Legislative independence a sine qua non of federal structure, but a vexed question for NCT – a ‘half’ state
The recent disqualification of 20 Aam Adami Party (AAP) MLAs on grounds of holding ‘office-of-profit’ has opened a Pandora’s box for the incumbent Delhi government. It followed based on the recommendation of the Election Commission to the President on 19 January 2018. It had called for the exclusion 20 AAP legislators for holding posts of parliamentary secretaries – between 13 March 2015 to 8 September 2016. Subsequently on 21 January 2018 President Ram Nath Kovind assented the disqualification of lawmakers in accordance with the poll panel’s recommendation.
Case in question
In March 2015, the AAP government appointed 21 legislators as ‘parliamentary secretaries’ with a rider that they would not receive any remuneration or perks. It was done on grounds of facilitating ‘smooth functioning’ of various ministries. A move challenged in May 2015 before the Delhi High Court on grounds of it being ‘unconstitutional’ and lacking jurisdiction.
Month later, a petition by advocate Prashant Patel, seeking disqualification of 21 MLAs alleging office-of-profit was filed with President Pranab Mukherjee, who sought Election Commission’s opinion. In consequence, the Commission issued notices to lawmakers resulting in Delhi government passing a Bill amending the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997. Though it (Bill) exempted the post of ‘parliamentary secretary’ from the purview of the ‘office-of-profit’ it was rejected by the President on failing to secure approval from the Lt. Governor (L-G), who is the administrative head of the national capital territory.
Subsequently, the Delhi High Court annulled the appointment of legislators’ as parliamentary secretaries in September 2016. Placing the court order, the lawmakers contended that the poll panel cannot hear a petition against them on the question of ‘office-of-profit’ that never existed. However, the EC having received plaints against MLAs over holding ‘offices-of-profit’ did not concur with the legislatures arguments, and held them accountable on ‘office-of-profit’ in capacity as the parliamentary secretaries. In the interim, one of AAP MLAs Jarnail Singh, resigned to contest Punjab Assembly election, resulting in quashing of proceedings against him.
Though the Constitution does not define the term “office-of-profit”, but Articles 102(1)(A) and 191(1)(A) bars and disqualifies lawmakers on holding any ‘office-of-profit’ under the central or state governments, other than those that are exempted by laws enacted by the Parliament or State Assemblies. These offices find their mention in Part II of the Schedule in the Parliament (Prevention of Disqualification) Act, 1959. Likewise, the representatives are barred from holding an ‘office-of-profit’ under section 9 (A) of the Representation of People Act, 1951.
The idea is to preserve the independence of legislature from the executive, and ensure the basic constitutional principle of separation of power – between the legislature, executive and the judiciary is upheld.
However, to attract disqualification under the ‘office-of-profit’ rule, there are a few prerequisites as provided for in Article 102 and 191 of the Indian Constitution for both Parliament and State Assemblies respectively like – a) There must be an office; b) The nature of the office must be such that the holder derives profit; and c) Such office must be under the government.
Legal angle and precedents
The Supreme Court and the High Courts have consistently opined against creating posts of ‘parliamentary secretary’ through legislations by states. It has held so in the view of Article 164(1A) of the Constitution and on grounds of the post yielding profit or pecuniary gain. Notwithstanding, the States have time and again enacted laws creating the posts of ‘parliamentary secretaries’ thus exempting legislators from ‘office-of-profit’ clause. It is to be accounted, the Parliament (Prevention of Disqualification) Act, 1959 has been amended five times to “accommodate large offices” exempting it from the clause of ‘office-of-profit’ despite them attracting salary and other perks. For instance, in 2006 Congress president Sonia Gandhi, who was an MP was appointed as the head of NAC, thus forcing her to resign on grounds of holding ‘office-of-profit’. But she returned to Parliament post a re-election and even headed NAC, after the Parliament (Prevention of Disqualification) Act, 1959 was amended in 2006. It specified that the post of the Chairpersons of National Advisory Council (NAC) does not fall under the purview of ‘office-of-profit.’
The Supreme Court had gone a step further in the Jaya Bachchan v/s vs Union of India case, in broadening the scope of ‘office-of-profit’. It held that, if the office is capable of yielding profit or pecuniary gain, irrespective of whether the person obtains monetary gain, or if the ‘pecuniary gain’ is receivable with such an office, then such an office constitutes ‘office of profit’, irrespective of whether such pecuniary gain is actually received or not. The apex court had dismissed Jaya Bachchan’s petition, who had challenged her disqualification in 2006 as Rajya Sabha MP on grounds of holding an ‘office-of-profit.’
The Supreme Court had also scrapped the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 in July 2017.
A ‘Win-Win’ for AAP
By moving the Delhi High Court challenging the disqualification on account of ‘office-of-profit’ the AAP is enacting a balancing act. It has, on one had succeeded in preventing the Election Commission from holding by-elections through a legal wand. On the other, it has succeeded in obtaining a succour to its MLAs in the limbo by convincing the Court to consider their pleas against disqualification.
A purported clause in the appointment of ‘parliament secretaries’ that they would not draw any remuneration or perks or pecuniary gains is likely to add weight in favour of AAP on two counts. One, that it does not meet the criteria of disqualification that requires the holder of the post to derive profit. Two, it can always draw inference from Divya Prakash vs Kuttar Chand Rana (1975) case, where the Supreme Court ruled that it did amount to an office-of-profit, if a person is appointed to a post in an “honorary capacity” without any remuneration, though the post carried remuneration.
Additionally, the Delhi High Court’s annulment of the appointment of legislators’ as parliamentary secretaries in September 2016 would be a handy argument against the expulsion of MLAs. Further issues involving former election commissioner Om Prakash Rawat, rejoining disqualification process after recusing himself; AAPs allegations about EC not holding a hearing on the case post its June 23, 2017 order would weigh in.
Even on account of Court ruling in favour of disqualification and by-elections being held, AAP in all likelihood will waddle through with an added sympathy factor. A counter verdict will also not impact its majority mark of 35, given the party will retain 46 of its lawmakers on losing 20 in the 70-member Assembly. However, it will set a precedent for disqualifications of the posts of ‘parliamentary secretary’ that find their presence in several states across India.