Delhi: Political history
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2016
Office of profit issue
The AAP government was elected in February 2015 with a brute majority of 67 seats in an assembly of 70. BJP had just three MLAs while Congress had none.
Kejriwal government dealt with its problem of plenty by accommodating MLAs as parliamentary secretaries without first shielding them from the office of profit law.
In June 2015, the Delhi government had moved the amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997. It sought to exempt the parliamentary secretaries from the office-of profit disqualification provisions retrospectively , so that “necessary benefits and perks could be given to them to enable them to execute their duties“. These parliamentary secretaries to ministers don't figure on the list of posts exempted from the office-ofprofit rule as of now. The appointments have been questioned repeatedly .
The assembly had passed the Bill without the prior approval of the LG or the Centre
Section 15 of the government of NCT of Delhi Act, 1991 says a person shall not remain an MLA if he or she holds any office of profit under the Centre or government of a state or UT.
The legislator can escape disqualification only if the office is declared -by law made by Parliament, state legisla ture or UT -as a post that does not attract loss of membership. The fate of the MLAs will now be decided by the Election Commission that is considering a petition seeking their disqualification. Elaborating on the Presi dent's grounds for rejec tion of the bill, a home ministry official said the law was clear that what constitutes an “office of profit“ and what does not must be pre-defined.“Applying exemptions with retrospective effect is unconstitutional,“ the official said. The view in official circles is that with the President rejecting the bill, the post of parliamen tary secretary is clearly an `office of profit' and the disqualification of the AAP MLAs is all but a foregone conclusion.
President Pranab Mukherjee in June 2016 rejected the bill passed by the Delhi assembly seeking to exempt 21 AAP MLAs appointed as parliamentary secretaries from the purview of `office of profit' criteria.
The rejection of the bill will not affect the ongoing proceedings in the EC on a petition filed by lawyer Prashant Patel. “Just as court cases go on independent of each other, the EC will continue to hear the petition...the end result, however, may well be the same, that is, disqualification of the 21 MLAs,“ said an official.
The President's refusal to give assent for bringing an amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 has cast a shadow on the future of the 21 parliamentary secretaries appointed by the Aam Aadmi Party government through an administrative order last year. The Election Commission of India has, meanwhile, been looking into the office of profit allegation under a petition.
AAP was holding an emergency meeting on Monday night to discuss the crisis, with Chief Minister Arvind Kejriwal in the chair. The govenrment's restlessnes was evident as the CM took to twitter to mount his defence.He yet again chose to hit out at Prime Minister Narendra Modi, saying that “Modi does not respect democracy . He is only scared of AAP“. In a series of tweets, he said: “We did not give a single paisa to any MLA, neither car nor bungalow. All MLAs were working for free. Modiji says sit at home, don't do any work.“ He added: “One MLA was put in charge of power, one of water and another of hospitals and one MLA of schools. Modiji says neither will I work, nor will I let anyo ne work.“
According to constitutional experts, the President's refusal has moved the 21 MLAs one step closer to certain disqualification. The EC has alredy issued these MLAs a show-cause notice on the same ground earlier, and Monday's decision by the President denies the exemption Kejriwal wanted to give them for shielding them from disqualification under Office of Profit rules.
Legal experts said the role of EC is now largely academic and procedural since the head of state has in a way settled the issue. Former solicitor general Mohan Parasaran told TOI that once the “President has decided not to accord his assent, the complaint before EC doesn't survive. It remains an academic discussion since the President has decided on a higher plane.“
The former secretary general of Lok Sabha, Subhash C Kashyap, agreed. “The legal position is that having occupied an office of profit, these 21 MLAs stand disqualified. Disqualification has to be done by President in consultation with EC under Article 192.“
An AAP government spokesperson, however, claimed that this was not the end of the road as the amendment to the legislation was aimed at bringing the parliamentary secretaries under the category exempted from disqualification on grounds of office of profit so that they could be given some “essential perks“ which they were not getting now. As far as the petition in EC was concerned, the spokesperson argued that this was a different matter as it was not about the legislation but on the question of whether these MLAs come under the purview of the “office of profit“. He added: “We have been arguing repeatedly that they do not come under the office of profit as they don't get any financial benefits.“
