WHITE FOREST RESEARCH NOTES

A monthly in house publication from White Forest Law Offices

Volume-5, MAY 2006

OFFICE OF PROFIT
The attempt of Election commission to disqualify few members of the parliament for the reasons of holding
office of profit and subsequent resignation of a senior member of the ruling party from the lower house of the
Parliament for the reason that the member was holding an Office of profit has been discussed widely in recent
months. Further, the initiative taken by the ruling party to pass a bill to amend the Parliament (Prevention of
Disqualification) Act, 1959 to exempt 46 offices from the purview of Office of Profit with retrospective effect
has been widely debated. Here is an attempt to narrate the law on office of profit.

The expression “Office of Profit under the Government” has not been defined in the Constitution of India or
in any other statute of the Parliament. However this term finds a place in Article 102 of the Indian
Constitution. Article 102 of the Indian Constitution relates to the Disqualifications for membership of a person
to be chosen as a member to either houses of the Parliament. Article 102 reads as follows:” A person shall be
disqualified for being chosen as, and for being, 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 Parliament by law not to disqualify its holder.”

Office of Profit: As we have mentioned above the term office of profit has not been defined in any of the
statutes. Therefore, what are the criteria followed to determine whether an office is an Office of Profit.

In order to introduce more clarity to this term in 1959 a Joint Committee of Houses of Parliament on Offices
of Profit has been set up. This committee examined the composition and character of all Committees, offices,
and other posts and membership in which may disqualify a person to hold the post of member of parliament
and state legislatures under article 102 of the Constitution. This Committee has framed the following criteria
for determining whether an office ought or ought not to disqualify its holder for being elected or continuing as
a Member of Parliament: (i) whether Government exercises control over the appointment and removal from
the office and over the performance and functions of the office; (ii) whether the holder draws any
remuneration other than the 'compensatory allowance' as defined in section 2(a) of the Parliament (Prevention
of Disqualification) Act, 1959; (iii) whether the body in which an office is held, exercises executive, legislative
or judicial powers or confers powers of disbursement of funds, allotment of lands, issue of licenses, etc. or
gives powers of appointment, grant of scholarships, etc.; and (iv) whether the body in which an office is held
enables the holder to wield influence or power by way of patronage. If the reply to any of the above criteria is
in the affirmative then the holder of office in question incurs disqualification.

The Doctrine of Separation of Powers is one of the basic features of our Constitution. Our Constitution very
elaborately and judiciously lays down the areas of functioning of the different authorities namely the
Judiciary, the Legislature and the Executive. Each authority has to function independently of the other. The
prohibition in regard to holding of offices of profit is central to the integrity of parliamentary institutions. It
prevents the Government from corrupting the parliamentary process by offering such opportunity to MPs and
MLA’s to exert their influence on the functioning of the executive. In the absence of such a prohibition, the
Government of the day would buy the silence of active MPs by appointing them to such offices.

Statutory Exceptions to Office of Profit: An exception clause has been provided in Article 102 of the Indian
Constitution which provides that the Parliament can pass law to declare that certain offices of profit under the
Government shall not disqualify the holders thereof for being chosen as, or for being, members of parliament.
After independence, Prevention of Disqualification Act 1950 has been enacted. The Parliament (Prevention of
Disqualification) Act, 1959 which is prevalent now(earlier Acts i.e Act of 1950, 51 and 53 were repealed, when
the 1959 Act came into force) was passed lays down that, even though an office may be an office of profit, its
holder is not disqualified if Parliament as added such office into the Schedule to the said Act. Accordingly
 White Forest Law Offices
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