INTRODUCTION
The Constitution of India lists certain qualifications in addition to certain qualifications for Members of Parliament and State legislatures. One of the grounds of disqualification is ‘office of profit’. This concept evolved from the British parliamentary model. One of the earliest laws to deal with this subject was the English Bill of Settlement in 1700. From the beginning of the 18th century, three broad principles were developed which influenced legislation on the subject and were implicitly incorporated into Indian law:
- Certain non-ministerial positions are incompatible with being a Member of Parliament.
- A certain number of ministers should be parliamentarians so that the parliament can control the executive.
- The influence of the executive in the House of Commons should be limited due to the disproportionate share of parliamentarians.
Article 102(1)(a) and Article 191(1)(a) of the Constitution of India provide for the disqualification of members of parliament and State Legislative Assemblies on the ground that they seek profit. There are some laws for the same purpose, but they were not considered sufficient. Therefore, to address the lack of a uniform and comprehensive law, the Bhargava Commission for Profitable Offices was headed by Pt. Thakur Das Bhargava in 1954. The Committee recommended the introduction of the Parliament (Prevention of Rejection) Act. That Act was enacted in 1959 and currently governs the Indian Benefit Agencies Act. This legislation determines which occupations do not disqualify their holders. However, since the expression ‘office of profit’ is not defined in the Constitution or any other legislation, it leaves it open to wide interpretation as an obstacle to the correct application of written laws. The main source for understanding the benefit agency is judicial decisions. In addition to the judicial system, the Commission for the Results of Mixed Offices also participated in the definition of the term. Article 102 of the Constitution states the following:
102. Disqualification of membership – 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 holde
BACKGROUND OF THE CASE
The Government of Uttar Pradesh by a formal memorandum appointed Jaya Bachchan (the petitioner) as the Chairman of the Uttar Pradesh Film Development Board and made him a minister. Accordingly, she was entitled to the following benefits:
- Consideration of Rs. 5,000 per month
- Daily Allowance Rs. 600 per day within the state and Rs. 750 abroad plus Rs.10,000 per month for representation expenses
- Private car with driver, telephones at office and residence, one P.S., one P.A. and two class IV officials
- Bodyguard and night escort
- Free accommodation and medical facilities for herself and family members
- Free accommodation in houses/guest houses of the district government and hospitality during the tour.
The Election Commission of India (ECI) referred to the facts and law laid down by the Supreme Court in various judgments and expressed its opinion that the post of Chairman of the Board to which the petitioner was appointed by the State Government is a post. the benefits of the Government of Uttar Pradesh under Article 102(1)(a) of the Constitution. The Commission also noted that Section 3 of the 1959 Parliament (eg the Disqualification Act) did not exempt the said Revenue Agency from confiscation under Section 102(1)(a) of the Constitution.
By an order dated 16 March 2006, the President of India, in exercise of his powers under Article 103(1) of the Constitution of India, after receiving an opinion under Article 103(2) of the ECI, disqualified the petitioner as a Member of the Indian Parliament Rajya Sabha on 14 July 2004.
The petitioner submitted a written statement to the Supreme Court in which he objected to the said order of the president and the statement made by ECI. The petitioner alleged that:
- The post of President of the Council and the rank of Government Minister was on decorative
- She did not receive any remuneration or monetary benefits from the State Government
- no sought accommodation or used telephone or medical services
- although he traveled several times as president, he never demanded compensation; and
- that she received the honor of President of the Council and used no services.
The petitioner contended that since the ECI did not find that he received financial remuneration as a salaried mentor from the state government, he could not be said to have held any gainful employment under the state government and therefore his disqualification should be set aside.
ISSUE
Whether Jaya Bachchan, M.P. and is the petitioner in this case debarred from being a member of the Rajya Sabha because she was appointed as the Chairman of the Uttar Pradesh Film Development Board?
RATIO DECIDENDI
Article 102(1)(a) provides that a person must be disqualified if he is elected as a member of either House of Parliament or if he holds an office of profit under the Government. of India or under the Government of India. every state, except an office declared by law of Parliament, which does not reject its bearer. The term “profit agency”, although not defined, has been interpreted in several decisions of the Supreme Court. A profitable office is an office that can produce profit or financial gain. To hold an office under the Central or State Government carrying certain salary, fees, charges, allowances or non-compensatory benefits as an “office of profit”.
The nature of the payment must be considered substantive and not formal.
The nomenclature is not important. In fact, the mere use of the word “honor” cannot take away the fee benefit if the recipient receives financial compensation. The payment of fees, in addition to compensatory wages, free housing and a driver at the expense of the state, is clearly salaried in nature and a source of financial benefit and therefore profit. If an agency entails or enables its owner to receive a financial benefit, other than compensation or actual expenses, the agency is a for-profit agency within the meaning of Article 102(1)(a). This legal position has been considered valid for more than half a century since the decisions in Rayanna Subanna v. G.S. Kaggeerappa.
