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B.A. LLB (H)

Subject – Election Law

INTRODUCTION
The Representation of the People Act, 1951 is an act enacted by the Indian Parliament to impart
the administration of the election of Centre and State legislatures. It lays down disqualifications
and qualifications of members for affiliation of those Houses. Further, the act also enunciates
corrupt practices and different offences at or regarding elections. The People’s Representation
act provides for the actual conduct of elections in India. The act also deals with details like
qualification and disqualification of members of both houses of Parliament (ie Loksabha and
Rajyasabha) and the state legislatures (ie. State Legislative Assembly and State Legislative
Council), Section 8 of Representation of the People Act, 1951 aims to discard candidates
convicted of certain offences from contesting an election. However, it raises important concern
pertaining to the right to contest election when such a conviction is stayed by the appellate court.

Specifically, Section 8 of RPA, 1951 states the grounds for disqualification on conviction of
certain offences pursuant to Section 8 of RPA, 1951, in case the candidate is convicted of certain
offences specified under sub-section (1) (2) (3) of Sec. 8 and sentenced to indicated fine or
imprisonment, then such a candidate is disqualified from being a member of either house of
Parliament or State Legislature from the date of such conviction till the stated time.

OBJECT - The scheme of disqualification upon conviction laid down by the RPA clearly
upholds the principle that a person who has conducted criminal activities of a certain nature is
unfit to be a representative of the people, this act is very important since it is pivotal in
preventing criminals being elected as representatives

The Representation of the People Act (RPA),1951

Key Provisions

o It regulates the actual conduct of elections and by-elections.

o It provides administrative machinery for conducting elections.
o It deals with the registration of political parties.
o It specifies the qualifications and disqualifications for membership of the
Houses.
o It provides provisions to curb corrupt practices and other offences.
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o It lays down the procedure for settling doubts and disputes arising out of
elections.

Section 8 of Representation of Peoples Act 1951 : Section 8 deals

with Disqualification of representatives on conviction for certain offences. This
section states that :

 A person convicted of an offence punishable under certain acts of Indian Penal Code,
Protection of Civil Rights Act 1955, Unlawful Activities (Prevention) Act 1967,
Prevention of Corruption Act 1988, Prevention of Terrorism Act 2002 etc. shall be
disqualified, where the convicted person is sentenced to —

1. only fine, for a period of six years from the date of such conviction;
2. imprisonment, from the date of such conviction and shall continue to be disqualified for
a further period of six years since his release.

 A person convicted for the contravention of—

1. any law providing for the prevention of hoarding or profiteering; or

2. any law relating to the adulteration of food or drugs; or
3. any provisions of the Dowry Prohibition Act, 1961

 A person convicted of any offence and sentenced to imprisonment for not less than two
years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be
disqualified from the date of such conviction and shall continue to be disqualified for a further
period of six years since his release.
 Notwithstanding anything 8 [in sub-section (1), sub-section (2) or sub-section (3)] a
disqualification under either subsection shall not, in the case of a person who on the date of the
conviction is a member of Parliament or the Legislature of a State, take effect until three months
have elapsed from that date or, if within that period an appeal or application for revision is
brought in respect of the conviction or the sentence, until that appeal or application is disposed of
by the court.
The fourth point above was the controversial Section 8(4) clause of the Representation of
Peoples Act which was struck down by the Supreme Court calling the Act ultra-vires of the
Constitution and providing for disqualification of MPs/MLAs on the day of their conviction.

