The concept of “office of profit” (OoP), aimed at safeguarding the independence of the legislature by insulating its members from the influence of the executive, hit the headlines once again on account of a petition seeking the disqualification of 21 Aam Aadmi Party MLAs in Delhi
In the absence of any definition, our understanding of what an OoP is depends on past judicial pronouncements. Accordingly, there are two indispensable ingredients of an OoP: One, there should be an office and two, the office should carry some profit. The benchmark 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.
Tested against these established principles, prima facie, the 21 MLAs are on a safe wicket. It is not difficult to decipher that the position they are appointed to doesn’t exist independent of them and hence cannot be treated as an “office” per se. The order appointing them does not provide for any “receivables”, profit or pecuniary benefit.
Those who concluded that the 21 MLAs under the scanner do not pass muster should not forget the fact that they already have protection by way of The Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, as amended in 2006. The said act grants immunity to the office of parliamentary secretary (PS) to the chief minister. The argument that the 21 MLAs are designated as PSs to ministers and not to the chief minister and hence are not protected under existing law is unlikely to be sustained judicially since the “first among equals” is a minister first.
This understanding leads to a logical question: Why was the law amended by the Delhi assembly in June, 2015 if the MLAs are secure even otherwise? Going by the surrounding high-decibel noise and energy sapping quasi-judicial proceedings that are on before the Election Commission of India (ECI), perhaps, the government of Delhi correctly apprehended harassment and went for what was considered to be an unambiguous shield.
Then why did the Union government recommend withholding of the presidential assent to the amendment that was cleared an year ago? With no official word spelt out as yet, the media “sourced” two broad reasons. One, the perceived breach of a law that restricts the number of ministerial berths in Delhi to 10 per cent of the total membership of legislature and two, the unacceptable provision of retrospective effect to the law. It is not going to be a pleasant task to defend these reasons.
Delhi witnessed the so-called “breach of 10 per cent law” almost continuously since the legislative assembly was revived in the early 1990s. The scenario is no different in many other states. Such attempts to usurp a federal right guaranteed under the Constitution through legal opinions are bound to be construed as preposterous, if challenged. With a similar law enacted by the Parliament, with retrospective effect in 2006, having been found to be sound by the Supreme Court in the Consumer Education & Research vs Union Of India & Ors, the second reason too may not find any judicial backing.
The current cacophony calls for correctives, though. When the Supreme Court precluded the need for a preliminary inquiry before referring to any complaint under Articles 103 and 192 to the head of the state, the political waters were not so very turbulent.
To remove possible misgivings about the adjudication procedures, the ECI deserves to have the benefit of rules framed specially to deal with matters referred to it under Articles 103 and 192.