This article is written by Arya Senapati. It attempts to analyse the case of Jaya Bachchan v. Union of India (2006) in the light of its facts, issues, legal provisions, arguments and judgements. It also covers the principle of office of profit under the Constitution of India and discusses the various aspects related to it. The case analysis also refers to various precedents and related case laws regarding the concept of office of profit.

Introduction

In a parliamentary democracy like India, Members of the Parliament and Members of the Legislative Assembly are responsible for representing the views and opinions of the people they seek to represent. This representative feature of governance is highly important, especially for a nation like India, wherein there are people from different walks of life and diversity is highly prevalent. Therefore, it becomes very important to ensure that people who are selected to represent the concerns, views and opinions of the citizens are capable enough of doing so in the best way possible. These representatives are elected through a standardised constitutional machinery of election, through votes from the people of a constituency that they seek to represent. Once elected, they form a collective understanding on the concerns, problems, opinions and views of the people and present it at the Parliament or the Legislative Assemblies, so as to help the people they are representing in getting their voices heard. Therefore, our Constitution ensures that these individuals have enough qualifications to provide adequate and proper service to their people. Article 84 of the Indian Constitution specifies certain qualifications that a candidate needs to fulfil to be eligible to contest the elections for being a Member of the Parliament. The basic qualifications are: 

1. must be a citizen of India;
2. must be of 25 years of age for Lok Sabha and 35 years of age for Rajya Sabha; and
3. fulfil any such other qualifications prescribed under any other law in effect in India. 

Along with these qualifications, the Constitution also mentions certain disqualifications to ensure that governance is carried out through the relevant statutory principles and any form of defect associated with an individual seeking to be a representative of the people, doesn’t affect the smooth functioning of the constitutional governance mechanisms. Article 102 of the Constitution of India deals with these disqualifications. It states that a person is disqualified from being chosen as a member of a parliament if he: 

1. holds an office of profit under the Government of India or Government of any State;
2. is of unsound mind and is declared as such by a competent court;
3. is an undischarged insolvent;
4. not a citizen of India or has acquired citizenship of a foreign state;
5. disqualified by any other law in operation in India and made by the parliament. 

These disqualifications prevent a person from contesting elections to be a Member of the Parliament. The disqualification that has been one of the most contested ones, is the “office of profit” which is also at the core of the case of Jaya Bachchan v. Union of India (2006). This disqualification basically entails that any person who holds an office under the State Government or Central Government and is deriving any monetary or pecuniary gain from it, shall be disqualified from being eligible to contest elections for being a Member of the Parliament. It also states that if the Parliament declares a particular office to be exempted from such a disqualification, this provision would not apply to a person holding such an office. The explanation to Article 102 states that, a person shall not be deemed to hold an office of profit when he holds the position of a Union Minister or a State Minister. Many people have been disqualified using this provision of “office of profit”. In this case, Mrs. Jaya Bachchan’s eligibility was challenged using the same as a ground of contention. 

Details of the case

Name of the petitioner: Jaya Bachchan

Name of the respondent: Union of India

Court: Supreme Court of India

Case type: Writ petition (civil)

Bench: Justice C.K. Thakker and Justice R.V. Raveendran

Date of judgement: 08/05/2006

Citation: AIR 2006 SC 2119

Important laws dealt in the case: Article 84, 102, 103, 104, 111 of the Constitution of India, Section 2, 3 of the Parliament (Prevention of Disqualification) Act, 1959 

Facts of Jaya Bachchan vs. Union of India (2006)

