Can an MP and party spokesperson also be a special public prosecutor representing the State?

A murder accused in September 2025 filed an application before a Mumbai sessions court, seeking the removal of Rajya Sabha MP Ujjwal Nikam as the special public prosecutor (SPP) in his trial. The applicant, who is accused of killing a Delhi-based businessman in 2012, raised the issue of whether an MP can continue to represent the state government as an SPP. The court, however, rejected his plea. This is why it ruled that Nikam can continue as SPP. What was the plea? Vijay Palande is facing murder charges in the 2012 killing of Arunkumar Tikku, a businessman and father of a small-time Bollywood actor. Since 2012, Nikam has been the SPP in this case, with the trial under way. In his plea, Palande challenged Nikam’s continuation as SPP, claiming that he cannot hold the office since he was nominated as a Rajya Sabha MP in July 2025. Palande cited Article 102 of the Constitution of India, which deals with the issue of disqualification of membership to the Parliament. He specifically cited Article 102(1)(a), which states: “A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament– 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.” Palande also cited Section 24 of the Code of Criminal Procedure (CrPC) on Public Prosecutors, stating that since Nikam is appointed by the state government and paid by the public exchequer, he was holding an “office of profit” as mentioned in Article 102. The plea added that since Nikam was also representing the ruling BJP as its official spokesperson at the same time, he could use “undue influence and power” to tilt the case in his favour. In 2024, Nikam had resigned as SPP in 29 ongoing cases, after he was given the BJP ticket to contest in the Lok Sabha polls from the Mumbai North Central constituency, which he lost. He then sought to be reinstated as SPP in those cases and was promptly reappointed. Then too, Palande had challenged Nikam’s reappointment citing his membership of a political party, but the court had rejected his plea, stating that there was no provision for his removal on that ground. MP holding ‘office of profit’: What courts said in the past Palande cited multiple judgments, including Jaya Bachchan v. Union of India and Others (2006). In that case, Bachchan had challenged her disqualification as a Rajya Sabha MP on the grounds that she was simultaneously holding an office of profit as chairperson of the Uttar Pradesh Film Development Council. Bachchan argued she had not received any monetary benefit or remuneration for the post, and the Supreme Court had then said that an office of profit is an office “which is capable of yielding a profit or pecuniary gain”. While deliberating on what constitutes an office of profit, the court had looked at previous judgments and said that it is well-settled that “where the office carries with it certain emoluments or the order of appointment states that the person appointed is entitled to certain emoluments, then it will be an office of profit, even if the holder of the office chooses not to receive/draw such emoluments”. What is relevant is “whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain”. On MPs who have practised as lawyers, Palande argued they can do so in their private capacity and not represent the state. No specific order or citation was made on a previous case involving an MP holding the office of an SPP. Nikam’s argument Nikam had cited State of Maharashtra and Others v. Prakash Prahlad Patil and Others, (2009), which said that “courts cannot be called upon to undertake government duties and functions. The courts should not ordinarily interfere with a policy decision of the State.” He also cited another judgment – Srimati Kanta Kathuria v. Manak Chand Surana – on the meaning of the word “office”, stating that it was a permanent position which went on and was filled by successive holders. Nikam had said that no provision in the CrPC or the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced it, restrained him from discharging his functions as an SPP following his nomination as an MP by the President of India. He reiterated that his appointment as an SPP is contractual and thus temporary, and that he does not hold any permanent office. He said that there is no “master-servant” relationship between the state government and him as the SPP, so it cannot be considered an “office of profit”. The state government, through its Law and Judiciary department and the Director of Prosecution, also opposed Palande’s plea, saying that it has the right to appoint an advocate as the SPP, and that it is not a permanent office. The court said that Article 102 nowhere states that any person shall be disqualified for being an SPP and said that Palande had “misconceived” the Article’s provisions. Further, the court said that the state government is entitled to appoint any person as an SPP, and that it cannot interfere with the state government’s policy decision as mentioned in the judgment Nikam cited. Sadaf Modak is a distinguished Legal Correspondent based in Mumbai whose work demonstrates exceptional Expertise and Authority in covering the intricacies of the judicial and correctional systems. Reporting for The Indian Express, she is a highly Trustworthy source for in-depth coverage of courtroom proceedings and human rights issues. Expertise Specialized Role: As a dedicated Legal Correspondent, Sadaf Modak possesses deep, specialized knowledge of legal procedures, statutes, and judicial operations, lending immense Authority to her reports. Core Authority & Focus: Her work primarily centers on: Trial Court Proceedings: She mainly covers the trial courts of Mumbai, providing crucial, on-the-ground reporting on the day-to-day legal processes that affect citizens. She maintains a keen eye on both major criminal cases and the "ordinary and not so ordinary events" that reveal the human element within the justice system. Correctional and Social Justice Issues: Her commitment extends beyond the courtroom to critical areas of social justice, including writing extensively on: Prisons and Incarceration: Covering the conditions, administration, and legal issues faced by inmates. Juvenile Justice: Reporting on the complexities of the juvenile justice system and the legal rights of children. Human Rights: Focusing on fundamental human rights within the context of law enforcement and state institutions. Experience Institutional Affiliation: Reporting for The Indian Express—a leading national newspaper—ensures her coverage is subject to high editorial standards of accuracy, impartiality, and legal rigor. Impactful Detail: Her focus on trial courts provides readers with direct, detailed insights into the workings of the justice system, making complex legal narratives accessible and establishing her as a reliable and trusted chronicler of the legal landscape. Sadaf Modak's blend of judicial focus and commitment to human rights issues establishes her as a vital and authoritative voice in Indian legal journalism. She tweets @sadafmodak ... Read More