Had Delhi Chief Minister Arvind Kejriwal taken a lesson from his predecessors – both from his staunch opponent BJP and the Congress – on appointment of Parliamentary Secretaries, it could have been a smooth ride for him. But he followed what former CMs Sahib Singh Verma and Sheila Dikshit did during their respective tenures.
With President Pranab Mukherjee refusing to give his assent to the proposed legislation that sought to protect – with retrospective effect – 21 Aam Aadmi Party (AAP) MLAs from disqualification for occupying additional posts that deemed unconstitutional, once again Delhi’s AAP government and the Centre are at loggerheads.
Losing no opportunity, Kejriwal in his inimitable style has accused Prime Minister Narendra Modi of creating obstacles in Delhi government’s functioning by targeting AAP MLAs.
But, let’s not forget Pranab Mukherjee’s decision not to give assent to ‘The Delhi Members of Legislative Assembly (Removal of Disqualification) (Amendment) Bill 2015’ is not under Modi’s influence, but purely on the basis of existing law.
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, 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.
“What the PM has to do on this issue? Even if we hypothetically think that the PM had tried to exercise his influence, in true sense it’s not possible. He can’t even access the file related to disqualification of legislators, as the entire matter is between Rashtrapati Bhawan (president) and the Election Commission (EC). It’s only the EC that will advise the president, who takes the final decision. The AAP government hurriedly wanted to amend the 1997 bill to give retrospective exemption to 21 parliamentary secretaries from getting disqualified,” said Sharma.
Controversy over Office of Profit
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 are 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 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 makes it open to interpretation and could be interpreted as office of profit. The term ‘office of profit’ is not defined nowhere in the constitution and it 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 plethora of cases, issues guideline 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,” said constitutional expert and author, Subhash C Kashyap.
Office of Profit: A few cases in point
On 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 office of profit controversy. She immediately resigned and got re-elected as an MP from Rae Bareli. The AAP government needs to take a lesson from this. They can’t function arbitrarily,” added Sharma.
In 2012, 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 appointments after the Hyderabad HC 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.
“Bill doesn't say if parliament secretary is office of profit or not - that is for the EC to decide. Once president withholds his assent, bill cannot become a law,” observed PDT Achary, former Secretary General of Lok Sabha.
What Constitution says
The Constitution has set a limit for the total number of cabinet ministers including the chief minister. In the case of Delhi, the cabinet has to be within 10 percent of the total number of MLAs in the state or seven ministers. This is to avoid burdening the state exchequer. The Delhi cabinet, including Chief Minister Arvind Kejriwal, has seven members. But when the 21 parliamentary secretaries are included, this number goes up to 28, far exceeding the constitutional mandate.
Wait and watch
The 21 AAP MLAs will have to wait with their fingers crossed, as the president has sought opinion from the EC, as the latter has already issued notices to the MLAs seeking explanation on their appointment. According to experts, the president can disqualify based on EC’s advice. Though there won’t be any danger for the AAP government if 21 seats fall vacant, Kejriwal government will have to again prove its mettle by facing a re-election for these 21 seats.