The much-talked about hearing of the Aam Aadmi Party (AAP) MLAs by the Election Commission (EC) – on their appointment as parliamentary secretaries by Delhi Chief Minister Arvind Kejriwal – has been deferred by one week, to 21 July.
The EC deferred the hearing on Thursday after Delhi Congress president Ajay Maken expressed his party's desire to be heard in the matter. The hearing had to be deferred as Maken, after filing an intervening petition, failed to send copies to the 21 legislators.
What’s the issue all about?
• On 13 March, 2015, the AAP government passed an order appointing 21 MLAs as parliamentary secretaries.
• This was challenged by advocate Prashant Patel, who petitioned President Pranab Mukherjee on 19 June, 2015, that these MLAs were now holding 'Office of profit' and therefore should be disqualified.
• The Delhi Legislative Assembly then passed the Delhi Member of Legislative Assembly (Removal of Disqualification) Amendment Bill 2015, excluding parliamentary secretaries from the ‘Office of profit’ with retrospective effect.
• President Pranab Mukherjee refused to give his assent to the proposed legislation that sought to protect – with retrospective effect – 21 AAP MLAs from disqualification for occupying additional posts that were deemed unconstitutional. It was referred to the EC.
• Meanwhile, the Delhi High Court is also hearing a writ petition challenging the very appointment of the 21 parliamentary secretaries.
What's the catch?
The issue before the EC is to determine whether the office of the parliamentary secretary in the Government of National Capital Territory of Delhi (GNCTD) 1991 constitutes as an 'office of profit' or not. Article 191 of the Indian Constitution has not defined what exactly is an 'office of profit', which paved the way for the Courts to lay down the law. This once again brought Delhi’s AAP government and the Centre to loggerheads.
What do the experts say?
According to constitutional experts, the President’s decision to not accord assent to the bill is final. The bill sought exemption and shield for the 21 MLAs from getting disqualified under the 'office of profit' rules. But now the ball is in the court of EC, and both the AAP and its opponents are waiting with their fingers crossed.
“There is no law made by the Parliament or Delhi Assembly that would authorise appointment of a parliamentary secretary. It was mutually agreed, both during Sahib Singh Verma and Sheila Dikshit's tenures on the appointment of parliamentary secretaries. No one objected to it. Even former PM Rajiv Gandhi got Arun Nehru and Arun Singh as his secretaries. But the way AAP government wants 21 MLAs to be appointed is illegal. These MLAs may get disqualified,” said SK Sharma, constitutional expert and former secretary, Delhi Assembly.
“The AAP government hurriedly wanted to amend the bill to give retrospective exemption to 21 parliamentary secretaries from getting disqualified, which ultimately may not happen. But we have to wait and see what the EC says on this,” added Sharma.
What is the petitioner’s plea and what do the AAP MLAs have to say?
• Petitioner Prashant Pandey’s plea: The appointment of these 21 MLAs as parliamentary secretaries is unconstitutional and illegal and therefore they should be disqualified from Delhi Legislative Assembly membership. Delhi Assembly has not enacted any law that excludes the parliamentary secretary post from the 'office of profit' category. The one introduced later with retrospective effect is malafide.
• AAP MLAs to EC: Complainant has suppressed the fact that in the NCT of Delhi, the position of parliamentary secretary is honorary in nature and no financial benefits are attached to it. No facilities such as official space, vehicle, staff for office, residential accommodation, technical devices, travelling allowance or any additional emoluments or reimbursement of any nature is being given to the MLAs in their capacity as parliamentary secretary.
Besides the petitioner and the 21 legislators, the Congress party too will appear before the EC on 21 July. After the hearings are over, the EC will take a decision and communicate the same to the President. The President will have to sign on the decision taken by EC, which is a quasi judicial body.
Options before the 21 AAP MLAs
• If the EC decides that the office of parliamentary secretary is not an 'office of profit', it’ll be in favour of the 21 MLAs and they will be safe from any action.
• If the EC decides that it is an ‘office of profit’ and recommends disqualification, then 21 seats will fall vacant with effect from the moment the President signs. This will pave way for a by-election in Delhi.
• Then these 21 MLAs will either choose not to appeal the decision and prefer to contest a by-election or challenge the decision in court and try to win a stay on the EC's order.
Who are these 21 MLAs?
The 21 MLAs appointed as parliamentary secretaries to seven ministers:
Adarsh Shastri (Dwarka), Alka Lamba (Chandni Chowk), Anil Bajpai (Gandhi Nagar), Avtar Singh (Kalkaji), Jarnail Singh (Rajouri Garden), Jarnail Singh (Tilak Nagar), Kailash Gehlot (Najafgarh), Madan Lal (Kasurba Nagar), Manoj Kumar (Kondli), Naresh Yadav (Mehrauli), Nitin Tyagi (Laxmi Nagar), Praveen Kumar (Jangpura), Rajesh Gupta (Wazirpur), Rajesh Rishi (Janakpuri), Sanjeev Jha (Burari), Sarita Singh (Rohtas Nagar), Som Dutt (Sadar Bazar), Sharad Kumar (Narela), Shiv Charan Goel (Moti Nagar), Sukhbir Singh (Mundka) and Vijendar Garg (Rajinder Nagar).