SUPREME COURT JUDGMENTS INTERPRETING THIS FRAMEWORK

The judiciary has sought to curb this menace of criminalisation of politics through several
seminal judgments and attendant directions to the government and the Election Commission
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primarily based on the aforesaid provisions. Specifically, orders of the Supreme Court seeking to
engender a cleaner polity can be classified into three types: first, decisions that introduce
transparency into the electoral process; second, those that foster greater accountability for
holders of public office; third, judgments that seek to stamp out corruption in public life. The
discussion below is not meant to be an exhaustive account; it merely illustrates the trends in
Supreme Court jurisprudence relating to the question of de-criminalisation of politics.
In Union of India v. Association for Democratic Reforms , the Supreme Court directed the
Election Commission to call for certain information on affidavit of each candidate contesting for
Parliamentary or State elections. Particularly relevant to the question of criminalisation, it
mandated that such information includes whether the candidate is convicted/acquitted/discharged
of any criminal offence in the past, and if convicted, the quantum of punishment; and whether
prior to six months of filing of nomination, the candidate is accused in any pending case, of any
offence punishable with imprisonment for two years or more, and in which charge is framed or
cognizance is taken by a court. The constitutional justification for such a direction was the
fundamental right of electors to know the antecedents of the candidates who are contesting for
public office. Such right to know, the Court held is a salient facet, and the foundation for the
meaningful exercise of the freedom of speech and expression guaranteed to all citizens under
Article 19(1)(a) of the Constitution.
Again in People’s Union for Civil Liberties v. Union of India, the Supreme Court struck down
Section 33B of the Representation of People (Third Amendment) Act, 2002 which sought to limit
the ambit of operation of the earlier Supreme Court order in the ADR case. Specifically it
provided that only the information that was required to be disclosed under the Amendment Act
would have to be furnished by candidates and not pursuant to any other order or direction. This
meant, in practical terms, that the assets and liabilities, educational qualifications and the cases in
which he is acquitted or discharged of criminal offences would not have to be disclosed. Striking
this down, the Court held that the provision nullified the previous order of the Court,
infringed the right of electors’ to know, a constituent of the fundamental right to free speech and
expression and hindered free and fair elections which is part of the basic structure of the
Constitution. It is pursuant to these two orders that criminal antecedents of all candidates in
elections are a matter of public record, allowing voters to make an informed choice.

At the same time, the Supreme Court has also sought to foster greater accountability for those
holding elected office. In Lily Thomas v. Union of India the Court held that Section 8(4) of the
RPA, which allows MPs and MLAs who are convicted while serving as members to continue in
office till an appeal against such conviction is disposed of, is unconstitutional. Two justifications
were offered — first, Parliament does not have the competence to provide different grounds for
disqualification of applicants for membership and sitting members; second, deferring the date
from which disqualification commences is unconstitutional in light of Articles 101(3) and 190(3)
of our Constitution, which mandate that the seat of a member will become vacant automatically on
disqualification.
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Again in People’s Union for Civil Liberties v. Union of India (hereinafter ‘NOTA’), the court held
that the provisions of the Conduct of Election Rules, 1961, which require mandatory disclosure of a
person’s identity in case he intends to register a no-vote, is unconstitutional for being violative of his
freedom of expression, which includes his right to freely choose a candidate or reject all candidates,
arbitrary given that no analogous requirement of disclosure exists when a positive vote is registered,
and illegal given its patent violation of the need for secrecy in elections provided in the RPA and
widely recognised as crucial for free and fair elections. Thus by allowing voters to express their
dissatisfaction with candidates from their constituency for any reason whatsoever, the Supreme
Court order has a significant impact in fostering greater accountability for incumbent office-
holders. When its impact is combined with the decision in Lily Thomas, it is clear that the net
effect of these judgments is to make it more onerous for criminal elements entrenched in
Parliament from continuing in their positions.

Third, the Supreme Court has taken several steps for institutional reform to sever the connection
between crime and politics. In Vineet Narain v. Union of India a case concerning the inertia of the
Central Bureau of Investigation (CBI) in investigating matters arising out of certain seized
documents known as the ‘Jain diaries’ which disclosed a nexus between politicians, bureaucrats
and criminals, who were recipients of money from unlawful sources, the Supreme Court used the
power of continuing mandamus to direct large-scale institutional reform in the vigilance and
investigation apparatus in the country. It directed the Government of India to grant statutory
status to the Central Vigilance Commission (CVC), laid down the conditions necessary for the
independent functioning of the CBI, specified a selection process for the Director, Enforcement
Directorate (ED), called for the creation of an independent prosecuting agency and a high-
powered nodal agency to co-ordinate action in cases where a politico-bureaucrat-criminal nexus
became apparent. These steps thus mandated a complete overhaul of the investigation and
prosecution of criminal cases involving holders of public office.

