Let me begin at the very beginning by first and foremost pointing out cogently that in a big blow to Delhi's ruling Aam Aadmi Party (AAP), President Ram Nath Kovind approved the Election Commission's recommendation to disqualify 20 party MLAs for violating the law against holding the office of profit as Parliamentary Secretaries. This was disclosed in a government notification. This is certainly by all parameters a very big jolt for the AAP which it has been candid enough to admit also and has revealed that it would take legal recourse.
While craving for the exclusive indulgence of my esteemed readers, let me inform them that this landmark step by the President comes two days after the Election Commission submitted its report deeming the AAP lawmakers as 'unfit' to continue as MLAs. So the President was left with no option but to disqualify these 20 AAP lawmakers. There can be no denying or disputing this!
For my esteemed readers exclusive indulgence, let me also inform them that under the Government of National Capital Territory of Delhi Act 1991, an MLA cannot hold any post in the Government that entitles them to perks or powers unless a law has been passed to exempt the posts. The disqualification of the 20 lawmakers shall not dent in anyway the Kejriwal's Government's majority in the Delhi Assembly. But still it is a big setback for the AAP which cannot be denied!
What the law says
It is imperative to know what the law says in this regard. Article 102(1)(a) of the Constitution says that a person shall be disqualified from being a member of either House of Parliament if he holds any office of profit, among other grounds. Article 103 says if a question arises whether a member has incurred such disqualification, it will be referred to the President's decision. The President shall obtain the Election Commission's opinion and act accordingly. Article 191(1) contain a similar provision for MLAs and MLCs in the States. Legislators in Delhi are covered by corresponding provisions in the Government of National Capital Territory Act, 1991.
Office of profit
Simply put, the office of profit rule is meant to insulate the legislative from the executive so that people who make laws are not influenced by their positions. The term has not been defined anywhere but the Constitution bans MPs, MLAs from holding positions in the government they are ministers. An office of profit does not necessarily mean financial benefits. Even an administrative position without any financial entitlements can fall foul of this law. The NCT Act very specifically says that those with office of profit can be disqualified by the President on advice of the Election Commission which is binding. Sonia Gandhi had quit as MP in 2006 and sought re-election since she was NAC chairperson. Also, Samajwadi Party MP Jaya Bachchan lost her seat in 2004 for UP film body position. So what has happened with AAP MLAs is nothing new.
Before proceeding ahead, it would be instructive to mention here the names of these 20 AAP MLAs who are facing the axe of the Election Commission of India which recommended to the President to disqualify them! Also, the names of their constituencies and their nearest rivals in 2015 State Assembly polls must be also mentioned. They are as follows: -
Constituency AAP Department
Chandni Chowk Alka Lamba Tourism
Dwarka Adarsh Shastri I&T
Burari Sanjeev Jha Transport
Wazirpur Rajesh Gupta Health
Najafgarh Kailash Gehlot Law
Rajinder Nagar Vijender Garg PWD
Jangpura Praveen Kumar Education
Narela Sharad Kumar Revenue
Kasturba Nagar Madan Lal Khufiya Vigilance
Moti Nagar Shiv Charan Goyal Finance
Rohtas Nagar Sarita Singh Employment
Mehrauli Naresh Yadav Labour
Janakpuri Rajesh Rishi Health
Gandhi Nagar Anil Kumar Bajpai Health
Sadar Bazar Som Dutt Industries
Kalkaji Avtar Singh Gurudwara Elections
Mundka Sukhbir Singh Languages & Welfare of SC/ST
Kondli Manoj Kumar Food and Civil Supplies
Laxmi Nagar Nitin Tyagi Women and Child and Social Welfare
Tilak Nagar Jarnail Singh Development
To recapitulate, the controversy over the 'office of profit' started soon after the AAP's victory in the 2015 Assembly elections in Delhi. On March 13, 2015, the Kejriwal Government passed an order appointing 21 MLAs as Parliamentary Secretaries to make them happy. These were those 21 MLAs who could not be appointed as Ministers. So they had to be accommodated somewhere and so they were chipped in as Parliamentary Secretaries!
