In order to understand the theory of office of profit stated under article 102
of the Indian Constitution, we need to first understand the literal meaning of
the term office. The literal meaning of the word ‘office’ in dictionary explains
it be a certain position of responsibility which has some duties attached to it.
It is a service under a particular authority or a place of trust.
the general perception of the people it is a place or a position which demands fulfilment of some duties and obligations to be performed by the person holding
such position. The duties performed by the particular person can be of private
or public in nature. A public office can be described as one which lets the
office holder to act in interest of public at large and that too without the
requirement of taking permission from the concerned people.
The duties are
performed in good faith for public good or welfare and it instils certain power
of authority and patronage. Now if we come to the meaning of profit we can state
that it is not something which is fully monetary in nature. The term is used to
accommodate much of a wider concept which not just include monetary
consideration but also many other kinds of advantages which is derived by the
person holding the office, for the purpose of our discussion we can take the
example of the patronage which arises from the virtue of the office will also be
taken into profit.
If a person is paid compensatory allowances for the purpose
of compensating him for the costs which he may have incurred in the process of
discharging his duties is not considered to be holding of an office of profit.
Thus for example if any member of the parliament does not take any remuneration
or derive any other advantage it cannot be held that he is holding an office of
Purpose Of Incorporation Of The Concept
According to article number 102(1)(a) of the Indian Constitution declares that
an individual will be ineligible to be elected as a member of any of the two
houses of the parliament if the individual holds an office of profit under the
Central or any of the State government. It shall be noted that where government
makes the appointment to a post or an office and also has control over the same,
that office would be deemed to be under the government even if in some cases the
remuneration for that post may not be paid by the government.
Supreme Court of India has stated that the office to which the government merely
has the right to appoint and thereby does not exercise any control cannot be
considered an office of profit under the government of India. The reason behind
inclusion of such provision in Indian Constitution is to strictly follow the
doctrine of separation of power between the legislature, executive and the
It has been incorporated to restrict the control of the executive
government over legislature. It is not necessary that in order for an office to
be an office of profit it is not required that the remuneration for that office
should come from the Consolidated fund of India. The major requirement for an
office to be an office of profit under the government is that there shall be
some power and control of the government on the office or the position,
irrespective of actual provider of the remuneration for that office that is to
the office holder.
If we talk about ministership we would perceive it as an office of profit as
they get both remuneration as well as other advantages, but article 102(1)(a) of
the Indian Constitution expressly declares that the office of a minister cannot
be held to be an office of profit under the government. Had there been no such
express provisions, all ministers should have been considered as holders of
office of profit under the government.
It has also been argued that whether a practising advocate can be considered the bearer of an office of profit under
the government. The function or obligation of an advocate is to provide
assistance to the courts in the administration of justice. An advocate charges
fee for his work and therefore holds an office of profit, but the fact that he
is an individual professional and is not largely controlled or directed by the
government takes him out of the purview of an office of profit under the
The exercise of control by the government on corporate houses has
also been on a rise in the past few years may it be any company established by
the government or any statutory corporation. Therefore, directors of such
companies are appointed by the government and the government exercises control
over them hence they are considered to hold office of profit under the
government. Article 102(1)(a) provides government the power to declare the
offices which shall not be considered as an office of profit under the
Anokh Singh V. Punjab State Election Commission
(2011) 11 Scc 181
In this case the State Election Commission stated that Anganwari Workers and
Lambardars hold an office of profit under the particular state government and
they are not qualified to contest elections to become members of Panchayats.
Anokh Singh who was a Lambardar filed a case against the order of The State
Election Commission before the High court of Punjab and then filed a Special
leave petition in front of the Honourable Supreme Court of India. Here the
petitioner contended that the office of a Lambardar cannot be held as an office
of profit under the government because the petitioner is not a regular salaried
employee of the government and they do not work as full time employees as well.
Whether Lambardars and Anganwari workers be considered to hold an office of
profit under the government and be disqualified from contesting Panchayat
Contentions of the Petitioner:
The counsel for the petitioner contended that
the disqualification in regards or to Panchayat elections shall be guided by
Section 208 of The Panchayati Raj act. It was also argued that the petitioner
was not a full time salaried employee of the government. Moreover, the
government had abolished the practice of collection of revenue from the land
owners by the Lambardars. Therefore, they can contest elections and cannot be
held as a holder office of profit under the government.
Contentions of the Respondent:
The respondent argued that the Lambardars are
appointed and can be dismissed only by the State Government and also act under
the instructions of the government. They received a particular amount of
honorarium from the government. They are deemed to be disqualified from
contesting election declared by section 11 of the State Election Commission Act
The High Court had upheld the contentions of the State election commission and
declared that a Lambardar holds an office of profit under the Government and
therefore would be disqualified to contest the election to the Panchayat. The
Supreme reversed the decision of the High Court. The court set aside the effect
of Section 11 of the State Election Commission Act.
It was stated that
contesting an election to panchayat cannot be restricted on this ground and this
could be a stepping stone for that person to become the Chief Minister of the
State. Therefore, the Supreme Court held that a Lambardar does not hold an
office of profit under the government. The Special Leave petition was allowed
and justice was met.
Analysis – According to be the judgement given by the apex court in the above
case was appropriate and in administration of justice. The Lambardars should not
be considered to be holding office of profit under the government because the
work performed by them and the position held by them does not fulfil some
conditions of to constitute it as an office of profit under the government and
if they are not allowed to contest election the political base of the country
would be at a loss.
Makers of our constitution incorporated the provision of office of profit under
article 102 of the constitution to separate the powers of the executive and the
legislature and to ensure that there shall be no interference of the executives
into the legislature so that there is transparency in the functioning of the
government. The provision is one of the important provisions laid down for the
purpose of separation of power.
It is important to avoid disputes and
corruptions in the system and is for public good and welfare. The parliament by
virtue of the constitution can declare certain office of profit or may
disqualify some office and declare them as not an office of profit under the
government. Therefore, we learnt that anybody who holds an office of profit
under the government is disqualified to be a member of the legislature.Award Winning Article Is Written By: Mr. Arkojit Debnath
Authentication No: AP111661075041-26-0421