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After Delhi HC order, ball in Election Commission’s court: Why 21 AAP MLAs may go — or stay

The Indian Express explains the issues in the case, and what happens now.

Written by Aneesha Mathur |
September 13, 2016 12:12:02 am
aap, aam aadmi party, delhi parliamentary secretaries protection, aap protection, office of profit, delhi high court, AAP Parliamentary Secretaries controversy, aap controversy, aap government, delhi government, eelction commission, prashant patel, sandeep kumar, aap mla, aap mla protection, aap mla security, arvind kejriwal, indian express explained, explained Delhi Chief Minister Arvind Kejriwal.

The President has rejected a Bill to protect Delhi’s Parliamentary Secretaries from the Office of Profit criterion laid down in the Constitution, and the Delhi High Court last week declared their appointment illegal.

What is the latest turn in the AAP Parliamentary Secretaries controversy?

On September 8, the Delhi High court quashed the notification issued by the AAP government in March 2015, by which it appointed 21 of its MLAs as Parliamentary Secretaries. The HC observed that the order had been passed “without concurrence/approval of the L-G” — just over a month earlier, in August, it had ruled that it was “mandatory” under Article 239AA of the Constitution for the Delhi government to pass its decisions by the Lieutenant-Governor. The related question on whether the Parliamentary Secretaries should also be disqualified as MLAs for holding an ‘Office of Profit’ is currently pending before the Election Commission of India. In June 2016, the President of India had rejected an amendment proposed by the AAP government to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, which would have made the position of the Parliamentary Secretary in the Delhi Legislative Assembly exempt from the definition of ‘Office of Profit’.

And what is happening in the Election Commission?

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With a public interest lawsuit against the creation of the 21 posts of Parliamentary Secretaries already pending before the Delhi High Court, Delhi-based lawyer Prashant Patel had, on June 19, 2015, complained to the President of India, asking that the MLAs be disqualified. Rashtrapati Bhavan sought the views of the EC and, the latter, after receiving documents from Patel in December, issued notices to the 21 MLAs in March 2016. The MLAs have objected to the filing of the complaint by Patel, and the EC has for now reserved its order on the question of maintainability. If the EC decides that the complaint is indeed maintainable, it will take up the question of whether the MLAs should be disqualified.

Okay, and exactly what have the MLAs done to run this risk?

It is the issue of ‘Office of Profit’. Article 191(1)(a) says that “a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State… if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder”. Back in 1997, when the BJP’s Sahib Singh Verma was Chief Minister, the Delhi Assembly passed the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, exempting two offices — Chairman of the Khadi and Village Industries Board and Chairperson of the Delhi Commission for Women — from disqualification under the Office of Profit criterion. In 2006, when Sheila Dikshit was in power, the Act was amended to exempt a third office: “Office of the Parliamentary Secretary to Chief Minister”.


On June 24, 2015, the Delhi Assembly amended the Act for the second time, inserting, “after the words ‘Chief Minister’, the words ‘and Minister’,” which, in effect, exempted not just the Parliamentary Secretary to the CM, but all 21 Parliamentary Secretaries. The Bill was “deemed to have come into force on the 14th day of February, 2015”, a month before the notification on the appointment of the 21 Parliamentary Secretaries was issued. However, a year later, in June 2016, the President refused approval to the amendment, removing the protection it had sought to give the 21 MLAs.

Also, under Article 239AA, the size of the Council of the Ministers in Delhi is limited to 10% of the total number of members in the Legislative Assembly. This means that the Kejriwal Ministry cannot have more than 7 members. The Bombay High Court in 2009 and Calcutta HC in 2015 held that “State has no authority to frustrate the Constitutional mandate and over-reach the constitutional restriction” by creating additional posts.

But what exactly is an ‘Office of Profit’?

The Constitution does not define the term clearly, but the Supreme Court has explained its scope in its judgments. In 2006, in a judgment against MP Jaya Bachchan, the court said, “An office of profit is an office which is capable of yielding a profit or pecuniary gain… 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’… it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.”

The “tests” for an Office of Profit were laid down in a 1992 judgment in the case of the Andhra MLA Satrucharla Chandrasekhar Raju. “The true test,” the SC said, “depends upon the degree of control the Government has over it, the extent of control exercised by other bodies or committees, and its composition, the degree of its dependence on the Government for its financial needs and the functional aspect, namely, whether the body is discharging any important Governmental function or just some function which is merely optional…”

The definition laid down by the SC had prompted the resignation of Congress president Sonia Gandhi from Parliament in 2006 after a controversy over her leadership of the National Advisory Council.

What is the stand taken by the AAP?

It has maintained that the post of Parliamentary Secretary is “not an Office of Profit” as the MLAs do not receive any pecuniary benefit whatsoever. The party had issued a statement in March last year, saying “these Parliamentary Secretaries will not get any remuneration or any perks of any kind from the government — meaning no burden on exchequer.” In affidavits filed before the EC, the MLAs have reiterated that they have received no benefits.

Following last week’s HC judgment, the AAP also claimed that the MLAs cannot now be disqualified — since the position itself has been held “void ab initio”, because the decision by which the posts of Parliamentary Secretaries was created, has been held to be illegal. “There are no Parliamentary Secretaries in Delhi,” the AAP said.

And what do legal experts say?

There is a view that the HC’s judgment is unlikely to influence the EC’s decision. As the President has already rejected the Bill to exempt the posts from Office of Profit, the issue of their quashing would not affect the Office of Profit debate before the EC.

Constitutional law expert Subhash Kashyap said the case before the EC was “different”. “If the EC finds that the office of Parliamentary Secretary was an Office of Profit, then the MLAs can be disqualified as they have enjoyed the Office of Profit,” he said.

However, former Solicitor General Mohan Parasaran has written that “if the Delhi government’s March 2015 clarification” was factually correct, then “it cannot be said that the MLAs were enjoying Office of Profit and thus, would not attract disqualification…”.

Do other states have Parliamentary Secretaries? What is the situation there?

Yes, they do. On August 12 this year, the Punjab and Haryana High Court quashed the appointment of 18 Chief Parliamentary Secretaries appointed by the Punjab government in April 2012. A petition against the appointment of Parliamentary Secretaries by Haryana’s M L Khattar government is pending before the court.

In June 2015, Calcutta HC struck down the West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2012, which gave Parliamentary Secretaries powers and benefits on a par with Ministers of State.

In May 2015, the Andhra Pradesh High Court described as “patently illegal” a Telangana government order appointing 6 TRS MLAs as Parliamentary Secretaries.

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