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 time, so it is not possible to lay conditions of what is office of profit and which office exempt from it. Therefore, it is upto 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. The term `holds an office of profit’ though not defined has been the subject matter of interpretation, in several decisions of Supreme Court.
Umrao Singh v. Darbara Singh,  1 SCR 421
In Umrao Singh (supra) the question that arose for consideration was whether payment of a monthly consolidated allowance for performing all official duties and journeys concerning the work and a mileage allowance for the journeys performed for official work outside the district and daily allowances for the days of attendance of meetings/travel/halt, would convert the office of Chairman of a Panchayat Samiti into an office of profit.
Supreme Court held that these were allowances paid for the purpose of ensuring that the Chairman did not have to spend money out of his own pocket for discharging his official duties, and therefore, receipt of such allowances did not make the office one of profit.
Divya Prakash v. Kultar Chand Rana & Anr.,  1 SCC 264
In Divya Prakash (supra), Supreme Court held that the post of a Chairman of the Board of School Education of the State of Himachal Pradesh was not an office of profit. The candidate was appointed specifically in an honorary capacity without any remuneration. Further the post of Chairman did not carry with it a scale of pay.
On the same date Bench also decided the case of K.B. Rohamare v. Shankar Rao,  1 SCC 252, where while discussing the question at length, It was held in the said case that amount of money receivable by a person in connection with the office he holds is material when deciding whether the office carried any profit.
Biharilal Dobrav v. Roshanlal Dobrav,  1 SCC 551
In Biharilal Dobrav v. Roshanlal Dobrav,  1 SCC 551, it was held that when a candidate is appointed in an honorary capacity without any remuneration even though post carried remuneration, he cannot be said to be holding an office of profit and thus was not disqualified under Article 191 (1)(a) of the Constitution.
In Biharilal Dobray’s Case (supra) it was held that respondent was holding an office of profit under the State Government and his nomination was rightly rejected by the Returning Office. In that case, the only question was whether the post the respondent was holding was one under State Government or not.
Jaya Bachchan v. Union of India (2006)
In Jaya Bachchan Case, the Supreme Court while holding the decision of the president, about disqualification of Jaya Bachchan, correct, said that, “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.
12. 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.”