PSIR Simplified

The term constitutional functionaries mean those functionaries which are mentioned in the Constitution of India. The following Constitutional Functionaries are subject to  the disqualification of Office of Profit-

1. Under Article 58(2) the President of India; and under Article 66 (4) the Vice President of India are not eligible to be elected as President/ Vice President if they hold ‘office of profit’ under the Union government/ State government/ Local authority. Article 64 further says that the Vice-president as the ex-officio Chairman of Rajya Sabha shall also not hold any office of profit during his tenure.

Exceptions- For the above purpose, the office of the President, Vice-President, Governor, and  Union and State Ministers shall not be treated as office of profit. It means if a person holds these posts, he/she can be elected as President/ Vice-president, but he will have to leave these posts after election.

2. Under Article 158, the Governor of a State shall not hold any office of profit.

3. Under Article 102 (a), the members of Parliament (both Houses) and under Article 191(a), the members of State Legislature (both Houses) are  disqualified for being elected or for remaining in office, if they hold any office of profit under Union/State/Local government.

For this purpose, the post of a  Minister under Union or State  is not treated as office of profit.

•  Please note that these two articles are concerned with ‘disqualifications’ of Members of Parliament and State Legislature respectively.  For both the members of Parliament and the members of State Legislature, the  new disqualifications may be added only by a law made by Parliament.
• However, the Constitution 102 (a) provides that for the Members of Parliament, the Parliament by law exclude any post from the category of ‘office of profit’. Similarly, Article 191(a) authorizes the State Legislature to exclude certain state government posts from ‘Office of Profit’ for the purpose of members of State legislature. Please note the distinction between (a) and (b).

The Parliament (Prevention of Disqualification) Act, 1959- The Parliament of India by using its power under Article 102(a) has passed this act in 1959 and amended several times to exclude certain posts of the Union government from the category of ‘office of profit. Some of these excluded posts are:  office of leader of opposition, Chairman of National Advisory Committee, office bearers of registered societies and trusts of the government, members of university senate and other similar bodies etc.

It means that the excluded posts shall not be considered as office of profit and if any Member of Parliament holds these posts, he shall not be disqualified on the ground of office of profit.

However, the State Legislatures have NOT made any law under Article 191 (a) excluding posts from the category of office of profit for the members of State Legislature. That is why, the majority of the disputes regrading office of profit arise with respect to the members of the State Legislature.

Please also note that the members of the Judiciary are not treated as government servants.

Why Ban on Members of Legislature from holding the Office of Profit?

The basic purpose behind the restriction of government posts for Members of Parliament or State Legislature is the spirit of Separation of Powers and avoid conflict of interests. If members of legislature also hold government posts, they will not be independent from the government and will not be able to discharge their functions effectively.

4. The Members of Union/State Public Service Commission are also debarred from holding any ‘paid employment’ (government or private) during their tenure of office under article 317.  However, the word ‘paid employment’ is used in place of ‘office of profit’ in this article. The distinction between the two is that office of profit in the constitution is taken to mean any post under the government, whereas the ‘paid employment’ also includes the private employment, besides the government employment. 

What is Office of Profit?

The term Office of Profit has been used in the Constitution, but has not been defined either in the constitution or any law made by the Parliament or State Legislatures.

However, the Supreme Court has laid down certain parameters to determine whether a office is office of profit or not.

The first comprehensive five-point criteria for determining the Office of Profit was laid down by the Supreme Court in the case of Guru Govinda Basu and Shankari Prasad  Ghoshal, 1964:

1. Appointing Authority: Whether the government holds the power to make the appointment to the concerned office. If yes, the post is office of profit.
2. Removal Power: Whether the government possesses the power to dismiss or terminate the office holder. If yes, the post is office of profit.
3. Remuneration Source: Who pays the salary or remuneration attached to the position. If  government pays the remuneration, the post is office of profit
4. Determination of Pay: Whether the government has a role in fixing or deciding the quantum of payment. If yes, the post is office of profit.
5. Functional Control: Whether the government exercises direct control and supervision over the performance of the job’s daily functions. If yes, the post is office of profit.

If above conditions are met, the concerned post is the office of profit.

In subsequent judgements, the Supreme Court of India has largely adhered to this definition but has clarified certain points.

For example,  in the Jaya Bachchan v. Union of India, 2006, case, the Supreme Court clarified that the actual receipt of pecuniary profit by the holder of post is not required.  If the post in question has provision for pecuniary benefits, it will be an office of profit, irrespective of the fact that the incumbent person has not taken any remuneration for that post.

Jaya Bachchan, a Rajya Sabha member, was appointed the chairperson of UP Film Development Council in 2004. This post is attached with pecuniary benefits and status of Cabinet Minister. Jaya Bachchan argued that she did not take any pecuniary benefits for performing her duties as Chairperson. But the Supreme Court was not convinced with this argument and ruled that if the concerned post is attached with pecuniary benefits, it does not matter whether the incumbent person has taken those benefits or no.

In another judgement, the Supreme Court in PA Sangama Vs Pranab Mukherjee, 2013 case clarified that ‘profit’ also includes non-monetary gains like housing or vehicle facility.

Thus, now the courts largely determine the office of profit with reference to above five-point criteria.