ANS 2.
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“If the people who are elected are capable and men of character and integrity, then they
would be able to make the best even of a defective Constitution. If they are lacking in these,
the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless
thing. It acquires life because of the men who control it and operate it, and India needs today
nothing more than a set of honest men who will have the interest of the country before them.”
- Dr Rajendra Prasad, President, Constituent Assembly of India, 26th November, 1949 before
putting the motion for passing of the Constitution on the floor
The Election Commission of India is an autonomous, quasi-judiciary constitutional body of
India. Its mission is to conduct free and fair elections in India. It was established on 25 January
1950 under Article 324 of the Constitution of India.
The major aim of election commission of India is to define and control the process for
elections conducted at various levels, Parliament, State Legislatures, and the offices of the
President and Vice President of India. It can be said that the Election Commission of India
ensures smooth and successful operation of the democracy.
According to Article 324 of Indian Constitution, the Election Commission of India has
superintendence, direction, and control of the entire process for conduct of elections to
Parliament and Legislature (state legislative assembly & state legislative council) of every State
and to the offices of President and Vice-President of India.

Initially, the commission had only a Chief Election Commissioner. Presently, it consists of a

Chief Election Commissioner and two Election Commissioners. For the first time, two
additional Commissioners were appointed on 16th October 1989 but they had a very short term
till 1st January 1990. Afterwards, on 1st October 1993 two additional Election Commissioners
were appointed. The concept of multi-member Commission has been in operation since then,
with decision-making power by majority vote.

Appointment & Tenure of Commissioners

1. The President has the power to select Chief Election Commissioner and Election
Commissioners.
2. They have tenure of six years, or up to the age of 65 years, whichever is earlier.
3. They have the same status and receive pay and perks as available to Judges of the
Supreme Court of India.
4. The Chief Election Commissioner can be removed from office only through accusation
by Parliament.
5. Election commissioner or a regional commissioner shall not be removed from office
except on the recommendation of the Chief Election Commissioner.

Advisory Jurisdiction & Quasi-Judicial Functions

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1. Under the Constitution, the Commission also has advisory jurisdiction in the matter of
post-election ineligibility of sitting members of Parliament and State Legislatures.

Additionally, the cases of persons found guilty of dishonest practices at elections which come
before the Supreme Court and High Courts are also referred to the Commission for its opinion on
the question as to whether such person shall be disqualified and, if so, for what period.
The judgment of the Commission in all such matters is binding on the President or, as the case
may be, the Governor to whom such opinion is tendered.

2. The Commission has the power to prohibit a candidate who has failed to lodge an
account of his election expenses within the time and in the manner set by law.
3. The Commission has also the power to remove or reduce the period of such
disqualification as also other disqualification under the law.
Administrative Powers

1. To decide the territorial areas of the electoral constituencies throughout the country on the
basis of the Delimitation Commission Act of Parliament.
2. To organize and periodically amend electoral rolls and to register all qualified voters.
3. To inform the dates & schedules of election and to scrutinize the nomination papers.
4. To grant recognition to political parties & allot election symbols to them.
5. To act as a court for settling disputes related to granting of recognition to political parties
and allotment of election symbol to them.

Role of Election Commission of India

Election commission plays a vital role in organizing elections. The most critical challenge before
the Election Commission of India is to implement norms and the Model Code of Conduct to
ensure free and fair elections in the country. Its existence and independence are necessitated by
history, which has revealed that self-governing elections are not free from disruption. Towards
this end, it has been empowered to supervise political parties and candidates and take appropriate
action in case of violations.

Functions and Powers Of the Election Commission

Key functions of the Election Commission of India are as under:

1. The Election Commission of India is considered the guardian of free and reasonable
elections.
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2. It issues the Model Code of Conduct in every election for political parties and
candidates so that the decorum of democracy is maintained.
3. It regulates political parties and registers them for being eligible to contest elections.
4. It publishes the allowed limits of campaign expenditure per candidate to all the political
parties, and also monitors the same.
5. The political parties must submit their annual reports to the ECI for getting tax
benefit on contributions.
6. It guarantees that all the political parties regularly submit their audited financial reports.

