- (1.) These two writ petitions filed under Article 32 of the Constitution by way of public interest litigation, challenge the constitutional validity of the Parliament (Prevention of Disqualification) Amendment Act, 2006 (Act No. 31/2006, Hereinafter 'Amendment Act'). It amended the Parliament (Prevention of Disqualification) Act, 1959 (Hereinafter 'Principal Act'). The Amendment Act adds to the list of 'Offices of Profit' which do not disqualify the holders thereof for being chosen as, or for being the Members of Parliament. Historical background.
(2.) The expression 'Office of Profit' is not defined in the Constitution. The view that certain offices or positions held by a Member of Parliament (Hereinafter also referred to as 'MP') may be either incompatible with his/her duty as an elected representative of the people, or affect his/her independence, and thus weaken the loyalty to his/her constituency and, therefore, should disqualify the holder thereof, had its origin in the Parliamentary history of the United Kingdom. (See: The Introduction to the Bhargava Committee Report on Office of Profit, dated 22.10.1955). The concept of 'office of profit' has a history of more than four centuries in United Kingdom and it has evolved through many phases. The first was the "privilege" phase (prior to 1640). The second was the "corruption" phase (from 1640). The third was the "ministerial responsibility" phase (after 1705). Initially the English Parliament claimed priority over the services of its Members and it was considered derogatory to its privilege if any of its Members accepted some other office which would require a great deal of their time and attention. This led to the evolution of the idea that the holding of certain offices would be incompatible with the responsibilities of a Member of Parliament. This was the first phase. During the second phase, there was a protracted conflict between the Crown and the House of Commons. Loyalty to the King and the loyalty to the House of Commons representing the will of the people became growingly irreconcilable and it was thought that if any Member accepted an 'Office of Profit' under the Crown, there was every chance of his loyalty to Parliament being compromised. Subsequently came the third phase. The King was reduced to the position of a constitutional head and the cabinet, functioning in the name of the Crown became the centre of the executive government. The Privy Councilors, who during the second phase were invariably considered to be the henchmen of the King and were as such looked upon with suspicion by the House of Commons, yielded place to the Ministers, who for some time were also disqualified from holding a seat in the House. Later it came to be recognized that the application of the disqualification rule to incumbent ministers was too extreme and with the intent of ensuring effective coordination between the executive and the legislature, it was accepted that the Members of the executive should be represented in the Parliament. This recognition led to the passing of several enactments by the British Parliament. The Re-Election of Ministers Act enacted by the British Parliament in 1919 and 1926 required any Member who was appointed to a 'political office' to seek re-election.
(3.) As we have adopted the British Parliamentary form of Government, the concept of 'office of profit' was also adopted with some modifications. The concept of 'office of profit' began to develop with the entry of non-official members in the Legislature. A clear and precise statement in this regard was made in Section 26(1)(a) of the Government of India Act, 1935 which provided that a person shall be disqualified for being chosen as, and for being, a Member of either Chamber if he held any office of profit under the Crown of India, other than an office declared by Act of the Federal Legislature not to disqualify its holder.;