On March 13, Arvind Kejriwal-led Aam Aadmi party appointed Parliamentary Secretaries with the condition of no ‘remuneration or perks from the government’. Challenging the appointment that they were done without the permission of the administrative head, Lieutenant Governer, a PIL was filed by an NGO. Several cases and decisions in the courts later, The Delhi High court has declared the appointment illegal, and even the president has also rejected the Bill regarding the criteria of office of profit for the parliamentary secretaries. Here are a few things to know regarding the case:
1. Office of profit
is not a term defined clearly in the Constitution of India, the SC has described the scope of it during the judgements. According to a report in The Indian Express, during a judgment against MP Jaya Bachchan in 2006, SC had said, “An office of profit is an office which is capable of yielding a profit or pecuniary gain… What is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the ‘pecuniary gain’ is ‘receivable’… it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.” Also in the judgement of the Andhra MLA Satrucharla Chandrasekhar Raju case in 1992, the SC had said, “The true test depends on the degree of control the Government has over it, the extent of control exercised by other bodies or committees, and its composition, the degree of its dependence on the Government for its financial needs and the functional aspect, namely, whether the body is discharging any important Governmental function or just some function which is merely optional.”
2. AAP says
that the post of Parliamentary Secretary is ‘not an Office of Profit’ as the MLAs do not receive any pecuniary profit in any case. The Aam Aadmi Party had issued a statement in March 2015 that said that “Parliamentary Secretaries will not get any remuneration or any perks of any kind from the government – meaning no burden on the exchequer.” Even before the Election Commission, the MLAs had filed affidavits which maintained that they have made no profits from the post. After the Delhi HC judgment, the party had now claimed that the MLAs cannot be disqualified now because the position itself has been termed as illegal or ‘void ab initio’. “There are no Parliamentary Secretaries in Delhi,” AAP was quoted as saying.
3. Legal experts say
the Delhi HC judgment may not have an influence on the Election Commission. Constitutional law expert Subhash Kashyap told The Indian Express that the case before the EC was ‘different’. He was quoted as saying, “If the EC finds that the office of Parliamentary Secretary was an Office of Profit, then the MLAs can be disqualified as they have enjoyed the Office of Profit.”
4. In the constitution,
Article 191(1)(a) 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” In the year 1997, Chairman of the Khadi and Village Industries Board and Chairperson of the Delhi Commission for Women were exempted from disqualification under the Office of Profit issue. In 2006, another office of the Parliamentary Secretary to Chief Minister was exempted. The India Express reported. On June 24, last year, the Act was again amended and the words ‘and Minister’ was added after the ‘Chief Minister’ which essentially means that apart from the Parliamentary Secretary to the CM, even all 21 Parliamentary Secretaries were exempted. According to The Indian Express, that Bill was “deemed to have come into force on the 14th day of February 2015”, which was exactly a month before the appointment of the 21 Parliamentary Secretaries by the Aam Aadmi Party.