By Yash Mittal
Three days before he retires, outgoing Chief Election Commissioner A.K. Jyoti has thrown a political bombshell by ordering a disqualification of 20 AAP MLAs in Delhi, finding them guilty of holding an office of profit, which Mr. Jyoti said is violative of constitution.
The Election Commission informed that 20 MLAs are guilty of holding “office of profit” by being Parliamentary Secretaries to Ministers in Delhi Government in 2015. In 2016, the Delhi High Court set aside the appointments, and the AAP pleaded before the EC that the matter was now void. On 23rd June, 2017, however, the EC said as the MLAs held the post at the time of appointment, the case will continue. Since June last year, there has been no hearing of the matter.
Disparaging over Election Commission, the AAP also contended that its MLAs were not given opportunity to be heard, and the decision was given ex parte. The Election Commission in its recommendation to the President cited several rulings, that the 20 Legislators be disqualified for holding office of profit.
What’s the matter?
In March 2015, Delhi’s Arvind Kejriwal government made 21 legislators as parliamentary secretaries. On this, a lawyer named Prashant Patel demanded the cancellation of the membership of these MLAs by sending a petition to the President, describing the post of profit. The matter was referred by the President to the Election Commission, where he sent a notice to these MLAs in March 2016 and started hearing the matter.
After this, the Delhi Government tried to amend the Delhi Assembly Removal of Disqualification Act 1997 to remove the post of parliamentary secretary from the post of profit, but it did not get the President’s approval. Since then the question of disqualification of these MLAs has arisen.
Understanding Office of Profit:
In 1954, G.V. Mavalankar, the then Lok Sabha Speaker in consultation with Rajya Sabha Chairman formed a committee chaired by Pt. Thakur Das Bhargava, who was MP from Haryana, recommended to produce a bill in the Parliament for determining offices of profit. In Constitution, the framers cogitatively incorporated Article 102(1) and 191(1), prescribing the restrictions at the Central and State levels, where Article 102 and Article 191 deals with disqualification of members of Parliament and state legislature respectively.
Article 102(1)(a) of the Constitution provides that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament, “if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder”. There are similar provisions for State Legislative Assembly for disqualification of membership i.e., under Article 191(1)(a).
A perusal of the above provision shows that three elements which are sine qua non for attracting the above provision are that the person concerned must hold an office: (1) Under the Government of India or any State; (2) The office should be an “office of profit”; (3) The office should be other than an office declared by Parliament by law not to disqualify its holder.
The term “office of profit” is nowhere defined in the Constitution or Representation of People Act, 1951 and it is left upon judiciary to interpret the term through judicial precedent. In common parlance the term “profit” means some pecuniary gains attached to the office, the post can yield salaries, perquisites and other benefits.
Hon’ble Supreme Court in Jaya Bachchan vs Union of India held that “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 obtained a monetary gain. If the ‘pecuniary gain’ is ‘receivable’ in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not… If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102 (1)(a)”.
In its recommendation to President, the EC submitted that, the Supreme Court in Maulana Abdul Shakur vs Rikhab Chand had defined the concept of office of profit under the Government. The court said the Government’s power to appoint a person to an office, or revoke his appointment at its discretion, and payment from Government revenues were important factors in determining if one held an office of profit.
In Shivamurthy Swami vs. Agadi Sanganna Andanappa, the Supreme Court outlined the test which may be applied to determine whether the office is an “office of profit” under the State Government thus:
1. Whether the Government makes the appointment?
2. Whether the Government has the right to remove or dismiss the holder?
3. Whether the Government pays the remuneration?
4. What are the functions of the holder?
5. Are the functions performed for the Government?
6. Does the Government exercise any control over the performance of those functions?
In Guru Gobinda Basu vs Sankari Prasad Ghosal, the court said: All these factors need not coexist. Mere absence of one of the factors will not invalidate the entire test. The decisive test for determining whether a person holds any office of profit under the Government, the Constitution Bench holds, is the test of appointment; stress on other tests will depend on the facts of each case.
One of the queries rises, whether, on account of holding of such office, would the Government be in a position to influence him so as to interfere with his independence in functioning as an MLA and/or would his holding of the two offices involve a conflict of interest.
The EC said the AAP MLAs were appointed Parliamentary Secretaries by the Delhi Government, which exercised control over them. The Government had the power to remove them, their work was allocated by ministers concerned as delegated authority and expenses of their office were paid from Government revenues. Therefore the Commission concluded that there can be “no dispute that the office of Parliamentary Secretary was an office under the Government”.
The Aam Aadmi Party, in response to the Bill passed amending the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 to exempt the post of parliamentary secretary from the definition of the “office of profit”, maintained that it was not an office of profit since the legislators are not getting any pecuniary benefits i.e., they are working for free. They too demanded disqualification of legislators from other states such as Madhya Pradesh, Rajasthan, Gujarat, Tamil Nadu, Karnataka, etc. where such states have allowed office of profit.
The Election Commission decision is backed by the precedent, where, in Jaya Bachchan’s case, she was disqualified from the Rajya Sabha for her holding the post of the chairman of UP Film Development Council and the disqualification was upheld by the Supreme Court in 2006.
But in the case of Sonia Gandhi, her chairmanship of the National Advisory Council was exempted by an amendment to the Parliament Preventions of Disqualification Act, 1956.
The Delhi Government too tried to amend the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 in 2015 to expand the exemption of Parliamentary Secretaries. However, the bill is not got approved by the President – bills passed by the Delhi Legislative Assembly do not have the force of “Law” unless approved by the Lieutenant Governor and the Centre.
Parliamentary Secretary Post: Constitutional or Unconstitutional?
Apex Court on 26th July, 2017 struck down the post of Parliamentary Secretary declaring it as “Unconstitutional”. The judgment was in response to the writ petition (169 of 2006) filed by Bimalangshu Roy against the passage of Assam Parliamentary Secretaries (Appointments, Salaries, Allowances, Miscellaneous Provisions) Act by the then Congress Government in the state. The Court ruled that Article 194(3) and Entry 39 of List II of the Seventh Schedule of the Constitution “doesn’t expressly authorize State Legislators to create office such as one which is in question”.
Though the order was in reference to Assam, it had an immediate effect on other six north-eastern states of which four are ruled by BJP-led coalition. It is significant to witness that BJP being the biggest complainant against the appointments of Parliamentary secretaries in Delhi, its Governments in states such as Arunachal Pradesh where it holds highest 31 Parliamentary Secretaries, and Manipur where it holds 12 posts is showing double standard face of BJP.
Conclusion
Whether or not the EC’s decision is in accordance with the spirit of the law is matter for the courts to decide. But beyond the immediate debate, there is a larger question at hand over two conflicting constitutional principles that have played out at regular intervals in Delhi’s politics since 2015: Article 239AA, which deals with the distribution of powers between the Centre and Delhi Government, remains contentious, and though the High Court had ruled in the LG’s favour.
The disqualified MLAs were elected to office for a full term and the “office of profit” they held ceased to exist in 2016. In this context, the action of EC, an institution admired for its impartial conduct, appears to be far disproportionate.