Jaya Bachchan vs.

Union of India (UOI)

and Ors. 08.05.2006
FACTS:-
• Jaya Bachchan was member of Rajya Sabha. On
14.7.2004 the Government of Uttar Pradesh, by
an Official Memorandum, appointed petitioner
as the Chairperson of Uttar Pradesh Film
Development Council and sanctioned to her the
rank of a Cabinet Minister.
• The challenge in this petition filed under Article 32 of the
Constitution of India, is to the order of the Hon’ble President
of India, dated 16th March, 2006, whereby, in exercise of powers
conferred under Clause (1) of Article 103 of the Constitution
of India.
• the Hon’ble President has decided, after obtaining the opinion of
the Election Commission as required by Article 103(2), that the
petitioner stands disqualified for being a Member of the Rajya
Sabha on and from 14th day of July, 2004.
• The challenge is also to the opinion dated 2nd March,
2006 rendered by the Election Commission to the
Hon’ble President, under Clause (2) of Article 103, that
the petitioner became disqualified 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 U.P. Film Development Council.
• The Election Commission, after referring to the facts and the law
enunciated by this Court in several decisions, has expressed the
opinion that the office of Chairperson of the Council to which the
petitioner was appointed by the State Government by O.M. dated
14.7.2004, on the terms and conditions specified therein, is an
“office of profit” under the Government of Uttar Pradesh for
purposes of Article 102(1)(a) of the Constitution. The
Commission also found that Section 3 of the Parliament
(Prevention of Disqualification) Act, 1959 did not exempt the said
office of profit from disqualification under Article 102(1)(a) of
the Constitution.
• 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.
ISSUE:-
• Whether a Rajya Sabha MP become disqualified under Article 102(1)(a) of the Constitution after being
appointment by the State Government of Uttar Pradesh as Chairperson of the U.P. Film Development Council
which is contended to be an ‘office of profit’?

Arguments.
• the petitioner got certain facilities and benefits after being appointed as Chairman of Uttar Pradesh Film
Development Council that are-
• (i) Honorarium of Rs. 5,000/- per month;
• (ii) Daily allowance @ Rs. 600 per day within the State and Rs.750/- outside the State.
• (iii) Rs. 10,000/- per month towards entertainment, expenditure.
• (iv) Staff car with driver, telephones at office and residence, one P.S., one P.A. and two class IV
employees.
• (v) Body Guard and night escort.
• (vi) Free accommodation and medical treatment facilities to her and family members.
• (vii) Free accommodation in government circuit houses/guest houses and hospitality while on tour.
• 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, remuneration or
non-compensatory allowance is attached, is 'holding an office of profit'.

• 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).
JUDGMENT:-

• Court held 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. In
light of this it was held that the post of chairperson of
the U.P. Film Development Council is an ‘office of
profit’ and thus the petitioner is liable to be disqualified
as the Member of Parliament
Lilly Thomas v. Union of
India 2013 (7) SCC 653
Facts
• A Public Interest Litigation was filed by a public spirited lawyer, Lilly Thomas
and an NGO Lok Prahari by which they challenged the Sec 8 (4) of the
Representation of the People Act, 1951(hereinafter referred to as the Act) as
ultra vires to the Constitution. The main idea behind the petition was to stop
the entry of convicted individuals in the legislative houses and put a ban on
such criminal elements.
• Article 102(1) and article 191(1) of the Constitution of India lay down the
disqualifications for a Member of the Parliament and a Member of the
Legislative Assembly respectively at the same time it also empowers the
Central Government to add more disqualification in its wisdom.
• Sec 8 (4) of the act provides that if a sitting
member of the house who is convicted for an
offence which is punishable for more than two
years imprisonment and such a convicted person
moves an appeal within three months of the
conviction then he shall not be disqualified from
holding the membership of the house.
Issues
• The first issue to be deliberated in the case was that
whether the parliament was competent to enact Sec 8 (4)
of the act.
• The second issue was that whether Sec 8 (4) of the act
was in contravention of the provisions of the
Constitution of India and it ran counter to the intention
and the aspirations of the framers of the Constitution
since it allowed persons of a certain class to hold
membership even when convicted of an offence.
Petitioner Arguments
• It was contended that A. 102 and A. 191 of the constitution only provides the
parliament the power to add more disqualifications than the ones already
mentioned in the articles and does not provide the power to exempt the sitting
members from losing their membership on being convicted.
• It was also contended that a higher court may stay the order of conviction of a
sitting member of the house and allow him to continue as a member however, a
blanket ban cannot be imposed to keep the disqualification in abeyance
• It was further argued that the sec 8 (4) does not provide a rationale for
differentiating between a sitting member and a proposed to be member. It was
against Article 14 of the constitution of India since the section was discriminating
between a sitting member and a proposed to be member.
Respondents Arguments
• It was argued that if a sitting member was disqualified then the strength
of the house would come down and if bye election were held to fill his
vacant seat then a subsequent order of acquittal will result in
complications and that is the reason for carving out a distinct provision
like sec 8(4) of the act.
• It was also argued that the power to make such a law vested in the
parliament by virtue of the A. 102(1)(e) and A, 191(1)(e) which provided
as to when the conviction of a sitting member will affect the membership
and also by virtue of the fact that the parliament had power to legislate
on any matter which is not enumerated in the II and III list of the seventh
schedule of the Constitution.
Judgment
• It was held by the court A. 102(1)(e) and A. 191(1)(e) of the constitution
of India confer power on the Parliament to make a single law which lays
down the disqualifications for a person who is to be chosen as member
of any house and also for a person who is a sitting member any house.
• It was held that once a member becomes disqualified then his seat
automatically becomes vacant by virtue of A. 101(3)(a) and A. 190 (3)(a)
of the Constitution of India. Hence the Parliament cannot make provision
to defer the date on which the disqualification will have effect and
prevent the member’s seat from becoming vacant on account of the
disqualification.
• It was held that the Articles put a limitation on the power of the
Parliament to defer the date on which the disqualifications would
have effect and a special provision cannot be created to avoid the
natural corollary of a disqualification.
• Hence sec 8(4) of the act which creates a distinction between a
sitting member and a proposed to be member of the house since it
defers the date on which the disqualification will take effect in the
case of a sitting member of the house is beyond the powers
conferred on Parliament by the Constitution thereby making it
ultra vires to the constitution of India.