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JAYA  BACHCHAN V. UNION OF INDIA

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JAYA BACHCHAN V. UNION OF INDIA

Introduction

Jaya Bachchan was a member of Rajya Sabha. Her membership was challenged and disqualified after she was appointed by Uttar Pradesh government as Chairperson of Uttar Pradesh Film Development Council which sanctioned her to the rank of cabinet minister with various facilities. she filed a petition in Court of Law challenging this petition. The present writing will guide the user as to what facts and circumstances happened, why her membership was challenged, what were the criteria, what were taken in consideration by court in giving judgement and after comes.

# ARTICLES (CONSTITUION OF INDIA) AND THEIR MEANING

Present case holds 2 main Articles from Constitution of India and they are namely-

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—

1 [(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.

2 [Explanation.—For the purposes 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.]

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

ARTICLE 103. Decision on questions as to disqualifications of members.—(1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications 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.][1]

Therefore, these are the two main article that concern the case.

They state that in case of disqualification final decision will be of the president after taking opinion of election commission and disqualification pertaining to what? There are many guidelines given by constitution for regulation of legislature and judiciary.

Disqualification on holding of office of profit is a step towards the right part for developing the nation. Separation of power before executive, legislature and judiciary has always been our main crux.

This ensures legislators’ independence and accountability. Any member of the houses (Lok Sabha and Rajya Sabha) are not allowed to hold profit making offices hence the office of profit.

Constitution of India is mainly derived from the Constitution of Britain, this concept of disqualification has also been adopted from the British Parliamentary model.

# Chapter II of the Constitution envisages on the Parliament and lays down various provisions.

General (Article 79-88)

Officers of Parliament (89-98)

Conduct of Business (99-100)

Disqualifications of Members (101-104) and so forth.

Numerous laws were also framed and put in action but they proved to be ineffective in controlling and regulating the members of both houses namely Rajya Sabha & Lok Sabha, corruption continued.

The Bhargava Committee on Offices of Profit was formed in 1954, chaired by Pt. Thakur Das Bhargava.[2]

here were a few laws enacted for the same aim, but they were

deemed insufficient. To remedy the lack of a single, comprehensive statute, the Bhargava

Committee on Offices of Profit was formed in 1954, chaired by Pt. Thakur Das Bhargava.

The Committee recommended that the Parliament (Prevention of Disqualification) Act be

passed. This Act was passed in 1959 and now oversees the legislation on profit-making

offices in India. This statute states which offices are exempt from disqualification

here were a few laws enacted for the same aim, but they were

deemed insufficient. To remedy the lack of a single, comprehensive statute, the Bhargava

Committee on Offices of Profit was formed in 1954, chaired by Pt. Thakur Das Bhargava.

The Committee recommended that the Parliament (Prevention of Disqualification) Act be

passed. This Act was passed in 1959 and now oversees the legislation on profit-making

offices in India. This statute states which offices are exempt from disqualification

There were a few laws enacted for the same aim, but they were

deemed insufficient. To remedy the lack of a single, comprehensive statute, the Bhargava

Committee on Offices of Profit was formed in 195

There were a few laws enacted for the same aim, but they were

deemed insufficient. To remedy the lack of a single, comprehensive statute, the Bhargava

Committee on Offices of Profit was formed in 195

There were a few laws enacted for the same aim, but they were

deemed insufficient. To remedy the lack of a single, comprehensive statute, the Bhargava

Committee on Offices of Profit was formed in 195

The committee in its report recommend that the Parliament (prevention of disqualification) act should be passed.

After almost 4 years of committee report act was passed in 1959.

And works as a checker on the legislation on profit- making offices in India.

This statute states which offices are exempt from disqualification.

FACTS OF CASE

The Government of Uttar Pradesh, by Official Memorandum dated 14.7.2004, appointed the petitioner (Jay Bachchan) as the Chairperson of Uttar Pradesh Film Development Council and sanctioned to her the rank of a cabinet minister with the facilities as mentioned in O.M. No. 14/1/46/87-C. Ex. (1) dated 22.3.1991 (as amended from time to time). The benefits to which she became entitled, as a consequence, are:

(i) Honorarium of Rs. 5,000 per month;

(ii) Daily allowance @ Rs. 600 per day within the State and Rs. 750 outside the State. Rs. 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 house and hospitality while on tour.[3]

The Election Commission, after referring to the facts and the law enunciated by this Court in several decisions, has expressed the opinion that the office of Chairperson of the Uttar Pradesh Film Development Council to which the petitioner was appointed by the State Government by 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.

