The case of AAP MLA’s disqualification for holding office of profit

Context:

President Ram Nath Kovind accepted the Election Commission’s recommendation to disqualify 20 MLAs of Delhi’s ruling Aam Aadmi Party for holding offices of profit.

What’s the issue?

• The controversy started in 2015, when the AAP came to power and appointed 21 lawmakers as parliamentary secretaries. One out of these 21, Jarnail Singh, left his position to fight elections from Punjab.
• The question of their disqualification had then been brought up by a petition filed in June, 2015 before the President.
• The Petition, filed, had sought their disqualification under Section 15 of the Government of National Capital Territory of Delhi Act, 1991.
• In response, the Delhi Legislative Assembly had then passed the Delhi Member of Legislative Assembly (Removal of Disqualification) (Amendment Bill), 2015, excluding Parliamentary Secretaries from ‘office of profit’.
• However, The President had refused to give assent.
• Around same time, Delhi High Court struck down the posts of Parliamentary Secretaries.
• MLA’s then requested Election Commission to not entertain the plea as High Court already has struck down the posts.
• EC refused to entertain the plea and recommended the disqualification to president.
• Which recently accepted by president.

How this case is related to Office of Profit?

The Commission said the legislators violated the provisions of the Office of Profit, under which lawmakers cannot hold any post in the government that entitles them to perks or powers unless a law has been passed to exempt the posts.

According to the Election Commission, this case falls under office of profit because of the following ways:

• The Commission noted that even though the appointment order entitled the 20 legislators to use office space in the offices of the ministers with whom they were attached, in many instances more than one office space was provided to the parliamentary secretaries, and liberal grants were approved for their renovation. This, the EC opined, clearly fell under the definition of “profit”.
• It pointed out that the appointment order provided for an official car for each parliamentary secretary without prescribing any duties for them. “While official car is a benefit per se, the provision of it without assignment of any work is in the nature of undue benefit and fell under the office of profit.
• These Parliamentary Secretaries had full time access to the Ministers and ministerial files and notings and this access enabled them to wield influence and power by way of patronage.
• At the time of their appointment, the government had said that parliamentary secretaries will not receive any remuneration or perks from the government. But later on, they were allowed use of government transport for official purposes and space in minister’s office. Hence, few people criticized this move and called it unconstitutional.

How Delhi government defends its move?

The Delhi government has based its defence on exemptions. The Constitution specifies that state Legislative Assemblies have the power to enact laws and keep certain offices out of the preview of Office of Profit. The Delhi government argues that as Parliamentary Secretaries are not eligible for any remuneration or perks from the government the post should be exempt from the office of profit.

What is “Office of Profit”?

• An office of profit is a term used in a number of national constitutions to refer to executive appointments.
• If an MLA or an MP holds a government office and receives benefits from it, then that office is termed as an “office of profit”.
• A person will be disqualified if he holds an office of profit under the central or state government, other than an office declared not to disqualify its holder by a law passed by Parliament or state legislature.
• A number of countries forbid members of the legislature from accepting an office of profit under the executive as a means to secure the independence of the legislature and preserve separation of powers.
• The word ‘office’ has not been defined in the Indian Constitution or the Representation of the People Act of 1951. But different courts have interpreted it to mean a position with certain duties that are more or less of public character.

In general, a person is considered to hold an office of profit if four conditions are met:

1. He holds an office.
2. The office is one of profit, that is, it carries some benefits.
3. The office is under the control of the Central or the State government.
4. The office is not that of a Minister or exempted by an Act of Parliament or State legislature.

Principles of declaring Office of Profit

Four broad principles have evolved for determining whether an office attracts the constitutional disqualification.

• First, 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 in which the office is held has government powers (releasing money, allotment of land, granting licences etc.)
• whether the office enables the holder to influence by way of patronage.

Rationale for the disqualification for holding an office of profit:

• This is to ensure the independence three branches(legislative, judiciary and executive) of the government and maintain checks and balances.
• The object of enacting article 102 and 191 is to ensure that there should not be any conflict between duties and interest of an elected member and to see that elected member carry on freely and fearlessly his duties without government pressure.
• These articles are intended to eliminate the possibility of conflict between duty and interest so that purity of legislation is unaffected.

What are the basic criteria to disqualify an MP or MLA?

• Basic disqualification criteria for an MP are laid down in Article 102 of the Constitution, and for an MLA in Article 191.
• They can be disqualified for: a) Holding an office of profit under government of India or state government; b) Being of unsound mind; c) Being an undischarged insolvent; d) Not being an Indian citizen or for acquiring citizenship of another country

What are the recent instances of disqualification of legislators for holding office of profit?

• In March 2006, in the Jaya Bachchanvs Union Of India case, the Supreme Court in May 2006 had dismissed actress-turned-politician Jaya Bachchan’s petition challenging her disqualification as RajyaSabha MP by President A P J Abdul Kalam on the recommendation of the Election Commission for holding an office of profit as chairperson of the UP Film Development Council.
• In January 2015, UP MLAs BajrangBahadur Singh (BJP) and Uma Shankar Singh (BSP) were disqualified from the assembly after they were indicted by the Lokayukta for bagging government construction contracts by misusing their position.

How do EC decide whether an MP or MLA has profited from an office?

• The Supreme Court, while upholding the disqualification of Jaya Bachchan from RajyaSabha in 2006, had said, “For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain.
• If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102 (1)(a).
• However, a person who acquires a contract or licence from a government to perform functions, which the government would have itself discharged, will not be held guilty of holding an office of profit.

Who is a parliamentary secretary?

• A Parliament Secretary is similar to a Minister of State who assists a Minister in his or her duties.
• AAP MLAs were appointed parliamentary secretaries and this was described by petitioner Prashant Patel as them holding offices of profit.

Constitutional provisions:

• Experts argue that the post of parliamentary secretary is in contradiction to Article 164 (1A) of the Constitution which provides for limiting the number of Ministers in the State Cabinets to 15% of the total number of members of the State Legislative Assembly. But, the number of Cabinet Ministers in Delhi cannot exceed 10% of the total 70 seats— that is seven — as per Article 239AA of Constitution.

Conclusion:

• The role of legislators is critical in a democracy. They are elected by citizens, and have the task of ensuring that the government is acting in the best interests of the public. Therefore, it is imperative that their independence is protected otherwise there is a risk of a slow erosion of the institution of legislatures, which could put at risk the very existence of our republic.