THE ISSUE OF OFFICE OF PROFIT (JAYA BACHAN S CASE)

PROJECT
SUBMITTED IN PARTIAL FULFILLMENT OF REQUIREMENTS OF INTERNAL EVALUATION OF AMITY LAW SCHOOL, AUUP.

IBA.LLB (H)
SUBMITTED BY: SHEETAL MISHRA

5th SEMESTER A3208303132

AMITY LAW SCHOOL, AMITY UNIVERSITY, NOIDA.

FORWARDING CERTIFACTE

Miss SHEETAL MISHRA has been permitted to write a project on the issue of office of profit-jaya bachan s case for IBA.LLB(H),internal evaluation of Amity Law School,Amity University,Noida.

Dated- 10 sept 10

Dr. Jayadevan S Nair Lecturer Amity Law School, Amity University,

TABLE OF CASES
Abdul Shakoor v. election tribunal, AIR 1958 SC 52 (55):1958 scr 387 Ashok Kumar Bharracharya v. Ajoy Biwas , AIR 1985 SC 1985 SC 211:1 SCC 268 Bhagwati v. Rajeev,AIR 1986 SC 1534: (1986 4 SCC 78): 1986 SCC (cri.) 399 Consumer Education & Research ... vs Union Of India & Ors on 24 A ugust, 2009 Deorao v. Keshav Laxman Borker, AIR 1968 Bom 314 Guru Govinda Basu v. Sankari Prasad Ghoshal, AIR 1964 SC 254 Gurushanthappa D.R. v Abdul Khuddus Anwar, AIR 1969 SC 744, 750 (1969) 1 SCC 466 Jaya Bachchan v. UOI, AIR 2006 SC 2119 Kanta Kathuria v. Manak Chand Surana, AIR 1970 SC 694 Madhukar GE Pankakar v Jaswant Chobbildas Rajani, AIR 1976 SC 2283 Ravanna Subanna v. G.S Kaggeerappa,AIR 1954 SC 653, 656 Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev, (1992) 4 SCC 404 Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa, (1971) 3 SCC 870. S.S Inamdar v. A.S Andanappa, (1971) 3SCC 870

INDEX
Forwarding certificate Table of cases Abbreviations

1. HISTORICAL BACKGROUND 2. ORIGIN 3. INTRODUCTION 4. CONSTITUTIONAL ASPECTS 5. TEST OF APPOINTMENT 6. RATIONALE FOR THE DISSQUALIFICATION FOR HOLDING AN OFFICE OF PROFIT 7. HOLDING OF OFFICE OF PROFIT UNDER LOCAL AUTHORITY 8. LAW OF OFFICE OF PROFIT IN INDIA 9. LAW OF OFFICE OF PROFIT IN BRITAIN 10. JOINT PARLIAMENTARY COMMITTEE (RECOMMENDATIONS) 11. JAYA BACHAN S CASE- A brief 12. CONCLUSION 13. BIBLIOGRAPHY

HISTORICAL BACKGROUND
The expression `Office of Profit' is not defined in the Constitution. The view that certain offices or positions held by a Member of Parliament (Hereinafter also referred to as `MP') may be either incompatible with his/her duty as an elected representative of the people, or affect his/her independence, and thus weaken the loyalty to his/her constituency and, therefore, should disqualify the holder thereof, had its origin in the Parliamentary history of 1 the United Kingdom. The concept of `office of profit' has a history of more than four centuries in United Kingdom and it has evolved through many phases. The first was the "privilege" phase (prior to 1640). The second was the "corruption" phase (from 1640). The third was the "ministerial responsibility" phase (after 1705). Initially the English Parliament claimed priority over the services of its Members and it was considered derogatory to its privilege if any of its Members accepted some other office which would require a great deal of their time and attention. This led to the evolution of the idea that the holding of certain offices would be incompatible with the responsibilities of a Member of Parliament. This was the first phase. During the second phase, there was a protracted conflict between the Crown and the House of Commons. Loyalty to the King and the loyalty to the House of Commons representing the will of the people became growingly irreconcilable and it was thought that if any Member accepted an `Office of Profit' under the Crown, there was every chance of his loyalty to Parliament being compromised. Subsequently came the third phase. The King was reduced to the position of a constitutional head and the cabinet, functioning in the name of the Crown became the centre of the executive government. The Privy Councilors, who during the second phase were invariably considered to be the henchmen of the King and were as such looked upon with suspicion by the House of Commons, yielded place to the Ministers, who for some time were also disqualified from holding a seat in the House. Later it came to be recognized that the application of the disqualification rule to incumbent ministers was too extreme and with the intent of ensuring effective coordination between the executive and the legislature, it was accepted that the Members of the executive should be represented in the Parliament. This recognition led to the passing of several enactments by the British Parliament. The Re-Election of Ministers Act enacted by the British Parliament in 1919 and 1926 required any Member who was appointed to a `politica l office' to seek re-election.

