Understanding the Office of Profit row

Last Updated: Mon, Jun 20, 2016 10:58 hrs

21 MLAs of Aam Admi Party in Delhi face disqualification as the Election Commission has issued a show-cause notice accusing them of holding “Office of Profit”. These MLAs have all been appointed as Parliamentary Secretaries in different ministries ranging from revenue, finance and transportation to health, education and employment.

Here is a complete list of the MLAs that face disqualification if the Election Commission indeed finds that these appointments are in violation of the law.

Separation of powers

This summary on the constitutional provisions also provides a legal perspective and the rationale behind the clause,i.e to ensure separation of powers.

Art.102 (1) (a) provides for the disqualification of the membership of either house of parliament if

“102. Disqualification 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;”

There is a similar provision in the constitution for the disqualification of membership of legislative assembly that is art.191 (1) (a).

“The object of enacting Articles 102(1)(a) and 191(1)(a) is that there should not be any conflict between the duties and interests of an elected member and to see that such an elected member can carry on freely and fearlessly his duties without being subjected to any kind of governmental pressure, thereby implying that if such an elected person is holding an office which brings him remunerations and if the Government has a voice in his functions in that office, there is every likelihood of such person succumbing to the wishes of the Government.”

According to legal expert Gopal Sankaranarayanan in this case, the section applicable would be Section of 15 of the 1991 Government of NCT Act states that:

A person shall be disqualified for being chosen as, and for being, a member of the legislative assembly :- (a) if he holds any office of profit under the government of India or the government of any state or Union Territory other than an office declared by law made by Parliament or by the legislature of any state or by the legislative assembly of the capital or of any other UT not to disqualify its holder.

In this case, the 21 MLAs all work as Parliamentary Secretaries who aid the Ministers of their assigned departments. This exceeds the prescribed cap on number of ministers i.e 10% of the assembly strength (the cap is less than states as Delhi is a union territory).

AAP’s defense

This article in the Quint points out that Delhi Chief Minister Arvind Kejriwal has claimed that other than office space and transport, none of the parliamentary secretaries receive salaries of perks.

According to Aviral Vik in The Quint in June 2015 they resorted to a fire fighting measure.

“Aam Aadmi Party which enjoys absolute majority in the Legislative Assembly with 67/70 MLAs, sought to amend the law that exempted certain offices from disqualification despite being a member of the Legislative Assembly. For example, the office of the Parliamentary Secretary to the Chief Minister.”

But a year later, President Pranab Mukerjee has refused to give his assent to the bill which brings us to the present situation.

AAP claims that the rejection of the Bill is politically motivated and is a deliberate move by the BJP government to target it.

In normal practice, such a Bill should be either rejected or assented to within a week or two. But here no action was taken for almost a year. Only when the AAP government raised an alarm last month, the home ministry returned this bill to the LG, requesting him to exercise his discretion. The LG refused to decide yet again. Rather, he sent the file to the President who sent it back to the home ministry, and the latter advised the President to reject the Bill. The President, bound by the Constitution, had no option but to accept the advice of the government.

Congress and BJP doublespeak

Some of the high profile cases include Sonia Gandhi’s resignation following similar allegation that as MP she ought not to be Chairperson of the National Advisory Council and MP Jaya Bachchan who was ousted for being part of the Uttar Pradesh Film Development Council.

According to this piece in The Wire by Ajoy Ashirwad Mahaprastha, both the Congress and BJP as well as regional parties are guilty of the similar offense -

“Rajasthan chief minister Vasundhara Raje Scindia appointed eight parliamentary secretaries between 2002-2008. In her latest term, she has appointed five MLAs to the same office. Similar favours were extended to many legislators in Punjab, Goa, Haryana, and Gujarat, where the BJP is ruling. Courts have intervened in such appointments quite frequently over the last decade.”

The article goes on to point out that -

If the BJP is conveniently forgetting its own wrongdoing in this matter, so is the Congress. The Ashok Gehlot government in Rajasthan had made similar appointment in 2012, following which the Rajasthan high court sent a notice to him questioning his decision. Gehlot had appointed 13 parliamentary secretaries.

Political fallout

The Chief Minister has come out with all guns blazing, accusing the refusal of President’s assent as a politically motivated move and said that the BJP is indulging in political vendetta against his government. He has even accused the BJP and Congress of being hypocritical by pointing out several appointments that the two parties have made in the past.

However, this defense has not gone down well with many.

Santwana Bhattacharya opines that this controversy may not affect the party’s chances electorally, if the EC disqualifies the MLAs, however it does affect AAP’s credibility as a alternative to Congress and BJP.

“...witness the fact that in his defence he’s falling back on nothing more enlightened than the line that ‘BJP and Congress did it too’. That begs the question — why then would we need AAP? It’s a bit rich for Kejriwal to claim permanent immunity from being scrutinised on questions of political propriety.”

Kumar Shakthi Shekar’s article in the DailyO also offers a similar perspective. According to the writer, Kejriwal’s aggression in responding to these allegations is telling of his guilt.

Instead of making amends, the Delhi CM has again started personally hitting Prime Minister Narendra Modi. In a series of tweets on June 13, he can only be seen as giving vent to his frustration and playing victimhood just to cater to his vote bank.

However, the biggest blunder that AAP made may perhaps not be political, but legal. If they claim that the offices are indeed not for profit, why was an amendment to the disqualification clause sought. Yogendra Yadav points this out in his interview to TimesNow.
According to the legal expert, interviewed in the Quint, the potential legal recourse to this could be

“It is still left to them to argue before the EC that this is not an office of profit, notwithstanding the Bill being an implicit acknowledgement that it is. They will have to say that the Bill is a legislative measure and was without prejudice to their original stance that this is not an office of profit.”

Meanwhile, AAP continues to defend its appointments. Praveep Kumar, MLA from Jungpura and Parliamentary Secretary to the Minister of Education shared pictures of his modest home.
So will Delhi be heading for re-elections? Things will become clearer after the Election Commission enquiry.

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