Fate of 21 AAP MLAs hangs in balance over office of profit

Miss Alone

Prime VIP
The Delhi high court’s order setting aside appointment of 21 Aam Aadmi Party MLAs as parliamentary secretaries has brought the focus back on their possible disqualification for violating the office of profit law.
The order by a bench headed by Chief Justice G Rohini is based on its August 4 verdict that gives primacy to the lieutenant governor (LG) over the chief minister in the power tussle over administrative matters in Delhi.
Since the March 13, 2015 order for the appointment of parliamentary secretaries was issued without the concurrence of LG Najeeb Jung, the AAP government counsel conceded that “judgment stands against me (Delhi government)”.

Real question

But the real question is: Can it save the 21 former parliamentary secretaries from being disqualified as MLAs under the office of profit law?
All eyes are on the Election Commission, which is already seized of a petition demanding their disqualification for holding the post of parliamentary secretaries — alleged to be an office of profit.
On August 29, the EC reserved its order on the AAP MLAs’ plea against maintainability of the petition seeking their disqualification. The EC said it will examine the high court verdict to ascertain its possible impact on the disqualification proceedings.
But the proceedings in the Delhi high court and those before the EC are of different nature inasmuch the former related to the legality of appointment of the 21 MLAs as parliamentary secretaries while the latter sought their disqualification for allegedly holding an office of profit.
The allegation is that as parliamentary secretaries these MLAs held positions that “profited” them — in terms of perks, position, monetarily or otherwise. The Union Ministry of Home Affairs had told the court that such an appointment was “not covered by the law”.‎

AAP govt’s stand

The Arvind Kejriwal government had earlier defended the appointment of parliamentary secretaries, saying it was done to assist ministers and no office akin to the Council of Ministers had been created and that they were not given any access to confidential documents. They were not receiving any remuneration or perk of any kind from the government, it maintained.

Sonia Gandhi’s case

It’s not the first time that the office-of-profit law has troubled politicians or a political party. It was the same law that forced Congress chief Sonia Gandhi to resign from her Lok Sabha seat in 2006. A member of Lok Sabha, she was appointed the chairperson of the national advisory council by the UPA-1 government. After the issue of office of profit was raised, she quit as an MP and sought re-election. The Prevention of Disqualification Act was amended in 2006 to add the position of NAC chairperson to the list of exempted posts.
The then Speaker Somnath Chatterjee, too, faced disqualification but was saved by the amendment. Samajwadi Party MP Jaya Bachachan lost her seat for holding the post of chairperson of the Uttar Pradesh Film Development Federation.
The act was again amended in 2013 to save the chairpersons of the national commission for the scheduled castes and national commission for the scheduled tribes from disqualification.
The AAP MLAs’ real problem emanates from President Pranab Mukherjee’s refusal to give his assent to a bill passed by the Delhi assembly in 2015 to shield these lawmakers from the office-of-profit law. Had the bill been cleared, it could have led to the dismissal of petitions pending with the EC and the Delhi high court.

What is office of profit?

The idea behind the office of profit law — which evolved in England — is to preserve the independence of the legislature by keeping the members away from any temptation from the executive that can come in the way of independent discharge of their duties. It also seeks to enforce the principle of separation of power between the legislative, the judiciary and the executive — a basic feature of the Constitution.
The term office of profit has not been defined in the Constitution. But, Articles 102 (1) and 191 (1) — which give effect to the concept — prescribe restrictions at the central and state level on lawmakers accepting government positions. Any violation attracts disqualification of MPs or MLAs, as the case may be.
According to Article 102 (1) (a), a person shall be disqualified as a member of Parliament for holding 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”. Article 191 (1) (a) has a similar provision for the members of state assemblies.

Ministers exempted

However, 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”.
Further, the last part of the two provisions protects a lawmaker holding a government position if the office has been made immune to disqualification by law.

Office of profit under NCT Act, 1991

Section 15(1)(a) of the government of national capital territory of Delhi act, 1991, 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.
Like articles 102 (1) and 191(1), Section 15(2) of the NCT act also protects ministers at the Centre, in states or union territories from disqualification. Section 15(3) of the NCT act says in case of a dispute over disqualification of an MLA, the matter would be referred to the President, whose decision would be final.
But, before deciding on a petition seeking disqualification, the President, says the NCT act, has to get the opinion of the election commission which is binding on him.

Financial benefit not necessary

What is important is that an office of profit does not necessarily mean financial benefits. Even an administrative position without any financial entitlements can fall foul of this law.
In Guru Gobind Basu vs Sankari Prasad Ghosal and others, the Supreme Court ruled in 1964 that the test for determining whether a person holds an office of profit is the test of appointment. Several factors such as appointing authority, the authority vested with the power to terminate the appointment, the authority that determines the remuneration, the source of remuneration and the power that comes with the position have to be considered.

The shield

The Parliament (prevention of disqualification) act, 1959 declares that certain offices of profit under shall not disqualify their holders. The act has been amended several times to exempt holders of various offices from the mischief of the office of profit law.
As the EC examines constitutional provisions, the Parliament (prevention of disqualification) act, 1959 and the Delhi high court verdict to take a final call on the disqualification petition, the fate of these MLAs hangs in balance.