As we have adopted the British Parliamentary form of Government, the concept of `office of profit' was also adopted with some modifications. The concept of `office of profit' began to develop with the entry of non-official members in the Legislature. A clear and precise statement in this regard was made in Section 26(1)(a) of the Government of India Act, 1935 which provi ded that a person shall be disqualified for being chosen as, and for being, a Member of either Chamber if he held any office of profit under the Crown of India,
1

The Introduction to the Bhargava Committee Report on Office of Profit, dated 22.10.1955
5

other than an office declared by Act of the Federal Legislature not to disqualify its holder. When the Constitution of India came into force on 26th January, 1950 declaring that a person holding an office of profit would be disqualified, the explanation to Article 102 clarified that a person who is a Minister (either for the Union or for any State) shall not be deemed to hold an office of profit. However, there existed Ministers of State as also Deputy Ministers in the Union Government who were not specifically exempted from disqualification under Article 102 because the expression `minister' was construed as referring only to a Cabinet Minister. In order to address this situation, the Parliament (Prevention of Disqualification) Act, 1950 was enacted. Section 2 of the said Act provided: "Prevention of disqualification for membership of Parliament: A person shall not be disqualified for being chosen as, and for being a member of Parliament by reason only of the fact that he holds any of the following offices of profit under the Government of India or the Government of any State, namely, an office of Minister of State or a Deputy Minister, or a Parliamentary Secretary or a Parliamentary Under Secretary." This was followed by the Parliament (Prevention of Disqualification) Act, 1951 declaring that certain offices (specified in Section 2 thereof ) under the government shall not disqualify, and shall be deemed never to have disqualified the holders thereof for being chosen as, or for being, Members of Parliament. The said Act was given retrospective effect from 26.1.1950. In 1954, a Committee was constituted under the chairmanship of Pandit Thakur Das Bhargava to study the various matters connected with the disqualification of MP's and to make recommendations in order to enable the government to consider the manner in which a comprehensive legislation should be brought. The Committee submitted its report in 1955. In 1959 the Parliament (Prevention of Disqualification) Act, 1959 was enacted, thereby declaring that certain offices of profit under the government shall not disqualify the holders thereof for being chosen as or for being, Members of Parliament. Section 3 of the Principal Act (amended from time to time) provides the list of such offices. 2

Consumer Education & Research ... vs Union Of India & Ors on 24 August, 2009

ORIGIN
The English Act of Settlement 1701 3 and Act of Union 1707 4 are an early example of the principle of office of profit. The Act of Settlement 1701 provided that: No person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a memb er of the House of Commons. The framers of the US Constitution 5 adopted a similar position. The US Constitution provides that "no Person holding any Office under the United States shall be a Member of either House during his Continuance in Office." Similarly, it provides that individuals holding an offi ce of profit or trust under the United States are forbidden, without the consent of the Congress, from receiving any emoluments from the government of a foreign state, and that a person who holds an office of trust or profit under the United States cannot be an elector in presidential elections. The term is used in Article 102 (1)(A) of the Indian Constitution which bars a member of the Indian Parliament from holding an office that would give its occupant the opportunity to gain a financial advantage or benef it. The actual amount of profit gained during the violation has no bearing on its classification. The political concept behind the law most likely originated in England, and was adopted into the Indian Constitution to prevent a conflict of interest. 6

http://www.spiritus-temporis.com/act-of-settlement-1701/ http://www.spiritus-temporis.com/act-of-union-1707/ 5 WWW.confinder.com

4

http://en.wikipedia.org/wiki/Office_of_profit"

