- March 30, 2018
| By : Mihir Srivastava |

As Kejriwal gets back his MLAs, ‘office of profit’ remains a contentious issue, not just in Delhi, but in other states as well In a major embarrassment to the Election Commission of India (EC), the Delhi High Court declared the disqualification of 20 MLAs of Aam Aadmi Party (AAP) ‘bad in law’ and a violation […]

As Kejriwal gets back his MLAs, office of profit’ remains a contentious issue, not just in Delhi, but in other states as well

In a major embarrassment to the Election Commission of India (EC), the Delhi High Court declared the disqualification of 20 MLAs of Aam Aadmi Party (AAP) ‘bad in law’ and a violation of ‘natural justice’ as no oral hearing was given to them by EC before disqualifying them. Therefore, the high court asked the ECI to have a fresh look into the matter. The 20 AAP MLAs were holding the position of parliamentary secretaries to ministers in the Delhi government. “This is the victory of truth. Delhi High Court has done justice to the people of Delhi. This is a big victory for the people of Delhi. Congratulations to the people of Delhi,“ Chief Minister Arvind Kejriwal tweeted in Hindi.

The EC showed undue haste in the matter.  On January 19, the EC recommended the disqualification of MLAs for holding offices of profit. This was days before the retirement of outgoing chief election commissioner, Achal Kumar Joti—who was the Gujarat chief secretary when Prime Minister Narendra Modi was the state’s chief minister. AAP leader Ashutosh tweeted, ‘EC SHOULD NOT BE THE LETTER BOX OF THE PMO…but that is a reality today.’ And within two days, President Ram Nath Kovind gave his stamp of approval.

The ‘office of profit’ issue, where Members of Parliament and the state legislatures are concerned, has remained a bone of contention for decades. According to Articles 102(1)(a) and 191(1)(a) of the Constitution, an MP or MLA is barred from holding an ‘office of profit’: “A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament, (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder.”

So, the ambit of ‘office of profit’ is decreasing as many of the positions have been declared ‘not to disqualify its holder.’ The classic case is that of UPA chairperson Sonia Gandhi. In 2006, the former Congress president resigned as an MP following the outcry by the Opposition that she was holding the office of profit as chairperson of the National Advisory Council (NAC). The NAC was formed soon after the Congress-led UPA came to power and dissolved 10 years later when Modi became the prime minister. Sonia Gandhi remained NAC chairperson throughout its existence. However, to allow Sonia Gandhi to remain an MP while holding the position of NAC chairperson, she was soon re-elected, the Parliament (Prevention of Disqualification) Act, 1959, was amended to add the post of NAC chairperson to the list of exempted positions.

In Delhi, three-time Congress MLA Naseeb Singh held the position of parliamentary secretary to the former Delhi chief minister Sheila Dikshit for a long time. He was never disqualified for holding the office of profit. This is an issue not just confined to Delhi: many other states like that of Karnataka, West Bengal, Punjab, Telangana and host of North-eastern states are dealing with the spectre of office of profit. The appointment of political/parliamentary secretaries was struck down in Punjab, West Bengal and Telangana by the respective high courts. In Rajasthan, ruled by the BJP, the state legislature passed a law to include posts of parliamentary secretary within the ambit of exempt positions. The matter is now sub judice.

In Madhya Pradesh, the AAP demanded disqualification of 116 BJP MLAs for holding office of profit for the same reason as their MLAs in Delhi were disqualified. State AAP convener Alok Agrawal said, “Despite our complaint one-and-a-half years ago, no action has been taken against 116 MLAs of the state for violating offices of profit norms and provisions of the Representation of the People Act.” BJP retorted that this is an act of “frustration.” “The AAP is trying to make an issue out of nothing. Such allegations should not be taken seriously,” said Deepak Vijayvargiya, BJP spokesman in MP.

The case of ‘office of profit’, AAP alleges, is just one way to derailing an elected government in Delhi. The revolt of the bureaucracy is seen as another.  The state bureaucracy is in a sort of partial non-cooperation mode with the Delhi government following the alleged attack on Chief Secretary Anshu Prakash at the chief minister’s residence in the presence of Kejriwal and his deputy Manish Sisodia last month. In a presser, much before this controversy had surfaced, in 2016, Kejriwal had said, “They (IAS officers) are being threatened with ACB, police and CBI. They are being provoked to revolt against me. I know who all are taking money. IAS officers are being forced to meet and speak out against the Delhi government. LG is getting it done on the prodding of Prime Minister’s Office (PMO).”

As of now, bureaucracy can be approached by the ministers only by way of a written communication. The AAP government in that sense is paralysed, though it was able to table the budget in the state assembly last week. AAP is waiting for justice, like in the case of disqualification of 20 MLAs, this time from the Supreme Court, to decide who enjoys the supremacy in governing the national capital—the LG or the Delhi Government?  In the meantime, 20 disqualified MLAs are back in the assembly.