Office of profit.
- Clause (a) of Article 102 enacts that a person shall be disqualified for being
chosen as, and for being, a member of either House of Parliament 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.
The object of the provision was clearly laid down in the case of Ashok Kumar Bhattacharya
V. Ajoy Biswas. The purpose is to secure independence of the MPs and to ensure that
Parliament does not have members who receive favours or benefits from the executive and
who, consequently, being under an obligation to the executive, might be amenable to its
influence. In other words, the provision appears to have been made in order to eliminate or
reduce the risk of conflict between duty and self-interest amongst the Members of Parliament.
Essentials
1. That he held an office
2. That such office was an office of Profit
3. That it was an office under the Government of India and the office should be other than an
office declared by Parliament by law not to disqualify its holder.
Office means a fixed position for performance of duties of public character. The Supreme
Court in the case of Kantha Kathuria V. Manak Chand Surana, has held that the words "its
holder" occurring in the article indicate that there must be an office which exists
independently of the holder of the office. An office is subsisting, permanent and a
substantive position which has an existence independent from the person who filled it, which
goes on and is filled in succession by successive holders. The position will exist irrespective
of whether it is vacant or not.
In the above case, a position of Special government pleader was made to assist the
government pleader temporarily was held to not be an “office of profit”
The expression “of profit” has been held to mean an office capable of yielding a profit or
from which a man might reasonably be expected to make a profit. The actual making of profit
is not necessary. Profit means gain or any material benefit, and the amount of such profit is
immaterial.
In the case of Chander Nath v. Kunwar Jaswant Singh, it was held that the mere influence
which one gains by virtue of his/ her position as a member of a committee which has no
remuneration attached is not office of profit.
Ramkrishna Hegde V. State of K’taka, if salary is not receive, office of profit is not there
This position was soon changed in the case of Shivmurthy V. Agadi, it was held that if ‘the
pecuniary gain’ is receivable in connection with the office then it becomes a office of profit
irrespective of whether the holder has received it or not.
In the case of Jaya Bachchan V. Union of India, the Supreme Court held that an office of
profit is an office which is capable of yielding a profit or pecuniary gain. Holding an office
under the Central or State Government, to which some pay, salary, emoluments, remuneration
or non-compensatory allowance is attached, is “holding an office of profit”. Nomenclature is
not important. If the “pecuniary gain” is “receivable” in connection with the office then it
becomes an office of profit. The court further held the fact that whether 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.
In the case of Shatrucharla V. Vyaricharla, it laid down the test as to determine whether an
office is under the Government or not
1. Remuneration
2. Appointment
3. Firing
4. Nature of Work; functions of public nature
5. Degree of Control
In the case of Maulana Abdul Shakur V. Rikhab Chand, no government