• In this instant case, The Government of Uttar Pradesh had appointed Mrs. Jaya Bachchan, the petitioner, as the Chairperson of the Uttar Pradesh Film Development Council. This appointment was done through an official memorandum and sanctioned the petitioner to the rank of a Cabinet Minister. 
• By virtue of the position that the petitioner held, she was given certain benefits which included an honorarium of Rs. 5000 per month, a daily allowance of Rs. 600 per day for expenditures within the state and Rs. 750 for expenditure outside the state. She was also entitled to an entertainment expenditure of Rs. 10,000 per month. 
• Apart from the pecuniary entitlements, she was also given a staff car with a driver, telephones for her office and her residence, one personal secretary, one personal assistant and two Class 4 employees. She was provided with a bodyguard, a night escort, and the privilege of free accommodation and medical treatment to her and her family members. She was also given access to free accommodation in Government Circuit Houses/ Guest Houses, alongwith hospitality measures while touring 
• Based on these facts and the laws related to disqualifications of a Member of the Parliament, the Election Commission of India stated that the office which the petitioner held that is Chairperson of the Uttar Pradesh Film Development Council, is an office of profit under the Government of Uttar Pradesh and can be considered for the purposes of Article 102(1)(a) of the Constitution of India, to declare the petitioner as disqualified. 
• The Commission also took into consideration that the said office did not fall under the exempted offices provided under the Section 3 of the Parliament (Prevention of Disqualification) Act, 1959 and therefore, it is a valid ground for disqualification of the petitioner. 
• Based on the powers conferred on the President by virtue of Article 103(1) of the Indian Constitution, an order was passed on 16th March, 2006 which declared the petitioner as disqualified from being a Member of the Rajya Sabha on and from the 14th July, 2004. This order was passed after the president reviewed the opinion of the Election Commission of India. 
• The petitioner therefore approached the Apex Court in connection to the order of disqualification, with her contentions to prove otherwise. 

Issues raised 

The primary legal issues raised in this case are the following:

• Whether the office of Chairperson of Uttar Pradesh Film Development Council was an office of profit?
• Was Jaya Bachchan, the petitioner, disqualified from being a Member of the Parliament because she held an office of profit?

Arguments of the parties

The arguments of the parties are bifurcated as follows:

Contentions of the petitioner

To prove that the petitioner didn’t hold an office of profit, she provided the Apex Court with the following contentions:

• To counter the terms of receiving remuneration and availing benefits, the petitioner contended that: 

1. The post of Chairperson at the Uttar Pradesh Film Development Council was merely a decorative post and not of much significance. 
2. The petitioner stated that she had not received any remuneration or monetary gains by holding the position under the State Government. 
3. Even though she was provided with many facilities, she had never availed any of them. She had never sought residential accommodation, or used the telephone and medical facilities, and even though she had to travel for work in connection to the position that she held, she had never asked for a reimbursement. 
4. She submitted that she received the position on an honorary basis and had not made use of any of the facilities mentioned in the official memorandum of appointment. 
5. In the absence of any proof that she had gained any payment of monetary considerations for her position, the ECI could not hold that she occupied an office of profit under the State Government. This would make the disqualification invalid. 

• The petitioner relied on the decision given by the Apex Court in the case of Umrao Singh v. Darbara Singh (1969), in which it dealt with the question of whether payment of a monthly consolidated allowance for performing all official work outside the district and daily allowances for days of attendance of meetings, travel etc. would make the office of the Chairman of the Panchayat Samiti, an office of profit.  In this case, the Court held that these allowances are paid to the Chairmen to ensure that the expenditure that they have to incur to conduct the duty in connection to the position, should not be from his own pocket. Therefore, these monetary allowances cannot be said to turn the position of the Chairman of the Panchayat Samiti, as an office of profit. 
• The petitioner also cited the decision of the Court in the case of Divya Prakash v. Kultar Chand Rana and Anr. (1975). In this case, the Apex Court held that the position of the Chairman of the Board of School Education of the State of Himachal Pradesh is not an office of profit. The candidate was appointed in an honorary capacity and was not provided with any remuneration and there was no pay scale attached to the post of Chairman in this case.
• Based on the above two decisions, the counsel for the petitioner contended that when a person is appointed in a position without any remuneration and in an honorary capacity, even though the post carries remuneration, it cannot be said to be an office of profit and therefore cannot be disqualified under the constitutional provisions. 
• Therefore, the petitioner prayed to the court with the petition that the Hon’ble Supreme Court may declare the disqualification to be invalid and further declare that the petitioner didn’t hold any office of profit. 

