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Office of Profit by SONAKHI on MARCH 12, 2010 The true principle behind this provision in article 102(1) (a)

is that there should not be conflict between the duties and interest of elected members. In ordinary parlance, an office or place of profit means an office or profit or position, which brings to the person holding it some pecuniary gain or advantage or benefit. It will be an office or place of profit if it carries some remuneration, pecuniary advantage, benefit. It may be an office or place of profit if it carries some remuneration, financial advantage, benefit etc. The amount of such profit is immaterial. But the amount of money receivable by a person in connection with the office he hold may be material in deciding whether the office really carries any profit. A nationwide debate is going on over the controversy of disqualification of MPs and MLAs on the ground of holding offices of profit in Indian Political system. It began with the disqualification of Samajwadi Party MP Jaya Bachchan from Rajya Sabha on March 17, 2006 with retrospective effect from July 14, 2004. After this event, leaders of different political parties performed much hue and cry. Finally Sonia Gandhi resigned from the Lok Sabha pretending the issue of morality. Very soon the controversy took a constitutional crisis and different state governments rushed to save their pillars of powers. The expression office of profit has not been defined in the Constitution 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 clear that before a person can held o be qualified under article 102(1)(a) three things must be proved : (a) that he held an office (b) that it was an office of profit,(c) that it was profit under government of India, or state government. Article 102 (1)(a) enacts that a person shall not be disqualified for being chosen as 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 by law not to disqualify its holder. The object of the provision is to score independence of members of parliament and to secure independence of members of parliament does not contains persons who have received favors or benefits from the executive and who consequently being under an obligation to executive, might be amenable to its influence. 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.

Rationale for the disqualification 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: 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. 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 is holding centre stage in Indian politics right now..The object of the provision is to secure independence of the MPs and to ensure that Parliament does not contain persons who have received favors 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 favor. The rationale behind the constitutional provision article 102(1) (a), which debars a older of an office of profit under the government from being elected to a House of parliament, is that as explained by Supreme Court, there should not be any conflict between the duties and interests of an elected member and to see that the elected member carries on his duties freely and fearlessly without being subjected to government pressure.The presumption is that if a legislature receives benefits from the Executive than he may not be able to independently scrutinize the actions of the Government. The provision is thus designed to protect the democratic fabric of the country from being corrupted by executive patronage. It ensures that the parliament does not contain persons who may be obligated to the government and be amenable to it influence because they are receiving favors and benefits from it. 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. Although President returned the bill on certain grounds which will not be dealt with in this paper; it is doubtful whether the Government would accept these suggestions. 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 choosen as member of either house of parliament by all not to disqualify its holder. India had the Parliament (Prevention of Disqualification) Act, 1950, 1951, and 1953 exempting certain posts from being

recorded as offices of profit. All these Acts were replaced by the Parliament (Prevention of Disqualification) Act, 1959. By virtue of section 3 of the said Act, certain offices did not disqualify their holders from being members of either house

Local authority ,meaning ofThe 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. Its 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 the 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 exercises 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 t he term office of profit so wide as to cover persons with specialized 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. 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, have 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 Courts 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 this 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. The proposed amendment is essential to make the law simple and devoid of any legal riddles. 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) and 66(4), 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) provides that a person shall be disqualified from being chosen as a member of their house of parliament if he holds any office of profit under the government of India or government of nay state other than office declared by parliament not to disqualify its holder. The same language has been used in article 191(1) (a) 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. Law of Office of Profit in IndiaArticle 102 Disqualification for membership: (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 this 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 has 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 holder 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 profit even though he receives no salary from the government. The test was elaborated in detail in the case ofSatrucharla 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. InShibu Soren v. Dayaanand Saahy, 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 house 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 service 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. Bachchan Issue Jaya Bachchan was elected for the Rajya Sabha in June 2004. After one month she was appointed as the Chairperson of Utter Pradesh Film Development Corporation, which was an office of profit under the State government. She was given perks and other benefits as part of her job in U.P. In this way, she was holding an office of profit not withstanding her selection as the member of the Council of state very interestingly, a Congress worker from Utter Pradesh filed a complaint against Ms. Bachchan in the Election Commission. The Commission found her guilty of holding an office of profit. The President, after the Recommendation of the EC disqualified her under the Article 102 of the Constitution of India. Sonia Issue Congress President Sonia Gandhi was a member of Lok Sabha. She was appointed as the Chairperson of National Advisory Council by the UPA government. She also held several posts under the

