DEPARTMENT OF LAWS

PANJAB UNIVERSITY, CHANDIGARH

SUBJECT : CONSTITUTIONAL LAW

-CASE ANALYSIS ON -
Jaya Bachchan v. Union of India & Ors.
AIR 2006 SC 2119: (2006) 5 SCC 266

-SUBMITTED TO-
PROF. DEVINDER SINGH

Submitted by:
Chelsi Malik
roll no .40
section A
1st sem
 ACKNOWLEDGEMENT

I would like to express my earnest gratitude and

indebtedness to our esteemed teacher, Prof.
Devinder Singh for his valuable and eminent
guidance, sustained efforts, constructive
criticism , ever- willing help and encouragement.
This constant support and guidance gave me the
strength to tide over any difficulties while
working on the project.
1 am grateful and thankful to sir for making my
interest for the study of this subject of law more
informative and curious through his teachings

- Chelsi Malik
 TABLE OF CONTENTS

~Introduction

~Background of the case

~ Facts

~Issues

~Legal Questions

~Arguments

~Decision of the Supreme Court

~ Case Analysis

~ Conclusion

~Bibliography
 JAYA BACHAN V. UNION OF INDIA
Citation AIR 2006 SC 2119

Date of judgement 8th may 2006

Court Supreme Court of India

Case type Writ Petition (Civil) No. 199 of

2006

Appellant Jaya Bachchan

Respondent Union of India and ORS

Bench (CJI) Y.K. Sabharwal, (J) CK

Thakker,U) R.V. Raveendran

Referred The Constitution of India,

1949- Articles 32, 102(1)(a),
103(2),
191(1)(а)

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 INTRODUCTION
The Constitution of India, apart from enlisting certain qualifications for Members of
Parliament and State Legislative Assemblies, also enumerates certain disqualifications.
One of these disqualifications is holding an 'office of profit'.

This concept has evolved from the British Parliamentary model. One of the earliest
laws on this issue was the English Act of Settlement enacted in 1700. By the
beginning of the eighteenth century, three broad principles were developed affecting
the law on this subject, which have also been implicitly incorporated in the Indian
laws:

1. Certain non-ministerial offices are incompatible with membership of the

Parliament.

2. The influence of the Executive over the House of Commons, through the undue
proportion of officeholders who are members of the House, should be limited.

3.Certain number of ministers should be members of the House for the purpose of
ensuring control of the Executive by the Parliament.

Articles 102(1)(a) and 191(1) (a) of the Constitution of India, provide for the
disqualification on grounds of holding any office of profit of the Members of
Parliament and State Legislative Assemblies respectively. There a few legislations for
the same purpose but these were not considered enough.

Therefore, to address the lack of a single, comprehensive law, the Bhargava

Committee on Offices of Profit was constituted under the Chairmanship of Pt.
Thakur Das Bhargava in 1954. The Committee recommended enactment of the
Parliament (Prevention of Disqualification) Act. This Act was passed in 1959 and
presently governs the law on offices of profit in India. This legislation specifies which
offices would not disqualify their holders. However, as neither the Constitution nor
any other piece of legislation have defined the term office of profit', leaving it open
for wide interpretations, poses as an obstacle to the appropriate application of the
written laws. The main source for understanding what constitutes an office of profit is
judicial rulings. Apart from the Judiciary, Joint Committee on Offices Profit has also
contributed in defining the term. Article 102 of the Constitution provides as follows:

'102. Disqualifications 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; ]. 5
 BACKGROUND OF THE CASE

Facts of the case

The petitioner, Jaya Bachchan, was appointed Chairperson of the Uttar Pradesh Film
Development Council by the Government of Uttar Pradesh in an Official
Memorandum dated 14-7-2004. As a result, she was now eligible for the following
benefits:

~An honorarium of 75,000 per month;

~The daily allowance at ₹600 per day within the State and ₹750 outside the State.
₹10,000 per month towards entertainment expenditure;

~Staff car with driver, telephones at office and residence, one P.S., one P.A., and two
class IV employees;

~Bodyguard and night escort;

~Free accommodation and medical treatment facilities to her and family members;

~Free accommodation in Government circuit houses/guesthouses and hospitality

while on tour.