Judgement in Jaya Bachchan vs. Union of India (2006)

• The Apex Court found that it cannot be disputed that the Council for Film Development, Uttar Pradesh is not an autonomous body or statutory corporation. The Council doesn’t have a budget of its own and depends on the Department of State Government for all its administrative expenditures and all other spendings. 
• The Court stated that the appointment of the petitioner as the Chairperson of the Council that conferred her with the rank of a Cabinet Minister, is also not disputed as it was done by the Official Memorandum dated 23.3.1991 and entitled her to various benefits, remunerations and entitlements. 
• Article 102(1)(a) states that a person shall be held to be disqualified from being elected as a member of either Houses of the Parliament in case of the person holding an office of profit under the Government of India or the Government of any State, unless such an office is exempted by the application of a law made by the Parliament itself. The term “office of profit” is nowhere defined in the Indian Constitution and is therefore dependent upon judicial interpretation of the subject matter. Based on various previous decisions of the Court on the matter of office of profit, it can be stated that it is an office which has the potential or capability of yielding a profit or pecuniary gain. To hold an office under the Central or State Government, to which a pay scale, emolument, remuneration or non-compensatory allowance is attributed, can be held to be an office of profit.
• Whether a person holds an office of profit or not is a question that should be decided in a realistic manner and any payment concerned with such an office must be judged in substance and not in the form of payment. The nomenclature of such a payment is not material, while constituting whether a person received any monetary benefit or not. The mere use of the word “honorarium” cannot delineate the payment from the ambit of profit or monetary gain. The payment of an honorarium amount, provision of daily allowances, entitlement to rent-free accommodation and a chauffeur driven car at the expense of the State Government can be said to fall under the scope of pecuniary gain and can be adequately termed as “profit” on the part of the recipient or the holder of the office. 
• The Court should try to assess whether the office is capable of yielding any profit to the person or not. While deciding so, actual profit or monetary and pecuniary gain received is immaterial. It does not matter if the person has actually received any profit or not, but the simple fact that the office is capable of yielding profit is sufficient to label it as an “office of profit”. 
• If the office is attached with any entitlements to the holder, any pecuniary gain other than reimbursement of out of pocket or annual expenses, it is considered to be an office of profit under Article 102(1)(a) of the Indian Constitution. As per the Supreme Court, this position can be found well settled in the cases of Ravanna Subanna v. G.S. Kaggeerapa (1954), Satrucharla Chandrasekhar Raju v. Vyricherla Kumar Dev (1992) and Shibu Soren v. Dayanand Sahay (2001). 
• The Court stated that all the decisions which the petitioner cited in her contentions hold no value, as those cases turned on their own facts and laid no propositions which are contrary to the law established. The cases which are of actual importance are that of Ravanna Subanna, Satrucharla Chandrasekhar Raju and Shibu Soren, as mentioned earlier. It is a solidly established principle that whenever the office carries with it certain emoluments, it will be held to be an office of profit even if the holder has not received any actual pecuniary gains with regard to the office. 
• In this instant matter, as per the memorandum of appointment, the office carried a monthly honorarium of Rs. 5000 and entertainment expenditure of Rs. 10,000, along with a staff car and driver, telephone, free accommodation and medical treatments. All of these things are pecuniary gains. The fact that the petitioner was financially affluent and therefore was not interested in any of these benefits is irrelevant and therefore, the disqualification was valid and the petition stood dismissed. 

Critical analysis of Jaya Bachchan vs. Union of India (2006)

The primary point of law that is reiterated in the judgement and has been established in a series of decisions, is that an office of profit by definition, is any office that is capable of yielding any profit to the holder of the office. Profit simply means any pecuniary gain, monetary allowance, remuneration, emoluments etc. Simply stating the remuneration as an honorarium does not exclude it from the purview of profit. The only thing that can be excluded from the ambit of profit is, reimbursement paid for any expenses paid out of the own pocket of the office holder for conducting his duty in connection to the position. Therefore, it is immaterial whether the holder received any actual profit or not. The very fact that an office is capable of yielding profit is sufficient to declare it as an office of profit. 

