When it comes to appointment of parliamentary secretaries, Delhi Chief Minister Arvind Kejriwal does not have a valid moral argument. He is ethically, constitutionally and legally wrong to insist his appointment of 21 parliamentary secretaries is justified.
But, Kejriwal is not the only chief minister in the country to have made a mockery of the Constitution by resorting to such sleight of hand to reward his legislators. All parties, including those giving him sermons on propriety, are equally guilty of impropriety, illegality and hypocrisy.
In almost every state, there is a long list of parliamentary secretaries appointed by chief ministers. Kejriwal may be politically right in following a precedence established by various state governments of all parties. But, his claim of being different from them, the boast of standing on a higher moral ground, stands demolished.
Why is Kejriwal wrong?
The 91st Amendment in the Constitution, which introduced Article 164 (1A), limits the number of ministers in the state cabinets to 15 percent of the total strength of the Assembly.
Since the Delhi Assembly has 70 members, Kejriwal's cabinet could not have exceeded 10, a decent number considering the size of the state.
Article 164 (A) was introduced in the Constitution in 2003 with the explicit purpose of stopping misuse of public money on politicians, who benefitted from over-sized cabinets. This was done on the basis of the recommendations of the National Commission for Review of the Working of the Constitution headed by former chief justice of India, MN Venkatachaliah.
But, political parties found a simple expedient to flout the norm and oblige politicians. Instead of appointing them ministers, chief ministers started rewarding their legislators by appointing them parliamentary secretaries and heads of various government boards and bodies.
And such is their hypocrisy that after circumventing the Constitutional cap on cabinet ministers while in power, they argue for the exact opposite when in opposition.
Consider Rajasthan's example first. In April 2012, the Rajasthan High Court issued a notice to the then Ashok Gehlot-led government in connection with the petition filed by BJP MLAs Kali Charan Saraf, Rajpal Singh Shekhawat and Ashok Parnami, who challenged the appointment of parliamentary secretaries by the Congress government, arguing it flouted the Constitutional limit of 15 percent. Gehlot had 13 parliamentary secretaries in his team.
This was a classic case of a cat going on a pilgrimage after devouring dozens of mice, in this case parliamentary secretaries. Between 2002-08, when Vasundhara Raje was the state's chief minister, she had appointed eight parliamentary secretaries to assist the ministers. In 2015, she performed yet another Haj by appointing five legislators to the same office.
High courts in various states have either declared the post ultra vires. In 2015, the Calcutta High Court quashed the appointment of 21 parliamentary secretaries by the Mamata Banerjee government. Similar verdicts were announced by courts in Telangana, Goa and Haryana in 2015, 2009 and 2005. In many other states, including Uttarakhand and Karnataka, appointment of parliamentary secretaries, in spite of previous court orders, has been challenged.
So, Kejriwal is not the only one on the wrong side of the law. From the Left to the Right, every party and ideology has used the option in spite of its illegality and immorality. Kejriwal is part of this hammam.
In 2014, when Kejriwal appointed 21 parliamentary secretaries, an obscene number considering that it is almost a third of the Assembly, he argued that they will not be eligible for emoluments and perks, except for using offices of the minister they are attached with and availing transport facilities.
This is a clever argument that hides one of the objectives of Article 164 (1A). The number of ministers was limited through the Amendment not just to save public money but also to ensure loyalties are not bought through titles and perks, however insignificant they may sound. Kejriwal, like all other parties, has violated this by influencing flock with carrots.
It is ridiculous when Kejriwal insists on retaining his parliamentary secretaries. Since he claims to have entered politics to clean it—if it is a gutter, we will step into it to clean it, he had grandiloquently announced—Kejriwal should immediately realise his mistake and quash their appointment. It won't be a moral victory; no, not after he has no other choice left, but at least it will be a new beginning.
Once that is done, the courts need to look at all the positions of profit legislators enjoy in various states. The axe should fall on every state that has flouted the Constitution and every legislator who enjoys an office of profit. What is wrong for Delhi and AAP should also be wrong for other states and political parties.
As the BJP used to once scream, ek desh mein do vidhan, nahin chalega.