BABASAHEB BHIMRAO AMBEDKAR UNIVERSITY,

LUCKNOW

PROJECT REPORT ON
OFFICE OF PROFIT

SUBMITTED TO: Dr. SHAILESH MISHRA

SUBJECT-: ELECTION LAW

SUBMITTED BY:
ANSHU PRIYA
ROLL NO:206661
(BBA.LLB),
8th sem
 ACKNOWLEDGEMENT

I would like to Express my sincere gratitude to all those who helped me to Complete
this assignment successfully. First and foremost, I would like to forward a warm
gratitude to my teacher Dr. Shailesh Mishra Sir for his Constant Support, Valuable
guidance and encouragement through out the process. I would also like to extend my
thanks to other staffs, and my friends for Providing and helping me with all necessary
facilities required for this assignment.
 TABLE OF CONTENT

Introduction………………………………………………………………….......…4
Origin of the Office of Profit………………............................................................5
Definition………...………………………………...................................................6
Provision in the Constitution…………………………………………….............…6
Disqualifying Authority……………………………………………….....….……6-7
Test for it’s Determination…………………………………………….......…….…7
Case Laws……………………..………………………………………......……...7-8
Conclusion…………………………………………………………...................…..8
Bibliography…………………………………………………....................……......9
 INTRODUCTION

The constitutional concept of "1Office of Profit" in India is a critical component of the country's
democratic framework. It is designed to ensure the independence of elected representatives and
to maintain a clear separation of powers between the Executive and the Legislature. In other
words, Office of profit is any position other than political, which is to be filled by election or
nomination for which the person draws a profit from government.
The term "Office of Profit" is a complex one and has not been explicitly defined in the
Constitution or relevant legislation. The definition varies depending on the context, and it
encompasses offices that yield income or profit, whether monetary or not. It includes positions
with attached power of patronage, executive functions, dignity, prestige, or honor.
To assess whether employees of a local authority or other entities under government control
hold offices of profit, the measure and nature of government control must be evaluated in the
context of each case. This evaluation is vital to avoid potential conflicts between personal
interests and government duties. The overarching goal is to ensure that elected representatives
can carry out their duties without being subject to undue governmental pressure, thus
preserving the purity of elected bodies.
Courts have provided certain criteria to determine whether an office qualifies as an "Office of
Profit."
Three Essential Elements: To establish disqualification, three elements must be proven - the
individual holds an office, it is an office of profit, and it is under the Government of India or a
State
Nature of Control: The extent of government control over the office plays a pivotal role in
determining whether it qualifies as an "Office of Profit".
Pecuniary Advantage: While an element of profit is necessary, mere prestige or advantages
are insufficient. Pecuniary advantage is a vital element .
Regularity of Income: An office need not have a regular income to be considered an "Office
of Profit." The expectation of profit is sufficient.

1
1.Satrucharla Chandrasekhar Raju. Vyricherla Pradeep Kumar Dev, AIR 1992 SC 1959

2. S.S. Inamdar v. A.S. Andanappa, (1971) 3 SCC 870.

 ORIGIN OF THE OFFICE OF PROFIT

The 2Origin of the term ‘Office of Profit’ can be found in the English Act of Settlement, 1701.
Hence, the concept of ‘office of profit’ is borrowed from the UK.
The concept of "Office of Profit" in India relates to positions held by Members of Parliament
or Members of the Legislative Assembly (MPs or MLAs) that may provide financial gain or
benefit.
The constitution and Representation of People’s Act,1951 does not have a clear definition of
what constitutes an office of profit, but the definition has been developed through various court
judgments.
The Courts have however, laid down certain test to determine as to which office is an office of
profit. The object to this provision is to secure the independence of the member of Parliament
from the benefits of the Executive which may be under influence and there may be conflict
between duty and self interest among the members of Parliament. The test for determining
whether a person holds an office of profit is based on the test of appointment, as per the
Supreme Court's ruling in Pradyut Bordoloi vs Swapan Roy (2001).
The word 'office' necessarily implies that there be an existence of office apart from the person
who holds it. There must be an office which exists independently of the holder of the office.
The office of profit means an office to which some benefit is derived or might reasonably
expressed to be made by the holder of the office. The actual making of profit is not necessary.
Profit means pecuniary gain or any material gain. The amount of such profit is immaterial. But
the amount of monetary benefit may be a material deciding factor whether the office which
holds carries any profit. Profit must be received by way of salary or remuneration not as
compensatory allowance or honorarium which is meant for meeting his 'daily expenses' so to
enable him to discharge his functions.
The "office of profit" must be under the Central or any State Governments. For deciding this
there are five tests:-
(1) Whether government has power of appointment.
(2) Whether government has the right to remove or dismiss the holder of office.
(3) Whether the government pays the remuneration.
(4) Whether the functions which the holder performs are for government.
(5) Whether the government exercises control over the performance of those functions.

2
http://www.legalservicesindia.com
 DEFINITION

An “Office of Profit” is a widely used term when it comes to executive appointments under
national constitutions. This concept is prohibited in several countries especially in the
legislature, from accepting an office of profit under the executive. This is done to secure the
independence of the legislature and preserve the separation of powers.
"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.

