AAP office of profit row: Contradicting provisions on MLAs holding govt posts warrant fairer laws to avoid disputes

The political saga that has led to the disqualification of 20 Aam Aadmi Party MLAs raises important questions with regard to constitutional and other posts that elected MLAs or MPs are permitted to hold without the threat of disqualification.

Article 102 and Article 191 are the relevant constitutional provisions that deal with ‘disqualification of membership’. They provide, in relevant part, that if an MLA or MP holds an office of profit under the Government of India or government of any state, he/she stands disqualified as a member of the legislature concerned.

However, there is an exception to this general rule that has been carved out, which provides that a legislative assembly or parliament may declare that holding of certain ‘offices of profit’ will not lead to disqualification.

The Supreme Court in Jaya Bachchan vs Union of India has held that an ‘office of profit’ refers to an office which is capable of yielding a profit or pecuniary gain and the test is not whether the person actually obtained a monetary gain. Specifically, the court opines that, "If the 'pecuniary gain' is 'receivable' in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not... If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102 (1)(a)."

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AAP office of profit row: Contradicting provisions on MLAs holding govt posts warrant fairer laws to avoid disputes

Politics Gargi Rohi and Samraat Basu Jan 23, 2018 21:49:21 IST

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The political saga that has led to the disqualification of 20 Aam Aadmi Party MLAs raises important questions with regard to constitutional and other posts that elected MLAs or MPs are permitted to hold without the threat of disqualification.

Article 102 and Article 191 are the relevant constitutional provisions that deal with ‘disqualification of membership’. They provide, in relevant part, that if an MLA or MP holds an office of profit under the Government of India or government of any state, he/she stands disqualified as a member of the legislature concerned.

However, there is an exception to this general rule that has been carved out, which provides that a legislative assembly or parliament may declare that holding of certain ‘offices of profit’ will not lead to disqualification.

The Supreme Court in Jaya Bachchan vs Union of India has held that an ‘office of profit’ refers to an office which is capable of yielding a profit or pecuniary gain and the test is not whether the person actually obtained a monetary gain. Specifically, the court opines that, "If the 'pecuniary gain' is 'receivable' in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not... If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102 (1)(a)."

Furthermore, the Supreme Court in UC Raman vs PTA Rahim also clarified that only when an office entitles the holder to any pecuniary benefit other than out of pocket expenses, will such an office be considered to be an office of profit.

The Joint Committee on Office of Profit has opined that there are three elements that need to be looked at for an office to constitute an ‘Office of Profit’. Firstly, the MLA/MP must hold an office. Secondly, it must be an office under the Government of India (Central or State). Thirdly, profit must be derived or derivable from the office.

Further, it laid down the following grounds for disqualification:

(i) Whether the holder draws any remuneration, like sitting fee, honorarium, salary, etc. i.e. any remuneration other than the ‘compensatory allowance’ as defined in Section 2 (a) of the Parliament (Prevention of Disqualification) Act, 1959; (The principle is similar to the opinion of the Supreme Court in Jaya Bachchan case that if a member receives actual out of pocket expenses, it will not be considered as a pecuniary benefit.)

(ii) Whether the body in which an office is held, exercises executive, legislative or judicial powers or confers powers of disbursement of funds, allotments of lands, issue of licences etc, or gives powers of appointment, grant of scholarship etc, and

(iii) Whether the body in which an office is held wields influence or power by way of patronage.

The Election Commission used the third factor postulated by the Joint Committee to hold that since parliamentary secretaries were in a position to wield power and influence, through participating in and chairing high-level meetings of the government, they were enjoying an office of profit. However, this reasoning conflicts with the 2014 Supreme Court judgment of UC Raman vs PTA Rahim¸which explicitly rejected the argument that office of profit should include status and influence apart from pecuniary profits.

The court held that the term profit is limited to pecuniary gains other than compensatory allowances. The court also went on to hold that if the term ‘office of profit’ were interpreted to include wielding of status and influence, "it would add a great amount of uncertainty in deciding whether an office is an 'office of profit' or not."

Therefore, the decision of the Election Commission seems to be in contravention of the Supreme Court ruling. Further, it could be argued that since at the time of the appointment of the MLAs as parliamentary secretaries, the Chief Minister of Delhi had made it clear that they would not be receiving any remuneration or perks, nor did such MLAs actually get paid any salaries, the profit was neither ‘receivable’ nor ‘received’ as per the Jaya Bachchan case.

However, independent of whether the post of Parliamentary Secretary is considered to be an 'office of profit', the appointment of these 21 MLAs to this post may be declared unconstitutional if it is deemed to be equivalent to that of a Minister of State and the number of such ministers exceeds the constitutional limit. This is in accordance with Article 239AA(4) of the Constitution which states that the number of ministers in Delhi cannot exceed 10 percent of the legislative strength.

Article 164(1A) provides for a 15 percent restriction for other states. Therefore, the appointment of these MLAs as Parliamentary Secretaries in excess of the limit for the number of ministers prescribed by the Constitution may be seen as a colourable exercise of power.

It has been previously held by the Calcutta High Court in Vishak Bhattacharya vs The State of West Bengal and Ors that the powers of a Parliamentary Secretary are comparable to that of a Minister of State, since the "source of appointment, purpose of appointment, duties and functions and the perks and privileges confirmed on such Parliamentary Secretary [were] on par with a Minister of State."

Accordingly, the West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act — 2012 which allowed for the appointment of MLAs as parliamentary secretaries — was held to be unconstitutional. This matter is currently pending before the Supreme Court. A similar stand was taken by the Bombay High Court in Aires Rodriegues vs State of Goa where the court held that the appointment of MLAs as parliamentary secretaries was intended to overreach the constitutional restrictions in Article 164(1A) and therefore these appointments were struck down as unconstitutional.

Therefore, if it is held that the powers conferred on these 21 MLAs as parliamentary secretaries were comparable to those of a minister, the appointments would be unconstitutional.

However, it is interesting to note that while Article 75(2) also provides for a 15 percent limit on council of ministers at the level of the central government, Section 3(b) of the Parliament (Prevention of Disqualification) Act, 1959 has exempted the post of Parliamentary Secretary from being a disqualification.

However, unlike the aforementioned state laws, this provision has not been struck down by any court of law yet. This raises the question whether the appointment of Members of Parliament as parliamentary secretaries when exceeding the 15 percent limit would be unconstitutional. It is also crucial to note that the Supreme Court in its 2017 judgment on Bimolangshu Roy (Dead) through LRs vs State of Assam has held that state legislatures lack the competence to create posts such as those of parliamentary secretaries and struck down the Assam Parliamentary Secretaries Ordinance 2004. The court in para 11 also noted that neither the state legislature nor the Parliament could create an office of the political executive other than one mentioned in the Constitution. This judgment therefore invalidates the very existence of the post of parliamentary secretaries.

However, regardless of the validity of existence of the post of parliamentary secretaries, if such positions are considered to be an 'office of profit' by the Election Commission, there should be parity in how different state governments and the central government are allowed to exempt such posts.

Given the current position, that governments can exempt such posts from disqualification through passing a law, then the refusal of Presidential assent to the Delhi government’s proposal to allow exemption of disqualification for the post of parliamentary secretaries is blatantly unfair. This is especially so given that the Delhi MLA (Removal of Disqualification) Act, 1997 exempting the parliamentary secretary to the Chief Minister already existed. The law needs to be fair in either protecting all MLAs and MPs appointed to governmental posts and not enjoying any monetary benefits from disqualification, or removing all exemptions which protect them from disqualification despite them ostensibly holding an office of profit.