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Above: AAP MLAs leave the Election Commission office/Photo: UNI

The disqualification of 20 AAP MLAs on the ground that they functioned as parliamentary secretaries stems from the fact that there is a no comprehensive and uniform definition of “office of profit”

~By Venkatasubramanian

The compulsions of democratic politics often produce strange consequences. A nascent political party which comes to power on the basis of popular support at the hustings finds it a challenge to satisfy the rising aspirations of those who backed it. When it seeks to do so within the limitations of the constitution, it risks compromising propriety and adopting dubious methods to circumvent accountability and rule of law.

The predicament of the ruling Aam Aadmi Party in Delhi, whose 20 MLAs stand disqualified for having accepted the post of parliamentary secretary, an “office of profit” and considered by the constitution as a ground for disqualification, is precisely this. For these MLAs who stood disqualified by President Ram Nath Kovind on January 21 on the recommendation of the Election Com­mission (EC), the term “office of profit” would actually mean “office of loss”.

Appointed parliamentary secretaries and sworn in as such by Delhi Chief Minister Arvind Kejriwal on March 13, 2015, their appointments were set aside by the Delhi High Court on September 8, 2016. The attempt of the Delhi Legislative Assembly to retrospectively exclude through legislation the post of parliamentary secretary from being considered an “office of profit” failed because then president Pranab Mukherjee had refused to give his assent to the bill passed by the assembly to achieve that purpose.

Article 102(1) (a) of the Constitution of India says a person shall be disqualified for being chosen as, and for being, a member of either house of parliament if he holds any office of profit under the Government of India or government of any state other than an office declared by Parliament by law not to disqualify its holder.

Evolving definitionArticle 191 (1) (a) similarly says that a person shall be disqualified for being chosen as, and for being a member of the legislative assembly or legislative council of a state if he holds any office of profit under the Government of India or the government of any state specified in the First Schedule other than an office declared by the legislature of the state by law not to disqualify its holder.

Thus, the constitution, without defining what constitutes “office of profit”, paves the way for parliament or a state legislature to decide which office would disqualify its holder from being a member. In 2008, a Joint Parliamentary Committee (JPC) deplored the propensity of the government as well as states to include an ever-increasing number of offices under the exemption list. The Constitution (91st) Amendment Act, 2003 places a ceiling on the council of ministers in the Union and the states [Articles 75 (1A) and 164 (1A)], and prohibits members who were disqualified on grounds of defection from holding any “remunerative political post” till they get re-elected under Article 361B.

The JPC felt that the very purpose of these amendments would be defeated if one were to liberally interpret the concept of “office of profit” so as to exempt a very large number of offices from disqualification under Articles 102(1)(a) and 191 (1) (a).

The difficulty with these constitutional provisions is that they are silent on the principles to be applied in creating exceptions to the general rule.  The JPC held that such principles can be deduced on the basis of general rules of interpretation, reading the provision as a whole and bearing in mind the avowed object. Any interpretation which renders the provision otiose (serving no purpose), by the second part neutralising the first part, had to be rejected, it said. Therefore, it suggested amendments of these provisions to provide for a comprehensive definition of the “office of profit”, which would be applicable across the country.  The centre is yet to take the initiative to bring the necessary legislation in parliament.

In theory, the legislator seeks to ensure the accountability of the Executive. The restriction on the holder of the “office of profit” continuing as a legislator implies that the Executive could seek to corrupt this role by nominating him to the post. The JPC on Office of Profit, constituted in August 1959, examined the composition and character of all committees of central and state governments and recommended which offices should or should not disqualify a person for being chosen as/from being an MP. But these periodic reviews have been insufficient to address the concerns.

While setting aside the appointment of 20 AAP MLAs as parliamentary secretaries, the Delhi High Court did not hold the office of parliamentary secretaries void ab initio. The High Court order dated September 8, 2016 has only prospective effect from the date of its pronouncement.

In Hoti Lal v Raj Bahadur (1959), the Rajasthan High Court held that even if the appointment was irregular that would not save a person from disqualification under Article 102. The AAP MLAs enjoyed the perks from the date of their appointment, ie, March 13, 2015, till the time the appointment order was set aside by the High Court.

