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Office of Profit

The document discusses the concept of an 'office of profit' under Indian law. It provides background on how the concept was imported from Britain and examines factors considered in determining if a position constitutes an office of profit, including appointment authority and remuneration. The document also outlines relevant sections of the Indian Constitution pertaining to members of parliament and state legislatures holding offices of profit.

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Divyanshi Joshi
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34 views2 pages

Office of Profit

The document discusses the concept of an 'office of profit' under Indian law. It provides background on how the concept was imported from Britain and examines factors considered in determining if a position constitutes an office of profit, including appointment authority and remuneration. The document also outlines relevant sections of the Indian Constitution pertaining to members of parliament and state legislatures holding offices of profit.

Uploaded by

Divyanshi Joshi
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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OFFICE OF PROFIT

INTRODUCTION
In India, the office of profit disqualifying the holder was imported from Britain and
made its appearance for the first time in the Act of 1909 which embodied the
Morley- Minto Reforms proposals. The basic idea was, and remains, that the
legislators should not be vulnerable to temptations an executive can offer.
WHAT CONSTITUTES AN ‘OFFICE OF PROFIT’?
The law does not clearly define what constitutes an office of profit but the definition
has evolved over the years with interpretations made in various court judgments.
In the case of Ravanna subanna v. G.S.Kaggerappa, AIR 1954 653 The word profit
connotes the idea of some pecuniary gain attached to the office. Supreme court, in
this case, said that if there is really a gain, its quantum or amount would not be
material, but the amount of money receivable by a person in connection with the
office he holds may be material indicating whether the office really carries
any profit.
The Supreme Court in the case of Gurugobinda Basu v. Sanskari Prasad Ghosal and
Ors., 1964 AIR 254 ruled that the test for determining whether a person holds an
office of profit is the test of appointment.
Factors which are considered in this determination includes:
Whether the government is the appointing authority
Whether the government has the power to terminate the appointment
Whether the government determines the remuneration
What is the source of remuneration
Power that comes with the position
WHAT DOES THE CONSTITUTION SAY ABOUT HOLDING AN ‘OFFICE OF PROFIT’?
Under Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an
MLC) is barred from holding any office of profit under the central or state
government.
The articles clarify that “a person shall not be deemed to hold an office of
profit under the government of India or the government of any state by reason only
that he is a minister”.
Provisions of Articles 102 and 191 also protect a legislator occupying a
government position if the office in question has been made immune to
disqualification by law.
Parliament has also enacted the Parliament (Prevention of Disqualification) Act,
1959, which has been amended several times to expand the exempted list.
Hence, the office of profit law simply seeks to enforce a basic feature of the
Constitution-
The principle of separation of power between the legislature and the executive.
Jaya Bachchan v. Union of India, AIR 2006 SC 2119 in which the court held that the
Chairperson of the Film Development Council of a state holds an office of profit as
some pecuniary gain is receivable by virtue of the post even though the said
pecuniary gain may not actually be received. Here, the petitioner has sanctioned the
rank of Cabinet Minister and received a monthly honorarium, daily allowances, free
accommodation, staff car, medical treatment etc.
The petitioner, however, neither received any payment nor did she use any facilities
that she was entitled to as the Chairperson. However, since the post was capable of
yielding profit to the petitioner, she held an office of profit. Two factors which
emerged, in this case, were:
a) the form of payment is not relevant as monetary gain may be merely disguised as
an honorarium;
b) it is not relevant whether any remuneration was actually received, it is only
enough if such remuneration was receivable.

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