The Election Commission, after referring to the facts and the law enunciated by the
Supreme Court in several decisions, has expressed the opinion that the petitioner's
appointment as Chairperson of the Council is an "office of profit" under the
Government of Uttar Pradesh for Article 102(1)(a) of the Constitution. The
Commission further determined that Section 3 of the Parliament (Prevention of
Disqualification) Act, 1959 did not exclude the aforementioned profit-making post
from disqualification under
Article 102(1)(a) of the Constitution.

The President of India, by an order dated 16th March 2006, has determined, after
obtaining the opinion of the Election Commission as required by Article 103(2), that
the petitioner is disqualified for membership in the Rajya Sabha on and from the
14th day of July 2004. The petitioner filed a writ case at the Supreme Court
contesting the President's directive dated March 16, 2006. The petitioner also
challenged the Election Commission's opinion to the President dated 2nd March
2006, rendered under clause (2) of Article 103, that the petitioner became disqualified
6
 under Article 102(1)(a) of the Constitution for being a Member of the Rajya Sabha
on and from 14th July 2004 on her appointment by the Government of Uttar
Pradesh as Chairperson of the UP. Film Development Council.
The petitioner contended that the position of Chairperson of the Council and the
conferment of the rank of Cabinet Minister were only "decorative," and that she
received no remuneration or monetary benefit from the State Government; that she
did not seek residential accommodation, nor did she use the telephone or medical
facilities; that she traveled several times in connection with her work as Chairperson,
but she never claimed reimbursement; and that she resigned. The petitioner claims
that in the lack of a determination by the Election Commission that she had received
any money or monetary consideration from the State Government, she could not be
deemed to occupy any profit-making post under the State Government, and so her
disqualification was unconstitutional.

Issues
~What is office of profit under Article 102(1)(a) of the Constitution.

~Whether the disqualification is valid.

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 LEGAL QUESTIONS :

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

A person shall be disqualified for being chosen as, and for being, a member of either
House of Parliament-

(i)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;

(ii)if he is of unsound mind and stands so declared by a competent court;

(iii)if he is an undischarged insolvent;

(iv)if he is not a citizen of India, or has voluntarily acquired the citizenship of a

foreign State, or is under any acknowledgment of allegiance or adherence to a foreign
State;

(v)if he is so disqualified by or under any law made by Parliament.

The petitioner is disqualified as per the first situation given above as she was holding
office under the U.P. government.

2. Article 103 of the constitution

The article talks about the obligation of the President to seek an opinion from the
election commission as to regards the disqualification of any of the members of
either of the house. Also, if any dispute arises with respect to disqualification the
decision of the president shall be final.

3. Section 3 of the Parliament (Prevention of Disqualification) Act, 1959

4. Article 32 of the Constitution.

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 ARGUMENTS

Petitioner's Contention
The petitioner, Jaya Bachchan contented that she never used any of the facilities
provided by the state government and she accepted the chairpersonship of the
council honorarily and did not use any of the facilities mentioned. Another argument
which is made by the petitioner is that in the finding by the Election Commission that
she had not received any payment or monetary consideration from the state govt, she
could not be said to hold any office of profit under the state government and
therefore, her disqualification was invalid.

Arguments Presented
Bachchan argued that her position as the chairperson of the Uttar Pradesh Film
Development Council was not an office of profit as it was an honorary position and
did not provide her with any financial benefits. She further argued that the
disqualification provision of the Office of Profit law was not clear and violated the
principles of natural justice.
The Union of India, on the other hand, argued that Bachchan's position in the Film
Development Council was an office of profit and that the disqualification provision of
the Office of Profit law was clear and unambiguous.

