government is the test of appointment. It is not correct to say that the several factors which
enter into the determination of this question (that is, the appointing authority, the authority
vested with power to terminate the appointment, which determines the remuneration, the
source from which the remuneration is paid, and the authority vested with power to control
the manner in which the duties of the office are discharged and to give directions in that
behalf) must all co-exist and each must show subordination to Government and that if one of
the elements is absent, the test of a person holding an office under the Government, Union or
State, is not satisfied. The circumstance that the source from which the remuneration is paid
is not from public revenue is a neutral factor—not decisive of the question. Whether tests will
be held on one factor or the other will depend on the facts of each case. However, where the
several elements, the power to appoint, the power to dismiss, the power to control and give
direction as to the manner in which the duties of the office are to be performed, and the power

53. Maulana Abdul Shakoor v. Rikhab Chand & Anr./SCR (1958);

M. Ramappa v. Sangappa & Ors. SCR (1959); Guru Govinda Basu v. Shankari; Prasad Ghosal
& Ors/SCR (1964)
54. Shivamurthy Swami v. Sanganna, (1971) S.C.C. 870.
55. Chief Election Commissioner, in the matter of Vindhya Pradesh Legislative Assembly Members,
4 E.L.R. 422.
56. Maulana Abdul Shakoor v. Rikhab Chand, A.I.R. 1958 S.C. 52. See also Hansa Jivaraja Mehta
v. Indubhai B. Amin, 1 E.L.R. 171; and Krishnappa v. Narayan Singh, 7 E.L.R. 294.
 Office of Profit 87

to determine a question of remuneration are all present in a given case, then it must be held
that the officer in question holds the office under the authority so empowered57.

The Office of Profit for the purpose of disqualification must be under the
Government with the result that should the office be under some personality jurisdically
distinct from the Government, such an office would not attract disqualification58.
On a reference made by the President of India, the Chief Election Commissioner
opined that even if the office of the Mayor of Pondicherry was capable of being
regarded as an office of profit by virtue of the allowances attached to it, it could not
be regarded as an office under the Government. Therefore, a member of the Legislative
Assembly of Pondicherry was not disqualified for being a member by reason of his
holding the office of the Mayor of Pondicherry59.
The appointment made by an authority other than in his capacity in which he
exercises the executive power of the State, cannot be deemed to be an appointment
made by Government60. Thus, the office of Vice-Chancellor does not entail any disquali-
fication. The Vice-Chancellor is appointed by the Governor in his capacity as the
Chancellor of the University, distinct from his office as head of the Executive, and
the appointment is deemed not to have been made by, nor is the office of the Vice-
Chancellor said to be, under the State Government61.
Members of Parliament and State Legislatures have been held not to be holding
office of profit as they are neither appointed by the Government nor are they removable
by the Government although they draw their salaries and allowances from Government
revenues62.
For almost similar reasons, the Allahabad High Court has held that the Chairman
of the Legislative Council, Uttar Pradesh, does not hold any office of profit under the
State Government63.
Further, the Joint Committee on Offices of Profit, at their sitting held on 15 July
1988, decided that all the Ministries of Government of India and the State Governments
might be asked to obtain prior approval of the Speaker, Lok Sabha or the Chairman,
Rajya Sabha, as the case may be, before nominating any member of Parliament to any
Government Committee/Body unless the Act under which such Committee/Body has
been set up provides for appointment of member or where members of Parliament are
saved from incurring disqualification by the provisions in the relevant Act itself as is
the case with the Rubber Board, Coffee Board, Tea Board, etc.

57. Guru Gobinda Basu v. Sankari Prasad Ghosal, A.I.R. 1964 S.C. 254.
58. Gopala Kurup v. Samuel Arulappan Paul, 1961 K.I.J. 288.
59. E.L.R. Vol. XXVI, p. 297.
60. Joti Prasad Upadhyaya v. Kalka Prasad Bhatnagar, A.I.R. 1962, Allahabad 128.
61. Ibid.
62. Bholanath v. Krishna Chandra Gupta, 6 E.L.R. 104; Ramnarain Ramgopal Chamediya v. Shri
Ramchandra Jagoba Kadu, A.I.R. 1958, Bombay 325.
63. D.S. Awasthi v. Virendra Swaroop, A.I.R. 1976, Allahabad 26.
88 Practice and Procedure of Parliament

