AAP-Centre confrontation: Explaining the 21-MLA disputehttps://indianexpress.com/article/explained/delhi-govt-bill-parliamentary-secy-post-pranab-mukherjee-aam-admi-party-arvind-kejriwal-2853262/

AAP-Centre confrontation: Explaining the 21-MLA dispute

This round of confrontation has the potential to become the most bitter of all. 21 AAP MLAs may be disqualified, leading to elections. Indian Express explains how things came to this pass, and the legal and constitutional issues in the conflict.

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Delhi Chief Minister Arvind Kejriwal, who has been getting into a series of disagreements with Lieutenant Governor Najeeb Jung, has accused the central government of using the President to ‘harass’ his Govt.

What is the latest in the AAP government’s confrontation with the Centre?

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.

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But what exactly is it that puts these MLAs at risk of disqualification?

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Under Article 102(1)(a) and Article 191(1)(a) of the Constitution, a person shall be disqualified for being chosen as, and for being, a member of Parliament or of a Legislative Assembly/Council if he holds an “Office of Profit” under the central or any state government, other than an office declared not to disqualify its holder by a law passed by the Parliament or state legislature. The Delhi MLA (Removal of Disqualification) Act, 1997 did not include the post of Parliamentary Secretary as an “exempted post”.

What is the argument of the AAP government?

It has so far maintained that the post of Parliamentary Secretary is “not an Office of Profit” as the MLAs are not receiving any “pecuniary benefit”. The amendment Bill brought by the government has over the past year given a sense of “protection” to the 21 MLAs.

Again, the Calcutta High Court last year struck down the West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2012, but that Act gave powers and benefits at par with Ministers of State to the Parliamentary Secretaries. This the Delhi Bill does not do.

Why has it taken almost a year for the crisis to erupt?

The slow legal process is a factor. The PIL before the Delhi High Court against the government’s decision has been pending since May last year. A complaint filed by Delhi-based lawyer Prashant Patel seeking the disqualification of the MLAs has also been pending before the Election Commission of India. Patel had filed his complaint on June 19, 2015 before the President, following which it had been sent to the ECI for recommendations. The EC issued notices to the 21 MLAs only in March 2016, after receiving documents from Patel in December.

As on June 14, the ECI is considering the replies filed by the MLAs in May, to which Patel had filed his response on June 8 this year. According to Patel, the MLAs have asked for individual oral hearings before the ECI, while he has opposed the demand, alleging that it was a “delaying tactic”. The ECI is yet to fix a date for the next hearing, or to take a decision.

Is the petition before the EC affected by the Presidential rejection?

Partly. If the President had accepted and signed the Bill, it would have been passed as a law, in which case the position of Parliamentary Secretaries would be exempt from the ambit of Office of Profit, and the plea to disqualify them would have been dismissed. Now that the President has rejected the Bill, it is up to the ECI to take a decision and give its recommendations to the President.

So what happens now?

The ECI has to basically decide whether the terms and conditions of appointment of Parliamentary Secretaries constitutes an “Office of Profit.” The AAP government has claimed that the 21 Parliamentary Secretaries are not getting any salaries or perks for their work, and are “working for free”. Patel had, however, claimed that they had been allotted rooms and office staff, and were getting monetary compensation.

According to constitutional law expert Professor M P Singh, an office would not be an “Office of Profit” if there is no monetary benefit attached to the appointment. If the appointment letter issued to the MLAs includes any monetary benefit, the office would be considered an “Office of Profit”. According to Singh, “the offer of pecuniary gain is the test, even if the person declines to take that benefit”.

What other steps can either of the aggrieved parties take?

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The President’s decision cannot be challenged in any court as it is his executive power under the Constitution of India. The Supreme Court cannot interfere. However, any decision taken by the ECI can be challenged before the Delhi High court by the aggrieved party. This means that the AAP can approach the court if the EC decides to disqualify the MLAs.