Disqualifying  the  holders of  profit-making positions  is another step in the  right path

toward ensuring legislators’ independence. If the government can influence him, a person

may be unable to execute his responsibilities as a lawmaker and critic of the government.

This knowledge has resulted in the creation of the notion of ‘office of profit.’

This idea arose from the British Parliamentary model. The English Act of Settlement,

issued in 1700, was one of the first laws on the subject. By the early eighteenth century,

three main concepts governing the law on this issue had emerged:

1. Certain   non-ministerial   positions   are   incompatible   with   parliamentary

membership.

2. The Executive’s influence on the House of Commons should be restrained due to

the excessive amount of office-holders who are members of the House.

3. A certain number of ministers should be House members for the Parliament to

These three elements underpin Indian law. The legislation in this regard is governed by

If the council was exempt under Parliament (prevention of disqualification) to which the answer was no.

The President of India in his order dated 16.03.23 determined, after obtaining the opinion of the Election Commission as required by Article 103(2), that the petitioner is disqualified for membership in the Rajya Sabha on and from the 14.07.2004. the petitioner (Jaya Bachchan) filed a writ case at the Supreme Court, the apex court of India challenging and contesting the decision of President’s order disqualifying her membership she also challenged the opinion of election commission to the president.

While contending that

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.[4]

These contentions were put ahead from the side of petitioner.

The   President   of   India,   by   an   order   dated   16th   March   2006,   has   determined,   after

obtaining the opinion of the Election Commission as required by Article 103(2), that the

petitioner is disqualified for membership in the Rajya Sabha on and from the 14th day of

July 2004. The petitioner filed a writ case at the Supreme Court contesting the President’s

directive   dated   March   16,   2006.   The   petitioner

Issue faced

Is  an   M.P.  disqualified   from  being  a   Rajya  Sabha   Member   after   being   appointed   as

Chairperson of the Uttar Pradesh Film Development Council?

Issue faced

Is an   M.P.  disqualified   from being a   Rajya Sabha   Member   after   being   appointed   as Chairperson of the Uttar Pradesh Film Development Council?

Clause (1) of Article 102[5] provides that 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.

The term `holds an office of profit’ though not defined has been the subject matter of interpretation, in several decisions of this Court. Now what is it meant by office of profit?  Basically, it’s any office which has the potential of yielding beneficial outcomes and profit.

Holding an office under a government be it central or state as in this case it’s state government (U.P) which comes with salary, allowances, emolument also comes under holding an office of profit. Office of profit need not be private.

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. Pecuniary gain which is defines as compensation or fees in layman terms 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 gain and not whether if the person working has gained some monetary gain.  If the gain is received as a result of holding or managing 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).

Case laws which have assisted courts lay down judicial provision are as follows:

The petitioner relied on the decisions in

The main question that now arose was whether the Film Development Council would be considered office of profit or not and for the purpose of determining that above cases were undertaken and results were held.

And after a careful examination it was held that above cited cases turned on it’s own facts and does not lay any proposition of law.

Therefore, it is simplified that if the office/ position carries with it

  1. Emoluments
  2. Order of appointment

then it will be an office of profit

Even if the recipient in this case (Jaya Bachchan) chooses not to receive such emoluments. What matters is that pecuniary gain is “receivable” in regard to the position/office and not whether gain is, in fact, received or received negligibly.

In this case, as noticed above, the office carried with it a monthly honorarium of Rs. 5000, entertainment expenditure of Rs. 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.[6]

In this view, the question whether petitioner actually received any pecuniary gain or not is of no consequence. No merit in the writ petition and the same is, accordingly, dismissed.

Conclusion

Keeping in mind all the above-mentioned facts holding of office of profit would be deemed as an appropriate cause to cancel membership of House. Even if person doesn’t fully receive the benefits attached with the position. Mere fact that he/she is entitled would be sufficient cause.

Written By: Tanya Setia intern under legal vidhiya

[1] https://legislative.gov.in/sites/default/files/COI-updated.pdf

[2] https://www.studocu.com

[3] https://indiankanoon.org/doc/1898063

[4] https://indiankanoon.org

[5] https://indiankanoon.org

[6] https://indiankanoon.org/doc/1898063

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