AAP MLA Row: ‘Office of Profit’ Clause Neither Straight Nor Simple

Image of AAP party symbol and noose used for representational purposes.

(Photo: Saumya Pankaj / The Quint)

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Indians have this litigious mindset of making unnecessarily convoluted and complicated rules, holding people guilty of violating them, and at the same time finding ways of circumventing those very laws.

The merits and demerits of President Ram Nath Kovind’s seal of approval on Sunday, 21 January, to the Election Commission’s recommendation on Friday, 19 January, to disqualify 20 MLAs of the Aam Aadmi Party (AAP) can be argued ad infinitum, and the relevant case law can be cited to argue on either side.

The legality of the issue is filled with ambiguities and lends itself to legitimate arguments on all sides. The politics of the issue is being argued by the AAP on one side, and the Bharatiya Janata Party (BJP) and the Congress on the other.

Flimsy Grounds for Disqualification

Delhi Chief Minister and AAP supremo Arvind Kejriwal and his colleagues in the government (and within the party) are crying foul, while the Congress and the BJP are making the rhetorical demand that Kejriwal step down on moral grounds.

The political ramifications and implications are quite clear. The BJP and the Congress have been looking for ways to dent the AAP’s unassailable majority of 67 in a House of 70. With the disqualification of the 20 MLAs, by-elections would have to be held in those 20 constituencies, and it is quite unlikely that AAP would win back all the 20 seats after three years in office.

Thus, the BJP and the Congress could hope to marginally improve their meagre numbers in the state legislature.

What should be of general concern is whether MPs and MLAs should be disqualified on flimsy legal grounds like that of involvement in the ‘office of profit’ clause, which is not unambiguous by its very nature. It is being used to get at the political opponent by legal subterfuge, and subterfuge is what it is.

The unfortunate thing about the ‘office of profit’ issue is that Parliament as well as many of the state assemblies had passed subsequent legislation to exempt legislators from being disqualified under the clause.

The AAP too tried to pass similar legislation after appointing 21 of its members as parliamentary secretaries, but it was rejected by the then president, Pranab Mukherjee. The president’s decision can be debated but we would be missing the real issue.

A Commonsensical View Needed

If a ruling party assigns the legislator of its own party with ‘an office’ or ‘post’ under the governmental system, should that be treated as an office of profit?

Common sense would say that any additional assignment from the government cannot be deemed an ‘office of profit’ if the legislator is discharging public duties. The splitting of hairs and the legal quibble does not serve public interest.

There is need to go back to the commonsensical view of the matter, and cut out the legal clap-trap that surrounds the issue of the ‘office of profit’ as defined in the Constitution’s Article 102 (1) (a) with regard to Members of Parliament and Article 191 (1) (a) with regard to Members of the Legislative Assembly.

From the commonsensical point of view, the only ‘office of profit’ could be if the elected legislator was holding a position in the private sector and drawing a salary –and it has to be proved that s/he has used his/her position as a legislator to secure the private sector assignment, or that s/he is misusing his/her position as a legislator to benefit his/her private sector employers.

Quibbling Won’t Help

If a legislator, either in Parliament or in the Assembly, has been given a position under the government, and that entails emoluments of some kind, it would be mere casuistry to turn it into an ‘office of profit’ case.

The disqualification of elected representatives has to be on the basis of substantial grounds and it should not be on the basis of specious and piffling technicalities.

The argument that technicalities matter and they cannot be lightly brushed aside is quite valid, and especially so in criminal and civil jurisprudence. The reason behind this is that no one should be guilty on inexact grounds.

The ‘office of profit’ clause as one of causes of disqualification of legislators fails the test because the office of the legislator is to be broadly defined, as it is a ‘public office.’

If a legislator is holding an additional assignment in addition to being a legislator and he is being paid for discharging that duty, then he should not be disqualified. There is already the qualification that a legislator holding an additional office should not draw a salary but he can draw the travel allowance and other “out-of-pocket’ expenses.

The only distinction to be made is whether the legislator holding an additional office is being misused for indulging in corruption. Then, the provisions under Prevention of Corruption Act would suffice.

There are too many litigants in the country who are keen to indulge in futile battles, and political parties are only too ready to use them to get at their opponents. The only way to cut short this subversive activity is to keep the law regarding the disqualification of the legislators simple and straight.

The ‘office of profit’ clause fails the test of being straight and simple.

(The writer is a New Delhi-based political journalist. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same)

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