Constitutional Provisions relating to Election Commission

1. Art. 324, COI : broadly speaks of the functions of EC and its composition.
2. Art. 325, COI : there shall be one general electoral roll for every territorial constituency
for election to either Houses of Parliament and State legislature. It establishes equality among
citizens by affirming that no person shall be ineligible for inclusion in the electoral roll on the
grounds of religion, race, caste or sex.
3. Art. 326,COI : lays down adult suffrage as the basis of elections to the Lok Sabha and to
the Legislative Assemblies of States.
4. Art. 327, COI : confers on Parliament the power to make provisions with respect to
elections to federal and State Legislatures
5. Art. 328, COI: confers on State Legislature the power to make laws with respect to
elections to such legislature
6. Art. 329, COI : bars interference by courts in electoral matters. Notwithstanding
anything said in the constitution i.e. validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies shall not be called in question in
any court
No election to either House of Parliament or either House of the Legislature of a State shall be
called in question except by an election petition. Any elector or candidate can file an election
petition on grounds of malpractice during the election. In respect of elections to the Parliament
and State Legislatures, they can only be filed before the High Court and in respect of elections
for the offices of President and Vice President, such petitions can only be filed before the
Supreme Court.

Are the commissioners and the CEC equal?

Appointment and removal
APPOINTMENT - According to Article-324(2) the appointment of the chief Election
Commissioner, the other Election Commissioners and the Regional Commissioner shall be
made by the President of India in accordance with the rules laid down by the Parliament
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REMOVAL- The Chief Election Commissioner cannot be removed from his post easily on
account of any political reasons. This is necessary so as to preserve the independence of
election commission. Chief Election Commissioner of India can be removed from his office by
the Parliament with a two-thirds majority in both the Lok Sabha and the Rajya Sabha on the
grounds of proved misbehaviour or incapacity, Other Election Commissioners can be removed
by the President of India on the recommendation of the Chief Election Commissioner. A
Chief Election Commissioner has never been removed in India.

In Case of S.S. Dhanoa vs Union of India (1991), the SC held: “The chief election
commissioner does not appear to be primus inter pares, i.e. first among equals, but he is intended
to be placed in a distinctly higher position”

Also, In case of T.N. Seshan vs Union of India (1995), the SC held that the CEC and ECs are
equal. CEC is given the power of recommending the removal of ECs with the intention of
shielding them and not to use it against them. CEC cannot use its suo moto as he is an equal to
them.
The Chief Election Commissioner and Other Election Commissioners (Conditions of Service)
Act, 1991, as amended, provides that in case of difference of opinion on any matter, such
matter shall be decided by the opinion of the majority. Thus the CEC cannot over-ride any
decision of the commission by himself. As Chairman of the Election Commission he presides
over the meetings, conducts the business of the day and ensures smooth transaction of business
of the commission.

Thus, there in reality there seems to be difference between the power and immunity provided to
Chief Election Commissioner which cannot be said to be enjoyed by other two Election
Commissioner but recent Judicial decision have brought balance to this discrepancy.

However there still seems to be two institutional weaknesses in the structure of EC;

1. The scope for partiality in appointments by government,

2. Difference in the security tenure of CEC and additional EC.

ANS 3.
INTRODUCTION
India is a Sovereign, Democratic, Socialistic, Secular Republic. The success of democracy
depends upon free and fair election. Broadly speaking, Election means an opportunity for voters
to hold elected officials accountable for their actions or to choose between competing candidates
or their policies. The democratic system requires that election contestants should consult the
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public and should try to follow its mandate. In other words, election is a means of telling an
elected representative whether he/she had received a mandate from the people for his/her
policies. Thus, election plays a key role in a democratic polity because it gives mandate to
elected members for forming the Government
The conduct of the General Elections in India for electing a new House of the People, involves
management of the largest event in the world. The Constitution of India has vested in the
Election Commission, the superintendence, direction and control of the entire process, for
conduct of elections to Parliament and Legislature of every State and to the offices of President
and Vice-President of India. Village and City Local Elections have been left to the State
Governments under the State Commissioners.
Election in the House of the People
System of Election to Lok Sabha
Elections to the Lok Sabha and also to Vidhan Sabhas (State Legislatives) are carried out using a
first-past-post electoral system. The country is split up into separate geographical areas known as
Constituencies and the electors can cast one vote each for a candidate and the winner being the
candidate who gets the most votes.
Article 84- Qualification for membership of Parliament.-
A person shall not be qualified to be chosen to fill a seat in Parliament unless he-
(a) is a citizen of India, and makes and subscribes before some person authorized in that behalf
by the Election Commission an oath or affirmation according to the form set out for the purpose
in the Third Schedule;
(b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the
case of a seat in the House of the People, not less than twenty-five years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law
made by Parliament.

