Syllabus: ‘Governance’ section – GS-II
Background of the issue
In 2015 when AAP came to power it appointed its 21 MLAs as Parliamentary Secretaries. One of them, Jarnail Singh had resigned earlier to contest elections from Punjab. A petition was filed against their candidature in June 2015 for the disqualification of these MLAs on the grounds of holding offices of profit. Their disqualification was sought under section 15 of the National Capital Territory Act, 1991.
To bypass this rule Delhi government passed the Delhi member of Legislative Assembly (Removal of Disqualification) Amendment Bill 2015, to exclude parliamentary secretaries from the office of profit. Former president Pranab Mukherjee had refused to give assent to this bill. Also, Delhi High Court had struck down the posts of Parliament secretaries.
The matter was referred to the Election Commission of India (ECI) by the president Ram Nath Kovind. Election commission of India (ECI) after its hearings about the issue of office of profit gave its recommendations to the President. It recommended for the disqualification of 20 MLAs of Aam Aadmi Party for holding the post of Parliamentary Secretaries on grounds of office of profit. President Ram Nath Kovind has recently accepted the recommendations and has disqualified them.
Election Commission of India argues that the offices fall under the office of profit due to following reasons:
- The Parliamentary secretary post entitles the MLAs to use the office space in the offices of their senior ministers with whom they are attached.
- The parliamentary secretaries were provided with the official cars even without the assignment of any work. This falls under the benefits of office of profit.
- The post entitled them to the access of ministerial files and documents. This enables them to power and patronage.
- The Delhi government had earlier said that parliamentary secretaries would not have any monetary benefits or perks, but later on, they were allowed to use transport and ministerial space for official purposes. This violates the office of profit clause.
Arguments of Delhi government over the controversy of office of profit
The Delhi government argues that the state legislative assembly by enacting a law can exempt certain offices from the preview of office of profit. Further, the parliamentary secretaries are not eligible for any monetary benefit or any other kind of benefits from the government so the post should be exempted from being considered as the office of profit.
A parliamentary secretary is a member of the legislature who assists a more senior minister in performing his or her duties. In many countries, the post of parliamentary secretary has been re-designated as assistant minister. Petitioner Prashant Patel had filed the case against the 21 MLAs of Aam Aadmi Party for holding the office of profit.
Office of profit
An office of profit is any post under Central, state or local government etc. that brings financial gain or any other benefit to the person holding the post. It mainly refers to the executive appointments. According to the constitution of India, any person who holds the office of profit will be declared disqualified from the post of MP, MLA, and MLC, member of Panchayat or municipality. However, the word “office” has not been defined in the constitution of India or in the representation of People Act 1951.
Conditions for the consideration of office of profit
- If a person holds an office under the central or state government.
- The office carries some benefits for the person holding it.
- The office is controlled by the central or that state government.
- The office is not of a Minister or the office which is exempted by an act of Parliament or state legislature.
The Supreme Court in U.C. Raman vs. P.T.A. Rahim and others case had stated that the word “profit” should be treated equivalent to “pecuniary gain”, and the office should have some receivables to qualify as an office of profit.
The government of other states like West Bengal, Punjab, Telangana had also appointed parliamentary secretaries; But their appointment was struck down by the respective high courts. Supreme Court in 2017 struck down the Assam Parliamentary Secretaries (appointment, salary, allowances, and miscellaneous provisions) act 2017.
Purpose behind the Disqualification on the basis of office of profit
- To ensure separation of powers between the legislative and the executive branch of government. This is necessary for the independent functioning of the Legislature and to ensure a system of checks and balances.
- To avoid the conflict of interest between legislative duties and executive power of legislatures.
Criteria for disqualification of legislatures
Article 102 of the constitution has provisions for the disqualification of MPs and article 191 has the provisions for the disqualification of MLAs and MLCs. They can be disqualified on the following grounds:
- If he/she holds any office of profit under Central Government or state government
- If he/she is of unsound Mind declared by a competent Court.
- If he/she is an undischarged insolvent.
- If he/she is not a citizen of India or has lost his Indian citizenship.
- If he/she is disqualified by a parliamentary law.
Earlier cases of disqualification of legislatures
- In 2006, Jaya Bachchan versus Union of India case, Supreme Court had rejected her petition challenging her disqualification by president APJ Abdul Kalam; on the recommendations of Election Commission of India (ECI), for holding the post of UP Film Development Council.
- More recently in 2015, 2 MLAs of Uttar Pradesh, Bajrang Bahadur Singh (BJP) and Umashankar Singh (BSP) were disqualified for their involvement in the construction contracts of government.
Article 164 (1A) limits the maximum no of ministerial posts to 15% of the strength of lower house. The 91st constitutional amendment act had fixed this maximum number of ministerial posts to 15% of the lower house of Legislature. This limit is 10% for Delhi, as per article 239AA of Indian Constitution.
Separation of powers and independence of legislatures are the Bedrock of a democracy. Therefore, their independence must be maintained for their proper functioning, which is necessary for the success of democracy in India. Otherwise, it can lead to a crisis in the democratic culture of the nation.