Office of profit and disqualification of MP

The President recently nominated a prominent criminal lawyer from Maharashtra as a nominated member of the Rajya Sabha under Articles 80 (1) (a) and 80 (3) of the Constitution. Some people have objected to this nomination and have requested the President to cancel his nomination. The reason for their objection is that the lawyer in question is a special public prosecutor of the Government of Maharashtra and that post is an office of profit. Holding of such office disqualifies him from being chosen as, and for being, a member of either house of parliament under Article 102 (1) (a) of the Constitution. There is a similar provision in Article 191 pertaining to the State Legislative Assembly and State Legislative Council.

The Rajya Sabha consists of 250 members, including 12 members nominated by the President and 238 members from the states and union territories. Article 102 deals with disqualification from membership of either House of Parliament on various grounds. It does not state that this disqualification does not apply to nominated member of the Rajya Sabha. This lawyers had resigned from the post of Special Public Prosecutor of the Government of Maharashtra before filing his nomination papers as candidates for the 2024 Lok Sabha elections.

Constitutional provisions

Article 102 (1)(a) states that a person who holds an office declared by parliament by law not to disqualify its holder will not be disqualified. The Government of India and the Government of Maharashtra have enacted two Acts, namely The Parliament (Prevention of disqualification) Act 1959 and The Maharashtra Legislature Members (Removal of Disqualifications) Act, 1956 respectively. Article 103 of the Constitution states that if a question arises as to whether a person is disqualified from being a member of Parliament (i.e. Lok Sabha and Rajya Sabha) on any of the grounds of disqualification specified in Article 102 (including disqualification arising from office of profit), the question shall be referred for the decision of the President and his decision shall be final. Before taking such a decision, the President shall take the opinion of the Election Commission and act in accordance with that opinion. Whenever such question arises in a State Legislature, the Governor has the power to take a decision in accordance with the opinion of the Election Commission under Article 192.

The third edition of the book “RAJYA SABHA AT WORK” published by Rajya Sabha Secretariat on the subject of membership of the Rajya Sabha states that in the case of disqualification of a member referred to the President for decision under Article 103, the disqualification referred to must have arisen after the election of that member. It has cited the judgment of the Supreme Court in the petition Election Commission v. Saka Venkata Subba Rao. In that judgment, it has been stated that the decision of disqualification taken by the Governor under Article 192(1) of the Constitution is in respect of disqualification arising after the election of the member. The Governor and the Election Commission do not have the power to inquire into disqualification prior to the election. The provisions similar to the provisions of Articles 190(3) and 192 are contained in Articles 101(3) and 103 which are related to Members of Parliament. In short, the President and the Election Commission do not have the power to inquire into disqualifications prior to the election of the member.

Concept and rationale of office of profit

The relationship between the legislature and the executive is delicate. The members of the legislature should be able to discharge his statutory duties independently and without any influence from the executive. Therefore, they should be independent of the executive. But the post of minister is such an office, that in a democracy the responsibility of that office is common and dual and therefore the post of a minister is not considered an office of profit. To be disqualified on the ground of office of profit, four conditions should be fulfilled. The person should hold the office, the office should be of profit, the office should be under the jurisdiction of the Central or State Government and it should not be excluded from the definition of office of profit as per the above mentioned laws. The Supreme Court in the petition of Smt. Kanta Kathuria v. Manak Chand Surana has said that the office has an independent existence apart from the person holding the office.

“Office of profit”: Definition

The Constitution does not define what is meant by “office of profit”. Whether a post is an office of profit is decided according to the precedents where Supreme Court has interpreted this term from time to time. On 21 July 2016, while replying to a question in the Lok Sabha, the then Law Minister Shri. Ravi Shankar Prasad had said that whether a post is an office of profit depends on the nature of the post, the terms and conditions of appointment, the procedure for removal from the post, the remuneration paid for the post and the functions of the post. The post should provide some financial benefit to the person holding the post and the word “benefit” should be given a reasonable meaning. It is not important in what form and how much this benefit is received. Transferring land to someone for a service or giving him some share of the revenue collected by someone falls under the heading of financial benefit or remuneration. But reimbursement of expenses incurred by the person holding the post out of his own pocket is not a financial benefit. The issue is whether a member of the Legislature comes under the influence of the Executive by reason of the financial benefit received by him. In the writ petition Jaya Bachchan v. Government of India, the Supreme Court has held that it is not important whether such benefit was actually received or not and how much it was. What is important is whether the position can provide profit or financial benefit.

Posts excluded by inclusion in the Act

As per The Parliament (Prevention of disqualification) Act 1959, the posts of Minister, Deputy Minister, Minister of State, Leader of the Opposition, whip of the party, Chairperson of the Commission for Minority, Scheduled Castes and Scheduled Tribes are not offices of profit. Smt. Sonia Gandhi was disqualified because she held the post Chairperson of the National Advisory Council. Therefore, in 2006, this post was included in the Act by amending it so that she could continue to be the Chairperson of the Council even while being a member of Parliament.

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