Who can file a nomination?

Anyone who is 25 years of age or older is eligible to contest an election to a Lok Sabha seat. The
candidate must be a registered elector of a constituency and a citizen of India. However, if s/he is
a registered voter in a particular state, s/he can contest from any seat in any state.
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The candidate cannot be nominated if they have been convicted for some offence and are in
prison, or if s/he is out on bail, pending disposal of his/her appeal. As per the guidelines of the
Election Commission, such a person is disqualified from contesting elections.

How much is the security deposit?

At the time of filing a nomination, every candidate has to make a security deposit of Rs 25,000
for the Lok Sabha election. Candidates belonging to Scheduled Castes and Scheduled Tribes get
a concession — they have to pay only half the amount, Rs 12,500, as the deposit.

The security deposit must be made while filing the first set of nominations or before that. It can
be made in cash to the Returning Officer or Assistant Returning Officer, or deposited at the
RBI/Treasury. No deposit can be made with a cheque or bank draft.

Requirements for valid nominations

Lok Sabha hopefuls need to fill up Form 2A and present it to the Returning Officer, or the
specified Assistant Returning Officer only. Candidates can file nominations only at the place
mentioned in the public notice released by the Returning Officer and only between 11 am and 3
pm during the period specified by the Election Commission, barring public holidays.

Only the candidate or any of the proposers can file the nomination; the papers cannot be sent
through post or someone else. It must also be signed by the candidate and the prescribed number
of proposers. In case the candidate is an elector of a different constituency, s/he must submit a
certified extract of entries in the relevant electoral roll.

Proposers
For candidates of a recognised national or state party, one proposer is enough. But for
Independent candidates or those of an unrecognised political party, s/he will require 10 proposers
at the time of filing nominations. The proposers must also be electors from the concerned
constituency, but a proposer can also be a candidate from the same constituency.

In the case of proposers who are illiterate, their thumb impressions must be attested by the
Returning Officer, or an officer authorised by the EC.

Number of nomination papers for one candidate

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While a candidate can contest from two constituencies at the most, there can only be a maximum
of four sets of nomination papers for a candidate, albeit with only one deposit. If more than four
nominations are filed, the Election Commission will ignore the papers submitted from the fifth
set onwards.

Grounds on which nomination paper be rejected

Article 102- Disqualifications for membership.-

(1) A person shall be disqualified for being chosen as, and for being, a member of either House
of Parliament-
(a) 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;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign State, or
is under any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
Explanation- For the purpose of this clause a 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 being a member of either House of Parliament if he is so
disqualified under the Tenth Schedule.

ANS 4.
INTRODUCTION
The Anti-Defection Law was passed in 1985 through the 52nd Amendment to the Constitution,
which added the Tenth Schedule to the Indian Constitution. The main intent of the law was to
combat “the evil of political defections”.
For a long time, the Indian political scene was besmirched by political defections by members of
the legislature. This situation brought about greater instability in the political system. The
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infamous “Aaya Ram, Gaya Ram” slogan was coined against the background of continuous
defections by the legislators. Legislators used to change parties frequently, bringing about chaos
in the legislatures as governments fell. In sum, they often brought about political instability. This
caused serious concerns to the right thinking political leaders of the country.
Several efforts were made to make some law to curb defections. Starting from private members’
efforts, Bills were brought in by the government at different times. No Bill could be passed
because of one reason or the other. However, the most important reason was that there was no
consensus on the basic provisions of an anti-defection law. Members of Parliament were
concerned about the freedom of speech in Parliament and other legislatures as they had a fear
that too stringent a law on defection would likely curb the freedom of speech (which is a
constitutional right) of the legislators. A lot of time was taken before a consensus could be
reached on this issue.
Finally, in 1985, the Rajiv Gandhi government brought a Bill to amend the Constitution and
curb defection. The 10th Schedule of the Constitution, which contains the anti-defection law,
was added to the Constitution through this amendment.