The MLAs were appointed parliamentary secretaries to ministers of Delhi. The High Court did not set aside the creation of the posts of parliamentary secretaries. The EC in its order dated June 23 last year, held that only the appointment of the respondents as parliamentary secretaries was set aside, and not the posts of these secretaries. “In the present case, it is evident that the respondents (MLAs) were de facto holders of the office of parliamentary secretaries, albeit by way of an appointment order, which was found to be suffering from procedural and legal lapses and was hence set aside by the Hon’ble Delhi High Court and therefore, the question of their disqualification is maintainable,” the EC order said.

The MLAs challenged this order in the High Court, which did not pass any stay order. Therefore, the EC proceeded with the conduct of inquiry in the reference case. In their written submissions, the MLAs submitted that since the High Court had already held their appointment as parliamentary secretaries to be illegal and void, and as their petition chal­lenging the EC’s order was pending before the High Court, the stage for filing written arguments along with the en­tire documentary evidence had not yet been reached, and the same might not be req­uired. They also maintained that since the EC’s order dated June 23, 2017 is sub judice, the Commission could not convene any hearing in the matter as it might be rendered futile if the High Court decided the petition in their favor.  The MLAs also said that Election Commissioner OP Rawat had recused himself from hearing this matter, so it was not clear as to how the quorum would be met to hear the matter. As their constitutional rights were at stake, this matter must necessarily be heard by a full quorum, they pointed out. The EC concluded that in the ab­sence of any stay order on the op­eration of its order, there was no legal impediment in passing the present or­der.

The EC refused to allow cross-examination of the petitioner/complainant on the ground that he was not in possession of any information in his personal or official capacity nor was he a witness in these proceedings. The demand for cross-examination would lead to unnecessary delay, the Commission held.

Rawat had recused himself from hearing this matter due to some unsubstantiated allegations of association during earlier postings to some political leader. However, at the instance of the chief election commissioner, he had agreed to examine this matter, and with Sunil Arora joining as Election Commissioner from September 1, 2017, a full quorum became available to render the EC’s opinion.

As the respondents had not made any substantive submissions on the merits of the case, the Commission served them a second notice as a last opportunity on November 2, 2017. It requested the MLAs to submit written submissions with respect to the information supplied by the Government of National Capital Territory of Delhi (GNCTD) with respect to the facts pertaining to the “office of profit” held by them. The MLAs furnished a reply on November 20, 2017, wherein they repeated the submissions made in their reply dated October 16, and the petitioner filed his written submissions on December 15. The EC, therefore, concluded that the MLAs had nothing further to add, and decided to render its opinion in the reference. The grievance of the disqualified MLAs that they were not heard by the EC thus lacks merit.

The term “office of profit” is a technical term which has not been defined in the constitution or in any law. Certain tests and factors have been identified by various court judgments to determine what constitutes an “office of profit”. These can be summarised as under:

In M Ramappa v Sangappa (1958), it was held by the Supreme Court that an “office of profit” is an office which is capable of yielding a profit or pecuniary gain.  On the other hand, if a profit does actually accrue from an office, it is an office of profit, no matter how it accrues.

In MN Kaul and SH Shakdhar’s treatise, “Practice and Procedure of Parliament: With Special Reference to Lok Sabha”, the authors observed: “To examine whether an office is an office of profit or not, it is not the emoluments alone that the MLA receives or is likely to rec­eive if he holds that office that are to be seen to determine this question. Other aspects of the matter such as position, power or patronage enjoyed by the holder of that office are also relevant factors to be taken into account even though there might not be any monetary advantage to the holder. The word ‘profit’ does not necessarily mean any remuneration in cash. But it certainly means some kind of patronage or gain which is tangible or which can be perceived.”

The order of appointment of parliamentary secretaries dated March 13, 2015, entitled the MLAs to government transport (for official work) and office space in the minister’s office, and not to any additional emoluments. The parliamentary secretaries were to perform functions as assigned by the ministers, some of which were review meetings, or meetings of an advisory or consultative nature. In a few meetings, policy framing or executive decisions were taken, and in some cases, the committee headed by parliamentary secretaries “decided” and not recommended on the subject. In a few cases, the minister delineated his constitutional obligation and if a minister was absent, the parliamentary secretary presided over the meeting. Thus in many cases, the parliamentary secretaries performed or were permitted to perform the essential or constitutional functions of a minister, which is a move that attracts disqualification.

