Office of profit conundrum

A law various parties and governments have been bending willfully is now shaking up politics in Delhi. The issue in question is whether it is at all ethical for the Arvind Kejriwal government to have as many as 21 AAP legislators as parliamentary secretaries to rule a small quasi-state. It is a cynical practice seen in Assam too as late as in September last year when Tarun Gogoi appointed 13 parliamentary secretaries in a desperate bid to quell dissidence rocking his beleaguered government. The law being made such a mockery of is Article 164 (A), introduced in 2003 by amending the Constitution to make jumbo ministries a thing of the past. It limits the size of a ministry to not more than 15 percent of the total strength of a legislature’s lower house. The idea is to end the ‘politics of patroge’ with unlimited ministerial berths, prevent conflict of interest situations, stop misuse of public money and improve governce. For smaller states, the minimum strength of the council of ministers was capped at 12. However, in state after state, ruling parties circumvented this law by accommodating legislators as parliamentary secretaries or as chairpersons of various government bodies. In this way, chief ministers kept their flocks happy even as the practice was challenged in court on several occasions.

The latest instance was the challenge to Delhi CM Arvind Kejriwal’s order on March 13 last year appointing 21 party MLAs as parliamentary secretaries. A PIL was filed at the Delhi High Court against this order in May 2015 but remains pending. Meanwhile, a Delhi-based lawyer filed a petition with the President in June 2015, seeking disqualification of these MLAs on the ground that they were enjoying an ‘office of profit’ violating constitutiol provisions. The argument was that an MLA already enjoys a remuneration, so if the same MLA is appointed parliament secretary, he or she is entitled to office rooms, vehicles and other perks. This amounts to holding two offices of profit, so the appointment is illegal unless it has prior legal sanction. The law is clear on this point — that a person shall not remain an MP or MLA if he/she holds any office of profit under the Centre or government of a State or Union Territory. The President’s office referred the matter to the Election Commission for recommendations; the EC as a quasi-judicial body issued notices to the 21 AAP MLAs only in March this year, and is presently considering their replies. The Kejriwal government meanwhile got the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 amended, thereby exempting parliamentary secretaries from disqualification provisions. Since Delhi is not yet a full-fledged state, this bill passed by the Delhi assembly had to be forwarded to Lt Governor jeeb Jung, who in turn forwarded it to the President with comments.

When President Prab Mukherjee refused to give his assent to the bill, Kejriwal went on another offensive against Prime Minister rendra Modi. But by alleging that it was the Union Home ministry that decided for the President under the dictates of Modi, Kejriwal has denigrated the office of the President. This may yet be a ploy to browbeat the Election Commission, which will now take the call on whether to disqualify the 21 AAP MLAs, and send its recommendations to the President accordingly. Unless Chief Minister Kejriwal quashes beforehand the appointment of parliamentary secretaries, any adverse decision by the EC will have to be challenged before the Delhi High Court. If the disqualifications are upheld in court, bye-polls will become inevitable. It will be a messy state of affairs for Kejriwal to take upon, so it all depends on how he reads the writing on the wall. It has to be remembered that the AAP government in Delhi hiked MLA salaries fourfold last December, granting them several other allowances besides. With monthly salary of Rs 2.10 lakh and annual travelling allowance of Rs 3 lakh, Delhi MLAs are quite well provided for presently. Kejriwal has argued that his parliamentary secretaries are not entitled to any remuneration or perks, that they are ‘working for free’. Pointing to several states, he has specifically mentioned Punjab ‘where parliamentary secretaries get Rs 1 lakh per month, car and bungalow, but have not been disqualified’. But two (or more) wrongs should not make a right, least of all for Arvind Kejriwal who has built himself up as an activist politician determined to sweep the dirt away from the system. While monetary benefit remains the acid test to determine whether an office is an ‘office of profit’, gratification in kind through titles and perks to keep party legislators loyal is a violation of the spirit of the law. This is the larger question that the higher courts may have to take up for other states as well.