Purpose of the anti-defection law

The purpose, as is obvious, is to curb political defection by the legislators. There are two grounds
on which a member of a legislature can be disqualified.
One, if the member voluntarily gives up the membership of the party, he shall be disqualified.
Voluntarily giving up the membership is not the same as resigning from a party. Even without
resigning, a legislator can be disqualified if by his conduct the Speaker/Chairman of the
concerned House draws a reasonable inference that the member has voluntarily given up the
membership of his party.
Second, if a legislator votes in the House against the direction of his party and his action is
not condoned by his party, he can be disqualified. These are the two grounds on which a
legislator can be disqualified from being a member of the House.
However, there is an exception that was provided in the law to protect the legislators from
disqualification. The 10th Schedule says that if there is a merger between two political parties
and two-thirds of the members of a legislature party agree to the merger, they will not be
disqualified.

Main Features of the Anti-Defection Law

Disqualification
a. If a member of a house belonging to a political party: - Voluntarily gives up the membership of
his political party, or - Votes, or does not vote in the legislature, contrary to the directions of his
political party. However, if the member has taken prior permission, or is condoned by the party
within 15 days from such voting or abstention, the member shall not be disqualified.
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b. If an independent candidate joins a political party after the election.

c. If a nominated member joins a party six months after he becomes a member of the legislature.
Power to Disqualify
a. The Chairman or the Speaker of the House takes the decision to disqualify a member.
b. If a complaint is received with respect to the defection of the Chairman or Speaker, a member
of the House elected by that House shall take the decision.
Exception- Merger of the Parties
A person shall not be disqualified if his original political party merges with another, and:
- He and other members of the old political party become members of the new political party, or
- He and other members do not accept the merger and opt to function as a separate group. This
exception shall operate only if not less than two-thirds of the members of party in the House
have agreed to the merger

JUDICIAL APPROACH TOWARDS ANTI-DEFECTION LAW

There are several issues in relation to the working of this law. If the law discourage freedom of
expression of the individual or intra- party dissent, should the decision on defection be judged by
the speaker who is a member of the majority party may be partial or whether it is to be decided
by the external independent body?
I) Freedom of Speech and Expression
Issue whether a party member freedom of expression is being curtailed was dealt by the
Supreme Court in the case of Kihota Hollohon v. Zachillu where the court observed that the
“the provision of this law does not subvert the democratic rights of the elected member but
aims at preventing elected members from unprincipled defection. It does not violate their
right of conscience and does not violate any right under Article 105 and 194 of the
constitution”
II) Voluntarily Giving up of Membership
In Ravi S Naik v. UOI the issue was whether the resignation be considered as voluntarily
giving up of membership it was held to be affirmative and was to be given wider meaning
inference of which can be formed from the conduct of the member

Scope of judicial review of an order passed by the Speaker/Chairman under

para 6(1) of the Tenth Schedule of the Constitution.
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Rule 6 of the Rules provides that no reference of any question as to whether a member has
become subject to disqualification shall be made except by a petition in relation to such member
made in writing to the Speaker by any other member. The Supreme Court in Orissa Legislative
Assembly case has held that any citizen can make a petition with regard to disqualification
incurred by a member.
Any question regarding disqualification arising out of defection is to be decided by the
presiding officer of the House. After Kihoto Hollohan versus Zachillu case (1993), the
Supreme Court declared that the decision of the presiding officer is not final and can be
questioned in any court. It is subject to judicial review on the grounds of malafide, perversity,
etc.

