Abhishek G Bhaya
The stage is set for yet another legal battle between AAP’s Delhi government and the BJP-led Centre after President Pranab Mukherjee late on Monday rejected the former’s amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act.
The decision puts the fate of 21 AAP MLAs in limbo. These MLAs, who were appointed parliamentary secretaries by the Kejriwal government, are likely to face disqualification for holding ‘offices of profit’.
It is important to mention here that the President of India is bound by the Constitution to take decisions only on the aid and advice of the Council of Ministers (the central Cabinet headed by the Prime Minister) and not personally.
No wonder Delhi Chief Minister Arvind Kejriwal has hit out at Prime Minister Narendra Modi, in a series of tweets, while reacting furiously to the Presidential decision.
The AAP, however, has expressed confidence that the 21 MLAs would not be affected by the President’s rejection.
Their contention is that the parliamentary secretaries were not being given any compensation by the government and therefore their portfolios do not come under ‘office of profit’.
Misuse of position or imaginative governance?
We are all aware that AAP came into existence offering an alternative model of governance. So, following a historic victory in Delhi Assembly election in 2014, the Chief Minister, Arvind Kejriwal, appeared to decide to utilise the available human resources in a rather imaginative way.
Keeping himself free of any portfolio, the Chief Minister distributed all the 34 departments to his six Cabinet colleagues – Delhi can only have 7 ministers including the CM as per current law.
Kejriwal has reasoned that he hasn’t taken any portfolio so that he can oversee the functioning of all the departments while also serving as a buffer between the Delhi government and a hostile Centre.
Armed with the luxury of having 67 MLAs (of the total of 70 seats) in the Delhi Assembly, Kejriwal on 13 March, 2015, appointed 21 of them as parliamentary secretaries to his ministers to aid them in their various departments.
AAP has made many poll promises and the massive mandate they got from the Delhi electorate makes it incumbent upon the party to use all the resources at its disposal to fulfil those commitments. You can’t blame AAP to be in a hurry to deliver on its promises. Giving additional responsibilities to some of their elected MLAs appeared to be the most reasonable choice, as any HR consultant would testify.
AAP parliamentary secretaries: No burden on exchequer
Aware of the current law that does not exempt the position of parliamentary secretary from the list of ‘office of profit’, Kejriwal’s government showed extreme caution in these appointments in order to ensure that the appointees do not get any financial benefit from the government.
It is noteworthy that Delhi government’s order dated 13 March, 2015, concerning the appointment of parliamentary secretaries were appointed explicitly states that, “These parliamentary secretaries will not be eligible any remuneration or any perks of any kind, from the government – meaning no burden on exchequer. However, they may use government transport for official purposes and office space in the minister’s office would be provided to them to facilitate their work.”
However, the constant hostility that Kejriwal faces from the Centre and its political opponents saw the BJP and the Congress make a lot of noise after the appointment of the parliamentary secretaries alleging that the Delhi chief minister had used corrupt means to reward his MLAs.
The problem with these political parties is that they have traditionally exploited the system to benefit their own. Therefore, they can’t see a constructive logic behind such appointments. After all, both Congress and BJP and even the other political parties, have used such positions to reward their loyalists or coalition partners.
No wonder the post of parliamentary secretary in most other states is considered an ‘office of profit’, with the appointees in Himachal Pradesh, Goa, West Bengal, Punjab and Haryana enjoying the status of Cabinet Minister/Minister of State with associated remuneration, perks, luxury car with police escort vehicle, office in the secretariat with staff, fully furnished government accommodation and other facilities in tune with conferred status/rank.
Following the AAP’s appointment, an NGO namely Rashtriya Mukti Morcha challenged the constitutional tenability and propriety of such appointments in Delhi High Court and the matter is still pending for adjudication.
Subsequently, a Delhi lawyer Prashant Patel invoked the jurisdiction of Section 15 of the Government of National Capital Territory of Delhi Act, 1991 and filed a petition before the President of India for disqualification of the 21 AAP MLAs for allegedly holding ‘offices of profit.’
The President has referred the petition for the opinion of the Election Commission of India and latter is now seized of the matter. The President is legally obliged to take a final decision in accordance with the opinion rendered by Election Commission.
Earlier in May this year, the Election Commission had issued notices to the 21 MLAs asking them to explain how their appointment as parliamentary secretaries does not fall under office of profit and why their Assembly membership should not be cancelled.