HELD
The position of the petitioner was considered to be an “office of profit” and consequently the petitioner was barred from the membership of the Rajya Sabha. The fact that the petitioner is rich or was not interested in the benefits or advantages given by the State Government was not considered relevant. In this view, the question of whether or not the applicant was actually benefited financially was irrelevant. Consequently, it was established that the writ petition was not substantiated and therefore dismissed.
CRITICAL ANALYSIS
To decide whether an office is profitable or not, the following factors must be taken into account:
(i)the method of payment is irrelevant, because financial gain can only be disguised as a reward;
(ii)whether the office is capable of generating profit or financial gain and whether the person actually receives a financial benefit from it.
(iii) It does not matter whether the reward or financial benefit was actually received, it is sufficient that such reward or profit. should be received.
In that case, the office of the Uttar Pradesh Film Development Board Chairman had a monthly Rs. 5,000, representation expenses Rs. 10,000, a car with a driver, telephones in the office and residence, free accommodation and medical services for you and family members, in addition to other allowances, etc. The fact that these are monetary benefits cannot be denied and also the fact that the petitioner is rich or not interested in the benefits or allowances given by the State Government or has not actually received such benefits so far is irrelevant.
The petitioner referred to the case
Biharilal Dobrav v. Roshanlal Dobrav, it was said that the respondent was holding a post of profit under the State Government and his appointment was rightly rejected by the Returning Officer. In that case, the only question was whether the post of the respondent was under the State Government or not. In Divya Prakash v. Kultar Chand Rana and Anr. the Supreme Court held that the post of Chairman, Himachal Pradesh State Board of School Education was not an office of profit. The candidate was specifically appointed to the honorary position without charge. The position of president also did not come with a pay scale.
Divya Prakash\’s observations on the incident were clearly prejudicial. It also appears that there was a mistake in the identification of this case.
In Divya Pradesh the post was found unpaid but for Biharilal Dobrey
the post was said to be salaried.
It is clear that the judgments relied upon by the petitioner were based on their own facts and did not contain any proposition of law contrary to several judgments Ravanna Subanni to Shibu Soren. The Hon’ble Supreme Court cited and referred to it. It is well established that if an office has certain emoluments or a person appointed under an appointment order is entitled to certain payments, it is a lucrative post, even if the incumbent does not want to receive/remove it. fees What matters is whether there is a financial benefit to the position, not whether the financial benefit is real or immaterial.
The petition further relied on the decisions in the case of Umrao Singh v. Darbara Singh where it had to be considered whether a monthly compounded daily cash allowance should be paid for the entire work done. related official duties and travel and mileage allowance for traveling outside the district on official
business and allowance for attending meetings – or for travel or rest days – would make the office of President of the Panchayat Samiti an office of profit. The Supreme Court was reasonable and justified in its decision that these are subsidies that were paid so that the president would not have to spend money from his own pocket to fulfill his duties, therefore receiving such subsidies is not a profitable office. In view of this, the question whether or not the petitioner obtained any actual pecuniary benefit in the present case is irrelevant and therefore the High Court’s dismissal of the application was fair and just.
CONCLUSION
To ensure an effective and efficiently functioning democracy, it is desirable that there is proper separation of power between the Executive, the Legislative and the Judiciary. For this, it is important that only suitable legislators are elected to and remain in the Parliament and the State Legislatures. Disqualifying the holders of offices of profit is also an effort in this direction for protecting the independence of the legislators. A person may not be able to discharge his functions as a legislator and critique the government if the government is in a position to influence him. This understanding has led to the
development of the concept of ‘office of profit’.
Article 102(1)(a) of the Constitution of India recognizes holding an office of profit under the government a ground for disqualification from being a Member of Parliament (MP) as well as contesting parliamentary elections to be chosen as an MP. The objective of Article 102(1)(a) is to ensure that the representatives of the people discharge their assigned functions without fear or favor from the executive. To avoid a conflict between the primary duties of an elected member and the Parliament, the provisions of the Article stipulate that Members of Parliament who hold an office of profit must be disqualified. The legislature has clarified the law on some counts, for instance it has defined what constitutes compensatory allowance but as neither the Constitution nor any other piece of legislation have defined the term office of profit it continues to remain open for wide interpretations, thereby posing an obstacle to the appropriate application of the written laws.
AUTHOR- PRACHI GULATI, a Student of VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES
AUTHOR- PRACHI GULATI, a Student of VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES
