Office of profit

Polity & Governance glossary

Topic: Parliament: Composition, Powers and Law-making · NCERT: Beyond NCERT

Meaning

An office of profit is a post under the Union or a state government that can give its holder pay or other money benefits. An MP who holds one is disqualified under Article 102(1)(a), and an MLA under Article 191(1)(a). The rule does not apply if the legislature has exempted that post by law. A minister is never treated as holding an office of profit.

The rule exists so that the government cannot buy a legislator's loyalty by giving them a paid post. It keeps the legislature independent of the executive and supports the separation of powers [1].

Explanation

Why the bar exists

  • The problem it solves. Parliament's job is to watch over the government.
  • If ministers could hand out paid posts to MPs, those MPs might stop questioning the government.

  • Barring such posts protects that watchdog role [1].

  • The term is not defined. The Constitution does not say what "office of profit" means. Courts have built the tests through their judgments.

The tests: when is a post an "office of profit"?

In Guru Gobinda Basu v. Sankari Prasad Ghosal (1963), the Supreme Court asked four questions [1]:

  • Who appoints? Does the government appoint the holder?
  • Who removes? Can the government remove the holder?
  • Who pays? Does the government fix the pay, and is it paid from public money?
  • Who controls? Does the government control what the holder does?

No single test settles the question. The court weighs all four together.

Possible gain is enough. In Jaya Bachchan v. Union of India (2006), the Court held that what matters is whether the post can give money gain. It does not matter whether the holder actually took any pay.

The two exceptions

  • Ministers. The Explanation to Article 102 says a minister of the Union or a state does not hold an office of profit just by being a minister. Article 191 says the same for MLAs [1].
  • Posts exempted by law. Article 102(1)(a) lets Parliament declare by law that certain posts will not disqualify their holders. For MLAs, the state legislature has the same power under Article 191(1)(a).
  • Parliament has used this power in the Parliament (Prevention of Disqualification) Act, 1959, which lists the exempted posts [1].
  • Such exemptions can have retrospective effect, meaning they also cover past dates. The Supreme Court upheld this in 2009.

How a disqualification case is decided (Art. 103)

  1. Someone raises a question that a sitting MP holds an office of profit.
  2. The question goes to the President.
  3. The President must get the Election Commission's opinion and must act on it.
  4. The President's decision is final.

For MLAs, Article 192 sets out the same process, with the Governor in place of the President, also bound by the Election Commission's opinion. The Delhi case of 2018 shows that the member must get a fair hearing at this stage.

In the Constitution and practice

  • Constitutional basis
  • Art. 102(1)(a): office-of-profit bar for MPs. The Explanation excludes ministers.
  • Art. 191(1)(a): the same bar for MLAs [1].
  • Art. 103: the President decides, bound by the Election Commission's opinion.

  • Art. 101(3)(a): a member who becomes disqualified loses the seat.

  • Law: the Parliament (Prevention of Disqualification) Act, 1959 lists the exempted offices [1].

  • Jaya Bachchan (2006)
  • She was a Rajya Sabha MP and also chaired the Uttar Pradesh Film Development Council.

  • Her disqualification was upheld because the post could give money gain.

  • Sonia Gandhi (2006)

  • Her post as chairperson of the National Advisory Council was challenged as an office of profit.

  • She resigned from the Lok Sabha and was re-elected from Rae Bareli (2006).

  • The 2006 amendment to the 1959 Act

  • It added more exempt posts, including the National Advisory Council, with retrospective effect.
  • President Kalam returned the Bill for reconsideration under Article 111.
  • Parliament passed it again without changes, so the President had to sign it.

  • The Supreme Court upheld it in Consumer Education and Research Society v. Union of India (2009).

  • Delhi, 2018

  • The Election Commission recommended disqualifying 20 AAP MLAs who had been made parliamentary secretaries, and the President accepted the recommendation [1].

  • The Delhi High Court set the disqualification aside (March 2018) because the MLAs had not been given an oral hearing. The case went back to the Commission.

  • Mass exemptions by states

  • Puducherry exempted more than 60 offices through a 2009 amendment.

  • Goa exempted more than 50 offices by ordinance in 2017 [1].

  • Parliamentary secretaries. Courts in several states have struck down these posts. Giving MLAs the rank of junior minister gets around the cap in Art. 164(1A), which limits the council of ministers to 15% of the House [1].

  • Proposed new law (2024)
  • The Legislative Department plans to repeal and re-enact the 1959 Act.
  • A draft Parliament (Prevention of Disqualification) Bill, 2024 was released for public comments in November 2024 [1].
  • The draft follows the recommendations of the Joint Committee on Offices of Profit (JCOP), a parliamentary committee that examines which posts should be exempt [1].

Don't confuse with

  • Minister: a minister is paid by the government but is expressly not treated as holding an office of profit (Explanation to Art. 102). An office of profit is a separate post given on top of a seat.
  • Defection (Art. 102(2), Tenth Schedule): a defection case is decided by the Speaker or Chairman. An office-of-profit case is decided by the President on the Election Commission's opinion (Art. 103).
  • Government contract (RPA 1951, s. 9A): holding a contract to supply goods or carry out works for the government disqualifies under the RPA. Holding an office of profit disqualifies directly under the Constitution.
  • Double membership (Art. 101): this is about holding seats in two legislatures at once. It leads to one seat falling vacant within a time limit (10 or 14 days). It is not about holding a paid government post.

Prelims Hooks

  • Art. 102(1)(a) covers office of profit for MPs and Art. 191(1)(a) covers MLAs. Ministers are excluded under both [1].
  • Art. 103: the President decides office-of-profit cases and is bound by the Election Commission's opinion. Trap: the Speaker does not decide these cases. The Speaker decides only defection cases.
  • Guru Gobinda Basu (1963): four tests: appointment, removal, pay from public money, and control. Jaya Bachchan (2006): the capacity for money gain is enough, even if no pay is drawn.
  • Parliament (Prevention of Disqualification) Act, 1959 lists the exempted posts [1]. The 2006 amendment added exemptions with retrospective effect. President Kalam returned it, Parliament re-passed it, and the Supreme Court upheld it in Consumer Education and Research Society (2009).
  • Delhi 2018: the disqualification of 20 AAP parliamentary secretaries was set aside by the Delhi High Court because no oral hearing was given [1].
  • The Constitution does not define "office of profit". The definition comes from court judgments.

Mains Points

  • A weak check on the executive
  • The bar is meant to keep legislators independent. But the term is undefined, and ruling parties can exempt posts by law, even retrospectively (2006 amendment, upheld in 2009).
  • States have used mass exemptions (Puducherry 2009, Goa 2017) and parliamentary-secretary posts to get around the 15% cap in Art. 164(1A) [1].

  • Reform options: a clear legal definition, or a negative list of barred posts in a new Act. The draft Bill of 2024, based on JCOP recommendations, attempts this [1].

  • Fair and neutral decisions

  • Under Art. 103, office-of-profit cases rest on the opinion of the Election Commission, which is a neutral body. Defection cases go to a Speaker who comes from a party.
  • This difference is used to argue that Tenth Schedule cases should also go to the Election Commission.

  • The Delhi High Court ruling (2018) shows that even a neutral body must give the member a proper hearing.

  • Exemptions as political patronage

  • Giving legislators paid posts on boards and councils, and then exempting those posts, can reward loyalty. This weakens the separation of powers the rule is meant to protect [1].
  • Tests built by the courts (Guru Gobinda Basu, Jaya Bachchan) limit this case by case. A clear rule in the law would be more predictable.

Related concepts

Read more

Sources

  1. 1PRS Legislative Research — "Explained: Law on holding an 'Office of Profit'" and the Legislative Department's comments on the draft Parliament (Prevention of Disqualification) Bill, 2024 — )_Bill,2024.pdfprsindia.org · tier 1