INTRODUCTION
An office of profit is a term used in a number of national constitutions to refer to executive appointments. A number of countries forbid members of the legislature from accepting an office of profit under the executive as a means to secure the independence of the legis lature and preserve the separation of powers. The true principle behind this provision in article 102(1) (a) 7 is that there should not be conflict between the duties and interest of elected members. In ordinary parlance: y an office or place of profit means an office of profit or position, which brings to the person holding it some pecuniary gain or advantage or benefit 8. The word office necessarily implies that there be an existence of office apart from the person who holds it i.e., There must be an office which exists independently of the holder of office 9. It will be an office or place of profit if it carries some remuneration , pecuniary advantage, benefit. The amount of such profit is immaterial. But the amount of monetary benefit receivable by a person in connection with the office he hold s may be material in deciding whether the office really carries any profit 10.

A nationwide debate has been going on over the controversy of disqualification of MP s and MLA s on the ground of holding offices of profit in Indian Political system. The matter arose when the Samajwadi party s Rajya Sabha. M.P.Mrs Jaya Bachan, was disqualified from the membership o f Rajya Sabha on the ground that she was holding an office in the capacity of the chairperson of the U.P. Film Development Council. subsequently a number of petitions were filed with the President for disqualifying certain members of parliament including Mrs Sonia Gandhi who is an MP and Chairmam of the National Advisory Council of the UPA. Fearing any proposed action by the Election Commission and from being disqualified from the membership of the Lok Sabha she resigned from the membership of the Lok Sabha and The National Advisory Council. Very soon the controversy took the form of a constitutional crisis and different state governments rushed to save their pillars of power. The expression office of profit has not been defined in the Con stitution or in the Representation of the People Act, 1951. Its ambit has to be inferred only from pronouncements of courts and other competent authorities, like the Election Commission and the President. It is however
7 8

P M Bakshi; the constitution of India, page 113. S.S. Imandar V. A.S. Andanappa, (1971) 3 SCC 870. 9 Deorao V. Keshav laxman borkar, AIR 1968 Bom 314. 10 Ravanna subanna V. Rishal Chandra, AIR 1958 SC 653.

clear that before a person can held t o be qualified under article 102(1) three things must be proved : y y y (a) that he held an office. (b) that it was an office of profit, (c) that it was an office of profit under government of India, or state government.

Article 102 (1)(a) enacts that a person shall not be disqualified for being chosen for being a member of either house of parliament if he holds any office under the government of India or than an office declared by Parliament or by law not to disqualify its holder. The object of the provision is to score independence of members of parliament and to secure indepe ndence of members of parliament. Also to ensure that the houses of the parliament do not contain persons who have received favors or benefits from the executive and who consequently bei ng under an obligation to executive, might be amenable to its influence 11. On the other hand even if a person is making a profit, He is not disqualified if he is not holding an office. For example a lawyer engaged by the government to appear in a case on its behalf and paid fees by it. It is for the courts to explain the significance and meaning of this concept. Over the years, courts have decided this issue in the context of specific factual situations. Dependence of a larger number of Member of Parliament on government patronage would weaken the position of parliament vis --vis the executive; for such members may be tempted to support the government without considering any problem with an open mind. Thus the final interpretation and decision whether a person is disqualified or not rests with the courts and not with Parliament.

A few case laws have been discussed in context of the variation in the interpretation of the term office of profit depending upon the varying factual situations. for instance in K.B. Pohmaray V. Shankar Rao, 12 it has been held that the honorarium paid to the members of the wage board under the Bombay industrial act,1946 is not profit because it is not sufficient even for pocket expenses.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. (CASE LAWS DEPICTING DIFF SITUATION IN WHICH OFFICES WERE HELD AS OFFICES OF PROFIT.)

11 12

Saturcharla chandrashekhar raju V. vyricherla pradeep kumar dev, AIR 1992 SC 1959 AIR 1975 SC 575.

