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Office of Profit and the Delhi Government: The Facts of the Case

Office of profit

After the disqualification of 20 MLAs of the Aam Aadmi Party (AAP) by the Election Commission(EC) on Friday, January 19, 2018 over the “office of profit” issue, the ruling party of Delhi NCT has accused the EC of bias and being in the hands of the Central government. Some of its leaders have penned articles published by the media, too, such as the following by Ashutosh on the NDTV website January 19: Election Commission Now The Letterbox Of Prime Minister’s Office. In a similar vein, we have seen news reports and other articles, such as ‘Why only Delhi?’ asks AAP after EC recommends disqualification of its 20 MLAs, published on The Indian Express website on January 20, or AAP won’t take EC disqualification lying down, also published by The Indian Express and written by Atishi Marlena, who is an advisor to the Delhi education minister and also a senior AAP leader.

To understand what the issue really is and what has happened, let us explore the case in detail, beginning with the concept of office of profit.

OFFICE OF PROFIT

The concept of “office of profit” as we understand it today evolved in Britain and is tied up with the larger idea of separation of powers. It was felt that to preserve the independence of members of the legislature, they must be shielded from inducements from the executive which might prove a hindrance to the discharge of their duties.

OFFICE OF PROFIT UNDER THE INDIAN CONSTITUTION

The Constitution of India does not define office of profit. However, it deals to quite an extent with the problem of office of profit and what needs to be done to address the same should it surface in the course of the workings of legislature and executive.

For instance, Articles 102(1) and 191(1) prescribe restrictions at both Central and state levels on legislators accepting government positions. Violations would naturally attract disqualification of concerned MPs or MLAs, as per the case in question.

Now, according to Article 102(1)(a), an individual will be disqualified as an MP for holding an office of profit under the Government of India or any state government, “other than an office declared by Parliament by law not to disqualify its holder”. Similarly, Article 191(1)(a) iterates the corresponding provision for MLAs.

There are, of course, exemptions for ministers. Articles 102 and 191 clarify that “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”. The two provisions thus protect a lawmaker holding a government position if the office has been already made immune to disqualification by law.

Moreover, over the years, four broad principles have evolved in determining whether an office attracts constitutional disqualification:

  • Whether the government exercises control over appointment, removal and performance of the functions of the office
  • Whether the office has any remuneration attached to it
  • Whether the body holding the office has government powers (releasing money, allotment of land, granting licences, etc)
  • Whether the office enables its holder to exercise influence by way of patronage

It must be noted, however, that an office of profit does not necessarily mean financial benefit. Even an administrative position without any financial entitlement can come under the purview of the law and fall foul of it.

OFFICE OF PROFIT UNDER THE NCT ACT, 1991

Under the Government of National Capital Territory of Delhi Act, 1991, we comes across the following provisions on the question of office of profit:

Section 15(1)(a) of the NCT Act says: A “person shall be disqualified for being chosen as, and for being, a member of the legislative assembly if he holds any office of profit” under the government of India, a state or a union territory” other than an office protected by law.

Again, like Articles 102(1) and 191(1) of the Constitution, Section 15(2) of the NCT Act protects ministers at the Centre, in states or Union territories from disqualification.

Section 15(3) of the NCT Act says that in case of a dispute over the disqualification of an MLA, the issue would be referred to the President of India, whose decision would be final. However, before deciding on a petition seeking disqualification, the President would have to get the opinion of the Election Commission which would be binding on him.

EXEMPTIONS

As we have noted above, the Constitution specifies that Parliament and state assemblies have the power to enact laws and keep certain offices out of the preview of office of profit.

In 1959, Parliament enacted a law – the Parliament (Prevention of Disqualification) Act, 1959 — specifying offices that would not attract disqualification under the Constitution. This law has been amended on several occasions. In 2006, it was amended to include the office of chairperson of NAC and offices under the UPFDC, making them immune from disqualification. We will return to these cases later.

Again, in 1997, the Delhi Vidhan Sabha passed a law specifying two offices the holding of which would not disqualify an MLA from being a member of the House. This law was amended in 2006, when the state government had changed, adding a third office to the list. This is the law that was amended by the Delhi Assembly in 2015, with the objective of ensuring that holding the office of parliamentary secretary would not disqualify 21 AAP MLAs from being members of the Delhi Vidhan Sabha.

According to the NCT of Delhi Members of Legislative Assembly (Removal of Disqualifications) Act, 1997: “A person shall not be disqualified for being chosen as, or for being a member of the Legislative  Assembly of the National Capital Territory of Delhi merely by reason of the fact that he holds any of the offices prescribed in the Schedule appointed to this Act.”

DISQUALIFICATIONS

In 2004, Jaya Bachchan, Rajya Sabha MP of the Samajwadi Party, was appointed chairperson of the UP Film Development Council (UPFDC). The Supreme Court held that it was an Office of Profit and thus disqualified her from being an MP.

