New Delhi: The Election Commission has recommended that 20 Aam Aadmi Party MLAs embroiled in the office of profit case be disqualified. In 2015, the Arvind Kejriwal government had passed an order appointing 21 MLAs as Parliamentary Secretaries to seven ministries. This was challenged by Advocate Prashant Patel who petitioned President Pranab Mukherjee on June 19, 2015, that these MLAs were now holding ‘office of profit’ and therefore should be disqualified.
Kejriwal’s decision to appoint the MLAs as Parliamentary Secretaries is attracting a lot of question-- on propriety, legality and political vendetta.Here's an explainer on the entire case.What is the issue?
On 13th 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 that these MLAs 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 “ office of profit’ with retrospective effect. However, the President withheld assent to the amendment bill and referred the matter to the Election Commission. Interestingly, the Delhi High Court heard a writ petition challenging the very appointment of 21 Parliamentary Secretaries by the Delhi Chief Minister and quashed it. The issue in front of the Election Commission is whether the office of Parliamentary Secretary in the GNCTD,1991 constitutes an ‘ office of profit’. Article 191 in the Indian Constitution has not defined the term ‘office of profit’, therefore paving the way for courts to lay down the law.What is the status now?
Following notices by the Election Commission, the AAP MLAs have given their reply in writing-- seeking, additionally, a personal hearing which was turned down. Advocate Prashant Patel has also submitted his rejoinder to the replies of AAP MLAs. The President will have to sign on the decision taken by EC, a quasi-judicial body.What are the options before the AAP MLAs?
If the Election Commission decides that the office of Parliamentary Secretary is not an ‘Office of Profit’, then the seats of 21 MLAs (now 20) are safe.
If the Election Commission decides that the ‘Office of Parliamentary Secretary’ is indeed an ‘office of profit’ and recommends disqualification, the 21 seats (now 20) will fall vacant with effect from the moment the President signs on it paving the way for by-elections.
The AAP MLAs have two options: (a) choose not to contest the decision and prefer fight elections again (b) Contest the decision in a Court and try to win a stay on the Election Commission’s order.
Who are the 21 AAP MLAs (now 20) whose fate hang in balance?
Adarsh Shastri- Dwarka; Alka Lamba- Chandni Chowk; Anil Vajpayee- Gandhi Nagar; Avtar Singh- Kalkaji;Jarnail Singh- Rajouri Garden; Jarnail Singh- Tilak Nagar; Kailash Gehilot- Najafgarg; 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; Vijendar Garg- Rajinder Nagar. Jarnail Singh, Rajouri Garden MLA vacated his seat to contest from Punjab.What is Advocate Prashant Patel’s plea before the President?
According to Article 191 of the Constitution and section 15 of the GNCTD Act, 1991 a person shall be disqualified for being a member of the Legislative Assembly if he holds any office of profit.
Delhi Assembly has not enacted any law that excludes ‘Parliamentary Secretary’ post from the ‘Office of Profit’ category. The one introduced later with retrospective effect is mala fide.
The appointment of these 21 MLAs as Parliamentary Secretary is unconstitutional and illegal and therefore they should be disqualified from Delhi Legislative Assembly membership.What is the reply of AAP MLAs to the Election Commission?
Complainant has suppressed the fact that in the State 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 / re-imbursement of any nature is being given to the MLAs in their capacity as Parliamentary Secretary.
The veracity and legality of the order 13th March 2015 is sub judice and is being considered by the High Court and, it would be in the fitness of things to await the decision in the said matter before the arguments in the present case is heard.
The law laid down in the judgment in Dr Deorao Laxman Anande Vs Keshav Laxman Borkar AIR 1958 Bom 314 interpreting Article 191 (a) notes that the post cannot be regarded as office for the following reasons:
(a) non- remunerative and without a dedicated salary unlike ministerial posts.