Exceptions
Parliament may enact a law which may declare that a holder of an office of profit is not disqualified. Parliament has enacted The Parliament (prevention of disqualification), Act 1959 13 which exempts certain offices as not to disqualify their holders for membership of parliament. Since the passing of the act, the circumstances have considerably changed. Recent events have shown that the existing law is inadequate to deal with the situation. The state of Uttar Pradesh has enacted a law declaring a number of offices no t to be regarded as offices of profit. The cases of disqualification of Jaya Bachan and the resignation of Sonia Gandhi show that the present law should be strengthened and should also be made applicable to the states. The definition of office of profit has to be based on sound logic and common sense giving no chance to political maneuvering. The government however takes due advantage of having the power to amend the laws to suit their self interests and The law has even been amended time and again for mi nor posts and for lesser mortals. In 1977, when a non -Congress party came to power for the leader of the opposition in each House was provided a Special Salary and allowances, Since that made it an office of profit. The Morarji Desai government simultane ously amended the 1959 Act to put the leader of the opposition in the exempted list. In 1992 the National Commission for Schedule Casts and Scheduled Tribes (as it was then called) and National Commission for women came into existence while the National Commission for Minorities was conferred statutory study. Within a year, the Narasimha Rao government amended the act to save heads of those three commissions from being affected by the office of profit rule. In 1999, leaders and chief whips of all recogn ized parties and groups in parliament were provided special facilities. The Vajpayee government simultaneously amended the 1959 act to protect them from disqualification. On September 30, 1982, the President disqualified a member of the Rajya Sabha M.R. Mohan Rangam as he was holding the post of Special representatives of the government of Tamil Nadu in Delhi. It was taken as an office of profit

13

http://www.indiankanoon.org/doc/84668/

10

CONSTITUTIONAL ASPECTS

Disqualification of MP s : There are separate provisions of disqualification for the member of parliament and the member of state legislature. Article 84 prescribes qualifications of the members of parliament. It lays down that a person shall not be qualified to be chosen to fill a seat in parliament unless he (a) is a Citizen of India and makes an subscribes before some persons authorized in that behalf by the Election Commission on oath of affirmation according to the form set out for the purpose in the third schedule. (b) is of at least 30 years of age for the Rajya Sabha and of 25 ye ars of age for the Lok Sabha (C) and possesses such other qualifications as may be prescribed in that behalf by any low made by the parliament. 14

Our Constitution clearly mentions that the parli ament has the power to make a law in respect to the issue of q ualification of the member. Article 102 lays down disqualification of membership in case. (a) he holds any office of India or of any state, other than an office declared by a low of parliament not to disqualify its holders. (b) he is an undischarged in sol vent. (c) he is of unsound mind and stands so declared by a competent court. (d) he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement or allegiance or adherence to a foreign state, and (e) If is so disqualified by or under any law of parliament, it applies to the case of defection as prescribed in Tenth Schedule. 15

14 15

P.M. Bakshi;the constitution of India,tenth edition(2010),page 108 P.M. Bakshi;the constitution of India,tenth edition(2010),page 112

11

Article 103 lays down that any dispute about the disqualification of Member of Parliament shall be referred to the President who will take a decision on the advice of the Election Commission and his decision shall be final. The Election Commission has a great role as the President decides the matter after obtaining its opinion and is accordance with that option and in case of d isqualification on grounds of defection, the matter will decided by the Speaker or Chairman of Rajya Sabha as the case may be.

Disqualification of MLA s and MLC s : The disqualifications for membership in State Legislature are spelt in Article 191 which lays down. 1. A person shall be disqualified for being chosen as and for being a member of the Legislative Assembly or Legislative Council of a state (a) if he holds any office of profit under the government of India or the government of any state specified in first schedule, other than an office declared by the Legislature of the State by law not to disqualify sits holders. (b) If he is of unsound mind and stands so declared by a competent court. (c) If he is an undischarged in solvent. (d) If he is not a citizen of India, or voluntarily has acquired the citizenship of a foreign state, or is under any acknowledgement of allegiance or adherence to a foreign state. (e) If he is so disqualified by or under any low made by the parliament. 2. A person shall be disqualified for being a member of the Legislative Assembly or Legislative Assembly or Legislative Council of a state if he is so disqualified under the anti-defection law contained in Tenth scheduled. 16

Finally we may refer to Article 192 which says that if there is any dispute about the qualification of a member of the State Legislature, the matter shall be settled by the Governor whose decision shall be final and he shall do so after taking the opinion of the Election Commissioner.

