Holding office of profit under government acts as a disqualification for being a member of either house of parliament or of the state legislature. Article 102 (1) (a) and Article 191 (1) (a) of the Indian constitution provides this restriction. These provisions for a long time have prevented the executive from exercising its influence in central and state legislature.

However by the passage of time various questions based on these provisions were raised before the Supreme Court and various lower courts of India. The courts however through its right interpretation succeeded to protect these provisions which play an important role in laying a demarcation of power between the legislative and executive of the nation.
The researcher tries to study the major judgments that provided answers for the various legal issues with regard to holding of office of profit under government.

Article 102 (1) (a) and Article 191 (1) (a) of the Indian constitution keeps the central and state legislatures of the India from the influence of the executive.[2] Thus the basic intention of the constitution makers by making these provisions was to keep a clear separation of power between the executive and legislative wings of the government and thus to lay a strong base for democracy.

These provisions right from the Independence helped the state to reduce the risk of conflict between the interest and duty of the legislatures of the nation. However the Indian constitution and none of the legislations including Representation of Peoples Act have not defined the expression office of profit under government. The expression office of profit under government and the Articles that deal with this expression were given meaning through various judgments of the Indian Supreme Court.

Scope of Article 102 (1) (A) And Article 191 (1) (A) on The Basis of Case Laws

The Supreme Court through a case held that the plain meaning of the expression office of profit provides that the office must be held under the government and there should be a pay, salary or allowance attached to such office.[3] However the amount of salary, pay or allowance plays a role in determining whether an office held by the person really carry any profit.[4]

Thus an office of profit can be explained as an office which can generate profit. However the various judgments of the honorable Supreme Court provide that actual making of profit is not a necessary condition for holding of an office of profit.[5] Thus if the office is capable of yielding profits then whether or not the person actually gained the benefit does not matter.[6]

Before a person can be disqualified under Article 102 (1) (a) or Article 191 (1) (a) three conditions must be satisfied:
a) The person must have held an office of profit[7].
b) It was an office under the Central or State Government[8].
c) That office should not be an office which is declared by the parliament not to disqualify its holder.[9]

The provisions of Articles 102 and Article 191 clearly provide that the office of profit held by the person must be under the government.

However there was lot of confusions with regard to this term. However the Supreme Court through its various decisions clearly laid down five major parameters to determine whether the office of profit is held under government[10]:
a) Whether government makes appointment to these offices?
b) Does the government have the right to remove or dismiss the holder from the office?
c) Does the government pay the salary?
d) Whether the holder performs the functions for the government?
e) Does government have any control over any of these functions?

It is not necessary that all these tests need to be satisfied. Even if some of these elements are absent the test may be satisfied.[11] However the courts have not pronounced any clear judgment which says whether more emphasis has to be given to one test, the courts have only said that it will determine according to the facts and circumstances of each of the cases.[12]

Exception
A person who holds an office which is declared by the parliament through any law not to disqualify its holder, is exempted from disqualifications mentioned under Article 102 (1) (a) and Article 191 (1) (a) of the Indian constitution. Section 3 of Prevention of Disqualification Act, 1959 provides for offices that are declared as not to disqualify its holders.

Only the parliament is entitled to make laws to exempt an office from the group of office of profit, the state legislature does not have any power to make laws with regard to this aspect for membership to the house of parliament.[13] The laws made with regard to this aspect can have prospective or retrospective application and in case of retrospective application a member who may be already holding a office of profit will be exempted from disqualification.[14]

A Comparison With The British System

Position in UK
Office of profit is also used as a ground for disqualification by the British democratic system in order to prevent the influence of executive in the legislature. However the way in which it is made applicable in England is very different from which it is been applied in India. In England mere holding of office under the crown will not make a person disqualified from bring a member of parliament. A person will be disqualified only when an individual is holding an office is specified and declared under a parliamentary legislation as office of profit[15].

Position in India
However in India the constitution provides for a general disqualification for which specific exemption can be granted from it under a law made by the parliament. So one can clearly conclude that our constitution makers clearly intended to exempt only a very few number of offices of profit from acting as an exemption for disqualification under Article 102 (1) (a) and Article 191 (1) (a)[16].

In India the Prevention of Disqualification Act, 1959 that replaced the prior existed legislation is the law that provides exemption to Article 102 (1) (a) and Article 191 (1) (a). Section 3 of the said act provides certain offices that do not disqualify its holders from being members of the parliament. Also part II of the same act provides the list of certain offices that are declared to be non profit.

The constitution clearly confers a power on the parliament to exempt certain offices from the application of article 102 (1) (a). However in a democratic country like India no power is absolute, thus even this power of parliament to exempt certain offices should always be exercised subject to the limitations imposed by Article 102 read along with Article 101 and Article 103.

