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Introduction To The Theory Of Office Of Profit

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.

According to 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 profit.

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.

The Honourable 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 judiciary.

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 government.

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 government.

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.

Issue
Whether Lambardars and Anganwari workers be considered to hold an office of profit under the government and be disqualified from contesting Panchayat elections?
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 of Punjab.

Judgement
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.

Conclusion
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
Awarded certificate of Excellence
Authentication No: AP111661075041-26-0421

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