Let me initiate my humble piece by first and foremost pointing out that as the political slugfest over the office-of-profit row gets uglier and uglier, the Chief Minister Arvind Kejriwal on June 14 accused Prime Minister Narendra Modi of “political vendetta”, escalating the Delhi government’s fight with the Centre over 21 AAP legislators facing disqualification for holding multiple paying positions. This infuriated BJP to a great extent and it took no time in hitting back. The BJP said that Kejriwal was obsessed with attacking the Prime Minister Narendra Modi.
Refusal By President

Not stopping here, the BJP further also accused AAP of lying under oath that no perks were given to the parliamentary secretaries, especially created official posts to help ministers discharge their duties. Let me bring out here that the latest confrontation between the Centre and the AAP government was sparked by President Pranab Mukherjee’s refusal to sign a bill that would allow the 21 MLAs to hold the second paying position. There is strong merit in the ground to which our President Pranab Mukherjee has taken strong objection! What the President Pranab Mukherjee has objected to must be scrutinized thoroughly and only then must any decision be taken. President is the highest post under our Constitution and therefore whatever President objects to has to be taken most seriously even if he reflects government’s views. There can be no taking away from the fact that a President is a President and he has to be taken with full seriousness by all those occupying high Constitutional offices as well as by others.

Arvind Kejriwal too has a point when he says that the President’s decision was based on the Centre’s recommendation and questioned why such a similar action was not taken in other states which too have parliamentary secretaries. Be it noted, Kejriwal who has time and again clashed with the Centre over officers appointment, files and governmental jurisdiction minced no words in pointing out that, “There are parliamentary secretaries in Haryana, Punjab, Gujarat, West Bengal and across the country. Those in Punjab get Rs 1 lakh per month, car and bungalow as well. But they have not been disqualified. Why only Delhi? Because he (Modi) is scared of Aam Aadmi party.” The appointment of 21 AAP MLAs as parliamentary secretaries has become a strong bone of contention for the AAP government with BJP openly questioning the appointments.

Initially the parliamentary secretaries were appointed to assist PMs – Jawaharlal Nehru appointed 2 in 1951. They have no defined duty. They mostly carry out supervisory roles like in the case of the 21 AAP legislators in Delhi.

Latest Position Of Parliamentary Secretaries In Different States While craving for the exclusive indulgence of my esteemed readers, let me bring this to their kind notice that in Haryana where Manoharlal Khattar is heading BJP government has 90 MLAs with 13 ministers and parliamentary secretaries are 4. Parliamentary secretaries are provided with benefits worth over Rs 1.67 lakh per month, Rs 2 lakh Leave Travel Allowance (LTA) (per annum), free water, power, income tax paid by state government. Similarly in Rajasthan again there is BJP government headed by Vasundhara Raje. There are 200 MLAs with 25 ministers and parliamentary secretaries are 5. Parliamentary secretaries are provided benefits worth Rs 47,000 per month (excluding vehicle, medical facilities, daily allowance, telephone bill, etc).

Now coming to Rajasthan where Parkash Singh Badal of Shiromani Akali Dal (SAD) is the Chief Minister and heading coalition of SAD and BJP government, there are 117 MLAs and 18 ministers and parliamentary secretaries are 24. Parliamentary secretaries are provided with benefits worth Rs 1.5 lakh per month (salary, allowances), Rs 1.5 crore constituency discretionary grant for development, Rs 3 lakh LTA (per annum), luxury car, government accommodation, income tax paid by the government. In Rajasthan where Siddaramaiah is heading the Congress government, there are 224 MLAs, 34 ministers and 10 parliamentary secretaries. The benefits that parliamentary secretaries enjoy here are Rs 1.41 lakh per month (salary, HRA, bungalow maintenance) and Rs 3 lakh annual sumptuary allowance. In Arunachal Pradesh, Manipur, Meghalaya, Mizoram and Nagaland there are 19, 5, 18, 7 and 24 parliamentary secretaries respectively.

Brief History In National Capital CM Sahib Singh Verma had appointed BJP MLA Nand Kishore Garg as his parliamentary secretary in 1996. Sheila Dixit appointed Ajay Maken as her parliamentary secretary in 1999. In her second term, Sheila appointed Ramakant Goswami. In 2006, the Sheila Dixit government amended Delhi Members of Legislative Asembly (Removal of Disqualification) Act to exempt the office of parliamentary secretary to chief minister from the list of office of profit. In 2013, when her third term ended, Sheila had 3 parliamentary secretaries.