Again, then Congress president Sonia Gandhi was the chairperson of the National Advisory Council (NAC). In 2006, her disqualification was sought from the Lok Sabha on grounds of her holding an office of profit. She resigned her seat and re-contested the election.

However, the Prevention of Disqualification Act was amended in 2006 to add the position of NAC chairperson to the list of exempted posts.

The act was amended again in 2013 to protect the chairpersons of the National Commission for the Scheduled Castes and National Commission for the Scheduled Tribes from disqualification.

THE AAP OFFICE OF PROFIT CASE

A Timeline:

  • In March 2015, the AAP government in Delhi NCT appointed 21 MLAs as parliamentary secretaries to six ministers.
  • In June 2015, the Delhi government passed a bill — an amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 — to exempt these parliamentary secretaries from disqualification under the office of profit scrutiny.
  • The bill declared: “It is to declare that the office of the parliamentary secretary to the chief minister and ministers of the government of National Capital Territory of Delhi shall not be disqualified and shall be deemed never to have been disqualified for being chosen as, or for being, a member of Legislative Assembly of NCT Delhi. Accordingly it is proposed to amend the schedule.”
  • A Delhi-based advocate named Prashant Patel sought disqualification of these MLAs The President referred the matter to Election Commission, which asked Prashant Patel to furnish a petition. In November 2015, the EC received the complaint from Patel.
  • Following on this, in March 2016, the EC issued a notice to the 21 MLAs and sought their response by April 11. On April 8, the MLAs said they needed more time to respond. By May they field their responses claiming they were not holding any office of profit.
  • The MLAs sought personal hearing before the EC, which forwarded the response to the petitioner. All of this happened in May 2016.
  • Thereafter, in June 2016, then President Pranab Mukherjee rejected the Delhi government’s dual office bill. In July, the EC began hearing the case.
  • In September 2016, the Delhi High Court set aside the MLAs’ appointments as parliamentary secretaries as the Delhi government had not taken the mandatory assent of the Lieutenant-Governor.
  • The same month, the EC was apprised of the expenses incurred on the 21 MLAs. The EC also rejected the MLAs’ plea to not consider documents furnished by Patel and to drop the disqualification case.
  • In November 2016, the EC began the final hearings in the case and in March 2017, it concluded the hearings, reserving its order on the MLAs’ plea.
  • In June 2017, the EC rejected the MLAs’ plea to drop the case against them.
  • In August 2017, the MLAs moved the HC against the proceedings at the EC.
  • In October 2017, the EC issued its notice to the remaining 20 AAP MLAs asking them to file detailed response to documents supplied by the Delhi government recording their duties, expenses and benefits as parliamentary secretaries.
  • Finally, on January 19, 2018, the EC recommended the disqualification of the 20 MLAs to the President.

Parliamentary Secretaries – Other Controversies & Present Case:

It appears from the timeline of events that the Delhi government and AAP’s criticism of the EC’s decision and accusations against the EC as being made to serve the alleged political ends of the Central government fall flat against facts.

The mammoth amendment sought by the Delhi government to the law appears to be more an attempt at subversion of the Constitution and the law when we consider the fact that 20 (originally 21) MLAs are concerned here at one go and not the one odd office. Let us see what has happened in the past regarding parliamentary secretaries.

Such appointments have been challenged in several states. A Telangana government order appointing parliamentary secretaries was stuck down in 2015 by the High Court in Hyderabad.

Last year, the Calcutta High Court rejected a law enacted by the West Bengal assembly providing for the appointment of parliamentary secretaries. Even earlier, in 2005 and 2009, such appointments were held unconstitutional in Himachal Pradesh and Goa respectively.

However, there is a special significance of the Calcutta High Court’s order which, too, may be considered here. Now, there is a common thread in the judgments which held that parliamentary secretaries had the rank and status of government ministers.

The Calcutta HC judgment per se held that the appointment of MLAs as parliamentary secretaries was an attempt by state governments to bypass the constitutional ceiling on the number of ministers. A state can make ministerial appointments not beyond and above 15% of the number of elected MLAs. For Delhi, which is not a full-fledged state but a special case, that quota ends at 10%. So, no more than 7 ministers ought to exist in the Delhi government. In the case of the AAP MLAs, although as parliamentary secretaries they were not called ministers, 21 would amount to almost 30% of the strength of the House of 70.

The Delhi government’s repeated claim that these parliamentary MLAs are not being paid, nor occupy office space or use government vehicles and thus the question of office of profit does not arise is a fallacious argument. As we have noted above, an office of profit need not have a financial dimension to it at all. What must also be factored in is the question of power and influence and patronage that may be bestowed on others using said office.

On all of the counts above, the facts and the law appear to be against the party’s and state government’s claims. In fact, the appointment of these 21 MLAs does appear to be an attempt at circumventing or even subverting the law. What happens hereafter is now certainly in the hands of the President.

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