Lawmakers with perks

The long list of exemptions has made the office of profit a farce. Delhi Assembly case is an opportunity to debate the issue afresh.

Written by S Y Quraishi | Updated: February 26, 2018 12:05:48 am
office of profit, Delhi AAP, Arvind Kejriwal government, Election Commission, aap mlas office of profit, aap mlas disqualification The origin of the concept of office of profit dates to 18th century Britain.(Illustration: C R Sasikumar)

The office of profit issue keeps coming up every now and then and leaves behind several questions. The most recent case pertains to appointments made by Delhi’s AAP government on March 13, 2015. As many as 21 MLAs were appointed as parliamentary secretaries and attached to various ministers. One Prashant Patel petitioned the President on June 22, 2015, questioning the appointment on the ground that it violates Article 191A. The very next day, the Delhi Assembly passed the Removal of Disqualification Bill 2015 with retrospective effect, and forwarded it to the President for post-facto approval. After nearly a year, the President declined assent on June 7, 2016. He forwarded the petition to the Election Commission (EC) for its “opinion”, as mandated by the Constitution.

While this petition was pending with the President, the Rashtriya Mukti Morcha petitioned the Delhi High Court that the appointments were illegal since the LG’s prior approval — which is mandatory — was not taken. The court upheld this contention and held the appointments void ab initio.

On January 19, a day before Chief Election Commissioner A K Joti was to retire, the EC forwarded its “opinion” to the President, who, accepted it within a day — despite that fact that it was a Sunday and the President was traveling. These developments raised a question: Did all this happen in undue haste? The bona fides of the matter are being examined. Interestingly, there is also a counter allegation that the EC took too long to decide the matter.

The origin of the concept of office of profit dates to 18th century Britain. From 1701 to 1919, legislators who were appointed ministers lost the right to be members of the House of Commons as they were entitled to salaries and perks. India adopted this concept through Articles 102 and 191 to ensure the independence of MPs and MLAs from the government. To bypass these Articles, the Parliament (Prevention of Disqualification) Act was enacted in 1959. The Act, which exempted several posts from the purview of Articles 102 and 191, has been amended five times — in 1993, 1994, 2000, 2006, and 2013. The long list of exemptions has made the office of profit a big farce. It is clear that exemptions were granted according to the whims and fancies of the government of the day. If we were to examine the list, case-by-case, most exemptions would be impossible to justify.

APJ Abdul Kalam was probably the first President who saw through the absurdity in this practice, when in 2006 as many as 55 new categories were proposed to be exempted by an amendment bill — with retrospective effect from 1959. He refused to sign the Bill and returned it to Parliament. The Lok Sabha passed the Bill again without change and returned it to the President. Defying constitutional requirement, President Kalam refused to sign again and, instead, chose to sit on the file for over two weeks, making the government panic.

After a great deal of personal persuasion by then Prime Minister Manmohan Singh, the President signed the Bill on the assurance that on the first working day of Parliament, the government would constitute a Joint Parliamentary Committee (JPC) to address his concerns over the justification for such a long list.

Not many know that the EC was all set to issue notice to 22 MPs (including the then Lok Sabha Speaker Somnath Chatterjee) against whom there were complaints about holding office of profit. If such a notice had been sent, there would have been a demand for the resignation of all the 22 MPs. In fact Chatterjee, who got wind of the impending notice, was all set to resign. If that had happened, Parliament could have ended in commotion and the JPC would not have been constituted that day. The President would not have signed the Bill, making the confrontation between him and the government uglier.

President Pranab Mukherjee’s refusal to give assent to the Delhi Assembly Bill without assigning any reason can be seen in this light. But the same President had approved another amendment in 2013. Is this selectivity a case of the famous bureaucratic aphorism: Show me the face and I would show you the rule?

The indiscriminate use of exemption has created a situation where the same posts are exempt from the purview of the acts in some states, while they are deemed as office of profit in others. What is good for the goose must be good for the gander. Another anomaly was that while there were many posts of parliamentary secretaries in several states, such posts were denied to Delhi — and indeed to some other states. The selective operation of the process does raise questions of legitimacy. Many jurists are wondering if the office of profit concept is relevant or should be done away with.

The Delhi Assembly case has left a number of questions unanswered, which the AAP has challenged. Did the EC give sufficient opportunity to the defendants to be heard as per the law of natural justice? Is the EC’s stand that the petitioner is like a whistle-blower, who cannot be cross-examined, justified? Was there undue haste in the way the CEC issued the order on his last working day? Was the action of EC O P Rawat, who had first recused himself but rejoined the proceedings without informing the parties, legally correct? Was the newly-appointed commissioner, who had not heard the case at any stage, right in joining in to give the verdict? Another relevant question is whether the President was obliged to accept the Delhi Assembly Bill. The matter is sub judice.

The AAP seems to be depending solely on its argument of “no pecuniary benefit” whereas the EC has based its decision on the third of three criteria laid down by the Joint Parliamentary Committee. That is: “Whether the body in which an office is held enables the holder to wield influence or power by way of patronage.” It will be interesting to see how the court adjudicates on these questions.

The bigger concern, however, is that there seems to be no other reason for creating posts of parliamentary secretaries except to bypass the 91st constitutional amendment of 2004, which restricted the number of ministers that could be appointed to 15 per cent of the Lok Sabha or state legislatures. It is a shame that to keep the flock of MPs and MLAs happy, various governments created the post of parliamentary secretaries, with full salaries and perks and with powers almost identical to those of ministers. It’s also a pity that the legislators have no attachment to ideology and the only force that keeps them tied to their parties are the loaves of office. I am pained to say that the long list of exemptions is a joke on the Constitution. The wholesale creation of posts of parliamentary secretaries is a fraud on the Constitution.

The writer is former Chief Election Commissioner of India and the author of ‘An Undocumented Wonder — The Making of the Great Indian Election’.

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