In March 2015, AAP government appoints 21 party legislators as parliamentary secretaries to the 6 ministers. Following a complaint on June 19, 2015, the government passed an amendment bill to exempt parliamentary secretaries from the list. It is here that the President Pranab Mukherjee put his foot down and refused to sign the bill.Options Before AAP Government

The refusal of the President Dr Pranab Mukherjee to sign the bill has put the AAP government of Delhi in a tight spot. What can the Kejriwal government do now? Can it send the bill back to the President in its original form so that he can consider it again? Or can it amend it and send the amended version to the President for his reconsidering it?

Legal Position In Delhi To put things in perspective, according to the Government of National Capital Territory of Delhi (GNCTD) Act, 1991, when a bill is passed by the Legislative Assembly it has to be presented to the Lieutenant Governor, who can either give his assent to it or send it to the President for consideration. Section 25 of the GNCTD Act envisages that the President can either give or withhold his assent to the bill. It further stipulates that the President may direct the Lieutenant Governor to return the bill to the Legislative Assembly.

The Assembly has the option of passing the bill and sending it to the President again. May I add here that the GNCTD Act reads as “When a bill is so returned, the Assembly shall reconsider it accordingly within a period of six months from the date of receipt of such message and, if it is again passed by the Assembly with or without amendment, it shall be presented to the President for his consideration.” Interestingly enough, this provision is similar to Article 201 of the Constitution which deals with bills sent by state assemblies to the President for reconsideration.

Expert Opinion It must be mentioned here that the President Pranab Mukherjee has sent back at least 10 bills to various states ever since the NDA came to power. It would be in the fitness of things to consider what the former Lok Sabha Secretary General who is also a senior Supreme Court lawyer and also an expert in Constitutional law with various books to his credit – Subhash Kashyap had to say on this entire matter. What he says has to be taken with full seriousness as he is an authority in himself.

Kashyap says that the President may not reconsider the bill sent to him again. He said that, “Since in this case, the President has rejected the Bill outright, the question of reconsideration does not arise. It is not a case where the President has sent the Bill back for reconsideration.” He further adds that, “The Assembly passing such a bill was a tacit acceptance that these are offices of profit. Since, it is rejected by the President, these legislators may face disqualification.” He also made it amply clear that the President takes the opinion of the Election Commission before taking any decision in these matters.

Present Position In hindsight, it can be safely inferred that nearly a third of AAP legislators face the sword of disqualification after the President refused to sign a bill that allowed the 21 MLAs to hold a second paying position as parliamentary secretary. It is also a no brainer that the Constitution prohibits legislators or parliamentarians from holding any positions with monetary or other benefits and allowances. This clause – known as office of profit – is aimed at reducing conflict of interest situations for public representatives.

Constitutional Position Articles 102(1) and 191(1) of Constitution make a clear case of disqualifying a person as a member of Parliament/Assembly if he holds an office of profit under central/state government ‘other than an office declared by Parliament not to disqualify its holder’. There are similar provisions for MLAs in Government of NCT of Delhi Act, 1991. It must be clarified here that office of profit doesn’t necessarily mean financial benefit.

Famous Cases Some well known cases can be quoted here. Most famous is that of Sonia Gandhi who quit Lok Sabha in 2006 over her appointment as national advisory council chairperson by UPA 1. She sought re-election. The Prevention of Disqualification Act was amended in 2006 to add the position of NAC chairperson to the list of exempted votes. Another known case is that of Samajwadi Party’s Jaya Bachchan who lost Rajya Sabha seat for holding the post of UP Film Development Federation Chairperson. The Act was again amended in 2013 to save the chairpersons of the national commission for the Scheduled Castes and the national commission for the Scheduled Tribes from disqualification.

Current Position It must be reiterated here that 21 Aam Aadmi Party (AAP) MLAs in Delhi run the real risk of losing their membership on the dual office of profit issue and their lame excuse that they are just interns have not found many buyers in legal circles. Needless to say, the MLAs in question are the ones who were appointed parliamentary secretaries by the Arvind Kejriwal’s government on March 14, 2015 and it remains to be seen how the Election Commission reacts to their replies! Petition is pending even with the Delhi High Court for the MLAs to lose their seats for holding a position that profits them immensely in various forms like perks, position, monetarily or otherwise.

Conclusion Before winding up, let me reveal here for my esteemed readers exclusive benefit that the idea behind the concept of office of profit – which evolved in England – is to preserve the independence of the legislature. Now the moot question arises: How will the independence of the legislature be preserved? The palpable answer is by keeping the members away from any temptations from the executive that can come in the way of discharge of their duties. The office-of-profit row involving 21 AAP MLAs must be resolved soon so that the clear pictures emerges before the people. It brooks no more delay anymore now! As long as the rule of office-of-profit exist in our statute, it has to be followed strictly.

-Sanjeev Sirohi,

Advocate,