16

P.M. Bakshi;the constitution of India,tenth edition(2010),page 155

12

TEST OF APPOINTMENT
A Constitution Bench of the Supreme Court in Guru Gobind Basu vs Sankari Prasad Ghosal & others 17 ruled that the decisive test for determining whether a person holds any office of profit under the Government is the test of appointment. There are several factors that enter into the determination of this question such as: appointing authority; the autho rity vested with the power to terminate the appointment; the authority that determines the remuneration; the source from which the remuneration is paid; the authority vested with the power to control the manner in which the duties of the office are dischar ged and to give protection on that behalf. 18 The Supreme Court has further held that it is not necessary that all these factors must co-exist. The court also held that stress on one factor or the other would depend on the facts of each case. In other words, it is only when the Joint Committee 19 scrutinises the composition and character of office held by the members facing threat of disqualification and gives a report that a comprehensive bill for amending the Parliament (Prevention of Disqualification) Act, 1 959, can be brought in. The office of profit must be under the central or the state governments.for deciding this there are five testsy y y y y Whether government has power of appointment. Whether government has the right to remove or dismiss the holder of offi ce. Whether the government pays the remuneration. Whether the functions that the holder performs are for government. Whether the government exercises the control over those functions. 20

17 18

AIR 1964 SC 254 Abdul Saquur V. Rishal Chandra, AIR 1958 SC 52. 19 http://en.wikipedia.org/wiki/Joint_committee 20 Abdul Saquur V. Rishal Chandra, AIR 1958 SC 52.

13

RATIONALE FOR THE DISSQUALIFICATION FOR HOLDING AN OFFICE OF PROFIT

Article 102(1) (a) of the Constitution says that 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 Govt (Centre or state) other than an office declared by Parliament by law not to disqualify its holder.

(ii) An office of profit need not necessarily confer pecuniary benefit; it is sufficient if it bestows administrative and executive powers.

The phrase office of profit holds centre stage in Indian politics. The rationale behind the constitutional provision article 102(1) (a), which debars a holder of an office of profit under the government from being elected to a House of parliament, is to secure independence of the MPs and to ensure that Parliament does not contain persons who have received favours or benefits from the executive and who consequently might be amenable to its influence. In other words, the provision appears to have been made in order to eliminate or reduce the risk of conflict between duty and self-interest among MPs. This provision is thus designed to protect the democratic fabric of the country from being corrupted by executive patronage and also secures the independence of MPs from the influence of the Government so that they discharge their functions without fear or favour . The recent controversy on the issue of certain Members of the Parliament ( MPs ) and Members of the Legislative Assembly ( MLAs ) holding the Office of Profit has once again highlighted the lack of debate on substantive issues in India. The focus of much of the analysis in the print and electronic media was on who was being affected and how and in what manner may these MPs be saved from disqualification. The Parliament also passed the amendment bill within a day without much debate or discussion. The object is to see that such an elected member can carry on freely and fearlessly his duties without being subjected to any kind of governmental pressure, thereby implying that if such an elected person is holding an office which brings him remunerations and if the Government has a voice in his functions in that office, there is every likelihood of such person succumbing to the wishes of the Government. But if a person holds an office of profit he shall not be disqualified for being chosen as member of either house of parliament by all not to disqualify its
14

holder. India had the Parliament (Prevention of Disqualification) Act, 1950, 1951, and 1953 exempting certain posts from being recorded as of fices of profit. All these Acts were replaced by the Parliament (Prevention of Disqualification) Act, 1959 21. By virtue of section 3 of the said Act, certain offices did not disqualify their holders from being members of either house.(LIST OF OFFICES EXEMPTED A FEW)

21

http://www.indiankanoon.org/doc/84668/

15

HOLDING OFFICE UNDER LOCAL AUTHORITY

The constitution makes a distinction between the holder of an office of profit under the government and the holder of the office of profit under a local or other authority subject to control of government while this is a disqualification for post of the president or vice-president under article 58. It s not so incase of members of legislature under article 102 and 191. Thus, the mere control of the government over the authority having the power to appoint , dismiss or control the working of the officer employed by such authority does not disqualify that office from being a candidate for the election as member of legislature. for a determination of a question whether a person holds an office of profit under the government, each case must be measured and judged in the light of the relevant provisions of the Act governing the local body. T he measure of control by the government over a local authority should be determined in order to eliminate th e possibility of conflict between duty and interest to maintain the purity of elected bodies. The fact that appointment of the officers of municipality is subjected to the confirmation by the government cannot lead to the conclusion that the state exercise s control over officers of the local authority. Recognizing that the state undertakes multiform public socio economic welfare activities, Kishna Iyer J. rightly warned against interpreting the term office of profit so wide as to cover persons with speci alized knowledge serving the Para-official, statutory and like or like projects run by the government, even it were to be at the cost of judicial irreverence to vintage precedents.

