Issue:
- AAP government had appointed 21 MLAs as Parliamentary Secretaries, a post with benefits, thus breaching “Office of Profit” rule.
- A Bill passed by Delhi Government to bypass this rule is rejected by President and thus 21 AAP MLAs face disqualification.
- The Election Commission has recommended to the president the disqualification of 20 AAP MLAs for allegedly holding an office of profit.
- Election Commissions opinion: being parliamentary secretaries, they held an office of profit and were liable to be disqualified as MLAs of the Delhi Assembly.
- The president is bound to go by the recommendation of the Commission.
- In cases where petitions are made seeking disqualification of lawmakers, the president sends a reference to the EC which decides on the case by sending back its opinion.
What Constitution says?
There are two issues related to this:
- Office of Profit angle : The constitution specifies that any person holding an office of profit under state or central government, will be disqualified from the post of MP, MLA, member of Panchayats or Municipality. This is done so that their in no conflict between the duties and interests of an elected member.
- Limitation on number of ministers: Under Article 164(1A) the constitution puts a limit that the number of ministers including the chief minister cannot exceed 15% of the total strength of the assembly (It is 10% in case of Delhi). Now, since the parliamentary secretary hold the rank of minister of state, they also fall under the limit of 10% for Delhi govt. Hence, appointing 21 MLAs as parliamentary secretary is unconstitutional.
What was the Bill about?
- Through the bill, the Delhi government had sought an amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997.
- The bill aims to exclude the post of parliamentary secretary from the office of profit and exempt the post from disqualification provisions.
- The bill was forwarded by lieutenant governor Najeeb Jung to the centre, which in turn was sent to the President with its comments.
Why was the Bill passed?
- The government had in March last year appointed 21 of its MLAs as parliamentary secretaries in various ministries to speed up public work. The move was criticized by members of the opposition, who called it unconstitutional.
- The bill was passed by the Delhi assembly after questions were raised over the legality of the appointment. The bill was also intended to provide security cover for those legislators appointed as parliamentary secretaries.
- At the time of their appointment, the government had said that parliamentary secretaries will not receive any remuneration or perks from the government. But later on, they were allowed use of government transport for official purposes and space in minister’s office.
What can be the implications of this decision?
- Section 15 of the government of NCT of Delhi Act, 1991 says a person shall not remain an MLA if he or she holds any office of profit under the Centre or government of a state or UT.
- In the event of disqualification of the AAP MLAs, by-election to nearly one–third of the seats currently held by the ruling party will be necessitated.
- Such a development will follow only after the EC completes its proceedings on a petition seeking the disqualification of the MLAs.
Are there any precedents?
Yes :
- A Telangana government order appointing Parliamentary Secretaries was stuck down in 2015 by the High Court in Hyderabad.
- In 2009, such appointments were held unconstitutional in Goa, and in 2005 in Himachal Pradesh.
What is the verdict of Delhi HC?
- The Delhi High Court has set aside the AAP government’s order appointing 21 MLAs as Parliamentary Secretaries since it lacked the approval of the Lieutenant Governor (LG), the administrative head of Delhi
Principles of declaring Office of Profit: Four broad principles have evolved for determining whether an office attracts the constitutional disqualification.
- First, whether the government exercises control over appointment, removal and performance of the functions of the office.
- Second, whether the office has any remuneration attached to it.
- Third, whether the body in which the office is held has government powers (releasing money, allotment of land, granting licences etc.).
- Fourth, whether the office enables the holder to influence by way of patronage.
On what basis did the Election Commission give the recommendation?
- Pradyut Bordoloi vs Swapan Roy (2001) : SC defined parameters of Office of Profit which were used by EC to finalise that Delhi PS is a office of profit.