Article 102 of Indian Constitution provides the conditions of disqualification of Members of Parliament. Clause (1) of Article 102 provides that a member of parliament shall be disqualified from membership if s/he holds ‘Office of Profit’ under the Central Government, State Government, or any local authority, however, Parliament may by law exempt holder of any office to disqualification of Membership.
The nature of the offices may change with the time, so it is not possible to lay conditions of what is office of profit and which office is exempt from it. Therefore, it is up to the court to decide an office as ‘office of profit’.
However, under Article 103(1), if any question and dispute arise related to disqualification of Membership, the president shall decide it after taking the advice of Election Commission and the decision of the president shall be final.
Jaya Bachchan v. Union of India (2006)’
The Case of ‘Jaya Bachchan v. Union of India (2006)’, is an important case related to ‘Office of Profit’. At that time, Jaya Bachchan was a member of Rajya Sabha from Uttar Pradesh, and when she was member of Rajya Sabha, Government of Uttar Pradesh appoint her on 14th July, 2004 as Chairperson of the U.P. Film Development Council.
In Consequence of this appointment, the president, after taking the opinion of election commission as required under article 103(1), disqualified her, on 16th March 2006, from the membership of Rajya Sabha as per the provision Article 102(1). Same Disqualification order was challenged by Jaya Bachchan under Article 32 of the Constitution, and the opinion given by Election Commission was also challenged.
The office of Profit
The chairpersonship of U.P Film Development Council was considered as ‘office of Profit’ under clause (1) of Article 102. The Government of Uttar Pradesh, while appointing her as the Chairperson of Uttar Pradesh Film Development Council, sanctioned to her the rank of a Cabinet Minister with the facilities.
The benefits to which she became entitled, as a consequence, were:
(i) Honorarium of Rs. 5,000 per month;
(ii) Daily allowance @ Rs. 600 per day within the State and Rs. 750 outside the State. Rs. 10,000 per month towards entertainment expenditure.
(iii) Staff car with driver, telephones at office and residence, one P.S., one P.A. and two class IV employees.
(iv) Body Guard and night escort.
(v) Free accommodation and medical treatment facilities to her and family members.
(vi) Free accommodation in government circuit houses/guest house and hospitality while on tour.
Opinion of Election Commission
The Election Commission, after referring to the facts and the law enunciated by Supreme Court in several decisions, expressed the opinion that the office of Chairperson of the Council to which the petitioner was appointed by the State Government, on the terms and conditions specified therein, is an “office of profit” under the Government of Uttar Pradesh for purposes of Article 102(1)(a) of the Constitution.
The Commission also found that Section 3 of the Parliament (Prevention of Disqualification) Act, 1959 did not exempt the said office of profit from disqualification under Article 102(1)(a) of the Constitution.
The petitioner contended that the post of Chairperson of the Council, and the conferment of the rank of Cabinet Minister, were only “decorative”; that she did not receive any remuneration or monetary benefit from the State Government; that she did not seek residential accommodation, nor used telephone of medical facilities;
that though she travelled several times in connection with her work as Chairperson, she never claimed any reimbursement; and that she had accepted the Chairpersonship of the Council honorarily and did not use any of the facilities mentioned in the O.M. dated 22.3.1991.
The petitioner contended that in the absence of any finding by the Election Commission that she had received any payment or monetary consideration from the State Government, she could not be said to hold any office of profit under the State Government and, therefore, her disqualification was invalid.
What Supreme Court has said?
The Supreme Court has considered the question and analysed as follows-
- “The term `holds an office of profit’ though not defined has been the subject matter of interpretation, in several decisions of this Court. An office of profit is an office which is capable of yielding a profit or pecuniary gain. Holding an office under the Central or State Government to which some pay salary, emolument, remuneration or non-compensatory allowance is attached, is `holding an office of profit’.
- The question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of the payment must be considered as a matter of substance rather than of form. Nomenclature is not important. In fact, mere use of the word `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 chauffeur driven car at State expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit.
- For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain.
If the “Pecuniary gain” is “receivable” in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not. If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102(1)(a).
This position of law stands settled for over half a century commencing from the decisions of Ravanna Subanna v. G.S. Kaggeerappa, AIR (1954) SC 653; Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa,  3 SCC 870; Satrucharla Chandrasekhar Raju v. Vyricherla pradeep Kumar Dev,  4 SCC 404 and Shibu Soren v. Dayanand Sahay & Ors.,  7 SCC 425.
- It is well settled that where the office carries with it certain emoluments or the order of appointment states that the person appointed is entitled to certain emoluments, then it will be an office of profit, even if the holder of the office chooses not to receive/draw such emoluments.
What is relevant is whether pecuniary gain is “receivable” in regard to the office and not whether pecuniary gain is, in fact, received or received negligibly.
- In this case, as noticed above, the office carried with it a monthly honorarium of Rs. 5000, entertainment expenditure of Rs. 10,000., staff car with driver., telephones at office and residence, free accommodation and medical treatment facilities to self and family members, apart from other allowances etc. That these are pecuniary gains, cannot be denied.
- The fact that the petitioner is affluent or was not interested in the benefits/facilities given by the State Government or did not, in fact, receive such benefits till date, are not relevant to the issue.”
Jaya Bachchan v. Union of India (2006)