Let me begin at the very beginning by first and foremost pointing out cogently that in a big blow to Delhi’s ruling Aam Aadmi Party (AAP), President Ram Nath Kovind approved the Election Commission’s recommendation to disqualify 20 party MLAs for violating the law against holding the office of profit as Parliamentary Secretaries. This was disclosed in a government notification. This is certainly by all parameters a very big jolt for the AAP which it has been candid enough to admit also and has revealed that it would take legal recourse.
What the law says
It is imperative to know what the law says in this regard. Article 102(1)(a) of the Constitution says that a person shall be disqualified from being a member of either House of Parliament if he holds any office of profit, among other grounds. Article 103 says if a question arises whether a member has incurred such disqualification, it will be referred to the President’s decision. The President shall obtain the Election Commission’s opinion and act accordingly. Article 191(1) contain a similar provision for MLAs and MLCs in the States. Legislators in Delhi are covered by corresponding provisions in the Government of National Capital Territory Act, 1991.
Office of profit
Simply put, the office of profit rule is meant to insulate the legislative from the executive so that people who make laws are not influenced by their positions. The term has not been defined anywhere but the Constitution bans MPs, MLAs from holding positions in the government they are ministers. An office of profit does not necessarily mean financial benefits. Even an administrative position without any financial entitlements can fall foul of this law. The NCT Act very specifically says that those with office of profit can be disqualified by the President on advice of the Election Commission which is binding. Sonia Gandhi had quit as MP in 2006 and sought re-election since she was NAC chairperson. Also, Samajwadi Party MP Jaya Bachchan lost her seat in 2004 for UP film body position. So what has happened with AAP MLAs is nothing new.
Disqualified MLAs
Before proceeding ahead, it would be instructive to mention here the names of these 20 AAP MLAs who are facing the axe of the Election Commission of India which recommended to the President to disqualify them! Also, the names of their constituencies and their nearest rivals in 2015 State Assembly polls must be also mentioned. They are as follows: -
Constituency AAP Department
Chandni Chowk Alka Lamba Tourism
Dwarka Adarsh Shastri I&T
Burari Sanjeev Jha Transport
Wazirpur Rajesh Gupta Health
Najafgarh Kailash Gehlot Law
Rajinder Nagar Vijender Garg PWD
Jangpura Praveen Kumar Education
Narela Sharad Kumar Revenue
Kasturba Nagar Madan Lal Khufiya Vigilance
Moti Nagar Shiv Charan Goyal Finance
Rohtas Nagar Sarita Singh Employment
Mehrauli Naresh Yadav Labour
Janakpuri Rajesh Rishi Health
Gandhi Nagar Anil Kumar Bajpai Health
Sadar Bazar Som Dutt Industries
Kalkaji Avtar Singh Gurudwara Elections
Mundka Sukhbir Singh Languages & Welfare of SC/ST
Kondli Manoj Kumar Food and Civil Supplies
Laxmi Nagar Nitin Tyagi Women and Child and Social Welfare
Tilak Nagar Jarnail Singh Development
Biggest turning point
Be it noted, the notification also made it clear that, “In the present case, it is not in dispute that the respondents were appointed as Parliamentary Secretaries to the Ministers of Delhi Government by the order of March 13, 2015. Then, the Delhi High Court in Rashtriya Mukti Morcha set aside this order on September 08, 2016. Thus, it is evident that from the date of their appointment on March 13, 2015 till the date of setting aside their appointment order on September 08, 2016, the respondents were de facto holders of the office of Parliamentary Secretaries, albeit, by way of illegal appointment order and, hence, the present proceedings before the Commission on the question of their disqualification is maintainable and shall continue.” It merits no reiteration that the President’s approval of the Election Commission’s recommendation paves the way for the by-elections in the 20 Assembly seats, giving the Opposition BJP and the Congress a golden opportunity to increase their tally. The BJP has four seats in the House and the Congress has none.
Let me hasten to add here that in its opinion to the President, the Election Commission had said that, “Whether or not the individual Parliamentary Secretaries had actually derived the benefits or participated in executive functions of the Government is of no relevance” as the Supreme Court in the Jaya Bachchan case had laid down that if the post falls under office of profit, the disqualification is imminent. The Election Commission had also cited several judgments including the case of Tamil Nadu Chief Minister J Jayalalitha whose appointment as Chief Minister was invalidated by the Apex Court in 2001. The Commission had said that it is basing its opinion on judicial pronouncements of the past, the Government of National Capital Territory of Delhi Act and the Constitution. All the 20 AAP MLAs had approached the High Court on January 19 with the Judge adjourning the matter for hearing.
Relevant case laws
In Pradyut Bordoloi vs Swapan Roy (2001), the Supreme Court outlined the following questions for the test: whether the government makes the appointment; whether the government has the right to remove or dismiss the holder; whether the government pays the remuneration; what are the functions of the holder; does he perform them for the government; and does the government exercise any control over the performance of those functions? Three other rulings were cited to highlight the grounds on which a distinction between the holder of an office of profit and of a post/service under the government could be made.
In Guru Gobinda Basu vs Sankari Prasad Ghosal (1964), the Apex Court said that, “But all these factors need not coexist. Mere absence of one of the factors may not negate the overall test. The decisive test for determining whether a person holds any office of profit under the government, the Constitution Bench holds, is the test of appointment; stress on other tests will depend on the facts of each case.” The court said the final query was, whether, on account of holding of such office, would the government be in a position to influence him so as to interfere with his independence in functioning as an MLA and/or would his holding of the two offices involve a conflict of interest.
It has to be noted that while citing the judgments, the Election Commission said the AAP MLAs were appointed Parliamentary Secretaries by the Delhi government, which exercised control over them. The government had the power to remove them, their work was allocated by Ministers concerned as delegated authority and expenses of their offices were paid from government revenues. The Election Commission then concluded that, “There could be no dispute that the office of Parliamentary Secretary was an office under the government.”
Conclusion
All said and done, now that the President has approved the disqualification of AAP MLAs, the 20 assembly constituencies will automatically fall vacant as soon as the President signs the recommendation letter. The elections will have to be held within six months. It is highly unlikely that the High Court or Supreme Court will now after such a long time step in and stay the disqualification as AAP MLAs want.
It is notable that the Delhi High Court in September 2015 while reacting to another private petition had struck down the posts of parliamentary secretary in September 2015. It will certainly not be an exaggeration from any angle to say most categorically that, “AAP has just no option but to again gear up for fresh elections in these constituencies”!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.