Thus, requests are received from the Central/State Governments seeking the
Speaker’s approval to the nomination of members of Parliament on various Committees/
Bodies constituted by them. These requests are placed before the Committee with a
view to examining whether the Office of Member/Director/Chairman of the Government
Body in question constitutes an Office of Profit under the Government which would
disqualify the member from being a member of Parliament. Requests from members
seeking clarification about the Office of Profit under Government are also examined
by the Committee and members are apprised of the decision of the Committee.
An assessor is not disqualified because he does not hold an Office of Profit
under the Government but merely gives assistance to the State in the administration
of justice64.
A person serving as a teacher in a grant-in-aid school does not hold an office
of profit under the Government merely because the school receives grants from the
Government for payment of a portion of the dearness allowance and the pay of
teachers. The most important test for determining whether an office is held under the
Government is whether the power of appointment and dismissal vests in the
Government65.
If a particular post is created by the Government and then a grant of land is
made to the person holding that post to remunerate him for his service in lieu of cash
payment, then it may be held that he is holding an office under the Government
because in such a case it is the office which is created first and then it is determined
by the Government how to remunerate the office holder for his services. If, however,
a grant of land is made by the Government to a certain person out of regard for his
meritorious service or some other personal consideration for the grantee and if in such
a case some service is also required from him, then it cannot be said that he is holding
any particular office under the Government. In the second case, he is primarily a
grantee and the service, if any, required from him is subsidiary and it is only a term
attached to that grant66.
An ex-Ruler of an Indian State who received a sum of money annually as privy
purse from the Union Government did not hold an office of profit under the Government
within the meaning of article 102 or 19167.
A person is disqualified for being chosen as a member of Legislature if he holds
an office of profit under the Government at the time of filing his nomination paper68.
The disqualification is not removed on his submitting an unqualified resignation of
his office or by ceasing to work but only when the resignation has been accepted by
the proper authority prior to the filing of the nomination paper69. The disqualification

64. Isher Singh v. Manjit Inder Singh, 7 E.L.R. 90; Faquir Chand v. Pritam Singh 7 E.L.R. 119;
Kishanlal Lamror v. Madan Singh, 10 E.L.R. 49.
65. Krishnappa v. Narayan Singh, 7 E.L.R. 294.
66. Bhaironlal v. Doongarsidas, A.I.R. 1959, Rajasthan, 250.
67. Daulatram v. Maharaja Anand Chand, 6 E.L.R. 87.
68. Election Tribunal, Behrampur, in Ram Murty v. Sumbha Sardar, 2 E.L.R. 330.
69. Ibid.
 Office of Profit 89

is not removed if the resignation has been accepted by an authority not competent to
accept it. In such a case, the acceptance of the resignation is invalid and the person
submitting his resignation will be disqualified since he must be considered to have
continued to hold office70.
As opposed to offices to which certain duties are attached more or less of a
permanent character, there are offices which are of a transient, occasional or contractual
nature, e.g., lawyers engaged by the Government; technical advisers to the Government
for specific projects; authors commissioned by the Government to write articles,
guide books, etc.; persons engaged in giving broadcasts from All India Radio; Medical
practitioner working as a Panel Doctors appointed under (ESI) Employees State
Insurance and the like.
The work of writing of a book by a member of Parliament is not an office and
payment of remuneration by the Government does not make it an Office of Profit
under the Government71. A lawyer who is an approved Railway pleader, that is, a
pleader who is engaged by the Government for conducting Railway cases, who does
not receive any retaining fee but only a fee for the cases conducted, does not hold an
office of profit under the Government72. Similarly, an advocate appointed as the
Special Government pleader to assist the Government pleader, in a particular case,
does not hold an Office of Profit73.
A person who undertakes to execute some work under the Public Works
Department and enters into a contract deed with the Government to that effect does
not hold office under the Government74.
Article 102 or article 191 recognises the power of Parliament or the Legislature
of a State to declare by law that the holder of an office would not be disqualified for
being chosen as a member. There is nothing in the words of either article to indicate
that this declaration cannot be made with retrospective effect. The word “declared”
in these articles does not imply any limitation on the powers of Parliament or the State
Legislature; declaration can be made effective as from an earlier date. In relation to
the power to validate election retrospectively by law, the Supreme Court observed—
It is true that it (the power) gives an advantage to those who stand when the
disqualification was not so removed as against those who may have kept themselves back
because the disability was not removed. That might raise questions of the propriety of such
retrospective legislation but not of the capacity to make such laws75.