Distinction between holder of office of profit under Article 58(2) or 66(4) and article 102(1)(a) or 191(1)(a) Under article 58(2) 22 and 66(4) 23, a person shall not be eligible for election to the office of the president of India and Vice president respectively if he holds an office of profit under the government of India or government of any state or under any local or other authority subject o control of the government of India or any state government. On the other hand, article 102 (1)(a) 24 provides that a person shall be disqualified from being chosen as a member of their h ouse of parliament if he holds any office of profit under the government of India or government of nay state other
Pm bakshi,the constitution of india,edition 2010,pg.95 Pm bakshi,the constitution of india,edition 2010,pg.96 24 Pm bakshi,the constitution of india,edition 2010,pg.113
23 22

16

than office declared by parliament not to disqualify its holder. The same language has been used in article 191(1) (a) 25 in respect of members of state legislature. Thus the holder of office of profit under any local or other authority subject to control of the said government will be disqualified for being elected as president r vice president of India but according to language of articles 102 and 191, he will not be disqualified or being elected as a member of parliament or state legislature.

25

Pm bakshi,the constitution of india,edition 2010,pg.155

17

LAW OF OFFICE OF PROFIT IN INDIA

Article 102 Disqualification for membership 26: (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament, 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 any State, other than an office declared by Parliament by law not to disqualify its holder. b) If he is of unsound mind and stands so declared by a competent court c) if he is an undercharged insolvent d) if he is not a citizen of India, or has voluntarily acquired the citizenship of Foreign State or is under any acknowledgment of allegiance or adherence to a Foreign State. e) If he is so disqualified by or under any law made by Parliament Explanation: 1. for the purposes of thi s clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State. Explanation: 2: A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule. Article 191 is also similarly couched except for the difference that it would apply to Members of the State legislative assemblies. These two explanations were amended by 52nd Amendment to the Constitution in 1985, restricting the application of this explanation to this article only. The Constitution did not define the term office of profit . It is for the judiciary to interpret what is an office of profit and what is not depending upon the practical situations of each and every case. In order to attract Article 102 (1) (a) or Article 191 (1) (a), as the case may be, the person must hold an office and that office must be an office of profit . An office h as been defined as a position or place to which, certain duties are attached which are of public character. Elaborating on this, in order to constitute an office , there must be a permanent, substantive position which must exist independently of the holde r of the office. There is no office if the employment is only to do a particular work or to perform specified duties and there is an end of the employment after that work or duties are over. An office of profit is an office which is capable of yielding a profit or pecuniary gain. Profit means any pecuniary gain. The amount of such profit is immaterial but fee to reimburse out of pocket expenses do not constitute profit. On the other hand, if a profit does actually accrue from an office, it is an office of profit , no matter how it accrues. Thus, the office of an Oath Commissioner, who receives fees for his services, is an office of

26

Indian constitution(pm bakshi)

18

profit even though he receives no salary from the government. The test was elaborated in detail in the case of

Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev, where the question was when a person can be said to be holding an office of profit under the Government . In Shibu Soren v. Dayaanand Sahay 27, the election of appellant as members of Rajya Sabha was invalidated by Court because at time of election he was holding (i) an office of profit in so far as he was drawing an honorary in addition to daily allowances and other perquisites like rent free ho use and chauffer driver car and (ii) an office under the Government of state as he was appointed chairman of Jharkhand Area Autonomous Council by Governor of State and held office during his pleasure. In Guru Gobinda Basu v. Sankari Prasad Ghosal , the Constitution Bench emphasized the distinction between the holder of an office of profit under the Government and the holder of a post or service under the Government and held that for holding an office of profit under the Government, one need not be in the ser vice of Government and there need be no relationship of master and servant between the It discussed the aforementioned factors and noted that all these factors need not co exist. Mere absence of one of the factors may not negate the over -all test. It noted that the decisive test for determining whether a person holds any office of profit under the Government is the test of appointment; stress on other tests will depend on facts of each case. The case law was reviewed by the Supreme Court in Madhuker G.E. Pankakar v. Jaswant Chobbildas Rajani 28.