(b) No perks attached to the post / appointment
(c) No dedicated office or office support systems designated
(d) No exclusive responsibilities or functions , with the sole purpose being to assist the Minister-in-charge for any assistance he may need in connection with his work for the govt.
(e) No exclusive prerogative to tender opinion on any subject of governance , or authority to execute ministerial work given.
(f) No access to documents of information meant for the exclusive domain of the Minister
Refers to the case of Rabindra Kumar Nayak Vs Collector Mayurbhanj, Orissa (1999) 2 SCC 627...the critical test ofindependent existence of the position irrespective of the occupant is just not satisfied
Kerala High Court in T Asafali Vs E K Nayanar AIR 1999 Ker 160 has held that Ministerial duties are to be conducted by the minsiter concerned, essential constitutional duties cannot be delegated, a delegation by a constitutional functionary to ensure the carrying out of her functions cannot be liable to be called in question before court.
Refers to case of U C Raman v PTA Rahim , 2014 , 8 SCC 934 - court ruled that post ( Chiarperson of Haj Committee) does not attract disqualification for it includes travelling allowance and daily allowances as opposed to a pay, salary, remuneration, etc. The Apex Court also clarified that 'profit' in office of profit constitutes only pecuniary benefits and does not include other factors such as status, power, influence etc emanating from such post.
For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually received a pecuniary gain other than reimbursement of out of pocket / actual expenses, then the office will be an office of profit for the purposes of Article 101(1)(A). That is compensatory allowance of TA, DA does not constitute office of profit.
Refers to SC case - Jaya Bachchan Vs Union of India 2006 and, Karbhari Bhimaji Rohamare vs Shankar Rap Genuji , 1975 - SC: The Court held DA and honorarium paid to wage board member to attend meetings where he needed to travel for board meetings cannot be construed as office of profit.
Delhi Govt March 13 order states: ' the parliamentary secretaries will not be eligible for any remuneration or any perks of any kind from the govt. However, they may use government transport for official purposes only and office space in the Minister's office would be provided to them to facilitate their work'
Delhi Government be made a party in the present petition.What is the rejoinder of petitioner Prashant Patel?
The 13th March 2015 order of the Delhi Government appointing 21 Parliamentary Secretaries also declared that the Parliamentary Secretaries‘ may use government transport for official purpose and office space in the Minister’s office would be provided to them. Rooms were allotted to Parliamentary Secretaries though not in the minister’s room but in the Assembly.
Patel has said that the Parliamentary Secretary is a wholly unrecognized and non-existent post in Delhi and MLAs who have been appointed as Parliamentary Secretaries have become holders of office of profit as they have been extended the facility of government transport, room, office space etc.
According to the petitioner, their appointment is a violation of Section 15 of the Government of NCT of Delhi Act 1991 which provides for disqualification of a member of he holds any office of profit.
Patel posed the question that if the position of Parliamentary Secretary is ‘not an office of profit’ then why did the Delhi government hurry to introduce a bill in the Assembly aimed at excluding office of parliamentary secretary from the ambit of ‘office of profit’.Did previous governments in Delhi have Parliamentary Secretaries?
Yes. Parliamentary Secretaries were appointed to the Chief Minister. During the time of Lt Sahib Singh Verma, then BJP MLA Nand Kishore Garg was appointed as Parliamentary Secretary.
During the Sheila Dixshit term, the then Congress MLAs M Sharma, PS Sawhney, Ajay Maken were appointed as Parliamentary SecretariesDo other states have Parliamentary Secretaries?
Yes. Currently, 11 other states have Parliamentary Secretaries including Haryana, Punjab, Madhya Pradesh, Rajasthan, Karnataka.
In the states of Himachal, West Bengal and Goa, the appointment of Parliamentary Secretaries has been challenged and, significantly these appointments have been annulled by the High Courts of respective states. The appointment o fParliamentary Secretaries has also been challenged in the High Court of Punjab and Haryana where the High Court is yet to deliver its order.
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