The decision taken by the Apex Court follows the established law and sets a clear standardised precedent for other benches to follow in similar cases. It is highly important to assess the idea of “profit” and “office of profit” with a broad definition, to ensure that the objectives of the constitutional provisions are well protected and are not vitiated by acts of ineligible candidates. This guarantees that only those interested in spearheading the administrative and governance mechanisms of a representative democracy get ahead in the election. Therefore, this decision holds great significance in the realms of election law. 

Historical background of office of profit

The term “office of profit” is not defined anywhere in the Constitution of India. The perspective that by holding certain offices or positions, a Member of the Parliament is in some way obstructed from fulfilling his true constitutional duties towards the people he represents, or that his independence is affected in certain ways that weaken his responsibilities towards the people of his constituency and therefore, should be a reason to disqualify him, is taken from the Parliamentary history of the United Kingdom. It developed in the United Kingdom in more than four phases. The first phase is the privilege phase,  the second is the corruption phase, and the third is the ministerial responsibility phase. 

In the earliest time, the English Parliament established priority over the services of the Members and it was considered to be derogatory for the members to accept any other position which would require a significant amount of time and attention that should ideally be spent on fulfilling their duties as Members of the Parliament. This understanding led to the conclusion that Members of the Parliament holding other offices, is incompatible with their position and therefore should not be accepted. 

In the second phase, a growing difference was seen in between loyalty to the Crown and loyalty to the House of Commons which signified a member’s loyalty to the people he represented. Therefore, it was held that any position held by a Member of the Parliament under the Crown leads to his loyalty towards the Parliament being compromised and therefore a matter of disqualification. 

In the third phase, the King became a part of the constitutional machinery and became the constitutional head of the Parliament. Therefore, all the members became Ministers to the King and it was held that these Ministers have a responsibility towards the King, the Constitution and the people. The responsibility is compromised if the Minister accepts any office of profit and is hence a valid ground of disqualification. 

Office of profit in India

Even though India adopted the concept of office of profit from the English parliamentary system, it made certain modifications to it as it kept developing in the Indian scenario. The first mention regarding office of profit in India can be found in Section 26(1)(a) of the Government of India Act, 1935, wherein it was stated that a person shall be disqualified from being selected as a member of either of the Chambers of the Parliament, if he held any office of profit under the Crown of India, other than those offices declared as exempted under the Act of the Federal Legislature. 

Origin of Parliament (Prevention of Disqualification) Act, 1950

When the Indian Constitution came into effect, it declared that a person holding an office of profit would be disqualified from being a Member of the Parliament in either house and the explanation provided in Article 102 clarified that the person who is a Minister in either the Union or the State, is not said to hold an office of profit. However, the earlier understanding of Ministers only included Cabinet Ministers and to address this understanding, the Parliament (Prevention of Disqualification) Act, 1950 came into picture. Section 2 of the Act stated that a person shall not be disqualified from being selected as a Member of Parliament to either of the houses, simply on the ground that he/she holds an office of profit under the Government of India and/or the Government of any State wherein the position is of a Minister of State or a Deputy Minister or Parliamentary Secretary or Parliamentary Under Secretary.

It basically meant that a person holding any office of profit under the Central or State Government in the position of a Minister of State or Deputy Minister of Parliamentary Secretary or Parliamentary Under Secretary is exempted from the disqualification laid down by Article 102. 

The Parliament (Prevention of Disqualification) Act, 1951

Followed by the 1950 Act, the 1951 Act came into existence, which had a retrospective effect in terms of its application. It stated in Section 2 that certain offices of profit held by Members of Parliament under the Government, would not disqualify them and they shall be deemed to have never been disqualified by virtue of the retrospective application. They shall be eligible to be selected as a Member of either Houses of the Parliament. The retrospective effect was applicable from 26.1.1950. 