Whether a Speaker can review his own decision to disqualify a member under
the Tenth Schedule
In case of Dr. Kashinath G Jhalmi v. Speaker, Goa Legislative Assembly
It was held that the Speaker of a House does not have the power to review his own decisions to
disqualify a candidate. Such power is not provided for under the Schedule, and is not implicit in
the provisions either.
Whether the Speaker of a legislature is bound by the directions of a Court
The Court cited the case of Kihota Hollohon where it had been said that the Speaker while
passing an order under the Tenth Schedule functions as a Tribunal. The order passed by him
would therefore be subject to judicial review held by SC in case of Ravi S Naik v. Union of
India
Whether judicial review by courts extends to rules framed under the Tenth Schedule.
Rules under the Tenth Schedule are procedural in nature. Any violation of those would be a
procedural irregularity. Procedural irregularity is immune from judicial scrutiny held by SC in
case of Ravi S Naik v. Union of India

When can a court review the Speaker’s decision making process under the Tenth Schedule.
If the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a
finding, he fails to act as per the Tenth Schedule. The Court said that ignoring a petition for
disqualification is not merely an irregularity but a violation of constitutional duties held by SC in
case of Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors.
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ANS 5. INTRODUCTION
The Constitution of India, apart from enlisting certain qualifications for Members of Parliament
and Legislative Assembly, also enumerates certain disqualifications. One of these
disqualifications is holding an “office of profit”. In a democracy, it is desirable 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.
Disqualifying the holders of offices of profit is also an effort in this direction for protecting
the independence of the legislators. A person may not be able to discharge his functions as a
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legislator and critique to the government if the government is in a position to influence him. This
understanding has led to the development of the concept of ‘office of profit’.
This concept has evolved from the British Parliamentary model. One of the earliest laws on this
issue was the English Act of Settlement enacted in 1700. By the beginning of the eighteenth
century, three broad principles were developed affecting the law on this subject:
1. Certain non-ministerial offices are incompatible with membership of the Parliament.
2. The influence of the Executive over the House of Commons, through the undue proportion of
office-holders who are members of the House, should be limited.
3. Certain number of ministers should be members of the House for the purpose of ensuring
control of the Executive by the Parliament.
The Indian law is based on these three principles.
Articles 102(1)(a) and 191(1)(a) of the Constitution of India, 1949 govern the law in this
regard for the Members of Parliament and State Legislative Assemblies respectively. There a few
legislations for the same purpose but these were not considered enough. Therefore, to address the
lack of a single, comprehensive law, the Bhargava Committee on Offices of Profit was
constituted under the Chairmanship of Pt. Thakur Das Bhargava in 1954. The Committee
recommended enactment of the Parliament (Prevention of Disqualification) Act. This Act was
passed in 1959 and presently governs the law on offices of profit in India. This legislation
specifies which offices would not disqualify their holders.
The main source for understanding what constitutes an office of profit is judicial rulings. Apart
from the Judiciary, Joint Committee on Offices Profit has also contributed in defining the term

Rationale for the disqualification for holding an Office of Profit

The underlying concept behind these two articles is the principle of separation of power
between the functionaries of a state like legislative, judiciary and executive. This is to ensure the
isolation, immunity or independence of one branch of government from the actions or
interference of another and to ensure checks and balances. The object of enacting Articles
102(1)(a) and 191(1)(a) of People of Representation Act, 1951 is that there should not be
any conflict between the duties and interests of an elected member and to see that such an
elected member can carry on freely and fearlessly his duties without being subjected to any
kind of governmental pressure, thereby implying that if such an elected person is holding an
office which brings him remunerations and if the Government has a voice in his functions in that
office, there is every likelihood of such person succumbing to the wishes of the Government.
These Articles are intended to eliminate the possibility of such a conflict between duty and
interest so that the purity of legislature is unaffected. The true principle behind this provision in
Article 102(1) (a) is that there should not be any conflict between the duties and the interest of an
elected member. Article 102(1) (a) of the Constitution says that a person shall be disqualified for
being chosen as, and for being, a Member of either House of Parliament:
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• If he holds any office of profit under the Government (Centre or state) other than an office
declared by Parliament by law not to disqualify its holder.
• An office of profit need not necessarily confer pecuniary benefit; it is sufficient if it bestows
administrative and executive powers. This provision is thus designed to protect the democratic
fabric of the country from being corrupted by executive patronage and also secures the
independence of MPs from the influence of the Government so that they discharge their
functions without fear or favour. The presumption is that if a legislature receives benefits from
the Executive than he may not be able to independently scrutinize the actions of the Government.
The provision is thus designed to protect the democratic fabric of the country from being
corrupted by executive patronage. It ensures that the parliament does not contain persons who
may be obligated to the government and be amenable to it influence because they are receiving
favours and benefits from it.

