The Aam Aadmi Party (AAP) government's tale of woes doesn't seem to be getting over anytime soon. Even as it grapples with issues in Punjab ahead of the highly crucial state elections next year, the Delhi High Court on Thursday revoked the appointment of 21 parliamentary secretaries, who were appointed by the Arvind Kejriwal-led Delhi government.
This is a major setback for the ruling AAP as it had appointed the MLAs as parliamentary secretaries on 13 March, 2015 and passed an amendment bill in this regard in June in the Assembly where it enjoys a majority.
The High Court ruling also indicates that Kejriwal is yet to learn lessons in avoiding controversy by treading carefully on issues related to office of profit, which his predecessors such as Sheila Dikshit of Congress and Saheb Singh Verma of the BJP had earlier done successfully. The appointment of 21 MLAs as parliamentary secretaries had become a controversy as it was considered an office of profit.
In July, the high court had deferred the hearing of a PIL challenging the AAP government's decision to appoint 21 legislators as parliamentary secretaries. Following Kejriwal government’s petition that a plea would come up for hearing before the Election Commission on this issue, the court had posted the matter for 8 September.
Had Delhi Chief Minister Arvind Kejriwal taken a lesson from his predecessors from both his staunch opponent BJP and the Congress on appointment of parliamentary secretaries, it could have been a smooth ride for him.
President Pranab Mukherjee had 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. The appointment of 21 MLAs as parliamentary secretaries became a controversy as it was considered an office of profit. There are several cases where right from Congress party president Sonia Gandhi to former Delhi chief ministers Sheila Dikshit and Saheb Singh Verma wisely avoided from being in a controversy on the issue of office of profit.
What’s the issue all about?
• The AAP government on 13 March 2015 passed an order appointing 21 MLAs as parliamentary secretaries to its seven ministers.
• 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. Going a step further, NGO Rashtriya Mukti Morcha had challenged the move by filing a PIL in the Delhi High Court and sought scrapping of the appointments as these were "unconstitutional, illegal and without jurisdiction".
• The Delhi Legislative Assembly had 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 deemed unconstitutional. It was referred to the Election Commission (EC).
• Besides EC, the Delhi High Court was also hearing a writ petition challenging the very appointment of 21 parliamentary secretaries by Kejriwal.
Controversy over ‘office of profit’
The term 'office of profit' is used in Article 102 (1)(A) of the Indian Constitution which bars a member of the Indian Parliament from holding an office that would give its occupant the opportunity to gain a financial advantage or benefit. It refers to a post under central/state government which yields salaries, perks and other benefits.
According to experts, the issue before the high court and the EC is whether the office of parliamentary secretary in the Government of National Capital Territory of Delhi (GNCTD) 1991 constitutes an office of profit or not. Article 191 of the Indian Constitution has not defined what an office of profit is. This has paved the way for the courts to lay down the law.
The AAP government argues that the post of parliamentary secretary is not an office of profit, as the MLAs do not receive any financial benefit and not entitled to any perks.
“No MLA was given a single paisa, car or bungalow in their capacity as parliamentary secretary and they were giving the service free,” Kejriwal had reportedly remarked, after Mukherjee refused to sign.
However, earlier in a notification, the government had mentioned, “They (parliamentary secretaries) may use government transport for official purposes and office space in the minister's office would be provided to them to facilitate their work."
This is open to interpretation and could be interpreted as office of profit. The term ‘office of profit’ is not defined anywhere in the Constitution and is left on the judiciary to interpret the term, the term ‘profit’ means some pecuniary gain attached to the office. The Supreme Court of India, in a plethora of cases, gives guidelines to consider whether a given office is an office of profit or not.
“For constituting office of profit, it is not necessary that pecuniary benefit should be derived from it. The MLAs may be disqualified depending on what the EC says,” observed constitutional expert and author, Subhash C Kashyap.
Office of profit: A few cases in point
In March 2006, actress-turned-politician Jaya Bachchan was disqualified as a member of Rajya Sabha with retrospective effect from 2004. The Supreme Court had dismissed Jaya Bachchan's petition challenging her disqualification as Rajya Sabha MP by the then President APJ Abdul Kalam on the recommendation of the EC for holding an office of profit.
Her plea that she never made actual pecuniary gains from the alleged office of profit in her position as Chairperson of Uttar Pradesh Film Development Corporation (UPFDC) failed to convince the apex court.
Besides Jaya Bachchan, Congress president Sonia Gandhi too got embroiled in an office of profit controversy. She immediately resigned and got re-elected as an MP from Rae Bareli.
In 2012, the Mamata Banerjee government in West Bengal appointed 23 parliamentary secretaries. The appointment was challenged and in 2015, Calcutta High Court declared the appointments as illegal.
Similarly, last year, the Telangana government was forced to scrap parliamentary secretary appointment after the Hyderabad High Court declared it as illegal. The TRS government had notified the appointment of six MLAs as parliamentary secretaries through a government order and had also passed an Act related to it, like the West Bengal government.
Parliamentary secretary: A flashback
1996: The then Delhi CM Sahib Singh Verma from the BJP wanted to appoint Nand Kishore Garg as his parliamentary secretary, and for this, he sought permission from the then Leader of Opposition and Congress leader Jag Pravesh Chandra. Permission was given and Garg was appointed.
1998: Similarly, Congress CM Sheila Dikshit after assuming power wanted to appoint Ajay Maken as parliamentary secretary. She followed the steps of her predecessor, sought permission from the Opposition leader and got Maken appointed. “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 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.
According to constitutional experts, the President’s decision not to accord assent to the bill is final. The bill sought exemption and shielding 21 MLAs from getting disqualified under office of profit rules. The EC has reserved its order.