Twenty-one AAP legislators were designated parliamentary secretaries to ministers by the Delhi government last year. The Bharatiya Janata Party (BJP) filed a complaint with the President of India, alleging that they were holding offices of profit and as elected representatives - except those who were designated ministers -could not do so, hence they should be disqualified as members of the Legislative Assembly (MLA). The petition alleged that the MLAs were being extended benefits over and above the ones allowed by the Representation of the People Act, 1951.
In anticipation, the Delhi Assembly passed an amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, which exempts parliamentary secretaries from "office of profit". The Bill went up to the President of India for his assent, but he refused to give his nod to it.
More From This Section
There are two issues now. The first one: Will these 21 legislators have to resign as MLAs? And what about all the other states that have appointed parliamentary secretaries to keep MLAs happy and prevent them from defection, following legislation that caps the size of the council of ministers in proportion to the size of the Assembly? For example, Arunachal Pradesh has parliamentary secretaries. The AAP says the Congress and the BJP both followed the practice of appointing parliamentary secretaries. If it was legal then, it should be now, too.
The second issue is a political one: Will this development make by-elections to 21 seats in the Delhi Assembly inevitable? If that happens, what are the implications for the AAP's legislative performance in Punjab? The party will then have to divide its resources between contesting the Delhi by-elections and the Punjab Assembly polls where it is off to a promising start.
Opinion is divided on the legality of appointment of the 21 MLAs as parliamentary secretaries. In their defence before the Election Commission, which was hearing the issue, the 21 MLAs - including Alka Lamba, Adarsh Shastri, and Jarnail Singh - said they had derived no pecuniary benefit from their appointment. The terms of their appointment were that while they would not be entitled to any additional salary, "they may use government transport for official purposes and office space in the minister's office will be provided to them to facilitate their work".
Does this constitute an office of profit? Constitutional expert Subhash Kashyap says a legislator holding an office or a post under the government - without remuneration maybe, but not without perks - is deemed to be holding an office of profit. The three elements for attracting disqualification under Article 102(1)(a), of the Constitution are:
a) there must be an office;
b) the office must be one where the holder derives profit;
c) such an office must be under the government.
Former solicitor general Mohan Parasaran, quoting the Supreme Court in the Sivamurthy Swami Inamdar versus Agadi Sanganna case of 1971 says the issue is clearly posed by the apex court: "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, which may have the possibility to bring that person under the influence of the executive, which is conferring that benefit on him".
The AAP says there is no pecuniary gain for the MLAs through their appointment. The President of India does not agree. The home ministry, the nodal ministry handling issues relating to Union Territories, says there are other violations as well. Such appointments - like that of parliamentary secretary - require the prior sanction of the Lieutenant Governor, which was never sought. Moreover, several Supreme Court judgments have clearly stated that an office of profit is deemed not by salary alone but also by perks, which in this case would be occupying office space in the Secretariat and availing of official cars.
According to Parasaran, that situation does not arise. He says Article 191(1)(a) of the Constitution vests the state legislature with the power to exempt any office from an "office of profit" disqualification. The amendment to the 1997 Act sought to exempt the office of parliamentary secretary from such disqualification to which the president has refused or withheld his assent.
However, if no prequisite or remuneration was available to the MLAs, they would not be disqualified. The fact that the President has refused his assent to the law exempting these offices from disqualification will make no difference to their membership as MLAs.
The bigger issue is a political one. If the AAP is bogged down defending its MLAs from possible disqualification, its attention would be diverted from its current task of preparing for elections in Punjab, more so if the by-elections are held at the same time. True, there is no danger to the Delhi government because the AAP has 67 out of 70 legislators in the state Assembly and disqualification of 21 legislators will still mean majority for the party. But what if all 21 MLAs are not re-elected?
Delhi Chief Minister Arvind Kejriwal finds himself mired in constitutional and legal issues to which a political response seems tardy in coming. How he wriggles out of this situation will be interesting. Voters in Delhi are spoilt for choice and notoriously fickle. Danger could be lurking round the corner.