Office of profit- underlying principles as laid through Judicial Trend

The term ‘office of profit’ is not defined nowhere in the constitution and it left on the judiciary to
interpret the term, the term ‘profit’ means some pecuniary gain attached to the office.
The Supreme Court in case of Statesman (Private) Ltd. v. H.R. Deb and Ors, held that: “An
office means no more than a position to which certain duties are attached. According to Earl
Jowitt's Dictionary a public office is one which entitles a man to act in the affairs of others
without their appointment or permission.” But Supreme Court in India in plethora of cases gives
guideline to consider whether a given office is an office of profit or not.
Justice Rowlatt’s defines the word ‘office’ in case of Great Western Railway Company v. Bater
and said the test to be applied is whether “it was a subsisting, permanent, substantive position,
which had an existence independent from the person who filled it, which went on and was
filled in succession by successive holders”
In case of Kanta Kathura v. Manak Chand Surana, Constitution Bench of Supreme Court
accepted the definition of Rwlatt justice and applying the test held that a Special Government.
But again in case of Mahadeo v. Shantibhai and Ors, the question for consideration was
whether appointment of a person on the panel of lawyers by Railway Administration can be held
to be an office and is that office is one for profit, The Court, in that case referred to observation
of Lord Wright of the House of Lords in the case of Mcmillon v. Guest, where Lord Wright
has opined – "The word 'office' is of indefinite content. Its various meanings cover four columns
of the new English Dictionary, but I take as the most relevant for purposes of this case the
following; a position or place to which certain duties are attached, especially one of a more or
less public character." In the aforesaid case this Court while considering the appointment of the
person concerned and all terms and conditions came to the conclusion that it is difficult to hold
that he held any office of profit under the Government.
The Supreme Court in case of Statesman (Private) Ltd. v. H.R. Deb and Ors, held that: “An
office means no more than a position to which certain duties are attached”. According to
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Earl Jowitt's Dictionary a public office is one which entitles a man to act in the affairs of others
without their appointment or permission.”
But finally Supreme Court in case of M.V. Rajashekaran and Ors. vs. Vatal Nagaraj and Ors
accepted the test propounded by the Lord Wright and accepted by Supreme Court in Mahadeo’s
case and held that the petitioner is holding an office of profit who is appointed by the Karnataka
government to a one man commission for studies of the problems of the Kannadigas in the
Border areas of Kerala, Maharastra, Andhra Pradesh, Goa and Tamil Nadu’s.

Conclusion
the true test to be applied to determine whether a person holds an office of profit or not depends
upon the extent of control the government exercises, whether the government has power to
appoint or dismiss, whether the salary paid out of government fund or not, the salary
which the person entitled to get must not be compensatory in nature to bear out day to day
expenses but it must confer some gain to the person. One thing which must be bear in mind
the objective of disqualification is to avoid the conflict between the functionaries of state. In the
present scenario concept of separation of power becomes too thin because the government
function becomes so wide that it is not possible for the government to work in its limited power
which is given to the government. And in these conditions it must be seen that there must not be
any conflict between the duties discharged by the person in their legislative and executive
capacity. Though our constitution have provisions that the legislature could exempt any post to
come under the preview of ‘office of profit’ by making laws with retrospective effect. By giving
such a wide power to legislature it has constricted the scope of art.102 (1) (a) and art.191 (1)
(a)of the constitution.It becomes the usual practice of the governments which is in majority to
exempts the post on which there party members are appointed by amending the laws