Biggest turning point
Truth be told, this was challenged by a lawyer Prashant Patel who petitioned President Pranab Mukherjee on June 19, 2015, that these MLAs were holding ‘office of profit' and should be disqualified. This was the biggest turning point! It is solely and solely because of this young and dynamic lawyer Prashant Patel Umrao just 31 years old that these 20 MLAs have had to leave their seats! Prashant who practices in Delhi High Court and Supreme Court said that, 'Today, my hard work of three years has paid off. I believe that the law will finally catch up with the offending MLAs. I am least bothered about whether the AAP government is derailed or not. All I know is law should not be bent.' The petition was forwarded to the Election Commission for its recommendations. Initially, the petition was directed against 21 MLAs but one of the MLAs – Jarnail Singh of Rajouri Garden had resigned last year to contest against Parkash Singh Badal in the Punjab Assembly elections. So there were then 20 MLAs left.
Needless to say, the notification issued by Law Ministry on January 20 quoted the President stating that the office of Parliamentary Secretaries was not exempted from the ‘office of profit' rule. The President is bound by the recommendation of the Election Commission. Under the rules, petitions to the President seeking disqualification of MLAs are referred to the Election Commission.
To say the least, the notification issued by Law Ministry quoting the President stated explicitly that, '…Having considered the matter in the light of the opinion expressed by the Election Commission, I, Ram Nath Kovind, President of India, in exercise of the powers…do here hold that the aforesaid 20 members of the Delhi Legislative Assembly stand disqualified from being members of the said Assembly'. It is most hurting to see that AAP has termed President Ram Nath Kovind's order disqualifying 20 of its MLAs for holding offices of profit 'unconstitutional' and 'dangerous for democracy'. What President does must be always respected and it cannot be overlooked that the present President Ram Nath Kovind is himself a lawyer who has practiced not just in Delhi High Court but also in the top court that is Supreme Court and so whatever he does it will be only after taking into consideration all the factors and his long experience as a senior lawyer will help him immensely always in coming to the right conclusion!
Be it noted, the notification also made it clear that, 'In the present case, it is not in dispute that the respondents were appointed as Parliamentary Secretaries to the Ministers of Delhi Government by the order of March 13, 2015. Then, the Delhi High Court in Rashtriya Mukti Morcha set aside this order on September 08, 2016. Thus, it is evident that from the date of their appointment on March 13, 2015 till the date of setting aside their appointment order on September 08, 2016, the respondents were de facto holders of the office of Parliamentary Secretaries, albeit, by way of illegal appointment order and, hence, the present proceedings before the Commission on the question of their disqualification is maintainable and shall continue.' It merits no reiteration that the President's approval of the Election Commission's recommendation paves the way for the by-elections in the 20 Assembly seats, giving the Opposition BJP and the Congress a golden opportunity to increase their tally. The BJP has four seats in the House and the Congress has none.
To put things in perspective, in its recommendations, the Election Commission said that, '…the respondents did hold de facto the office of Parliamentary Secretaries from March 13, 2015 to September 8, 2016 and the interpretation as sought to be put by them on the order dated September 8, 2016 of the Delhi High Court that they did not hold any office is not legally tenable. Hence, without prejudice to the merits of the case, the reference relating to the question of alleged disqualification of the respondents under Section 15(4) of the GNCT of Delhi Act, 1991 for holding the said office survives and is maintainable in respect of all the said respondents, except respondent no. 16 (Jarnail Singh, MLA of Rajouri Garden) who has resigned his office as MLA on January 17, 2017 and even a by-election has been held in April to fill that vacancy in the Delhi Legislative Assembly'.
It cannot be lost on us that in December 2015, the Election Commission issued notice to the petitioner to furnish relevant documents and subsequently, the hearing on the issue started after the MLAs were also served notices asking for their response. The legislators submitted that they had not drawn any pecuniary benefit from the post and therefore, they were not liable to be disqualified. It would be pertinent to note that the issue also came up before the Delhi High Court which on September 8, 2016 had set aside the appointment of MLAs as Parliamentary Secretaries ab initio as the State government had not taken the concurrence of the Delhi Lieutenant-Governor. The affected MLAs then argued before the Election Commission that Prashant Patel's petition was rendered infructuous owing to the High Court decision. But in June 2017, the Election Commission held that the legislators did hold de facto the office of Parliamentary Secretaries.
Let me hasten to add here that in its opinion to the President, the Election Commission had said that, 'Whether or not the individual Parliamentary Secretaries had actually derived the benefits or participated in executive functions of the Government is of no relevance' as the Supreme Court in the Jaya Bachchan case had laid down that if the post falls under office of profit, the disqualification is imminent. The Election Commission had also cited several judgments including the case of Tamil Nadu Chief Minister J Jayalalitha whose appointment as Chief Minister was invalidated by the Apex Court in 2001. The Commission had said that it is basing its opinion on judicial pronouncements of the past, the Government of National Capital Territory of Delhi Act and the Constitution. All the 20 AAP MLAs had approached the High Court on January 19 with the Judge adjourning the matter for hearing.
