The President of India has reportedly declined assent to the bill passed by the Delhi legislative assembly, which retrospectively sought to exempt the post of parliamentary secretary from the purview of office of profit. Articles 102 and 191 debar MPs and MLAs respectively to hold an office of profit under the government. Politics is perhaps the most inventive calling and an insecure executive, with ingenious argumentative power may attempt to peddle oranges as apples.
The defence of the Delhi government, that the MLAs appointed by them as parliamentary secretaries to ministers are not holding an office of profit and therefore they have not incurred disqualification, is a specious argument. The term “parliamentary secretary” does not occur in the Constitution. The Constitution enshrines the principle of separation of powers between the three organs of the state with adequate checks and balances so that all the organs work robustly but independent of each other. In order to ensure that the council of ministers does not become inordinately large and to such an extent a burden on the public exchequer, Parliament amended Articles 75 and 164 of the Constitution and inserted a new sub-clause (1A) to each article by the Ninety-first Constitution (Amendment) Act in 2003 ordaining that the total number of ministers shall not exceed 15 per cent of the total number of the legislature. The proviso to sub-clause 1A to article 164 further provides that the number of ministers, including the chief minister, in a state shall not be less than 12, taking care of the states with MLAs less than a hundred.
Before a minister enters office, the president in the case of the Union and, the governor, in the case of a state, administers to him the oaths of (a) office and (b) secrecy according to the form set out for the purpose in the Third Schedule to the Constitution. A minister is sworn under the solemn oath of secrecy not to communicate or reveal directly or indirectly to any person or persons any matter which is brought for his consideration as a minister. A parliamentary secretary is not a constitutional functionary like a minister and therefore, he cannot be privy to any discussions in the cabinet nor is he responsible to the legislature as a member of the council of ministers is.
The office of a minister is not an office of profit in view of the express constitutional provisions whereas a member incurs disqualification if he holds an office of profit under the government, whether Union or state. In case a question of such disqualification arises, the president (in respect of an MP) and the governor (in respect of an MLA), can declare such a member disqualified after obtaining the opinion of the Election Commission. If it is established that the legislator was occupying an office under the government and the office was an office of profit, that is, an office capable of giving pecuniary gain or material benefit to self or to somebody else, regardless of the quantum of gain, the membership of such a person is liable to disqualification, unless specifically protected by the Parliament (Prevention of Disqualification) Act granting exemptions to certain offices.
Besides, by way of a writ petition, a member can be disqualified by a court as it happened in the case of Jaya Bachchan and Shibu Soren, who were disqualified for holding an office of profit under the state governments of UP and Jharkhand respectively. Sonia Gandhi, too, resigned from the 14th Lok Sabha as her membership was under challenge.
The sword of Damocles now hangs over the 21 MLAs of the Delhi legislative assembly who have been appointed as parliamentary secretaries by the Arvind Kejriwal government. The Election Commission, based on a petition filed last year, issued notices to all the 21 MLAs and asked them to explain the validity of their appointment as parliamentary secretaries.
The matter is grave and in view of the clear constitutional provisions and the judgments of the Supreme Court, the advice of the Election Commission and the decision of the lieutenant governor thereon is bound to be on obvious lines. MLAs, being legislators and entrusted by the Constitution to secure the accountability of the executive to the legislature by mounting unremitting legislative oversight, cannot be made subordinate to ministers or act as their chaperones or errand boys. Accountability of the executive to the legislature is the lynchpin of parliamentary democracy. It is through unremitting vigil that the legislature can exercise effective oversight over the executive.
In the words of J. S. Mill, “the proper office of a representative assembly is to watch and control the government, to throw the light of publicity on its acts”. The onerous task of checkmating the government, to question and censure the ministers if they abuse the trust reposed in them falls on the legislators. Legislators are therefore rightly likened as watchdogs but if they are made secretaries to ministers it is bound to curtail their independence and whittle down parliamentary oversight. Legislators are not attachés and they cannot be made errand boys of ministers by making a constitutional transgression. Last year, the Kolkata High Court struck down the appointment of 24 parliamentary secretaries by the West Bengal government. The ceiling imposed by the Constitution with respect to the size of the council of ministers cannot be exceeded by way of appointment of parliamentary secretaries.
Executive largesse cannot be doled out by appointment of parliamentary secretaries in contravention of the Constitution. What is explicitly prohibited by the Constitution cannot be circumvented indirectly by the executive. In the words of Ronald Dworkin, a leading jurist and political philosopher, “legislatures must be free to make policy, which is a utilitarian calculation of the greatest good for the greatest possible number”. It’s not a question merely of the Delhi MLAs appointed as parliamentary secretaries but of all states who have committed similar constitutional violations. Where any authority infringes the Constitution or resorts to extra-constitutional measures to strangulate the soul of the Constitution, it is incumbent upon the constitutional institutions to discharge their interpretive functions, issue appropriate declaratory orders making the infringement null and void, and to uphold the Constitution.