Formation of the Bhargava Committee

In the year of 1954, the Bhargava Committee was constituted and was headed by Pandit Thakur Das Bhargava. The main objective of the committee was to examine various matters related to the disqualifications of the Members of the Parliament and to make certain recommendations regarding creation of a comprehensive legislation regarding such disqualification. Based on the reports of the Bhargava Committee, the  Parliament (Prevention of Disqualification) Act, 1959 was enacted and declared that certain offices of profit under the Government shall not disqualify the holders from being chosen as Members of Parliament. Section 3 of this Act lists out certain offices which are exempted and this Section is amended from time to time to make changes to the lists. Some of the offices exempted are:

1. Office of Minister, Minister of State, Deputy Minister for Union or State
2. Leader of Opposition
3. Deputy Chairman, Planning commission 
4. Chief Whip, Deputy Chief Whip, Parliamentary Secretary
5. Office of a member of any delegation or mission sent outside India by the Government for any special purpose etc. 

These are some of the major examples from the long list of exemptions. 

Developments post the Jaya Bachchan case

After the decision of the Apex court in the Jaya Bachchan case, it was observed that many Members of the Parliament are holding offices of profit,’ which would lead to the same disqualifications as faced by Jaya Bachchan in her matter before the Supreme Court. To remedy this situation, the Parliament (Prevention of Disqualification) Amendment Bill, 2006 was introduced on 16th May, 2006 in the Lok Sabha and was passed on the same date. The next day, it was introduced in the Rajya Sabha and was passed on the same date. The President returned the bill to the Parliament for reconsideration under Article 111 of the Constitution. The Bill was again passed by both Houses and then the President provided assent. Section 2 of this amendment act inserted clauses under Section 3 of the Principal Act, to exempt certain other offices which were: 

1. The office of the Chairman, Deputy Chairman, Secretary or Member (by whatever name called) in any statutory or non-statutory body. 
2. The office of the Chairperson or Trustee of any Public or Private Trust. 
3. The office of the Chairman, President or Principal Secretary or Secretary of the Governing Body of any society registered by law. 

Procedure regarding disqualification of members

The next important constitutional provision under the concept of office of profit, is Article 103, which deals with the question of what would happen if an already elected and sitting Member of the Parliament is subjected to the disqualifications prescribed in Article 102. In such a situation, the President is referred to and whatever decision the President takes shall be considered to be full and final. The President has to consult and seek the opinion of the Election Commission before making any decision under this provision and has to act in accordance with the opinion given by it. 

Article 104 also imposes a penalty on any person who, having known to be disqualified under Article 102, sits in the Parliament and exercises his/ her right to vote as member of the Parliament, in the parliamentary proceedings. A sum of 500 Rs. per day is to be taken from such Members for each day of sitting and voting in the Parliament after the said disqualification. 

In detail, this is how the constitutional understanding of the term office of profit developed in the Indian parliamentary system through various laws, amendments and constitutional provisions. The Jaya Bachchan judgement is therefore highly significant as it led to important amendments to the disqualification laws of the nation and extended the list of offices which are exempted as offices of profits under the ambit of Article 102 of the Indian Constitution. More so, it became a standard for other similar cases in front of the judiciary. 

Joint Parliamentary Committee on Offices, 2018 Report

In the detailed and comprehensive Joint Parliamentary Committee on Offices Report of 2018, the following criteria is set for determining if an office is an office of profit or not. The criteria are as follows: 

I. Whether there is government control over the appointment and revocation of such appointment in connection to the office. Whether the government exercises any control over the functioning and performance of the office, shall also be considered.

II. Whether the person who holds the office is drawing any form of remuneration from the said office. The remuneration can be in the form of sitting fee, honorarium, salary etc. Any kind of payment that is not in the nature of compensatory allowance (reimbursement of expenses incurred from one’s own pocket for performing duties in connection to the office), would be considered as profit. If a member is drawing more than what is required to reimburse the actual out of pocket expenses, it will be a matter of disqualification. 

III. Whether the office attributes any executive, legislative and judicial powers or other powers such as disbursement of funds, allocation of lands, issuing of licences, appointment of people, grant of scholarships etc., to the holder of the said office.

IV. Whether the position held by the person by virtue of holding the office enables him to wield influence of power by way of patronage. If so, it will be a matter of disqualification. 