According to the scheme for the conduct of elections, the Supreme Court has
held that the candidate should not be not-qualified or disqualified when the scrutiny

70. Election Tribunal, Rajnandgaon, in Thakur Daoosing v. Ramkrishna Rathor, 4 E.L.R. 34.
71. Joint Committee on Offices of Profit, First Report, 1963, p. 3. For details re. the formation and
functions of the Joint Committee on Offices of Profit, see Chapter XXX—‘Parliamentary
Committees.’
72. Election Tribunal, Allahabad, in Govinda Malviya v. Murli Manohar, 8 E.L.R. 89.
73. Kanta Kathuria v. Manak Chand Surana A.I.R 1970 S.C. 694.
74. Jaineswar Bora v. Returning Officer, A.I.R. 1975 Gauhati 61.
75. Kanta Kathuria v. Manak Chand Surana, A.I.R. 1970 S.C. 694 (at p. 698).
90 Practice and Procedure of Parliament

of nominations is taken up by the returning officer for the purpose of finalising the
list of nominated candidates. This, in the opinion of the Court, is the proper construction
to put on the words “the date fixed for the scrutiny of nominations”. A broad and
liberal interpretation must be given to S.3 6(2) (a) in order to give full effect to the
parliamentary intent. Accordingly, the Court held that as the resignation of appellant
must be treated as having taken effect before the scrutiny of the nominations was
commenced, the appellant cannot be regarded as holding an office of profit at the
relevant time76.
The object of enacting article 191(l)(a) is plain. A person who is elected to a
Legislature should be free to carry on his duties fearlessly without being subjected to
any kind of Government pressure. If such a person was holding the office which
brings him remuneration and the Government has a voice in his continuance in that
office, there was every likelihood of such person succumbing to the wishes of the
Government. For holding the office of profit under the Government, a person need
not be in the services of the Government and there need not be any relationship of
master and servant between them77.
The dissolution of the existing Lok Sabha is not a condition precedent for
holding a General Election to it. It is no doubt true that article 102 (1) (a) says that
if a person 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, he is disqualified for being chosen as and for being a member of either House
of Parliament. In any event, the membership of Parliament is not an office under the
Government. So, the fact that the Lok Sabha had not been dissolved on the date on
which the election was held would not amount to a disqualification in case of a
member of the Lok Sabha for being a candidate at the next general election78.
In another case, the Supreme Court was of the opinion that the State Government
did not exercise any control over officers like Accountant-in-charge and that he
continued to be an employee of the municipality though his appointment was subject
to confirmation by the Government79.
The holder of the office of the Chief Parliamentary Secretary was not disqualified
for being chosen as a member of the Assembly under “the Act of 1971”. That being
the legal position, it could not be said that the respondent was not qualified to be
elected as a member of “the Assembly”. As such, the respondent was entitled to hold
the office of Chief Parliamentary Secretary to the Government of Himachal Pradesh
even after dissolution of the Legislative Assembly80.
In yet another case81, the Supreme Court held that an office of profit is an office
which is capable of yielding a profit or pecuniary gain. Holding an office under the

76. Ram Swarup v. Hari Ram and others, (1983) 3 S.C.C. 373.
77. Biharilal Dobray v. Roshan Lal Dobray, (1984) 1 S.C.C. 551.
78. Bhagawati Prasad Dixit ‘Ghorewala’ v. Rajiv Gandhi, A.I.R 1986 S.C. 1534.
79. Ashok Kumar Bhattacharya v. Ajoy Biswas, A.I.R. 1985, S.C. 211.
80. Leela Devi v. Rangila Ram Rao, A.I.R. 1985 H.P. 21 (at page 25).
81. Jaya Bachchan v. Union of India, A.I.R. 2006 S.C. 2119.
 Office of Profit 91

