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The Conondrum Concerning 'Office Of Profit' And The Judgment Of Jaya Bachchan v Union of India

Author: Sanket Jamuar

Hidayatullah National Law University, Raipur


Introduction

A petition was filed by Jaya Bachchan in the Supreme Court under Article 32 of the Constitution against the decision of the president wherein the President through exercise of his powers conferred under Art. 103(1) had declared through notification dated 16th March, 2006 after taking advice from the election commission as required under Art. 103(2), that the petitioner was not eligible to be a member of Rajya Sabha as she was occupying an “office of Profit”.

The Petitioner was appointed as the Chairperson of Uttar Pradesh Film Development Council through a memorandum issued by Government of Uttar Pradesh Dated 14th July, 2014 which also conferred and sanctioned on her the rank of a cabinet minister. The Petitioner consequently became entitled to certain benefits which included an Honorarium of Rs. 5000 per month, Daily allowance of Rs. 600 in state and a daily allowance of Rs. 750 outside state, Rs. 10000 per month towards her entertainment expenditure and further, she was even allowed a Staff car with a driver, telephone at office and resident, one P.A, one P.S and two Class IV employees along with a body guard and other benefits of medical treatment and accommodation on the expenditure of the government.

The Petitioner had challenged the decision taken by the President under Art. 103(1) as well as the advice rendered by the Election commission under Art. 103(2) . The Court after hearing both the sides observed that the Post of Chairperson of Uttar Pradesh Film Development Council was capable of yielding pecuniary gains as well as it was not specifically prevented from being a post of disqualification under Sec. 3 of Parliament (Prevention of Disqualification) Act, 1959. Thus, the petitioner held an office of profit and the impugned order and advice were constitutional. The Court consequently dismissed the Petition.


Background

The Constitution, besides enlisting certain qualifications for becoming Members of Parliament and Legislative Assembly, also envisages certain disqualifications. One of these disqualifications is holding an “office of profit”. In a democracy, it is ensured that there is proper separation of power between the Executive, the Legislative and the Judiciary. For this, it is important that only suitable legislators are elected to and remain in the Parliament and the State Legislatures.The Constitution through its Art 102(1)(a) and Art. 191(1)(a) has laid down a provision for disqualification of Members of parliament and State Legislative Assemblies who hold an “office of profit”. The term “office of Profit” has neither been defined in the Constitution nor the General clauses Act. In order to fill the void and to ascertain the true nature and definition of the term “office of Profit” a committee was formed in the year 1954 under the aegis of Pt. Thakur Das Bhargava. The Committee was popularly known as Bhargava Committee. The Committee submitted its report in which it recommended that owing to the dynamic nature of the term “office of Profit” it is very difficult to define it, rather, Parliament should enact a law exempting certain offices from being office of Profit. Consequently, Parliament (Prevention of Disqualification) Act, 1959 was enacted.


In the absence of any definition as well as owing to the non-exhaustive list of exempted offices listed under subsequent legislation, Judicial Interpretations have been largely referred to fill the void.

Furthermore, Sec 2(a) of the Parliament (Prevention of Disqualification) Act, 1959 which envisages

that if a legislator receives any other benefit apart from “Compensatory allowance”, he stands

disqualified.

In Divya Prakash v. Kultar Chand Rana, the respondent was appointed as chairman of State Board of School Education in an honorary capacity. His election was challenged on the ground that he held an office of profit. It was contended that although the respondent did not receive any salary but the post carried a scale of pay. However, this argument was rejected by the court. It was held that the respondent never received any profit by way of salary and furthermore, he did not become entitled to any salary due to his appointment in an honorary capacity. Importantly, the Board, which fixed the pay scale for the post of Chairman, was not authorised to do so.

In the Case of Ramakrishna Hegde v. State of Karnataka3 the petitioner, Mr Hegde, was appointed as the Deputy Chairman of the Planning Commission. According to the respondents, there was ‘profit’ attached to the office as he enjoyed a Cabinet rank and got various allowances including well-furnished free accommodation, chauffeur-driven car and could travel anywhere in India having the facility of the State Guest.


However, the court held to the contrary as the allowances given to Hegde were included within the

meaning of “compensatory allowance” given in s. 2a of the Parliament (Prevention of Disqualification) Act. The respondents could not prove that the petitioner had profited by gaining more than the actual expenditure by way of allowances. Also, the court opined that “Merely because the petitioner had some privileges as a State Guest or rank of a Cabinet Minister, it cannot be said that he had pecuniary gain”.


Analysis

Jaya Bachchan v. Union of India, in which the court held that the Chairperson of the Film Development Council of a state holds an office of profit as some pecuniary gain is receivable by virtue of the post even though the said pecuniary gain may not actually be received. Here, the petitioner has sanctioned the rank of Cabinet Minister and received a monthly honorarium, daily allowances, free accommodation, staff car, medical treatment etc.

The petitioner, however, neither had received any payment nor did she use any facilities that she was entitled to as the Chairperson. However, since the post was capable of yielding profit to the petitioner, she held an office of profit.

Two Fundamental factors emerged in this case:

a) The form of payment is not at all relevant as monetary gains can be easily disguised as an

honorarium;

b) it is irrelevant whether remuneration was actually( in-real) received by the legislator, it is enough if

such remuneration was even receivable.

“The view expressed by the Karnataka High Court in Ramkrishna Hegde’s case does not appear to be good in law in view of the pronouncement of the Supreme Court in Jaya Bachchan where it was held that “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”. The Stand of Supreme Court in this case is a clear example of Judicial Activism. The Court after taking into account the practice of disguising pecuniary benefit in the term “Compensatory Allowance” has taken a very modern approach which gives due importance to the nature of the office. The Petitioner in the present case had put reliance on 2 cases, a) Divya Prakash v. Kultar Chand Rana & b) Umrao Singh v. Darbara Singh. The Court satisfactorily answered as to why the Judgment of Divya Prakash case cannot be applied to the present case because the office of the petitioner in that case had no remuneration altogether, However, Court failed to draw a clear rationale as to why the Judgment of Umrao Singh would not be followed. In Umrao Singh the question that arose for consideration was whether payment of a monthly consolidated allowance for performing all official duties and journeys concerning the work and a mileage allowance for the journeys performed for official work outside the district and daily allowances for the days of attendance of meetings/travel/halt, would convert the office of Chairman of a Panchayat Samiti into an office of profit. This Court held that these were allowances paid for the purpose of ensuring that the Chairman did not have to spend money out of his own pocket for discharging his official duties, and therefore, receipt of such allowances did not make the office one of profit.

The Court could have taken a similar approach in the present case also as the allowances which were conferred to the Petitioner were also to save the petitioner to save her from paying expenses from her own pocket.


Conclusion

The Court took a very remarkable step in including every office of pecuniary gains under the Purview of ‘office of Profit”. However, the Court could had elaborated further as to how the facts of the present case was different from the fact of the previous case. The Present Judgment is somewhat

incomplete and leaves a scope of further interpretation.

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