The fact that the Aam Aadmi Party (AAP) is embroiled in litigation should come as no surprise to anyone who has been following their tenure in the Delhi government, incessantly punctuated with controversies. The debate regarding disqualification of a Member of Parliament (MP) or a Member of Legislative Assembly (MLA) holding an ‘office of profit’ has resurfaced since the Delhi High Court set aside the appointment of 21 MLAs from AAP to the post of parliamentary secretaries.
The EC recently concluded hearing for disqualification of the said 21 MLA for holding office of profit. It was argued that the proceedings before EC have become infructuous since the appointment was already set aside by the Delhi High Court for failure to engage the LG in the decision of appointment. The EC has reserved its order after hearing both parties.
As the nation watches troubles unfold in the AAP bastion, a legal position as to what constitutes an office of profit is being meticulously traced. The Supreme Court of India has often faced similar questions and comprehensively concluded on the determination of ‘office of profit’. Yet distinctively, this instance of disqualification of Delhi MLAs makes a curious case for the tussle between executive and judiciary which has been prominent in the political set-up of Delhi.
Understanding the Legal Position
To attract disqualification under the office of profit rule, there are a few main elements that need to be fulfilled (as provided for in Article 102 and 191 of the Constitution of India, for Parliament and State Assemblies respectively), namely:
There must be an office;
The nature of the office must be such that the holder derives profit; and
Such office must be under the government.
The bone of contention seems to arise out of a statement issued by the Delhi Government through the Directorate of Information and Publicity in March 2015, where it was clarified that the parliamentary secretaries would not receive any remuneration or perks of any kind and thus there would be no financial burden on the government or exchequer.
The case of Divya Prakash v. Kultar Chand Rana lays down the foundation of the legal position with respect to office of profit disqualification. It states that the intrinsic aspect of office of profit is the ability of the office held to yield profit or pecuniary gains i.e. monetary gains. In the absence of this, the office will be devoid of the character of an ‘office of profit’.
What needs to be found out is whether the amount of money receivable by the person concerned in connection with the office he holds, gives to him some ‘pecuniary gain,’ other than as ‘compensation’ to defray his out-of-pocket expenses.
The case of the Delhi MLAs stipulates no pecuniary gains and the aforementioned statement made by the Delhi Government in fact makes it unequivocally apparent that there will be no monetary flow towards the MLAs in the form of salaries or otherwise and hence must not attract the disqualification.
Various cases, as decided by the Apex Court, have time and again tried to advance the proposition of ‘pecuniary benefits’ to cover abstract benefits such as ‘power and ability to create influential ripple.’ However, this view is not found acceptable in view of long line of judgments and there was no need felt to mark a departure from the same. Further, the Amendment made by the Delhi Government to the Delhi Members of Legislative Assembly (Removal of the Disqualification) Act, 1997 (“Removal of Disqualification Act”) is a calculated move couched in abundant caution. Retrospective amendment to exempt certain offices from the purview of disqualification is not only generally accepted but also expected.
Hence, the questions raised on the appointment of the 12 MLAs as Parliamentary Secretaries, can at best be classified as a question of moral propriety but hardly as a legal one since it finds no merit in the law.
Only a sound understanding of the ongoing political tensions in Delhi will help appreciate the nature of this controversy enveloping the AAP govt. The AAP government came to power with thumping majority and was touted to be the alternative to the existing polarized narratives. However, the impact started fading quickly. The complex controversies spiralled into an implosion within the party.
If we take a step back to assess the turn of events, the role played by the Central Government and the peculiar stature of Delhi in the federal structure gains prominence. A perusal of the jurisprudence in office of profit disputes show that the appointment of elected representative to offices and retrospective exemption to the offices, is business as usual and has never captured attention. What makes this case special is how AAP has been caught in this spider web weaved meticulously to erode the effectiveness of the majority of the AAP in the Delhi State Assembly.
Considering for a moment, that the appointment of parliamentary secretaries was not justifiable in law, the Assembly peremptorily sought to amend the Removal of the Disqualification Act, 1997. The Delhi Members of Legislative Assembly (Removal of Disqualification Amendment) Bill- 2015 was forwarded by Lieutenant Governor Najeeb Jung to the Centre, which in turn sent it to the President with its comments. Lt. Gov. Jung has previously expressed his views on this question stating that the appointments approved by the Delhi State Cabinet fall within the purview of ‘office of profit’.
Right now, a lot is riding on the decision of the EC, a quasi-judicial body to whom the president referred the issue for consideration. The president’s assent to the bill awaits this decision, as does the political interests of AAP’s doomsday predictors.
In the past two years, the Delhi Government’s spirits have been systematically punctured with one debacle after another. It does not take a punctilious person to understand the orchestrated nature of these debacles and the discernible aversion, sometimes refusal of the media from reflecting on the truth in the events affecting the AAP. The jurisprudential analysis of office of profit cases, is most likely going to provide them with requisite ammunition to fight the ensuing legal battle.