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Disqualification of Members of Parliament for Holding an Office of Profit

Jaya Bachchan v. Union of India, AIR 2006 SC 2119: 2006 (5) SCALE 511: (2006) 5 SCC 266

Facts: The Government of Uttar Pradesh, by Official Memorandum dated 14-7-2004, appointed the petitioner Jaya Bachchan as the Chairperson of the Uttar Pradesh Film Development Council and sanctioned to her the rank of a Cabinet Minister. The benefits to which she became entitled, as a consequence, are:

(i) Honorarium of ` 5,000 per month;

(ii) Daily allowance @ ` 600 per day within the State and ` 750 outside the State. ` 10,000 per month towards entertainment expenditure;

(iii) Staff car with driver, telephones at office and residence, one P.S., one P.A. and two class IV employees;

(iv) Body Guard and night escort;

(v) Free accommodation and medical treatment facilities to her and family members;

(vi) Free accommodation in Government circuit houses/guest houses and hospitality while on tour.

The Election Commission, after referring to the facts and the law enunciated by the Supreme Court in several decisions, has expressed the opinion that the office of the Chairperson of the Council to which the petitioner was appointed by the State Government, is an “office of profit” under the Government of Uttar Pradesh for purposes of Article 102(1)(a) of the Constitution. The Commission also found that section 3 of the Parliament (Prevention of Disqualification) Act, 1959 did not exempt the said office of profit from disqualification under Article 102(1)(a) of the Constitution.

The President of India, by an order dated 16th March, 2006, whereby, in exercise of powers conferred under clause (1) of article 103 of the Constitution of India, has decided, after obtaining the opinion of the Election Commission as required by Article 103(2), that the petitioner stands disqualified for being a Member of the Rajya Sabha on and from 14th day of July, 2004. The petitioner filed a writ petition in the Supreme Court challenging the said order of the President dated 16th March, 2006. The petitioner also challenged the opinion dated 2nd March, 2006 rendered by the Election Commission to the President, under clause (2) of Article 103, that the petitioner became disqualified under Article 102(1)(a) of the Constitution for being a Member of the Rajya Sabha on and from 14th July, 2004 on her appointment by the Government of Uttar Pradesh as Chairperson of the U.P. Film Development Council.

The contention of the petitioner was that the post of Chairperson of the Council and the conferment of the rank of Cabinet Minister, were only “decorative”; and that she did not receive any remuneration or monetary benefit from the State Government; that she did not seek residential accommodation, nor used telephone or medical facilities; that though she travelled several times in connection with her work as Chairperson, she never claimed any reimbursement; and that she had accepted the Chairpersonship of the Council honorarily and did not use any of the facilities. The petitioner contends that in the absence of any finding by the Election Commission that she had received any payment or monetary consideration from the State Government, she could not be said to hold any office of profit under the State Government and, therefore, her disqualification was invalid.

Issue: Whether an M.P. stands disqualified for being a Member of the Rajya Sabha on being appointed as Chairperson of the Uttar Pradesh Film Development Council?

Decision: It is not in dispute that the Council is not an autonomous body or statutory corporation, that the Council has no budget of its own, and that all its expenses are met by the Department of the State Government administratively in-charge of it. Similarly, the fact that the petitioner was appointed as Chairperson of the Council conferring on her the rank of a Cabinet Minister. entitling her to all the remuneration and benefits is also not disputed.
Clause (l)(a) of Article 102 provides 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 term ‘holds an office of profit’ though not defined, has been the subject matter of interpretation, in several decisions of the Supreme Court. 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, emolument, remuneration or non-compensatory allowance is attached, is ‘holding an office of profit’. The question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of the payment must be considered as a matter of substance rather than of form. Nomenclature is not important. In fact, mere use of the word ‘honorarium’ cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient. Payment of honorarium, in addition to daily allowances in the nature of compensatory allowances, rent free accommodation and chauffeur driven car at State expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit. For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the “pecuniary gain” is “receivable” in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not. If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/ actual expenses, then the office will be an office of profit for the purpose of Article 102(1)(a). This position of law stands settled for over half a century commencing from the decisions of Rayanna Subanna v. G.S. Kaggeerappa, AIR 1954 SC 653:

ILR 1955 Mys 109; Shivamurthy Swami lnamdar v. Agadi Sanganna Andanappa, (1971) 3 SCC 870: 1970 UJ (SC) 334; Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev, AIR 1992 sc 1959: (1992) 4 SCC 404 and Shibu Soren v. Dayanand Sahay, AIR 2001 SC 2583.

It is well settled that where the office carries with it certain emoluments or the order of appointment states that the person appointed is entitled to certain emoluments, then it will be an office of profit, even if the holder of the office chooses not to receive/draw such emoluments. What is relevant is whether pecuniary gain is “receivable” in regard to the office and not whether pecuniary gain is, in fact, received or received negligibly.

In the present case, the office carried with it a monthly honorarium of ` 5000, entertainment expenditure of ` 10,000, staff car with driver, telephones at. office and residence, free accommodation and medical treatment facilities to self and family members, apart from other allowances, etc. That these are pecuniary gains cannot be denied. The fact that 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 this view, the question whether petitioner actually received any pecuniary gain or not is of no consequence. Thus, there is no merit in the writ petition and is dismissed.

Held: The post held by the petitioner was covered within the meaning of ‘office of profit’ and accordingly the petitioner was disqualified for being a member of the Rajya Sabha. The fact that 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 are not relevant to the issue.

 

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