 bill no 196 of  2017 the constitution (amendment) bill, 2017 by shrimati meenakashi lekhi, mpabillfurther to amend the constitution of indiabe it enacted by parliament in the sixty-eighth year of the republic of  india as follows:—2 in article 102 of the constitution,—amendment of article 102(a) in clause (1),(i) for the words "being chosen as, and for being", the words "being chosen as or for being" shall be substituted;5(ii) for the explanation, the following explanation shall be substituted, namely:—"explanation - for the purposes of this clause(a) "the expression office of profit" means any office—10(i) under the control of the government of india, or the government of a state, as the case may be, where the salary or remuneration for such office is paid out of the public revenue of the government of india or the government of any state and the holder of such office is capable of exercising legislative, judicial or quasijudicial power; or15 20(ii) under a body, which is wholly or partially owned by the government of india or the government of any state and the salary or remuneration is paid by such body and the holder of such office is capable of exercising powers by means of disbursement of funds, allotment of lands, issuing of licenses and permits or making of public appointments or granting of such other favours of substantial nature; (b) 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 state25(c) "office" means the permanent substantive position which exists independently of the holder of the office and being—(i) directly under the government; or (ii) under statutory authorities or corporations in which government has the power either to appoint or remove or both; or30(iii) under public sector undertakings owned wholly or partly by the government where the government has the power to appoint or remove; or(iv) under local authorities or other authorities within the meaning of the constitution; or35(v) under institutions of self government as defined under clause (d) of article 243 and clause (e) of article 243p of the constitution; or(vi) under other authorities, significantly funded by the government where the government has pervasive control;40(d) "remuneration" means any pecuniary gain commensurate with the status and responsibilities attached to the office and any remuneration payable but not drawn or forfeited shall also be considered as remuneration earned; and45(e) "salary" means salary or pay scale attached to the office whether or not the holder of such an office draws such salary"; and(b) after clause (1), the following clause shall be inserted, namely:—"(1a) notwithstanding anything in sub-clause (a) of clause (1), if a member of either house of parliament has become subject to any disqualification mentioned in that sub-clause, he shall not be so disqualified,—5(i) unless he has not resigned from such office which is the subject to disqualification with respect to the following:—10(a) offices that must be given up before an election— such persons (civil servant under articles 310 and 311 and members of the judiciary), shall seek unconditional leave from their office before becoming a candidate in an election and shall be relieved from such office before being allowed to take the oath of office to the office so elected to;15(b) offices (under article 12), institutions or bodies and legislators or some other legislative body or panchayat that must be given up after an election but before taking oath as a member of the legislature;20(ii) if the appointment has been made only in the public interest for a specific purpose with defined terms of reference and approved by the union cabinet and the cabinet committee on appointment, if any, concurrently and—(a) a public statement has been made that such an appointment is in the public interest with an explanation—(i) giving the reasons for such an appointment;(ii) full disclosure of the perks and emoluments;25(iii) the public statement must be simultaneously placedbefore the house concerned;(iv) the appointment be made for the term of that legislature; and30(v) all efforts be made for the appointment on a voluntary and pro bono basis and for a limited period of time only" statement of objects  and reasonsthe term "office of profit" is used with reference to executive appointments a number of countries forbid members of the legislatures from accepting an office of profit under the executive as a means to secure the independence of the legislature and preserve the separation of powers in all democracies including the united states of america and the united kingdom, the holders of offices under the government, as a rule are disqualified for being members of legislature the inherent idea seems to be that the personal and pecuniary interest should not come in the way of discharging their obligations by the legislatorsin india, this principle is embodied in articles 102(1)(a) and 191(1)(a) of the constitutionthe principle contained in article 102 is based on the sound public policy of ensuring impartiality and neutrality in the public duty and avoidance of conflict between duty and interest of an elected member, enabling him to carry on his duties freely and fearlessly without being subjected to any governmental pressure thereby maintaining purity of the legislature the provision is undoubtedly designed to protect the independence of the members of parliament the object of article 102(1)(a) is to disqualify a person from the membership of parliament if he is obliged by the government for an office of profit which carries profit or benefit and thus compromising his independencethe expression "office of profit" has not been defined in the constitution or any other statute it has, therefore, been open to the courts to explain the significance and meaning of this concept most of the cases which have arisen under article 191(1)(a) of the constitution are also relevant to article 102(1)(a) of the constitutionin pursuance of above articles, the parliament (prevention of disqualification) act,1959 was enacted by parliament the said act has been amended from time-to-time to include office exempted from disqualification from the purview of office of profit in pursuance of article 191(1)(a) of the constitution, the state legislatures have enacted their own laws relating to removal of disqualificationif any question arises as to whether a member of parliament has become subject to any of the disqualification laid down in the constitution including the one whether he is holding an office of profit or not, the question is referred to the joint parliamentary committee on office of profit the joint committee on office of profit makes its recommendation in the report which is presented to the house the decision of the president shall be final on this question however, before giving any decision on any such question, article 103(2) of the constitution requires the president to consult the election commission and the commission may make such enquiry as it deems fit it is important to note that in this matter the president does not act on the advice of council of ministerssubstantial questions of law have arisen with regards to the tests for an office of profit which have been laid down and used by the joint parliamentary committee on offices of profit as follows:—(a) whether government makes the appointment? (b) whether government has a right to remove or dismiss the holder of office? (c) whether the government pays the remuneration? (d) what are the functions of the holder of office? and (e) does the government exercise any control over the performance of those functions?however, this is a matter of parliamentary and legal convention and have not been provided with constitutional or legal backingbeing an extremely important topic in the realm of the application of the principle of separation of powers, followed by the constitution of india, though not written explicitly into it, it is important to place them and define "an office of profit" within the constitution itself and not in any other legal statute this is to ensure that democracy in the nation and the constitutional scheme is strengthened in itself, allowing for its greater and unambiguous progress, while freeing the courts as legal direction will be established for the same through this constitutional amendmentthe law with regards to "offices of profit" as per status quo does not allow for an elected member of parliament to retain his position until the time of his election he has to necessarily vacate it or face disqualification the process of elections is variable and the ultimate will of the people is only determined after the counting of votes and not before it hence, it is imperative to allow the individual to have a surety of his employment by taking leave from it during the time of elections and returning to it if unsuccessful in election the individual should, however, vacate it before being allowed to take the oath of office if so successful in an electionnumerous times it is also felt that if the appointment has been made only in the public interest for a specific purpose with defined terms of reference and subject to certain limitations as prescribed in the amendment so proposed above, it should be allowed and not attract disqualification for being chosen as or for being a member of parliamentthe bill seeks to achieve the above objectives hence, this billnew delhi;meenakashi lekhinovember 23,  2016 annexure extract from the constitution of india      102 (1) a person shall be qualified for being chosen as, and for being, a member of either house of parliament—disqualification for membership(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)       (c)       (d)       (e)       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       lok  sabha———— a billfurther to amend the constitution of india————(shrimati meenakashi lekhi, mp)