AAP: How different is the ‘party with a difference?

Credit: Facebook page of Arvind Kejriwal

AAP may be within its right to appoint parliamentary secretaries and absolve them from the ambit of ‘office of profit’, but to avoid unnecessary controversy the legislation shove have preceded the appointment.

“I want to request Modiji with folded hands not to trouble the people of Delhi. Your fight is with me. Beat me or do whatever you want to do against me but spare the people of Delhi.  Our work is being praised world-wide including by the UN. Take revenge against me but please don’t try to stop the good work in Delhi”

Thus spoke Arvind Kejriwal, the Chief Minister of Delhi, on June 15, 2015.

He was addressing a press conference called in the wake of a controversy regarding the appointment of 21 MLAs of the Aam Aadmi Party (AAP) as parliamentary secretaries in the Delhi government.

These appointments were made on March 14, 2015, through a government order. However, at the time of the appointment, the then existing law permitted appointment of only three parliamentary secretaries.

The Congress and the Bharatiya Janata Party (BJP) have both declared this to be “legally, procedurally and ethically wrong” and demanded immediate resignation of the 21 AAP MLAs.

On 19 June 2015, advocate Prashant Patel reportedly filed a petition before the President to seek disqualification of the 21 AAP MLAs. He argued that their appointment as parliamentary secretaries was in violation of law and also amounted to holding an ‘office of profit’.

Apparently, realising this legal technicality the Delhi government moved a bill to amend the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 in the Delhi assembly. The bill was passed on June 24 and sent to the Lieutenant Governor for his assent.

The Dilemma of Retrospective Effect:

The bone of contention however is that the amendment was moved with a retrospective effect. The amendment that was passed on June 24, 2015, was “deemed to have come into force” on February 14, 2015.

Parliamentary secretaries have also been appointed in states like Punjab, Haryana, Gujarat, Nagaland, Meghalaya, Arunachal Pradesh, West Bengal and others. Many of them are/were ruled by Congress and BJP. However, in these states the law was legislated before the appointments. In the case of Delhi, first the appointments were made and then the amendment was brought in.

In most states, the post of the parliamentary secretary is akin to that of a minister. They avail facilities and allowances similar to other ministers. Article 164(1)(A) of the Constitution limits the total number of ministers in a state to no more than 15% of the total strength of the legislature. Very often appointment of parliamentary secretaries has been used to circumvent this provision, primarily to satisfy politicians from different sections.

Addressing a press conference, BJP spokesperson Meenakshi Lekhi said,

“The appointment of the 21 MLAs as parliamentary secretaries is illegal because there is no provision in law through which these appointments can be made.”

This is however not the first case when a parliamentary secretary was appointed with retrospective effect in Delhi. In 1999, Congress leader Ajay Makan was also appointed parliamentary secretary to the then chief minister of Delhi with a retrospective effect.

Speaking on this Makan says,

“It is true that in 1999 when I became the parliamentary secretary to the chief minister there was no law as such for the parliamentary secretary to the chief minister. But at that time no one made a complaint to the Election Commission of India or to any court and the Opposition was also taken into confidence at the time of the appointment.”

In 2006, when around 40 Members of Parliament (including the then Speaker of the Lok Sabha) were facing disqualification for holding office of profit, the parliament passed the ‘Parliament Prevention of Disqualification Amendment Bill, 2006’. This act was also applied retrospectively. It was done to protect the membership of these MPs. Ironically, there were many Congress and BJP parliamentarians among the 40 beneficiaries.

The Constitution does not explicitly answer whether the legislature has the power to bring in a law with retrospective effect. Article 20(1) protects a person from being convicted for an act which at the time of commission was not a crime. However, in legislations apart from criminal laws, the courts have upheld the retrospective effect of such legislations. It will be interesting to see whether legislations like the 2006 amendment meet the test of constitutional validity if they are ever challenged or the courts take a suo motu cognisance.

The Charge of Holding ‘Office of Profit’

Apart from the retrospective implementation of law, the Opposition has also claimed that since parliamentary secretaries draw emoluments and allowances from the government, the post comes under the definition of ‘office of profit’.

The Delhi government order dated February 14, 2015, says that the parliamentary secretaries have been appointed “for smooth functioning of the government”. 