While many legal scholars and practitioners stood against the idea of developing a standardised definition of office of profit, the Joint Committee felt that it is important to have such a definition for the term, since without understanding what constitutes an office of profit, it is not feasible to lay down exemptions for the same. The Committee does not believe in the argument that by defining an office of profit, the courts would be open to a flood of litigation on the matter. There would be many advantages to defining an office of profit. It would provide more clarity on what constitutes an office of profit and what does not. By defining the term, the legislators can make a more informed choice before accepting the offer of holding any office under the government. The definition would make the law more transparent and effective in terms of implementation and would result in improving the image of the public representatives. Arbitrariness in appointment would be greatly reduced by having a clear definition in place. While attempting to define the term, all relevant judicial pronouncements must be taken into consideration, to create a constitutionally valid definition.

Case laws on office of profit

Ravanna Subanna v. G.S. Kageerappa (1954)

In this case, the Apex Court held that the word profit means the gaining of anything that is pecuniary and such a pecuniary gain must be attached to the office. If there truly is a gain, the quantum or measure of it would be immaterial and the amount of money actually received by the person would not matter. What matters is the amount of money that is receivable by the virtue of the position that the person is in. That amount which is receivable by the person is what connotes the term “profit”.

Kanta Kathuria v. Manak Chand Surana (1969)

In this case, the term “office” was interpreted by the Apex Court. It is a landmark case, which held that a Member of the Legislative Assembly cannot be disqualified for the purposes of holding an office of profit, unless the opposition proves that the office can exist independent of the holder. In this matter, the petitioner was appointed as a Special Government Pleader in the State of Rajasthan. This appointment was alleged to be an office of profit to disqualify the petitioner. The Apex Court held that such an office is not an office of profit, as it is not a permanent post. It is simply an assignment of certain duties, which the petitioner must fulfil by virtue of the appointment. The office must exist independently of the holder to be termed as an office of profit. 

Divya Prakash v. Kultar Chand Rana & Anr. (1975)

In this case, the respondent’s appointment as the Chairman of the State Board of School Education was challenged. The appointment was made on an honorary basis. It was argued by the petitioner that the respondent holds an office to which a pay scale is attached. The Apex Court rejected the argument and stated that the Board which attached the pay scale is not entitled to do so and the respondent has never truly received any salary from the said office. He was also not entitled to any salary, as the appointment was made on an honorary basis. Therefore, it cannot be termed to be a matter of “profit”. 

Ramakrishna Hegde v. State of Karnataka (1993)

In this case, the petitioner’s appointment as the Deputy Chairman of Planning Commision was challenged on the ground that it was an office of profit as the petitioner is entitled to a cabinet rank and received various allowances which included a fully furnished house, chauffeur driven car and the entitlements of a State guest. The Karnataka High Court Court held that the monetary entitlement was merely compensatory for all the expenses that the petitioner had to incur from his own pocket and therefore it cannot be deemed to be a matter of profit. The mere entitlement of a rank of Cabinet Minister and state guest is not enough to prove the bearings of an office  profit. Therefore, the disqualifications are invalid. 

Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev & Anr. (1992)

This is another landmark case in which the candidate contesting election was a school teacher for a school that was governed by the Integrated Tribal Development Agency (ITDA), and therefore was alleged to hold an office of profit. The office which appointed the candidate as a teacher is a government office and members of the school’s governance authority are government officers too. The school operated on government sanctioned funds, but the Supreme Court held that the post was not a government post and the ITDA cannot be considered as an appointing authority. This case interpreted the meaning of the term “government office”. Certain tests were laid down, which are as follows: 

a) The government has the appointing power and also the power to revoke such an appointment. Simple exercise of control of the government over the appointing authority is not enough to constitute a government office. 

b) The holder of the office must be paid out of the revenues generated by the government. 

c) The degree and extent of control that the government has over the appointing authority is material while deciding if the office is a government office or not. 