In Jaya Bachchan v Union of India (2006), the Supreme Court held that if pecuniary gain is “receivable” in connection with the office, then it becomes an “office of profit”. The Court dismissed her petition challenging her disqualification as Rajya Sabha MP by President APJ Abdul Kalam on the recommendation of the EC. The Court held that material gains like rent-free accommodation and chauffeur-driven car at state expense were clearly in the nature of remuneration and a source of pecuniary gain and hence, constituted “office of profit”. Senior counsel Fali Nariman had appeared for Bachchan. The Election Commission was wielding the stick as it was dealing with disqualification of several MPs and MLAs, and the issue needed examination.

The petitioner in the AAP case alleged that the Delhi government liberally spent on furnishing the office rooms allotted to the parliamentary secretaries. One such secretary was found to have four furnished offices. The MLAs were subsequently given exclusive, designated offices in the Delhi Legislative Assembly for which the Public Works Department spent  Rs 11,75,828 from the coffers of the public exchequer.

The GNCTD in its reply to the EC revealed that the minister of transport had constructed office rooms, installed an intercom, computers, and so on, for his four parliamentary secretaries and had further incurred an expenditure of  Rs 3,73,871 for it. Also, rooms and cabins were constructed for these MLAs. Unlike ministers and other public servants, parliamentary secretaries were provided with facilities and perks without any backing of law. Worse, the MLAs were conferred these perks without even knowing their duties and responsibilities. These entitlements were capable of bringing about a conflict between their duties and interests as MLAs—the precise vice which attracts disqualification under Article 102/191 and Section 15 of the GNCTD Act, 1991.

The idea behind the constitutional provisions is to save the elected representatives from the influence of the Executive as their prime responsibility is to discharge their legislative functions. According to the EC’s opinion rendered in 1953 in a case, if the Executive has untrammelled powers of offering to legislatures any appointments, positions, or offices which carry emoluments, there would be a clear risk that an individual member might feel himself beholden to the Executive. Thus, he would lose his independence of thought and action in his capacity as a member of the legislature and a true representative of his constituents.

The facilities—office, car, telephone, and the like—allowed the respondents to entertain guests at the cost of the public exchequer. The appointments were an indirect device to provide them with facilities akin to those available to a minister, the petitioner claimed.

While determining the nature of profit, what needs to be considered is the matter of substance rather than the form. The GNCTD has also stated that one of the respondents was reimbursed Rs 15,479 on account of transportation expenditure. The EC thus held that office space and chauffeur-driven car/transport were clearly receivable material gains to which the respondent MLAs were entitled after appointment as parliamentary secretaries. “Such baseless provision of the facilities to the parliamentary secretaries, without there being any duties, amounts to ‘profit’ under the doctrine of ‘office of profit’,” the EC concluded.

Documents furnished by the GNCTD showed that the parliamentary secretaries were attending meetings which were not advisory in nature. In fact, they had participated in the decision-making process without the sanction of law. They were in a position to influence and exercise power and patronage, which itself amounts to “office of profit” as envisaged under the law. They were akin to cabinet ministers and were availing of facilities and exercising influence over the administration without the sanction of law.

The appointment of parliamentary secretaries resulted in a four-fold increase in the strength of ministers, from seven to 28, in gross violation of the constitutional embargo that there should not be more than 10 percent of members as ministers.

Ironically, the parliamentary secretaries were also administered oaths of office by the chief minister, to give the aura of office to them. For all practical purposes, they were treated as ministers, the EC concluded. The EC’s recommendation also relies on the Supreme Court’s judgments in Bimolangshu Roy v State of Assam (2017) and Aires Rodrigues v State of Goa (2009), to buttress its conclusion that the MLAs suffered disqualification on the ground of their brief tenure as parliamentary secretaries. The EC pointed out that in Punjab, Assam, Gujarat, Maharashtra, Megha­laya and West Bengal, the office of parliamentary secretary is covered under their respective legislation for removal of disqualification.  Therefore, the president’s refusal to give assent to a similar bill, passed by the Delhi assembly, is inexplicable in the absence of any reasons. It is precisely this discrimination which might weaken the legitimacy of the disqualification decision by the president.

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