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 What Supreme Court has said?
The Supreme Court has considered the question and analysed as follows-

• “The term `holds an office of profit’ though not defined has been the subject
matter of interpretation, in several decisions of this Court. An office of profit
is an office which is capable of yielding a profit or pecuniary gain.
Holding an office under the Central or State Government to which
some pay salary, emolument, remuneration or non-compensatory
allowance is attached, is `holding an office of profit’.
• The question whether a person holds an office of profit is required
to be interpreted in a realistic manner. Nature of the payment must
be considered as a matter of substance rather than of form.
Nomenclature is not important. In fact, mere use of the word
`honorarium’ cannot take the payment out of the purview of profit, if there is
pecuniary gain for the recipient.
• Payment of honorarium, in addition to daily allowances in the
nature of compensatory allowances, rent free accommodation and
chauffeur driven car at State expense, are clearly in the nature of
remuneration and a source of pecuniary gain and hence constitute
profit.
• For deciding the question as to whether one is holding an office of profit or not,
what is relevant is whether the office is capable of yielding a profit or pecuniary
gain and not whether the person actually obtained a monetary gain.
If the “Pecuniary gain” is “receivable” in connection with the office then
it becomes an office of profit, irrespective of whether such pecuniary
gain is actually 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).

This position of law stands settled for over half a century commencing from the
decisions of Ravanna Subanna v. G.S. Kaggeerappa, AIR (1954) SC 653;
Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa, [1971] 3 SCC 870;
Satrucharla Chandrasekhar Raju v. Vyricherla pradeep Kumar Dev, [1992] 4 SCC
404 and Shibu Soren v. Dayanand Sahay & Ors., [2001] 7 SCC 425.

• It is well settled that where the office carries with it certain

emoluments or the order of appointment states that the person
appointed is entitled to certain emoluments, then it will be an office
of profit, even if the holder of the office chooses not to receive/
draw such emoluments.
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 What is relevant is whether pecuniary gain is “receivable” in regard to the office and
not whether pecuniary gain is, in fact, received or received negligibly.

• In this case, as noticed above, the office carried with it a monthly honorarium
of Rs. 5000, entertainment expenditure of Rs. 10,000., staff car with driver.,
telephones at office and residence, free accommodation and medical treatment
facilities to self and family members, apart from other allowances etc. That
these are pecuniary gains, cannot be denied.
• The fact that 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.”

Held:
The post held by the Petitioner was held to be covered within the meaning of office
of profit' and accordingly, the Petitioner was disqualified from being a member of the
Rajya Sabha. The fact that the Petitioner is affluent or was not interested in the
benefits or facilities given by the State Government were held to be not relevant to the
issue. In this view, the question whether the Petitioner actually received any pecuniary
gain or not was of no consequence. Thus, it was held that there was no merit in the
writ petition and thereby, it was dismissed.

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 CASE ANALYSIS
For deciding the question as to whether one is holding an office of profit or not, the
following factors are to be considered:

(i) the form of payment is not relevant as monetary gain may be merely disguised as
an honorarium;
(ii) whether the office is capable of yielding a profit or pecuniary gain and not
whether the person actually obtained a monetary gain.
(iii) it is not relevant whether any remuneration or pecuniary gain was actually
received, it is only enough if such remuneration or gain was receivable.

In the present case, the office of the Chairperson of the Uttar Pradesh Film
Development Council carried with it a monthly honorarium of Rs. 5000,
entertainment expenditure of Rs. 10,000, staff car with driver, telephones at office
and residence, free accommodation and medical treatment facilities for self and
family members, apart from other allowances, etc.

The fact that these are pecuniary gains cannot be denied, and also, the fact that the
Petitioner is affluent or is not interested in the benefits or facilities given by the State
Government or has not, in fact, received such benefits till date, are not relevant to the
issue.
The Petitioner had referred to Biharilal Dobrav v. Roshanlal Dobrav, it was
held that respondent was holding an office of profit under the State Government and
his nomination was rightly rejected by the Returning Officer. In that case, the only
question was whether the post the respondent was holding was one under State
Government or not.

