102.Disqualification of membership of membership:

(1) A person shall be disqualified for being chosen as, and for being, a member of either house of Parliament-(a) if holds any office of profit under the government of India or the Government of any State, other than an office declared by the parliament by law not to disqualify its holder: (b) if he is of unsound mind and stands so declared by a competent court (c) if he is undischarged insolvent; (d)if he is not citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;(e)if he is so disqualified by or under any law made by the parliament.

Explanation:

For the purpose of this clause the person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a minister either for the Union or for such State.

(2) A person shall be disqualified for a being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.

103. Decision on questions as to disqualification of members:

(1) if any question arises as to whether a member of either House of parliament has become subject to any of the disqualification mentioned in clause (1) of Article 102, the question shall be referred for the decision of the president and his decision shall be final.

(2) Before giving any decision on any such question, the president shall obtain the opinion of the election commission and shall act according to such opinion.

COMMENTS

No other subject in constitutional law has attracted more attention than that of electoral disqualifications. Quite often nomination of a candidate at an election is challenged on the ground that a particular candidate does not possess necessary qualification or suffers from some disqualification for being a candidate in the election. These disputes to continue after the elections are over and there are instance where an election was held void on the ground of lack of qualification or disqualification of a candidate.

Any post-election dispute of a member of Parliament on the ground of “holding an office of profit under the government” or any other disqualification shall be referred to the president and the president shall decide the issue of disqualification after the consultation of the Election Commission of India. Any post-election dispute as to disqualification of a member of State Assembly on the ground of “Holding an office of profit under the government” or any other disqualification shall be referred to the Governor and the Governor shall decide the issue of disqualification after the consultation of the Election Commission of India.

In Jaya Bachchan case (2),the facts leading to the order of the President were as under:

“Smt Jaya Bachchan, who was elected to the Council of States from Uttar Pradesh Films Development council on 14th July, 2004 by the Uttar Pradesh Government .A petition was filed before the President by Sh. Madan Mohan, under Article 103 (1) of the constitution, raising the question of disqualification of Smt. Bachchan on the ground that she was holding an office of profit under the Uttar Pradesh Government following her appointment as Chairperson of the said Council, with the Status of a Cabinet Minister, and entitled to certain benefits and facilities. The President referred the petition to the Election Commission for its Opinion under Article 103(2).The main question which falls for determination of the Uttar Pradesh films development council to which the opposite party has been appointed on 14.7.2004 is an ‘ office of profit under the Government of Uttar Pradesh’ within the meaning of Article 102(1)(a) of the Constitution. The Election Commission held that the honorarium of Rs. 5000/- per month payable to the Chairperson of the Council was pecuniary gain’ to the holder of that office and was not by of any compensatory allowance to defray out-of-pocket expenses and finally vide its opinion dated 2nd March, 2006 the Commission held that Smt. Jaya Bachchan was disqualified.

The petitioner Jaya Bachchan moved to the Supreme Court. Before the Supreme Court, the phrase “ office of profit” fell for interpretation within the meaning of Article 102 and other provisions of the Constitution with regard to use of the expression “honorarium” and its effect regarding the financial status of the holder of office or interest of the holder in profiting from the office. It was observed that what was relevant was whether the office was capable of yielding a profit or pecuniary gain, other than reimbursement of out-of-pocket/actual expenses, and not whether the person actually received monetary gain or did not withdraw the emoluments to which she was entitled. The three Judges Bench, which heard the matter, held that an office of profit is an office which is capable of yielding profits of pecuniary gain and that 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.”

In Sibu Soren case the Supreme Court has before it a controversy, which revolved around two issues. Firstly, the nature of payment of Rs.1750/- per month as “honorarium” to the appellant. And . secondly, whether the ‘office’ of the Chairman Interim, Jharkhand Area Autonomous Council; was an “Office under the State Government”.

The question now is what is pecuniary gain? Does the receipt of “honorarium at the rate of Rs. 1750/- per month by the appellant, besides other allowances and perquisites, amount to causing any “pecuniary gains” to the appellant?

The Supreme Court agreed with the High Court that the appellant, as Chairman of the Interim JAA Council, was in receipt of pecuniary gain in the form of honorarium and he, thus, held an “office of profit.” It was observed by the court that the expression “profit” connotes an idea of some pecuniary gain other than “compensation.” Neither the quantum of amount paid, nor the label under which the payment is made, may always be material to determine whether the office is one of profit. The Court went on further to observe that mere use of the word “honorarium” cannot take the payment out of the concept of profit, if there is some pecuniary gain for the recipient. The payment of an honorarium, in addition to daily allowances in the nature of compensatory allowances, rent-free accommodation and thus, is a source of pecuniary gain and, hence, constituted profit.

In Shibu Soren and Jaya Bachchan, the issue that in what manner appointment to the office would have been prejudicial to the constituency or affect the independence of the member was neither raised nor argued and thus remained undetermined. How by virtue of honorarium either Shibu Soren or Jaya Bachchan were beholden to the executive government of a of a State (Jharkhand and Uttar Pradesh and not to the Central Government) and lost their independence of thought and action in the discharge of their public duties as representatives of the people in the Parliament was also neither raised/argued nor determined.