government. Complaints were registered against her, and she chose the safe route of resignation. So that she could continue her impression of being the statue of sacrifice and morality. The list of holders of office of profit is too long. Complaints against more than 40 MPs are registered in the Election Commission. Lok Sabha Speaker Somnath Chatterjee himself comes within the purview of disqualification. Hundreds of member of different state legislature hold offices of profit, somehow or the other. Joint parliamentary committee (recommendation) In 2008, As 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-a-vis 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 Parliamentary 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 remove a disqualification with retrospective effect is settled as in Kanta vs Menak Chandra andIbomcha vs Chandranani. Disqualification of MPs: 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. Article No.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 disqualification on grounds of defection, the matter will decided by the Speaker or Chairman of Rajya Sabha as the case may be. In the case of mmber of stat assembly article 191 would prevail and the decision of the Governor shall be final.In this case also the opinion of the state Election Commission shall be sought. 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. D.D. Basu opines that 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 controversy, 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 and 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, nurses or doctors getting elected to house while holding that employment. Nevertheless, I am hopeful that the Parliament would deliberate on these issues when the bill is taken up again in the coming Monsoon session given the serious questions it raises. What final shape the bill would take is only a matter of conjecture at this stage. Bibliography Primary source 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 the Constitution of India; 19th Edition; Wadhwa Nagpur. Secondry source 1. www.lawstudent.in 2. articles-base.com 3. www.business standard.com 4 www.the hindu.com

5. https://www.amazines.com/Government/article_detail.cfm/104627?articleid=104627proff RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY Sonakshi Verma, B.A, LLB(Hons), 3rd yr, Dr Ram Manohar Lohiya National Law University, Lko. Ravanna Subanna v. G.S Kaggeerappa,AIR 1954 SC 653, 656 S.S Inamdar v. A.S Andanappa, (1971) 3SCC 870 Deorao v. Keshav Laxman Borker, AIR 1968 Bom 314 Kanta Kathuria v. Nanak Chand Shrma, AIR 1970 SC 694 Ashok Kumar Bharracharya v. Ajoy Biwas , AIR 1985 SC 1985 SC 211 Satrucharla Chandrasekhar Raju v. Vyricheria Pradeep Kumar , AIR 1992 SC1959 Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev, (1992) 4 SCC 404 Gurushanthappa D.R. v Abdul Khuddus Anwar, AIR 1969 SC 744, 750 (1969) 1 SCC 466 Ashok kumar Bhattacharya v Ajoy Biswas (1984) 1 SCC 551 Madhukar GE Pankakar v Jaswant Chobbildas Rajani, AIR 1976 SC 2283 Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa, (1971) 3 SCC 870. Ramappa v. Sangappa, AIR 1958 SC 937 Kanta Kathuria v. Manak Chand Surana, AIR 1970 SC 694 Ravanna Subanna v. Kaggeerappa, G.S., AIR 1954 SC 653 Abdul Shakoor v. Rikhab Chand, AIR 1958 SC 52 (1992) 4 SCC 404 (2001)7 SCC425 Guru Govinda Basu v. Sankari Prasad Ghoshal, AIR 1964 SC 254 (1977) 1 SCC 70 Jaya Bachchan v. UOI, AIR 2006 SC 2119 1970 SC 694 para 36 AIR 1977 SC 682 www.lawstudent.in

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