These Articles clearly provides that disqualification mentioned in Article 102 is applicable to people who are contesting election (for being chosen as) and also for people who are current members of the parliament. Thus a sitting M.P is disqualified from the very moment he comes to hold an office of profit except one which is exempted by the parliament.

However without taking this limitation into consideration the parliament introduced the Parliament Prevention of Disqualification Amendment Act, 2006 which had a retrospective application. This gave an opportunity to the parliament to retrospectively exempt offices held by M.P’s which violated the essence of article 102 relating to disqualification of sitting members[17].

Constitutional Validity of Prevention of Disqualification Amendment Act, 2006

Retrospective Application
The constitutional validity of Prevention of Disqualification Amendment Act was challenged before the Honourable Supreme Court in the case of Consumer Education and Research Society v. Union of India[18]. The petitioners in this case contended that the Amendment Act is invalid due to the fact that it did not comply with the limitations provided under Article 101, Article 102 and Article 103 of the constitution that is; a sitting member of the legislative assembly will be disqualified from the very moment he accepts an office of profit.

The petitioners based their argument on the judgment of the Honorable Supreme Court in the case of P.V. Narasimha Rao v. State[19] where it was held that President’s decision regarding the matter of disqualification needs to be considered only when there is a dispute. Thus the petitioners argued that in matters in which there is no dispute raised by the disqualified member as in this case the person will be deemed to have disqualified.

However the respondents countered this argument by citing the precedent of Srimati Kanta Kathuria[20] in which it was held that as there is no express limitation on the parliament to retrospectively exempt an office such acts of parliament cannot be considered as an invalid Act. Further they also relied on the case of Brundaban Nayak[21] in which it was been held by a constitutional bench that President’s decision regarding the matter is also an essential requirement that should be met with, in order to impose disqualification upon a member unless such disqualification which was alleged to be incurred by the member is been voluntarily accepted by him or her.

After hearing all these arguments the found that mere chance of exploitation of a power by the parliament will not make them devoid of their power. Thus they rejected the arguments raised by the petitioners and dismissed the petition.

Criticism
This judgment is largely criticized by the many legal scholars who think that such a power will be largely misused by the legislature in order to protect their own kind which in turn will affect the parliamentary democracy and separation of power principles which are the basic features of our constitution.

Conclusion
Holding office of profit under the government was made as a part of the disqualification for membership of both central legislatures and state legislatures by the constitution makers in order to keep the legislature out from the hands of the executive and thus to ensure its free function.

However this expression was not clearly explained in constitution or in any other legislation. This led to a lot of confusion which further lead to some major questions of law. The Honorable Supreme Court, through its good interpretations preserved the intention of the constitution makers which make the Articles dealing with these provisions to still continue in its true sense.

The judgment of the Apex court in the case of Consumer Education and Research Society also shows the kind of trust that different organs of the state maintains with each other. The court refused to accept the argument that such a wide power conferred on legislature to exclude any office of profit will be misused by it. Thus the court realized the importance of giving a dynamic nature to this Article. Hence legislature through passing of any law can exclude any of office out of the ambit of this Article, even retrospectively as held in the case.

End-Notes
[1] 3rd semester LLM, Department of Law, Central University of Kerala, Mob: 7411790629,email: [email protected]
[2] Consumer Education and Research Society v. UOI, (2009) 9 SCC 648
[3] Kanta Kathuria v. Manak Chand, AIR 1970 SC 694
[4] Id at 2
[5] Jaya Bachchan v. UOI and Others, (2006) 5 SCC 266, 270
[6] Id at 4
[7] P Rathna Swamy, Handbook on Election Law, p. 175
[8] Deorao Laxman Anande v. Keshav Laxman Borkar, AIR 1968 Bom 314
[9] Id at 6
[10] Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa, (1971) 3 SCC 870
[11] Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev, (1992) 4 SCC
[12] Guru Gobinda Basu v. Sankari Prasad Ghosal and Others, AIR 1964 SC 254
[13] Shibu Soren v. Dayanand Sahay, (2001) 7 SCC 425
[14] Supra note 1
[15] Sachin Sachdeva, Office of Profit: Is Parliament Empowered to Exempt Retrospectively, (Feb 18, 2016, 8:45 PM), http://www.legalserviceindia.com/article/l465-Office-Of-Profit.html
[16] Id at 14
[17] Supra note 1
[18] Supra note 1
[19] P.V. Narasimha Rao v. State, (1997) CriLJ 961
[20] Supra note 2
[21] Brundaban Nayak v. Election Commission of India and Others, (1965) AIR 1892

Written By: Arjun Philip George - 3rd semester LLM, Department of Law, Central University of Kerala,
Mob: 7411790629,email: [email protected]