In a major setback for the Arvind Kejriwal-led Delhi government, the Election Commission has recommended to the President the disqualification of 20 AAP MLAs on charges of holding an ‘Office of Profit’. The 20 AAP legislators have been accused of being unconstitutionally appointed as parliamentary secretaries to aid various ministers of the Delhi government.
The latest development means the AAP MLAs are set to be disqualified, which could pave way for a mini Assembly election in the national capital. However, the threat for the Aam Aadmi Party is not immediate as even after the disqualification of the 20 MLAs, the party continues to enjoy a majority in the 70 member house. The AAP had secured 67 out of the 70 Assembly seats in 2015 assembly elections.
As per the Constitution, the ‘Office of Profit’ bars MP and MLAs from accepting government positions carrying some financial remuneration or any other benefit such as office space or even a car. Any violation of this provision would amount to disqualification of the legislator. The aim of this provision is to preserve the independence of the legislature by keeping its members away from any temptations from the executive. READ | EC recommends disqualification of 20 AAP MLAs over ‘office of profit’ charge
With no clear definition available, we depend on past judicial pronouncements for clarity. These say there are two indispensable ingredients of an office of profit: “One, there should be an office and two, the office should carry some profit”. The definition of an office, quoted in Kanta Kathuria vs Manak Chand Surana, reads: An “office has an existence independent from the persons who filled it, which went on and was filled in succession by successive holders”.
In U.C.Raman vs P.T.A.Rahim and Ors, the Supreme Court categorically stated thus: “The word ‘profit’ has always been treated equivalent to or a substitute for the term ‘pecuniary gain’”. The principle that an “office” should have “receivables” attached to it for it to qualify as an OoP, has been upheld in other cases as well.
Here’s is a list of other instances where a row had erupted on charges of holding an ‘office of profit’.
*The controversy over the issue of ‘office of profit’ had forced former Congress president Sonia Gandhi to resign as an MP and sought re-election from Rae Bareli. She was appointed as the chairperson of the national advisory council by the UPA-1 government. Subsequently, the prevention of disqualification act was amended in 2006 to add the position of NAC chairperson to the list of exempted posts.
* Jaya Bachchan was disqualified from Rajya Sabha in 2006 via a Presidential order after she was found holding an office of profit when she was appointed by the Uttar Pradesh government as the Chairperson of the UP Film Development Council.
As the Chairperson, she received the following financial remuneration and other benefits:
(i) Honorarium of Rs. 5,000 per month
(ii) Daily allowance of 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.
Jaya Bachchan went on to challenge her disqualification before the Supreme Court, which dismissed the petition and upheld her disqualification stating that “the fact that the petitioner is affluent or was not interested in the benefits/facilities given by the State Government or did not, in fact, receive such benefits till date, are not relevant to the issue.”
*Similarly, former Lok Sabha speaker Somnath Chatterjee had faced a petition for disqualification but was saved after the lower house had passed the Parliament (Prevention of Disqualification) Amendment Bill, 2006, that provides for exempting 56 posts from being considered an office of profit. Chatterjee was accused of holding the position as Chairman of the Sriniketan-Santiniketan Development Authority (SSDA). Clarifying his stance, he had stated that he “did not enjoy any profit” from that position.
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