Central or State Government, to which some pay, salary, emoluments, remuneration

or non-compensatory allowance is attached, is “holding an office of profit”.
Nomenclature is not important. If the “pecuniary gain” is “receivable” in connection
with the office then it becomes an office of profit. The court further held the fact that
whether the petitioner is affluent or was not interested in the benefits/facilities given
by the State Government or did not, in fact, receive such benefits till date, are not
relevant to the issue.
The Joint Committee to Examine the Constitutional and Legal Position
Relating to Office of Profit
On 31 July 2006, during the reconsideration of the Parliament (Prevention of
Disqualification Amendment) Bill by the Lok Sabha, an assurance was given on the
floor of the House that the various points raised in the message of the Hon’ble
President would be examined by the Joint Committee of both the Houses of Parliament.
Accordingly, the Minister of Law and Justice moved a motion in the Lok Sabha on
17 August 2006 for constitution of Joint Committee to examine the constitutional and
legal position relating to Office of Profit and the motion was adopted by the House
on the same day. The motion regarding the appointment of the Committee was
concurred in Rajya Sabha on 18 August 2006. Thus, a Committee of 15 members of
Parliament (10 from Lok Sabha and 5 from Rajya Sabha) was constituted to examine
the Constitutional and Legal Position Relating to Office of Profit with the following
terms of reference:—
(i) to examine, in the context of settled interpretation of the expression “Office
of Profit” in article 102 of the Constitution and the underlying constitutional
principles therein, and to suggest a comprehensive definition of “Office of
Profit.”
(ii) to recommend, in relation to “Office of Profit,” the evolution of generic and
comprehensive criteria which are just, fair and reasonable and can be applied
to all States and Union Territories;
(iii) to examine the feasibility of adoption of system of law relating to prevention
of disqualification of members of Parliament as existing in the United
Kingdom and considered by the Constitution (Forty-second Amendment)
Act, 1976; and
(iv) To examine any other matter incidental to the above.
After deliberating upon the above terms of reference, the Committee made inter
alia certain observations and recommended82 the amendment of article 102(1)(a). The
Committee opined that article 191(1)(a) may also be amended on the similar lines in
order to maintain uniformity. The Committee submitted its Report to the Parliament
on 22 December 2008.

82. Observations/Recommendations of the Committee:—

(i) A precise definition of office of profit is very necessary, primarily because without knowing
what constitutes an office of profit and what does not, the exercise of giving exemptions
from holding any office of profit seems to be a vacuous one.
92 Practice and Procedure of Parliament

The recommendation of the Joint Committee to Examine the Constitutional and

Legal Position Relating to Office of Profit was forwarded to the Government of India
for necessary action.

(ii) The Committee have strongly felt that while defining an Office of Profit it is also essential
to identify the generic criteria of the offices/posts which would not constitute Offices of
Profit or in other words which would not be deemed as offices of profit. And this aspect
has to be the part of the definition itself. Accordingly, the Committee have identified the
following three categories of offices which should not be deemed to be Offices of Profit:—
1. Minister for the Union or for States
2. Office in Parliament or State Legislatures
3. Advisory Offices in Union or States
(iii) The Committee have recommended that article 102(1)(a) should be amended on the following
lines:—
Article 102(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.
I. Provided that the holder of such office should not draw any salary/
remuneration except for compensatory allowance;
II. Provided further that a person shall not be deemed to hold an Office of
Profit under the Government of India or the Government of any State by
reasons only that—
(i) he is a Minister for the Union or for such a State;
(ii) he is holding an office in Parliament or such a State Legislature;
(iii) he is holding an advisory office for the Union or for such a
State.
Explanation : For the purposes of this clause
(a) “Office of Profit” means any office—
(i) Under the control of the Government of India, or the Government of a State, as
the case may be, 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; or
(ii) 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; and
(A) 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 favours of substantial nature; or legislative, judicial
or quasi- judicial functions; and/or
(B) the holder under (i) or (ii) is entitled to draw salary or remuneration
irrespective of whether he actually receives it.
(b) “offices in Parliament and State Legislature” means the offices which are directly connected
with the discharge of legislative functions in Parliament or in a State Legislature e.g. office
of Leader of Opposition in Parliament, office of Leader and Deputy Leader of Party and
recognized Parties/Groups in Parliament, the Chief Whips, Deputy Chief Whips or Whips
in Parliament/State Legislature, etc.
 Office of Profit 93

(c) “salary” means salary or pay scale attached to the office whether or not the holder of such
an office draws such salary.
(d) “remuneration” means any pecuniary gain commensurate with the status and responsibilities
attached to the office, but shall not include the expenditure incurred on staff and infrastructure
for running office.
(e) “compensatory allowance” 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 [Salaries and Allowances and Pensions
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 office.
(f) “advisory office” means any office (by whatever name called) which is associated with
purely giving counsel or recommendation on any particular subject/policy, in respect of
any matter of public importance/interest and no salary or remuneration except for
compensatory allowance is attached with it.
(See Report of the Joint Committee to Examine the Constitutional and Legal Position Relating
to Office of Profit (14th LS), Lok Sabha Secretariat, December 2008.)