Disqualifying AAP MLAs Tough as Office of Profit Rule not Violated

Since the 21 AAP MLAs sought no perks or remuneration, they do not face disqualification, writes Mohan Parasaran.

First, two important questions:

A. Whether the appointment of 21 AAP MLAs as parliamentary secretaries attracts the “office of profit” disqualification under Article 191(1)(a) of the Constitution?

B.  Whether the president’s refusal to give assent to the amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, which exempts parliamentary secretaries from “office of profit” disqualification would render the MLAs disqualified?

From a constitutional perspective, the office of profit disqualification is warranted for two specific issues emanating from the doctrine of separation of powers. The principle ensures (i) candidates for election may not have an undue advantage and (ii) legislators should be free to discharge their legislative functions without a conflict of interest between their constitutional functions and any office of profit they may hold under any government.

The raison d’etre behind disqualification of an MP holding an office of profit under Article 102(1)(a) and the analogous provision of Article 191(1)(a) for MLAs is to prevent conflicts of interest, and the executive’s undue influence on the legislature, which has been reaffirmed by a number of Supreme Court judgements on the issue.

Conditions that Fulfill an ‘Office of Profit’

The three elements, which are a sine qua non for attracting disqualification under Article 102(1)(a), are:

a) there must be an office;

b) the office must be one where the holder derives profit; and

c) such an office must be under the government.

Therefore, we need to undertake this enquiry to ascertain whether the above conditions are conjointly fulfilled in order to incur an MLA’s disqualification under the office of profit rule by virtue of holding the office of parliamentary secretary.

In the present facts and circumstances, there is no dispute that the office of parliamentary secretary exists and that such office is under the government.

However, the Delhi government’s statement issued through the Directorate of Information and Publicity on March 14, 2015, states that “These parliamentary secretaries will not get any remuneration or any perks of any kind, from the government – meaning no burden on exchequer.” It is in this context that the legal analysis must be made.

Establishing Pecuniary Benefit

The Supreme Court in Shibu Soren v. Dayanand Sahay upheld the key proposition laid down in Sivamurthy Swami Inamdar v. Agadi Sanganna:

What needs to be found out is whether the amount of money receivable by the person concerned in connection with the office he holds, gives to him some ‘pecuniary gain,’ other than as ‘compensation’ to defray his out-of-pocket expenses, which may have the possibility to bring that person under the influence of the executive, which is conferring that benefit on him.

Supreme Court in Sivamurthy Swami Inamdar v. Agadi Sanganna, 1971

In Shibu Soren, the SC also reasoned that mere use of the word ‘honorarium’ could not take the payment out of the purview of profit, if there is some pecuniary gain for the recipient.

“Profit” connotes an idea of pecuniary gain other than “compensation”. In Shibu Soren, payment of an “honorarium” in addition to daily allowances in the nature of compensatory allowances, rent free accommodation and chauffeur-driven car at state expense, was in the nature of remuneration and a source of pecuniary gain and hence constituted profit.

Therefore, irrespective of the nomenclature of the remuneration, if the office were capable of giving rise to any pecuniary benefit to its holder over and above any out-of-pocket expenses, it would be an office of profit.

AAP On Safe Ground

• The objective behind ‘office of profit’ clause in the Constitution is to ensure that the legislature is not under undue influence of the executive.
  
• An argument in AAP government’s favour is a statement that parliamentary secretaries won’t be entitled to pecuniary benefit of any kind.
  
• Legally speaking, one would have to establish pecuniary (monetary) gain other than compensation for personal expenses incurred.
  
• Supreme Court has granted exemptions in some cases, like the position of chairman of a panchayat samiti.
  
• But SC has also held that whether the holder of a second paying position has withdrawn emoluments, is irrelevant
  
• Since the state legislature is empowered to exempt an ‘office of profit’ from disqualification, president’s refusal to sign the bill may have little impact.
  

Legal Precedents

In Umrao Singh v. Darbara Singh and Others the question that arose for consideration was whether payment of a monthly consolidated allowance for performing all official duties and journeys and daily allowances would convert the office of chairman of a panchayat samiti into an office of profit. The Supreme Court held that these were allowances paid for the purpose of ensuring that the chairman did not have to spend money out of his own pocket for discharging his official duties, and therefore, receipt of such allowances did not make the office one of profit.

Again, in Jaya Bachchan v. Union of India, the only issue for consideration was whether the petitioner had received any pecuniary gain while holding the post of chairperson of the Uttar Pradesh Film Developmental Council. The court held that what was relevant was whether the office carried it with, or entitled the holder, to any pecuniary gain other than the reimbursement for out-of-pocket/actual expenditure. It also held that it did not matter whether the holder of the office chose not to receive/draw such emoluments, but whether such pecuniary gain was ‘receivable’ in regard to the office.

Why No Disqualification

Therefore, if the Delhi government’s March 2015 clarification was factually correct, then, based on the jurisprudence evolved by the Supreme Court, it cannot be said that the MLAs were enjoying office of profit and thus, would not attract disqualification under Article 191(1)(a) since the office under the government must yield profit for the incumbent in order for disqualification to be attracted.

This does not appear to be fulfilled in the present case, so long as no perquisites or remuneration of any kind or by any name whatsoever has been received or is receivable by the incumbent by virtue of holding the office of parliamentary secretary over and above any expenses to defray out-of-pocket expenses.

It may be added that Article 191(1)(a) of the Constitution vests the state legislature to exempt any office from an “office of profit” disqualification. The amendment to the 1997 Act sought to exempt the office of parliamentary secretary from such disqualification to which the president has refused/withheld his assent.

However, if no perquisite or remuneration was available to the MLAs, then disqualification will not be attracted in the first place and the fact that the president has refused to give assent to the law exempting these offices from disqualification will make no difference to their membership as MLAs.

(The writer is a senior Supreme Court advocate and former Solicitor General of India)

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