The Constitution of India
Article 102
Disqualifications for membership
(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament —
(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) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
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.
(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.
Why this exists
The framers wanted to ensure that MPs remain independent, loyal to India, and fit to serve — free from conflicts of interest (like profitable government jobs that could make them beholden to the executive), free from foreign allegiance, and mentally and financially capable of discharging public duties. Clause (2) was added later, in 1985, along with the Tenth Schedule, to curb political defections by disqualifying legislators who switch parties opportunistically.
How courts read it
The Supreme Court has interpreted 'office of profit' pragmatically in cases like Pradyut Bordoloi v. Swapan Sarkar and the 2006 controversy over Jaya Bachchan's disqualification, focusing on whether the office carries any pecuniary gain or potential for government influence over the member, regardless of whether the person actually draws a salary. Courts have also clarified that the Explanation protects Ministers specifically, not other office holders. The Tenth Schedule's validity and scope (clause 2) were upheld in Kihoto Hollohan v. Zachillhu (1992), which confirmed that a Speaker's decision on disqualification is subject to limited judicial review.
Common misconceptions
- Myth: Ministers can never hold any other government position because that would be an 'office of profit.'
Fact: The Explanation specifically says being a Minister (Union or State) does not count as holding an office of profit, so Ministers are exempt from this particular disqualification. - Myth: A person is only disqualified for an 'office of profit' if they actually receive a salary.
Fact: Courts have held that the key test is whether the office has the *potential* for profit or government influence, not whether the person actually draws payment. - Myth: Article 102 alone covers defection-related disqualification.
Fact: Defection disqualification is governed by the Tenth Schedule, which Article 102(2) merely references; the detailed anti-defection rules are separate.