AAP May Not Have Violated ‘Office of Profit’ Clause: Legal Expert

In the case of the 21 AAP MLAs, nothing was done that violated the constitutional provision on office of profit.

The fate of 21 AAP MLAs, appointed as parliamentary secretaries last year, hangs in the balance with President Pranab Mukherjee refusing to give assent to a Bill seeking amendments to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, aimed at retrospective exemption from disqualification.

As the political atmosphere gets charged, with Delhi Chief Minister Arvind Kejriwal, declaring that the Union home ministry was behind the latest developments, The Quint spoke to Supreme Court lawyer Gopal Sankaranarayanan on the likely fallout of the presidential decision. Following are excerpts from an email-interview with Sankaranarayanan.

Has the AAP government erred legally by appointing 21 of its MLAs as parliamentary secretaries in March last year? Despite the Delhi government’s claims that none of its legislators have enjoyed any associated perks, do the MLAs face disqualification for flouting provisions under the Parliament (Prevention of Disqualification Act), 1959?

It may not have been illegal when it was done for the following reasons:

(a) There is already a precedent. It has been done in West Bengal, Gujarat, Punjab, Arunachal Pradesh and many other states. In fact, when Narendra Modi was Gujarat chief minister, he had inducted half-a-dozen MLAs as parliamentary secretaries just before the model code of conduct for elections came into effect during the Gujarat elections.

(b) Unlike all these states, the AAP government did not give any remuneration or additional perks which would classically satisfy the requirement of an “office of profit”.

At the least, the issue was debatable, right until they decided to pass a Bill. One specific point on the law is that the disqualification is not under the 1959 Act, but under Section 15(1)(a) of The Government of NCT of Delhi Act, 1991.

What are the options available to the AAP government now that the president has refused to sign the Bill allowing the MLAs to hold a second paid position?

They do not really have an option but to argue it out before the Election Commission, saying that it is not an office of profit. The parliamentary secretary post is customarily seen as a loophole post -- one where you put in those you couldn’t offer a cabinet berth but placate them with a sense of power.

There is the other political option as well: that AAP members file similar petitions before the Election Commission against all the other state governments where such posts exist. You may then suddenly see a change of mind at Rashtrapati Bhavan in this Westminster form of government.

What does the particular provision on office of profit say and does it apply to the 21 AAP MLAs, especially when Kejriwal has assured that the legislators would not draw any salary?

Section of 15 of the 1991 Government of NCT Act states that:
A person shall be disqualified for being chosen as, and for being, a member of the legislative assembly :- (a) if he holds any office of profit under the government of India or the government of any state or Union Territory other than an office declared by law made by Parliament or by the legislature of any state or by the legislative assembly of the capital or of any other UT not to disqualify its holder.

This section would apply because it is for the EC to satisfy itself that this parliamentary secretary post is not in fact an office of profit.

How strictly has the principle been applied in India? In the case of the 21 AAP MLAs, has the BJP-led government at the Centre tried to politicise the matter?

The major problem in India is that unlike in the UK, where along with the creation of a post it is specified that it is one of office of profit or not, here there is no such clarity. As a result, the EC and the courts have grappled with the issue on a case-by-case basis. Obviously, every political party will try to politicise the matter, but in the case of AAP, I find them particularly vulnerable because they repeatedly failed to get proper legal advice.

From the very plank on which they fought the elections claiming Sheila Dikshit’s government had failed in controlling the police to appointing chief secretaries, and now this, it is clear that much constitutional instruction has been lacking in their governance.

What recourse does the Kejriwal government have after the President refused to give assent to the Bill? Is he well within his powers to move the court?

The AAP government has no recourse because the presidential assent is not justiciable. It is still left to them to argue before the EC that this is not an office of profit, notwithstanding the Bill being an implicit acknowledgement that it is. They will have to say that the Bill is a legislative measure and was without prejudice to their original stance that this is not an office of profit.

How is the present constitutional crisis in the Delhi assembly different from that of the political row in 2006 when Jaya Bachchan had to step down as a Rajya Sabha MP for heading the UP Film Development Corporation, not to forget cries for Sonia Gandhi’s resignation for holding an office of profit as chairperson of the National Advisory Council?

This is not particularly different. In Jaya Bachchan’s case, the EC recommended the disqualification after hearing arguments on her behalf. In all these cases, certain basic principles will be applied: is the office in question one where appointment and removal is by the government? If so, are there any salaries and remunerations traceable to the consolidated fund? Are the powers merely advisory?

Essentially, the very basis that is looked at is this: By holding such an office, is the legislator amenable to being influenced by the executive? This is so that the executive can be kept separate from the legislature. However, in the present day, I think it would be best to discourage all such posts whether advisory or remunerative or otherwise for MLAs and MPs. Their claim is ‘public service’. Let them stick to doing that as a legislator. There is no need to be further placated by their political bosses giving them other positions outside the cabinet.

Is there ambiguity in a sense in clause (a) of Article 102 of the Constitution, when the Supreme Court has in Ashok Kumar Bhattacharya vs Ajoy Biswas (AIR 1985 SC 211) said that each case must be analysed based on individual merit?

I don’t think there is an ambiguity really. I just think the tests are not neatly crystallised, which is why even in Jaya Bachchan’s case, where the post was advisory, her disqualification was recommended. It is because of this issue of looking at each individual case that now we have a parliamentary standing committee to consider each of the offices and give its views. I think each case must be treated individually, but it is about time comprehensive new law is legislated.

The rationale behind the president’s decision is not clear. However, does it appear that his decision was grounded on the reasoning that the principle of separation of powers should be maintained? 

Not at all. This is an essential attribute of our federal structure where the president, on the aid and advice of the Union cabinet, will take a decision on whether to give assent to a state Bill, the provisions of which might be at odds with a central law. Whether his decision is right or wrong, whether it was based on politically motivated advice, etc. cannot be gone into by a court of law because of the bar in Article 74(2) of the Constitution.