PROVISIONS IN THE CONSTITUTION

The Office of Profit pertaining to the constitutional and legal provisions is not explicitely
defined in the Constitution of India. But, there is a clear statement in the Indian constitution
under Articles 102(1)(a) and 191(1)(a), that an MP or MLA is not allowed to hold any office
of profit as this would fetch them financial gains and benefits.
At present, the Parliament (Prevention of Disqualification) Act, 1959, bars an MP, MLA or an
MLC from holding any office of profit under the central or state government unless it is
exempted. However, it does not clearly define what constitutes an office of profit.
Makers of the Constitution wanted that legislators should not feel obligated to the Executive in
any way, which could influence them while discharging legislative functions.That's Why
Holding an office of profit under the government by these members is subjected to grounds of
disqualification.
In other words, an MP or MLA should be free to carry out her duties without any kind of
governmental pressure. The intent is that there should be no conflict between the duties and
interests of an elected member.
The office of profit law simply seeks to enforce a basic feature of the Constitution- the principle
of separation of power between the legislature and the executive.

3
DISQUALIFYING AUTHORITY
Under Article-103 of Indian Constitution the decision on questions as to disqualifications of
members.-(1) If any question arises as to whether a member of either House of Parliament has

3
Prevention of Disqualification Act,1959
become subject to any of the disqualifications mentioned in clause (1) of article 102, the
question shall be referred for the decision of the President and his decision shall be final.

(2) Before giving any decision on any such question, the President shall obtain the opinion of
the Election Commission and shall act according to such opinion.
Under Article-192 of Indian Constitution Decision on questions as to disqualifications of
members.-(1) If any question arises as to whether a member of a House of State has become
subject to any of the disqualifications mentioned in clause the Legislature of a (1) of article
191, the question shall be referred for the decision of the Governor and his decision shall be
final.
(2) Before giving any decision on any such question, the Governor shall obtain the opinion of
the Election Commission and shall act according to such opinion.

TEST FOR IT’S DETERMINATION

In 1964,The Supreme Court of India has laid down a set of tests to ascertain whether an
office qualifies as an "Office of Profit":
1. Government Appointment: The government must have the power to appoint and remove
the holder of the office (Guru Govinda Basu v. Shankari; Prasad Ghosal & Ors/SCR (1964)).
2. Government Payment: The government should be responsible for paying remuneration
attached to the office.
3. Government Control: The government should exercise control over the performance of the
functions associated with the office. (Shivamurthy Swami v. Sanganna, (1971) S.C.C. 870).
4. Conflict of Interest: The presence of a conflict of interest is a crucial factor in determining
whether an office falls within the ambit of an "Office of Profit."

CASE LAWS

* Former President Ram Nath Kovind has rejected a plea seeking disqualification of YSR
Congress leader V Vijaisai Reddy as Rajya Sabha member on the grounds of holding ‘office
of profit’ as special representative of the Andhra Pradesh government in the national capital.
*In 2006, SP Rajya Sabha member Jaya Bachchan was accused to hold the post of the
Chairperson of the Uttar Pradesh Film Development Corporation. Later, She was disqualified
by Election Commission for holding the office of profit.
*In 2022, Jharkhand Chief Minister was accused of holding an office-of-profit by granting
himself a stone chips mining lease. The notice has been issued by the Election Commission for
holding office of profit.

*In the case of CVK Rao vs Dentu Bhaskara Rao (1964), the Supreme Court held that a
mining lease does not constitute a contract of supply of goods.

*In the case of Kartar Singh Bhadana vs. Hari Singh Nalwa & others (2001), the
Supreme Court clarified that a mining lease does not amount to the execution of work
undertaken by the government.

CONCLUSION

The "Office of Profit" is pivotal in ensuring the independence of elected representatives and
maintaining a clear separation of powers in a democratic system. While not explicitly defined,
its criteria have been established through legal precedents and judgments. These criteria help
in determining whether an office can lead to a conflict of interest and influence over elected
members. By upholding the principles of democracy, this provision safeguards the interests of
the people and the integrity of the legislative process. As the Supreme Court has wisely noted,
it is the critical circumstances, not the total factors, that prove decisive in making such
determinations.
The purpose of having the concept of office of profit is to have a separation of powers between
the legislative and executive branches of the government. The issue of the parliamentary
secretary shows that several governments are utilizing techniques to give government posts to
their MLAs, which threatens the legislative accountability of parliamentary democracy.
Therefore, reforming the office of Profit Exemption is one reform needed to reduce the hold of
the executive in the legislative domain. It will also serve the larger goal of parliamentary
reforms required in India.
 BIBLIOGRAPHY

BOOKS:
1. M.P JAIN, INDIAN CONSTITUTIONAL LAW 32(7TH ED.2010)
2.DR. PARNAJAPE,N.V, INDIAN LEGAL AND CONSTITUTIONAL HISTORY
(CLA, REPRINT EDITION,2002)

ONLINE SOURCES:

• http://www.constitutionofindia.net

• https://vajiramandravi.com

• http://www.legalserviceindia.com

• http://en.m.wikipedia.org

• http://byjus.com