27 28

AIR 1992 SC 1959 2001 SC 2583

19

LAW OF OFFICE OF PROFIT IN BRITAIN

In Britain, the principle has been eroded. As a parliamentary system, the executive sits in the legislature, and from the nineteenth century ministries were invariably led by members of the House of Commons. Until 1919, members of parliament who were appointed to ministerial office lost their right to sit in the Commons and had to seek re-election. The rule survives in the House of Commons Disqualification Act which specifies a number of state positions that make an individual ineligible to serve as a member of parliament. The last vestige of the rule can be seen through the process of resignation from the House of Commons. By tradition, resignation from the House of Commons is impossible. An MP who wishes to resign has first to accept an office of profit under the Crown, thus vacating his seat. Members who wish to retire ask to be appointed to the office of steward or bailiff of Her Majesty s Chiltern Hundreds of Stoke, Desborough and Burnham, or steward of the Manor of Northstead. While these ancient posts have no responsibilities attached to them, they fulfill the requirements of the law and disqualify Members from sitting, enabling their retirement. 29

29

http://en.wikipedia.org/wiki/Office_of_profit

20

JOINT PARLIAMENTARY COMMITTEE (recommendation)

In 2008, A s regards apprehensions by the state governments that enactment of law on definition might go against the spirit of federal structure of the country, the committee said federalism had to survive through some common denominator vis -avis the country as a whole. The states have the liberty to enact laws on creation of exceptions for disqualification from offices of profit but not to define the term office of profit itself. In this context, the committee said the fallout of not having a definition of office of profit was there to be seen for all in whatever had happened in the year 2006 in the run up to the constitution of the Joint Parliamentary Committee to examine the constitutional and legal position relating to the office of profit. UPA Chairperson Sonia Gandhi had resigned her membership in the Lok Sabha on the issue of office of profit in 2006. She later contested the Lok Sabha poll and won the election. The committee said, in its 186 -page report, that it was essential to evolve the principles and generic criteria before defining the term office of profit. The Committee suggested the definition of office -of-profit as: any office under the control of the Government of India, or the government of a state, 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 any office 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 any office 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 favors of substantial nature; or legislative, judicial or quasi -judicial functions. Since the judicial decisions gave varying interpretations depending upon the facts of each case, the best course appears to be to refer the matter to the Parlia mentary Joint Committee to examine the individual cases of the 40 -odd MPs. The committee could exempt the offices it thinks would attract disqualification under Article 102(1a) of the Constitution of India. That Parliament is competent to enact a law to re move a disqualification with retrospective effect is settled as in Kanta vs Menak Chandra and Ibomcha vs Chandranani 30

30

AIR 1970 SC 694

21

JAYA BACHANS CASE -a brief

JAYA BACHAN V. UOI

(2006) 5 SCC 266

JAYA BACHAN a member of the rajya sabha was appointed as chairperson of the film development council. The parliament (prevention and disqualification) act didn t exempt the said office of profit from the disqualification under article 102(1)(a) of the constitution. The office carried with a monthly honorarium of Rs. 5000/-, entitlement expenditure of Rs. 10000/- , staff car with drivers, telephones both at residence and at office, free accommodation and medical treatment facilities to self and family members, apart from other allowances. The petitioner s membership on these grounds was challenged and after obtaining the opinion of the election commission as required by article 103(2) she was disqualified as a member of the rajya sabha. The petitioner challenged the validity of her disqualification order in the Supreme Court. She claimed that the benefits and facilities provided by the state government were not received by her. The Supreme Court held that the petitioner s disqualification from the membership of the Rajya Sabha was valid. The court held that an office of profit is an office which is capable of yielding a profit or pecuniary gain. Nature of payment must be considered as a matter of substantive rather than a matter of form. Nomenclature is not important. In fact, mere use of 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 driver 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 office of profit or not, what is relevant factor is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained 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