The MLAs have responded saying that parliamentary secretary is a post without any remuneration or power. A senior party functionary maintained that there was no ‘pecuniary benefit’ associated with the post.
Open to judicial interpretation
The moot question therefore is that whether parliamentary secretaries appointed by the Delhi government are holding any ‘offices of profit’ entailing their disqualification for being MLAs under the law?
It is pertinent to note that the term ‘office of profit’ is not defined in the Constitution or in any other relevant statute and is left for the judiciary to interpret its meaning.
The Supreme Court in 1954 in the case of Ravanna Subanna vs GS Kaggeerappa held that the remuneration which the person gets while holding the office to enable him to carry out day to day expenses (i.e. compensatory in nature) should not be considered as accruing any profit to holder.
In 2006 case of Jaya Bachchan vs Union of India, the Supreme Court stated: “An office of profit is an office which is capable of yielding a profit or pecuniary gain. 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 ‘pecuniary gain’ is ‘receivable’ in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.”
The Delhi government’s appointment order of parliamentary secretaries spells out in no uncertain terms that no pecuniary gain is receivable by the 21 appointees. Therefore, it may be concluded that they are not holding any offices of profit so as to incur any disqualification under the law.
Precedence: If Sheila was right, why isn’t Kejriwal?
In the wake of Prashant Patel’s petition before President of India, the Delhi assembly passed the Delhi Members of Legislative Assembly (Removal of Disqualification) (Amendment) Bill, 2015. Consequently, it amended the entry 7 of the Schedule of the Act to the effect that ‘parliamentary secretaries to ministers’ were also exempted from disqualification with retrospective effect from February 14, 2015 besides the parliamentary secretary to Chief Minister (Although none of the parliamentary secretaries is attached to current Chief Minister).
This is the amendment that was rejected by the President on Monday.
Many so-called political pundits, including those from BJP and surprisingly from Congress too, are also questioning the legality and propriety of the Delhi Assembly to pass a law to remove the disqualification with retrospective effect.
They, however must be reminded that statecraft and governance and even judiciary for that matter, as we all know, work on the basis of precedence. Now here’s what happened when Congress was in power, both in Delhi and at the Centre:
In 2006, while Sheila Dixit was heading the Delhi Government, the then BJP MLA Vijay Jolly filed a petition with the then President APJ Abdul Kalam seeking disqualification of 18 Congress MLAs for holding ‘offices of profit’. Subsequently, the matter moved to Election Commission and notice was issued to concerned 18 MLAs.
In the meanwhile, Delhi assembly passed the Delhi Members of Legislative Assembly (Removal of Disqualification) (Amendment) Bill, 2006 with retrospective effect from September 9, 1997 exempting 14 posts/offices from the purview of ‘office of profit’ and the then President of India also readily accorded assent to the said bill.
Most importantly in present context, by virtue of the 2006 amendment, the entry 7 inserted in the Schedule of the Act of 1997 specifically exempted the office of parliamentary secretary to the Chief Minister.
It may be noted that BJP Chief Minister Sahab Singh Verma in 1997 appointed one parliamentary secretary. Congress Chief Minister Sheila Dixit also appointed one parliamentary secretary but subsequently increased the number of parliamentary secretaries to three 2009.
The question, therefore is, that if the amendment (to exempt parliament secretary of the CM from the list of ‘office of profit’ and increase their numbers from 1 to 3) of the Delhi Assembly under Sheila Dixit was considered legal by President Kalam, why was a similar move by the same Assembly under Kejriwal was rejected by President Pranab Mukherjee?
Assembly represents the will of the people
The Assembly, after all, represents the will of the people, which must not only be respected but held supreme in a democracy. It would have been in the fitness of things for the President to accord assent to the Amendment Bill of 2015 as has been done in the past in similar circumstances.
However, as was proven in the recent case of Uttarakhand President’s Rule matter, the aid and advice that President Mukherjee is getting from the current Council of Ministers isn’t always in keeping with the Constitutional and federal democratic traditions, but motivated by political vendetta and opportunity. The President needs to weigh such aid and advice prudently.
To quote for the Uttarakhand High Court judgment by Justice U C Dhyani: “To err is human. Nobody is infallible. Cold calculations are normally avoided in intangibles. Life, like law, is never static. Both are dynamic concepts.”
(The author is a Gulf-based Indian journalist. The views expressed here are his own and do not necessarily represent those of JantaKaReporter)