Prez rejection of 21 AAP MLAs kick starts debate on ‘Office of Profit’

The President on Monday rejected an amendment by the Delhi government to the Delhi  Members of Legislative Assembly (Removal of Disqualification) Act, 1997, which sought to make the position of Parliamentary Secretary in the Delhi Assembly exempt from the definition of “Office of Profit”.

Twenty-one Aam Aadmi Party MLAs had been appointed Parliamentary Secretaries on March 13, 2015, and the Assembly, where the AAP has a brute majority, passed the amendment Bill on June 23 — days after a complaint was filed to the President seeking disqualification of these 21 MLAs for holding an Office of Profit. Also, a PIL against the government’s decision is pending before the Delhi High Court Chief Justice since May 2015.

Now that the President has rejected the Bill, the 21 AAP MLAs can potentially be disqualified should the Election Commission of India so decide. The Assembly was within its powers to bring the amendment, but given the special status of Delhi as a Union Territory, a Bill passed by the Assembly is not considered an applicable “law” unless it is passed by the Delhi Lieutenant Governor and the President of India.

What is an office of profit?

I am not going into the question as to whether the President’s order is correct or  not, as I do not have the full facts. I am only dealing with the legal position.

In its elaborate judgment in Shibu Soren.vs. Dayanand Sahay, 2001, the Supreme Court has explained what is an office of profit.

The Court referred to the earlier decision in Shivamurthy Swami vs. Agadi and said that payment of ‘ out of pocket ‘ expenses would not make it an office of profit.

In Shibu Soren’s case, the appellant Shibu Soren was admittedly holding an office of Chairman of the Interim JAA Council when he filed his nomination paper for election to Rajya Sabha. He belonged to the Scheduled Tribes and had been nominated as Chairman of the Interim JAA Council, by the State Government. He held his office ‘at the pleasure’ of the State Government. The question was whether the post of Chairman was an office of profit.

As Chairman of the Interim Council he was receiving:

(1) An honorarium of Rs.1750/- per month;

(2) Daily allowance at the rate of Rs.150/- per day for the period spent outside the headquarter besides travelling expenses as prescribed;

(3) Daily allowance at the rate of Rs.120/- per day for attending meetings of the interim council;

(4) Furnished rent free accommodation (quarters) and

(5) A car with Driver That receipt of daily allowance at the rate of Rs.150/- per day for the period spent outside his headquarters and Rs.120/- per day for attending meetings of the Interim JAA Council by the appellant, is in its very nature only compensatory allowance,

The Supreme Court held that items (2) and (3) were only received as out of pocket expenses, so those by themselves would not make it an office of profit.

However, the Court went on to say, items (1), (4) and (5) were not out of pocket expenses, and so it was an office of profit.

In Jaya Bachchan vs. Union of India, 2006, the appellant, was getting, as Chairperson of the U.P. Film Development Council the following :

(i) Honorarium of Rs. 5,000 per month;

(ii) Daily allowance @ Rs. 600 per day within the State and Rs. 750 outside the State. Rs. 10,000 per month towards entertainment expenditure.

(iii) Staff car with driver, telephones at office and residence, one P.S., one P.A. and two class IV employees.

(iv) Body Guard and night escort.

(v) Free accommodation and medical treatment facilities to her and family members.

(vi) Free accommodation in government circuit houses/guest house and hospitality while on tour.

The Supreme Court held :

“The office carried with it a monthly honorarium of Rs. 5000, entertainment expenditure of Rs. 10,000., staff car with driver, telephones at office and residence, free accommodation and medical treatment facilities to self and family members, apart from other allowances etc. That these are pecuniary gains, cannot be denied.”

However legal experts highlight that there is already a precedent. It has been done in West Bengal, Gujarat, Punjab, Arunachal Pradesh and many other states. In fact, when Narendra Modi was Gujarat chief minister, he had inducted half-a-dozen MLAs as parliamentary secretaries just before the model code of conduct for elections came into effect during the Gujarat elections.

Unlike all these states, the AAP government did not give any remuneration or additional perks which would classically satisfy the requirement of an “office of profit”.

At the least, the issue was debatable, right until they decided to pass a Bill. One specific point on the law is that the disqualification is not under the 1959 Act, but under Section 15(1)(a) of The Government of NCT of Delhi Act, 1991.

They do not really have an option but to argue it out before the Election Commission, saying that it is not an office of profit. The parliamentary secretary post is customarily seen as a loophole post — one where you put in those you couldn’t offer a cabinet berth but placate them with a sense of power.

There is the other political option as well: that AAP members file similar petitions before the Election Commission against all the other state governments where such posts exist. You may then suddenly see a change of mind at Rashtrapati Bhavan in this Westminster form of government.