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  1. Explained: What is ‘Office of Profit’ law and case against Arvind Kejriwal’s 20 AAP MLAs?

Explained: What is ‘Office of Profit’ law and case against Arvind Kejriwal’s 20 AAP MLAs?

What is Office of Profit case: Election Commission of India has recommended the disqualification of 20 Aam Admi Party (AAP) MLAs. Here is a simple explainer on the nitty-gritty of the case which has created a storm in the national politics.

By: | Updated: January 19, 2018 4:15 PM
Article 102 of Indian constitution lays down the provisions of disqualification of an elected lawmaker to Parliament or of a Legislative Assembly/Council.

In what may be a nightmare to Delhi Chief Minister Arvind Kejriwal, Election Commission of India on Friday recommended the disqualification of 20 Aam Admi Party (AAP) MLAs who were charged with holding an ‘Office of Profit’ after getting elected to the Delhi Assembly. The EC has sent its recommendation to disqualify the 20 MLAs to President Ram Nath Kovind, and it may be a matter of hours, that the same be approved. The disqualification would mean AAP’s brute majority of 65 MLAs in 70 member assembly would be reduced to 45. Also, the state will be pushed to a mini-election. Here is a simple explainer on the case which has created a storm in the Delhi politics:

First, what is the law and charges against MLAs

Kejriwal government had appointed the MLAs as Parliamentary Secretary. This was challenged on the ground that post of Parliamentary Secretary was an office of profit.

Article 102 of Indian constitution lays down provisions of disqualification of an elected lawmaker to Parliament or of a Legislative Assembly/Council. Under Article 102 (1)(a) and Article 191(1)(a), a person shall be disqualified if he holds an “Office of Profit” under the central or any state government, other than an office declared not to disqualify its holder by a law passed by the Parliament or state legislature. For the same, the state Assemblies have laws which mention the exempted posts. “Delhi MLA (Removal of Disqualification) Act, 1997” have no mention of “Parliamentary Secretary” as an “exempted post” for the same.

What is Office of Profit?

Office of profit meaning: There is the definition of the term “Office of profit” as described in the Constitution. In general, it is understood that if a lawmaker holds a government office and receives benefits for it – the same will be considered as an Office of Profit.

What was AAP’s and petitioner’s argument?

Kejriwal government had claimed that the 21 Parliamentary Secretaries were not getting any salary or perks for their work, and were “working for free”. However, the petitioner, Prashant Patel had claimed that they had been allotted rooms and office staff, and were receiving monetary compensation. Many experts claim a post would not be an “Office of Profit” if there is no monetary benefit attached to the appointment. However, the final decision depended upon the Election Commission or any other judicial body.

Why AAP MLAs’ fate looks certain

The AAP had made the appointments on March 13, 2015. Later, in a bid to defend its MLAs, the government passed the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, on June 23 — days after a complaint was filed to the President seeking their disqualification. However, the bill was rejected by the President next year, therefore, failing to become a law.

In September 2016, Delhi High Court quashed the appointments since it lacked the approval of the Lieutenant Governor (LG), the administrative head of Delhi. The court, however, didn’t make a comment on the Office of Profit issue. Later, the EC made it clear that the Delhi High Court order to set aside their appointments would not come in the way of the poll panel while deciding their disqualification as “the MLAs held the posts de facto”.

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