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
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. 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
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
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. However the amount of salary, pay or allowance plays a role in
determining whether an office held by the person really carry any profit.
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. Thus if the office is capable of yielding profits then
whether or not the person actually gained the benefit does not matter.
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.
b) It was an office under the Central or State Government.
c) That office should not be an office which is declared by the parliament
not to disqualify its holder.
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:
a) Whether government makes appointment to these offices?
b) Does the government have the right to remove or dismiss the holder from
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. 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.
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. 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.
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
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)
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
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.
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.
Constitutional Validity of Prevention of Disqualification Amendment Act, 2006
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
. 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
 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 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 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.
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.
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
 3rd semester LLM, Department of Law, Central University of Kerala, Mob:
7411790629,email: [email protected]
 Consumer Education and Research Society v. UOI, (2009) 9 SCC 648
 Kanta Kathuria v. Manak Chand, AIR 1970 SC 694
 Id at 2
 Jaya Bachchan v. UOI and Others, (2006) 5 SCC 266, 270
 Id at 4
 P Rathna Swamy, Handbook on Election Law, p. 175
 Deorao Laxman Anande v. Keshav Laxman Borkar, AIR 1968 Bom 314
 Id at 6
 Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa, (1971) 3 SCC 870
 Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev, (1992) 4
 Guru Gobinda Basu v. Sankari Prasad Ghosal and Others, AIR 1964 SC 254
 Shibu Soren v. Dayanand Sahay, (2001) 7 SCC 425
 Supra note 1
 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
 Id at 14
 Supra note 1
 Supra note 1
 P.V. Narasimha Rao v. State, (1997) CriLJ 961
 Supra note 2
 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]