Consumer Education and Research Society v. Union of India (2009)

This is a landmark case in which the constitutional validity of the Parliament (Prevention of Disqualification) Amendment Act, 2006 was challenged. It was argued that through this amendment, the disqualification of 55 holders of office of profit was prevented and those offices were added to the list of offices exempted from disqualification by law. It was argued that this law was passed simply to prevent such disqualifications and to allow the members to continue being MPs despite originally falling under the ambit of disqualification. The contention was that a constitutional convention of referring the question of exempting offices of profit to the Joint Committee on offices of profit, was something that evolved over time and it has been completely disregarded in this case and therefore, the constitutional validity is at threat. The Apex Court held that the Parliament had complete power to decide on the matter of exemption of certain offices from the ambit of office of profit and in connection to that power, the Parliament is free to pass any legislation by following due procedure. The practice of referring such actions to the Joint Committee is simply a parliamentary procedure that can be waived and it finds no mention in the constitutional principles or conventions. The absence of such reference cannot be said to invalidate the legislation as a whole. The judiciary has time and again held that the State Legislative Assemblies and the Parliament have the power to legislate retrospectively in matters of constitutional provisions. Therefore, the legislation is completely valid as per the constitutional norms and cannot be challenged as invalid. 

Conclusion

The duty or rather the responsibility of representing a large group of the public and forming public consensus on various matters of governance is a significant one. It has often been considered to be a privilege and sacrosanct duty of the person so selected/elected to do so. Any hindrance or compromise in the said duty is therefore averted and deemed to be unduly of the responsibilities and powers conferred on a Member of a Parliament. Hence, it is highly important to maintain the integrity of the position and perform the duties without any deficiency. Owing to this principle, the concept of disqualification based on holding an office of profit emerged in the British Parliamentary System and was adopted by the Indian Constitution. Till date, the concept is evolving, with judicial pronouncements and interventions made by committees which deliberate on defining and determining what constitutes as an office of profit. The lack of a standardised and clear definition makes it truly troublesome to determine what an office of profit is and therefore, judicial decisions in cases like Jaya Bachchan v. The Union of India (2006) are very important to assess the question of disqualifications based on holding an office of profit in India. Many more relevant judicial pronouncements also contribute to this discourse by defining various aspects of the provision. Through the guidance provided by the judiciary and constitutional provisions, it is expected that the representatives of the public would be entrusted with fulfilling their duties and responsibilities towards their constituents, without any compromise or deficiency. However, it is yet to be seen if a clear definition of the term “office of profit” will be developed or not. 

Frequently asked questions 

What is the ratio decidendi of the Jaya Bachchan v. Union of India case?

The primary ratio decidendi of the case is that while determining if an office constitutes as an office of profit, it is immaterial whether the holder has actually received any pecuniary benefits. The fact that the office is capable of yielding profit is enough to declare the office as an office of profit. 

What is the constitutional provision on office of profit?

Article 102 states that a person holding an office of profit under the Central or State Government, not being an office exempted by law, would be disqualified from being chosen as a member of either House of the Parliament. A Minister of the State or the Centre is deemed to be exempted from such disqualification. 

Which law exempts offices of profit from the application of disqualification?

The Parliament (Prevention of Disqualification) Act, 1959 is a law that specifies which offices are exempted from the purview of disqualification. It is amended continually to add or alter offices present in the list. One example of an exempted office, is the office of Chairman of Planning Commision. 

What is the procedure for such disqualification by virtue of holding an office of profit?

As per Article 103, the President is referred to any question that arises in connection to disqualification of a member for holding an office of profit. The President then seeks the opinion of the Election Commision of India (ECI) and must act according to such opinion. The decision of the President on the matter is final. 

What are the penalties of continuing as a member even after disqualification?

The Article 104 states that if a Member of the Parliament continues to sit in the parliamentary sessions and vote in the same, he will be penalised with an amount of Rs. 500 per day, from the period of such disqualification, based on the total number of days in which he sat and voted even after being disqualified. 

References

• http://164.100.60.131/lsscommittee/Joint%20Committee%20on%20Office%20of%20Profit/16_Joint_Committee_on_Office_of_Profit_28.pdf 
• https://sansad.in/getFile/LSSCOMMITTEE/Joint%20Committee%20on%20Offices%20of%20Profit/Introduction/Introduction-JCOP_pdf.pdf?source=loksabhadocs 
• https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1940429_code1691456.pdf?abstractid=1940429&mirid=1 
• https://main.sci.gov.in/jonew/judis/9427.pdf 

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