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Office of Profit

Sentinel Digital DeskBy : Sentinel Digital Desk

  |  22 Jan 2018 12:00 AM GMT

Much political hot air is being generated in the tiol capital over the question whether MLAs are holding office of profit as parliamentary secretaries. The Election Commission considers it to be so, and therefore a clear violation of the Constitution. It has recommended that 20 Aam Aadmi Party MLAs in Delhi, earlier appointed as parliamentary secretaries, should be disqualified. With President Ram th Kovind’s approval to the EC’s recommendation, which was anyway a formality, the 20 AAP MLAs now stand disqualified and the Law Ministry has issued a notification to this effect. This means that by-elections will have to be held for the 20 Delhi assembly seats, which gives the BJP as well as the Congress a chance to make their presence felt in the House where AAP will still be comfortably placed with 46 seats. In its anxiety to ensure that Chief Minister Arvind Kejriwal’s authority remains unchallenged, the AAP while going into election mode is also taking legal recourse and sharpening its rhetoric. It has already come out swinging against the President’s order as “unconstitutiol” and “dangerous for democracy”; besides, the party has also professed its readiness to go right up to the Supreme Court, what with Delhi High Court slated to hear its case from Monday. Training guns at the Election Commission, AAP leaders have alleged that the disqualification recommendation was CEC AK Joti’s “gift” to rendra Modi. The reference is to Joti, who will demit office in a couple of days, having once served as principal secretary to Gujarat government when Modi was heading it. Not to be outdone, the Congress has now alleged a “deal” between AAP and BJP, under which EC timed its recommendation to the President after December 22, which ebled the AAP to send three MPs to Rajya Sabha with its full set of Delhi MLAs. The BJP has meanwhile demanded that the disqualified MLAs should return the benefits they enjoyed as parliamentary secretaries. Clearly, the war of words will only get more rancorous in Delhi in the coming days as the three major parties take to campaign trail. This in turn threatens to cloud the office of profit issue, which bears implications for several other States, Assam included.

Only last July, the Supreme Court had struck down as ‘unconstitutiol’ the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004. The apex court’s reasoning was that this Act violated the mandate under Article 164 (1A) which capped the number of ministers at 15 percent of the strength of the Assembly. Basically, the Supreme Court and some High Courts have taken the view that parliamentary secretaries are appointed to get around the upper limit put on the size of ministries. Political observers are agreed that this ploy is used by ruling parties to keep dissidence at bay by spreading the goodies of office. Another argument against such practice is that legislators should not come under the influence of the Executive through posts like parliamentary secretaries, described as offices of profit because of salaries and perks given. The Constitution has not defined what an ‘office of profit’ is, though Articles 102(1) and 191(1) restrict lawmakers from accepting any office of profit under Central or State governments, other than those specifically exempted by laws made by Parliament or State Assemblies. Through several rulings, the most prominent being Jaya Bachchan vs Union of India, the Supreme Court has spelt out what is an office of profit. It is an office which is capable of yielding a profit or pecuniary gain — the issue is not whether the person concerned actually obtained pecuniary gain, but whether such gain is ‘receivable’ in connection with the office. Which is why, the argument by Delhi’s AAP government that the 21 parliamentary secretaries appointed worked on ‘honorary’ basis and did not receive any remuneration or perks — simply does not hold legal water. In Delhi, which is not a full-fledged State, the number of cabinet ministers cannot exceed 10 percent of the total 70 Assembly seats — which means 7. In March 2015, the Kejriwal government attached the 21 AAP MLAs as parliamentary secretaries with its seven cabinet ministers to facilitate “smooth functioning” of various ministries. After a lawyer petitioned the then President Prab Mukherjee against this move, Mukherjee sought the Election Commission’s opinion, which it has now given. In between, the AAP government got a Bill passed in Assembly amending the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, so as to exempt the post of parliamentary secretary from the definition of ‘office of profit’. After president Mukherjee rejected the Bill in June 2016, the Delhi High Court in September that year scrapped the MLAs’ appointment as parliamentary secretaries. In States like West Bengal, Harya, Himachal Pradesh, Telanga and Goa, the respective High Courts have also ruled against appointing parliamentary secretaries. But the practice continues in some other States, including BJP-ruled ones like Gujarat and Rajasthan. While the present Assam government is free of this padding (by compulsion or otherwise), appointing parliamentary secretaries has been an issue in NE States like Aruchal Pradesh and galand. It is high time the office of profit issue is resolved satisfactorily both at the Centre and the States, so that lawmakers are freed of conflicts of interest.

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