Office of Profit Row: AAP Ignores Due Process, Then Plays Victim

In its hurry to set its House in order, the AAP skipped key steps in the governance process, writes KK Kailash.

Illustration of AAP chief Arvind Kejriwal, for representational purposes.

(Photo: The Quint)

The Aam Admi Party (AAP) has fallen from the moral high horse and can no longer claim ‘outsider status’. Like all parties in power, it will necessarily attract more media scrutiny and is bound to be asked more questions and explanations of its actions and decisions than when it was on the ‘outside’.

The Office of Profit (OoP) conundrum that has put it in the spotlight of late, is just another instance of the organisational challenges faced by parties in government.

The AAP’s decision to appoint parliamentary secretaries was not unlike any other political party in a similar situation, ie, when claimants exceed the number of available offices. The AAP ambled down the same track as its predecessor by following up appointments with legislation when challenged.

However, in its hurry to set its House in order, the AAP skipped key steps in the governance process, including seeking prior permission of the Lieutenant Governor before making such appointments. Subsequently, the President did not give assent to the enabling legislative amendment and the Delhi High Court set aside the appointments on account of procedural lapses.

AAP Plays Victim

Throughout the period of this crisis, the AAP has attempted to both moralise the issue and play victim both. It conveniently assumed no wrongdoing on its part and adduced motives on the Lieutenant Governor, the Union government, and the Election Commission of India (ECI).

The AAP tried every trick in the book to delay the proceedings, including ‘praying’ to the court, ‘boycotting’ ECI hearings, and even alleging that some members of the commission were politically linked. The party succeeded in conjuring up an image of it being singled out while other parties got away.

A quick review of OoP cases reveals that the President, the ECI, and the courts have not had problems with retrospective legislation allowing governments to conveniently legalise acts which were not in order.

However, without the supporting legislation, the AAP was like a deer caught in the headlights. Acting on the petition submitted to the President, the ECI in January 2018 held that the 20 MLAs were liable to be disqualified since they had held the office of parliamentary secretary, which is an OoP under the government, even if it was only for a limited period of time.

OoP Precedents

High Courts in different parts of the country have struck down (here, here, here, here, and here) the appointment of parliamentary secretaries primarily on the grounds that it was contrary to the spirit of the Constitution (Ninety-First Amendment) Act, 2003, which limits the size of the council of ministers at the Centre and the states to no more than 15 percent of the numbers in the Lok Sabha or the state legislature.

To get around the 91st Amendment Act, while some states merely added parliamentary secretaries to the list of exempted offices, others like Assam, Meghalaya, Mizoram, Arunachal Pradesh, Nagaland and Telangana went further and enacted legislation to create the post of parliamentary secretaries.

In July 2017, the Supreme Court struck down one such legislation passed by Assam on the grounds that the state legislature was not competent enough to create such offices under the Seventh Schedule of the Constitution. Judicial intervention has, therefore, drastically reduced governments’ space to manoeuvre.

In the other states mentioned above, the issue of disqualification was not the main problem, as the focus was either on what constitutes an OoP or the constitutional validity of the enabling legislation. Most importantly, the ECI was not involved. Delhi and Chhattisgarh, it appears, are the only two states where disqualification has been an issue.

The only difference between them is that in Chhattisgarh, the Governor refused to act on the challenge petition of the Congress, forcing the latter to move court, where as in Delhi, the President acted on the petition leading to the current situation.

How Is AAP’s Office of Profit Case Different?

The courts have held that a question of disqualification arises only when there is a challenge and underlined that the law distinguishes between pre-election and post-election disqualifications. Furthermore, the courts have consistently held that all cases of post-election disqualification are to be addressed through a petition before the Governor or the President as the case may be, and their decision, acting on the advice of the Election Commission, is final.

The AAP case stands out because the due process for questions of post-election disqualification has been completed. The appointment of parliamentary secretaries in Delhi was a post-election arrangement. The President forwarded the petition challenging the appointment to the ECI for its opinion, the commission heard the parties, weighed the evidence and then advised disqualification.

All eyes are on the proceedings in the Delhi High Court. If the logic behind the Election Commission’s advice to the President is upheld, it will underscore the spirit of the 91st Constitutional Amendment Act. At the same time, it will also open space for fresh “challenges” in the states where such offices continue to exist. If the commission is faulted, it will bring back old questions about the functioning of independent regulatory institutions in the new hegemonic party system.

Opposition’s Rare Opportunity to Sully AAP’s Image in Delhi

Like raising a point of order about quorum, a petition to ‘challenge’ is ultimately a political decision and is used only if it brings political dividends. In parliamentary systems, the government survives as long as it has a parliamentary majority.

When the odds are stacked in favour of the executive, there is very little that the Opposition can do except make noise and threaten sanctions. In Delhi, the OoP issue gave the Opposition a rare moment to ‘embarrass’ the government and trip the AAP on a ‘moral’ question.

To conclude, an analogy from the beautiful game, football, may not be out of place. During a match there are players who feign a fall at the slightest hint of an opponent’s challenge. While some of these divers are penalised by the referee for their deceit, many others escape punishment.

The AAP has just been pulled up.

(KK Kailash is with the Department of Political Science, University of Hyderabad. He can be reached at @kailashkk. This is an opinion piece and the views expressed here are the author’s own. The Quint neither endorses nor is responsible for them)