In Divya Prakash v. Kultar Chand Rand and Anr.,4 the Supreme Court had
held that the post of a Chairman of the Board of School Education of the State of
Himachal Pradesh was not an office of profit. The candidate was appointed
specifically in an honorary capacity without any remuneration. Further the post of
Chairman did not carry with it a scale of pay. The observations made with reference
to Divya Prakash's case were clearly biter. Further, an error seems to have been
made while noticing this case. In Divya Pradesh it was held that the post did not carry
with it any remuneration but in Biharilal Dobrey s case it was said that the post
carried remuneration.

12
It is clear that the decisions relied upon by the Petitioner, turned on their own facts
and did not lay down any proposition of law contrary to what has been laid down in a
series of decisions starting from Ravanna Subanna to Shibu Soren, that had been
cited and referred by the Hon'ble Supreme Court. It is well settled that where the
office carries with it certain emoluments or the order of appointment states that the
person appointed is entitled to certain emoluments, then it will be an office of profit,
even if the holder of the office chooses not to receive/draw such emoluments. What is
relevant is whether pecuniary gain is 'receivable' in regard to the office and not
whether pecuniary gain is, in fact, received or received negligibly.

Further, the Petitioner had relied on the decisions in Umrao Singh v. Darbara
Singh, where the question that had arose for consideration was whether payment of
a monthly consolidated allowance for performing all official duties and journeys
concerning the work and a mileage allowance for the journeys performed for official
work outside the district and daily allowances for the days of attendance of meetings
or travel or halt, would convert the office of Chairman of a Panchayat Samiti into an
office of profit. The Supreme Court was reasonable and justifiable in its decision that
these were allowances paid for the purpose of ensuring that the Chairman did not
have to spend money out of his own pocket for discharging his official duties, and
therefore, receipt of such allowances did not make the office one of profit. In this
view, the question whether the Petitioner in the present case actually received any
pecuniary gain or not is of no consequence, and so the dismissal of the writ petition
by the Supreme Court was fair and equitable.

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 CONCLUSION
To ensure an effective and efficiently functioning democracy, it is desirable that there
is proper separation of power between the Executive, the Legislative and the
Judiciary. For this, it is important that only suitable legislators are elected to and
remain in the Parliament and the State Legislatures. Disqualifying the holders of
offices of profit is also an effort in this direction for protecting the independence of
the legislators. A person may not be able to discharge his functions as a legislator and
critique to the government if the government is in a position to influence him. This
understanding has led to the development of the concept of 'office of profit'.

Article 102(1)(a) of the Constitution of India recognizes 'holding an office of profit

under the government' a ground for disqualification from being a Member of
Parliament (MP) as well as contesting parliamentary elections to be chosen as an MP.
The objective of Article 102(1)(a) is to ensure that the representatives of the people
discharge their assigned functions without fear or favor from the executive. In order to
avoid a conflict between the primary duties of an elected member and the
Parliament, the provisions of the Article stipulate that Members of Parliament who
hold an 'office of profit' must be disqualified. The legislature has clarified the law on
some counts, for instance it has defined what constitutes compensatory allowance, but
as neither the Constitution nor any other piece of legislation have defined the term
office of profit, it continues to remain open for wide interpretations, thereby posing
an obstacle to the appropriate application of the written laws.

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 BIBLIOGRAPHY

https://www.legalauthority.in/judgement/jaya-
bachchan-vs-union-of-india-17276

https://thelawmatics.in/jaya-bachchan-v-
uoi-2006-a-case-on-office-of-profit/

M.P. Jain: Indian Constitutional Law- 5th

Edition, Wadhwa,2015.

Subhash C. Kashyap: Constitutional Law of

India, Universal Law Publishing Co.
Pvt. Ltd.,2015

Narender Kumar: Constitutional Law of India-

7th Edition, Allahabad Law Agency,2017

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