It may be recalled here that soon after sweeping the Delhi elections in 2015, the AAP government passed an amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification), Act, 1997 to exempt the post of Parliamentary Secretary from the definition of office of profit with retrospective effect. It may also be recalled that on March 13, the Government had appointed the 21 MLAs as Parliamentary Secretaries, saying that they won't take remuneration and hence it didn't fall under the office of profit regulations. It also cannot be ignored that later, the AAP Government tried to push a Bill through Delhi Assembly, giving protection to Parliamentary Secretaries under Office of Profit law. But, the then President Pranab Mukherjee did not give his assent to the Bill and rejected the amendment in June 2015. The same month, an advocate Prashant Patel petitioned the President seeking their disqualification on office-of-profit charge. The petition was referred to the Election Commission.
Responding to allegations that the Election Commission finalized its opinion in the office of profit matter against 20 AAP MLAs without hearing their arguments on the merits of the case, the new Chief Election Commissioner OP Rawat said that the parties had two opportunities to request the Election Commission to hold hearings but they didn't. When asked about the Election Commission's last ruling of June 23, 2017, which states that the Commission will intimate the next date of hearing in 'due course', Rawat said that, 'These (two) notices were issued only for that (purpose). If they felt the need or imperative for oral evidences, then they should have pointed it out and we would have fixed a date for hearing. But you (AAP) are not talking of that. You are talking of something that is already known to the Commission.' The two notices that Rawat referred to were issued to the party MLAs on September 28 and November 2, 2017, in which they were asked to file their written submissions on the information provided by the Delhi government with regard to the offices of Parliamentary Secretaries.
Relevant case laws
The Election Commission in its recommendations said that the Supreme Court in the case of Maulana Abdul Shakur vs Rikhab Chand (1958) had defined the concept of office of profit under the government. The court said the government's power to appoint a person to an office, or to keep him in that office, or revoke his appointment at its discretion, and payment from government revenues were important factors in determining if one held an office of profit. Payment from a source other than the government revenue was not the decisive factor.
In Pradyut Bordoloi vs Swapan Roy (2001), the Supreme Court outlined the following questions for the test: whether the government makes the appointment; whether the government has the right to remove or dismiss the holder; whether the government pays the remuneration; what are the functions of the holder; does he perform them for the government; and does the government exercise any control over the performance of those functions? Three other rulings were cited to highlight the grounds on which a distinction between the holder of an office of profit and of a post/service under the government could be made.
In Guru Gobinda Basu vs Sankari Prasad Ghosal (1964), the Apex Court said that, 'But all these factors need not coexist. Mere absence of one of the factors may not negate the overall test. The decisive test for determining whether a person holds any office of profit under the government, the Constitution Bench holds, is the test of appointment; stress on other tests will depend on the facts of each case.' The court said the final query was, whether, on account of holding of such office, would the government be in a position to influence him so as to interfere with his independence in functioning as an MLA and/or would his holding of the two offices involve a conflict of interest.
It has to be noted that while citing the judgments, the Election Commission said the AAP MLAs were appointed Parliamentary Secretaries by the Delhi government, which exercised control over them. The government had the power to remove them, their work was allocated by Ministers concerned as delegated authority and expenses of their offices were paid from government revenues. The Election Commission then concluded that, 'There could be no dispute that the office of Parliamentary Secretary was an office under the government.'
Also, when the former President Pranab Mukherjee referred the complaint by lawyer Prashant Patel who way back in March 2015 had complained that these 21 AAP legislators were occupying offices of profit to the Election Commission, it had said in last June that the MLAs 'did hold de-facto the office of parliamentary secretaries. A parliamentary secretary assists a minister, and the office comes with perks similar to those that ministers get. Therefore they had to be disqualified and that was done accordingly!
All said and done, now that the President has approved the disqualification of AAP MLAs, the 20 assembly constituencies will automatically fall vacant as soon as the President signs the recommendation letter. The elections will have to be held within six months. It is highly unlikely that the High Court or Supreme Court will now after such a long time step in and stay the disqualification as AAP MLAs want.
It is notable that the Delhi High Court in September 2015 while reacting to another private petition had struck down the posts of parliamentary secretary in September 2015. It will certainly not be an exaggeration from any angle to say most categorically that, 'AAP has just no option but to again gear up for fresh elections in these constituencies'!