January 22, 2026

Office of Profit Decoded Disqualification, The Jaya Bachchan Case & EC's Role

Office of Profit Decoded: Disqualification, The Jaya Bachchan Case & EC's Role description: "The definitive guide to the 'Office of Profit' controversy (Article 102). Understand why MPs are banned from holding government positions, the difference between 'Profit' and 'Salary', and the role of the Election Commission in disqualification." date: 2026-01-13 author: Civics Desk | Sansad Online tags: [Office of Profit, Article 102, Disqualification of MPs, Jaya Bachchan Case, Election Commission, Separation of Powers, Parliamentary Secretaries, Constitution of India]

🚫 Parliament 101: Office of Profit (The Conflict of Interest)

The Independence Shield

Keeping the MP separate from the Government.

  • Constitutional Basis: Article 102(1)(a) (MPs) & Article 191(1)(a) (MLAs).
  • The Rule: An MP/MLA cannot hold any "Office of Profit" under the Government.
  • The Penalty: Immediate Disqualification from the House.
  • The Judge: The President (on the binding advice of the Election Commission).
🏛️ THE SONIA GANDHI RESIGNATION: In 2006, Sonia Gandhi was the Chairperson of the National Advisory Council (NAC) while being an MP. The Opposition alleged this was an "Office of Profit." To avoid the embarrassment of disqualification, she famously resigned from the Lok Sabha, the Parliament changed the law to exempt the post, and she was re-elected. This incident highlighted how blurry the line is between "Service" and "Profit."

Introduction: Why can't an MP be a Chairman?

(Separation of Powers)

In the British Parliamentary system, the Executive (Ministers) comes from the Legislature (MPs). However, to ensure that the Government doesn't buy the loyalty of all MPs, the Constitution draws a line.

  • Scenario: Imagine the Prime Minister wants to pass a bad law. He tells 50 MPs: "If you vote for this law, I will make you the Chairman of ONGC, the Director of Air India, and the Head of the Steel Authority."
  • Result: The MPs will stop questioning the Government because they are on the Government's payroll. The Parliament will lose its ability to check the Executive.

To prevent this, Article 102 says: You can be a Minister (that's allowed), but you cannot hold any other position under the Government that gives you "Profit" or influence.

This guide explains what counts as "Profit" (Hint: It's not just money), the landmark Supreme Court judgments, and the controversy over "Parliamentary Secretaries" in states like Delhi.

🧐 Part 1: What is an "Office of Profit"?

The Constitution uses the term but does not define it. It has been defined by the Supreme Court through various judgments (Pradyut Bordoloi vs Swapan Roy, 2001).

To check if a post is an Office of Profit, the Court applies the 5-Point Test:

  1. Appointment: Does the Government appoint the person?
  2. Removal: Does the Government have the power to fire them?
  3. Remuneration: Does the Government pay the salary?
  4. Functions: What are the duties?
  5. Control: Does the Government control the way the duties are performed?

If the answer to these is "Yes," it is an Office of Profit.

The "Profit" Myth

  • Misconception: "I am doing this job for free (Honorary). So it's not profit."
  • Legal Reality: Wrong. The Supreme Court ruled in the Jaya Bachchan Case (2006) that it doesn't matter if you actually took the money.
    • If the post carries a salary/perk, it is an Office of Profit.
    • Even if you decide not to draw the salary, the potential for profit makes it invalid.
    • Jaya Bachchan was Chairperson of the UP Film Development Council. She claimed she took no money. The SC disqualified her because the post had perks like a car, driver, and telephone, which counted as "Pecuniary Gain."

🛡️ Part 2: The Exemptions (How to Escape)

The Constitution gives Parliament the power to exempt certain posts by law.

  • The Act: Parliament (Prevention of Disqualification) Act, 1959.
  • The List: This Act contains a long "Schedule" (List) of posts that MPs can hold without being disqualified.
    • Examples: Leader of Opposition, Whips, Chairmen of certain specific Trusts/Universities.
  • The Loophole: Every time a government wants to give a post to an MP, they simply amend this Act to add that specific post to the "Safe List."
    • Example: In 2006, after the Sonia Gandhi controversy, the Act was amended to retrospectively exempt the National Advisory Council (NAC).

⚔️ Part 3: The "Parliamentary Secretary" Controversy

This is the most common battleground today (e.g., in Delhi, Haryana, Punjab).

  • The Trick: Ministers are limited to 15% of the House strength (91st Amendment). So, CMs appoint disgruntled MLAs as "Parliamentary Secretaries" (PS) to give them a fancy title and a red-beacon car.
  • The Challenge: Is "Parliamentary Secretary" an Office of Profit?
  • The Verdict:
    • Yes. Courts have consistently struck them down unless the State Assembly has passed a specific law exempting the post of PS.
    • AAP Case (2018): 20 AAP MLAs in Delhi were disqualified by the Election Commission for holding the post of PS. (Later, the Delhi High Court set it aside on technical grounds regarding natural justice, but the legal threat remains).

⚖️ Part 4: Who Decides the Disqualification?

Unlike the Anti-Defection Law (where the Speaker decides), Office of Profit cases are decided by the President/Governor.

  • Article 103:
    1. A complaint is made to the President of India.
    2. The President refers the matter to the Election Commission of India (ECI).
    3. The ECI holds an inquiry.
    4. The ECI gives its opinion to the President.
    5. Crucial: The President is bound by the ECI's opinion. He acts merely as the signing authority.

🌍 Part 5: Comparison with Other Countries

  • USA: Strict Separation. A Senator cannot hold any executive office. If Obama wants to make a Senator the Secretary of State (like Hillary Clinton), she must resign from the Senate first.
  • UK: Similar to India. However, the UK has a simpler "Disqualification Act" that lists incompatible offices clearly.

❓ Frequently Asked Questions (FAQs)

Q1. Can an MP be a University Vice-Chancellor?

Usually No.

  • A VC is appointed by the Governor/Government and draws a salary. It is an Office of Profit.
  • However, being a member of the "University Court" or "Senate" (Advisory body) is usually exempted.

Q2. Can an MP be a Director of a Private Company?

Yes.

  • A Private Company is not "Under the Government."
  • Therefore, holding a profit-making post in Reliance or Tata is NOT an Office of Profit under Article 102. (However, it might be a "Conflict of Interest" if they lobby for the company in Parliament, but that is an Ethics issue, not a Disqualification issue).

Q3. Does "Office of Profit" apply to Ministers?

No.

  • The Constitution explicitly exempts Ministers (PM, CM, Cabinet Ministers) from this rule. Being a Minister is technically an office of profit, but it is the only one allowed for an MP.

Q4. What is the "Pecuniary Gain" test?

For an office to be "Profit," there must be some financial gain (Salary, Honorarium, Perks).

  • Reimbursement: Getting money for "Out of Pocket Expenses" (e.g., Train ticket for a meeting, Hotel bill) is NOT profit. It is just reimbursement.
  • Daily Allowance: If the allowance exceeds the "Compensatory Allowance" limit, it can be treated as profit.

Q5. Can a Disqualified MP contest elections again?

Yes.

  • Disqualification for Office of Profit is not permanent (unlike corruption conviction).
  • You lose your seat immediately. But you can resign from the "Office" and contest the very next Bye-Election. (This is what Sonia Gandhi did in 2006).

Bookmark this page. The Office of Profit law is the wall that stops the Parliament from becoming a department of the Government.