It further states that

“these parliamentary secretaries will not be eligible [for] any remuneration or any perks of any kind, from the government- meaning no burden on exchequer. However, they may use government transport for official purposes and office space in the minister’s office would be provided to them to facilitate their work”.

The AAP contends that since the parliamentary secretaries are not eligible for any remuneration or any perks of any kind from the government, these offices cannot be considered as ‘office of profit’. Hence, the question of disqualification does not arise, it argues.

Addressing a press conference, AAP spokesperson Ashutosh said, “The MLAs that have been appointed as parliamentary secretaries in Delhi do not enjoy any form of pecuniary [monetary] benefits. As such, there is no question of it being an office of profit. Compare it with states like Punjab, Gujarat, Nagaland, Meghalaya and Karnataka, where parliamentary secretaries not only receive salary and allowance but are also given the status of Minister of State and deputy ministers.”

However Lekhi argues, “If these appointments do not fall under office of profit, then what was the need to move an amendment? You [AAP] moved it because you knew that what you have done is illegal and it needs to be corrected.”

She further added that the AAP has misled the Election Commission of India in its affidavit by stating that “no facilities, emoluments or reimbursement of any nature has been provided” to the 21 MLAs in the capacity of the parliamentary secretaries. “However, RTI reply received from the office of the Speaker of the Legislative Assembly of Delhi shows the rooms of which allocation to these 21 MLAs have been made,” she claimed.

Similarly, Makan points out that the government “notification categorically provides for office and car for these parliamentary secretaries. But when they brought in the bill, they said that there is not going to be any financial implications on the Consolidated Fund of India”.

Article 191(1)(a) of the Constitution disqualifies a member of legislative assembly “if he [she] holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder”.

To exempt an office from the ambit of ‘office of profit’, the legislature has to first legislate an act to this effect. Any appointment made after the enactment of such law protects the MLA(s) from being disqualified for holding an ‘office of profit’.

In the case of Delhi, the ‘Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997’ was enacted to exempt, among others, the office of the parliamentary secretary to the chief minister from the ambit of office of profit. In 2006, an amendment was made to this and the total number of parliamentary secretaries to the chief minister was increased to three. The June 2015 amendment seeks to include the office of other minister too.

The Constitution does not define the term ‘office of profit’. However, a number of Supreme Court judgements and decisions of the Election Commission of India do provide an enriched understanding of the term.

The Supreme Court in Shivamurthy Swamy Inamdar Vs. Agadi Sanganna Andanappa devised a five point test to determine what may constitute an office of profit. It includes- (1) Whether the Government makes the appointment, (2) Whether the Government has the right to remove or dismiss the holder; (3) Whether the Government pays remuneration; (4) What the functions of the holder are and does he [she] perform them for Government; and (5) Whether the Government exercises any control over the performance of these functions.

In the Jaya Bacchan case, the Election Commission of India in its advice to the President stated that “the Supreme Court has held in various subsequent cases that all the above tests need not co-exist conjointly for determining whether an office is an office of profit under the government”.

This means that even if one of the points satisfies the case, the office in question may be considered as an office of profit. The Commission also applied the same test in the Jaya Bacchan case.

In the present case of the 21 AAP MLAs, irrespective of whether they enjoy any facilities or perks or “pecuniary benefits”, the office of parliamentary secretaries do satisfy at least points 1, 2 and 4 of the above test. Since these appointments were made through a government order, there is no doubt that the Delhi government makes their appointment. It also has the right to remove or dismiss the holder. Lastly, the functions of the parliamentary secretaries, no doubt, are performed for the government. The appointment notification clearly states that these appointments are being made “for smooth functioning of the government”. The Chief Minister, on record, has described them as the “eyes, ears and hands of the Delhi government” and claimed that they are the one who are “working hard” for Delhi.

What if they are disqualified?

All eyes will now be on the decision of the Election Commission. The President recently denied assent to the June 2015 amendment brought in by the AAP. The party has blamed the Modi government for this and termed it as an “attempt to destabilise” the Delhi government.

In case the Election Commission, a quasi-judicial body, approves the disqualification of the 21 AAP MLAs, the national capital will witness another round of high voltage electoral battle. While the AAP will be fighting to hold all the 21 seats, the BJP will look forward to better its score of three in the Delhi assembly and Congress probably aim to open its account in its lost citadel.