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CONCLUSION
The true test for determining whether a person holds an office of profit depends upon the degree of control the government has over it, the extent of control exercised by various other bodies or committees, its composition, the degree of its dependence on the government for its financial needs and the functional aspect namely whether the body is discharging any important governmental function or just some function which is merely optional from the point of view of government. The real test is whether there is any possibility of conflict between duty and personal interest and not whether the function of the office is big or small. Unfortunately, in the recent controversies, the issue never reached the Supreme Court where the status of various posts such as Chairperson, National Advisory Council could have been judicially tested. In other cases, law was quickly amended so as to get around the problem. Furthermore, there was no debate on the crux of the issue which was to protect the independence a nd impartiality of the legislature. In the High Command culture of Indian politics, where the top brass of the parties decide the position of the party on a particular issue affecting them and then issues a whip asking its members to vote accordingly, there might not be much possibility of a serious debate. Judicial decisions are invariably protecting the politicians by interpreting the offices they held as not offices of profit. It is a paradox that the courts could caught the small fry like teachers, nu rses or doctors getting elected to house while holding that employment. Experience has shown that article102 and article 191 of the Constitution of India which disqualify Members of Parliament and State Assemblies in case they hold any office of profit, h ave not succeeded to bring in any purity in politics, which appears to be the objective with which the two articles were inserted. The said articles neither define the term office nor the term profit , as a result of which, what constitutes the office of profit has always remained a mystery. Plethora of decisions of the Supreme Court and the High Court s has also not being able to give any finality to the two concepts. Parliament as also, State Legislatures have enacted legislations incorporating certain posts to take them away from the purview of the concept of office of profit . These laws contain lists of corporations/boards, besides other constitutional posts, which the legislations have sought to take out of the purview of the term office of profit so as to exempt the holders thereof from being disqualified. Additions to the lists of exemptions, whether by Parliament or by State Legislatures, have met with public criticism on account of misconception regarding office of profit . To put an end to t his legal chaos, the present Bill seeks to amend article 102 and 191 of the Constitution of India, which, as amended will provide for disqualification of members of Parliament or State Legislatures only if they hold posts declared specifically as posts constituting office of profit and not vice versa.
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The proposed amendment is essential to make the law simple and devoid of any legal riddles.

IT SHOWS:
(a) Our policy makers. Statesman, politicians, leaders and so-called stalwarts want to grab more and more power in one hand. (b) The power loving people do not want to let the door open for others. (c) They need money by any means, so that they could hide their black money. (d) In an era of corporate culture of democracy, only money begets powers. (e) In order to sustain in power, the thirst of greedy leaders can be satisfied only by giving them of faces of profit. (f) Our political party s, power-loving representatives and peoples leaders have lost morality, principle and dignity. They need power, they need money : but they do not need welfare of the people.

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BIBLIOGRAPHY

Primary sources
1. Dr. Singhvi L.M; Constitution of India; 2nd Edition; Volume 2; Modern Law publications. 2. Jain M.P.; Indian Constitutional Law; Fifth edition 2003; volume 1; Wadhwa Nagpur. 3. 214th Report of the Law Commission of India published in Dec 2008. 4. 121st Report of the Law Commission of India in year 1987. 5. Shukla V.N.; Constitution of India; 10th Edition; Eastern Book Company. 6. Dr. Basu D.D.; Introduction to t he Constitution of India; 19th Edition; Wadhwa Nagpur. 7. Indian Government and Politics by A.S. Narang 8. Prospects on Indian Government and Politics by K.R. Acharya. 9. Parliamentary Democracy and Legislators by R.K. Bharadwaj. 10. Constitutional System of the Indian Republic by K.R. Bomswalla. 11. PANDEY J.N;THE CONSTITUTIONAL LAW OF INDIA;47 th edition 2010;central law agency

Secondary sources
1. www.lawstudent.in 2. articles-base.com
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3. www.business standard.com 4 www.the hindu.com 5.https://www.amazines.com/Government/article_detail.cfm/104627?articleid=104 627 proff 6. www.lawstudent.in 7. www.parliamentofindia.nic.in 8. www.pmindia.nic.in 9.www.supremecourtofindia.nic.in 10. http://www.articlesbase.com/politics-articles/office-of-profit-a-politicalcontroversy-in- india-292234.html

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