Kejriwal asked to join probe into 'assault' on Chief Secretary
Opinion

Office of “Profit” Controversy; Why Arvind Kejriwal may win

In order to appreciate the recent crisis faced by the Delhi Government over the appointment of the 21 Aam Aadmi Party MLAs as Parliamentary Secretaries and its political consequences, we need to understand the underlying issues involved from a Constitutional perspective.

The source of the office-of-profit disqualification is found in our Constitution itself in Article 102(1)(a) qua MPs and Article 191(1)(a) qua MLAs. Both are analogous provisions and essentially state that a person shall be disqualified for being chosen as, and for being, a member of the Legislature if he holds any office of profit under the Government of India or the Government of any State other than an office declared by the Legislature by law not to disqualify its holder.

Therefore, the power to exempt an office of profit from disqualification has already been vested upon the respective legislature by the Constitution itself. This unbridled and unguided power, in my view, has often been the source of much abuse.

The objective behind the office-of-profit disqualification has been explained by the Supreme Court in Shibu Soren v. Dayanand Sahay (2001) 7 SCC 425, Para 5 as follows

“Both Articles 102(1)(a) and 191(1)(a) were incorporated with a view to eliminate or in any event reduce the risk of conflict between duty and interest amongst members of the legislature so as to ensure that the legislator concerned does not come under an obligation of the executive, on account of receiving pecuniary gain or benefit from it, which may render him amenable to the influence of the executive, while discharging his obligations as a legislator.”

Almost, all political parties and governments have distributed offices of profit as largesse out of patronage to their loyalists and then exempted those offices from disqualification through legislations. Therefore, it is seen that for over half a century, exemption of an office-of-profit from disqualification by law has mostly been resorted to as an expedient measure to protect the incumbent rather than as a principled approach based on public interest to promote good governance by taking advantage of expertise of Legislators.

In this context, the amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 which provides exemption from disqualification of the 21 Aam Admi Party MLAs who were appointed as Parliamentary Secretaries is not an exceptional case at all, since the Constitution itself provides for such an exemption by the legislature.

Moreover, when the Parliament (Prevention of Disqualification) Act, 1959 itself exempts from disqualification the office of Parliamentary Secretary qua MPs, why should there be selective outrage over a similar exemption sought to be introduced by a State Legislature qua its MLAs?

A constitutional problem, both in terms of morality and legality, arises only if the 21 MLAs appointed as Parliamentary Secretaries were entitled to profit by virtue of them holding the office of Parliamentary Secretary. Therefore, even if the President had given assent to the amendment exempting the office of Parliamentary Secretary and had the MLAs by virtue of being Parliamentary Secretaries were entitled to perks, benefits and salaries, it would still be an issue of constitutional morality if not one of legality. In the present scenario, when the President has refused assent, it becomes a matter for judicial determination as to whether the office was capable of yielding any profit.

The basic problem that arises in the context of office of profit is that this term has nowhere been defined. The Supreme Court has ruled in the case of Ashok Kumar Bhattacharya v Ajoy Biswas, (1985) 1 SCC 151 that interpretation will be case-specific.

The three different criteria under Article 191(1)(a) must be satisfied in order for the disqualification to operate, namely:

  • there must be an office;
  • the office must be one where the holder derives profit; and
  • such an office must be under the government.

If any one of the conditions is not satisfied, the disqualification will not operate. In the present scenario, there is no dispute that the office of Parliamentary Secretary is an office and is under the government. The problem arises in determining whether it is an office of “profit”.

The test has been laid down by the Hon’ble Supreme Court in Shibu Soren v. Dayanand Sahay, (2001) 7 SCC 425 at page 440 at Para 26, as “what needs to be found out is whether the amount of money receivable by the person concerned in connection with the office he holds, gives to him some “pecuniary gain”, other than as “compensation” to defray his out-of-pocket expenses, which may have the possibility to bring that person under the influence of the executive, which is conferring that benefit on him. On this issue, the only factual material in public domain is the official statement dated 14.03.2015 issued by the Government of Delhi through the Directorate of Information and Publicity which states that “These parliamentary secretaries will not get any remuneration or any perks of any kind, from the government- meaning no burden on exchequer.” If this is, in fact, the correct factual position, then the question as to whether the office of Parliamentary Secretary has yielded any profit has to be answered in the negative and the controversy ends then and there. But this is a matter to be judicially determined by leading evidence.

Some rather loud debates on a TV channel seemed to suggest, on a mis-reading of a Supreme Court decision in Jaya Bachchan’s case, that it doesn’t matter if the office did not provide for profit but so long as it was capable of providing for profit, the disqualification would be attracted. I would be remiss not to point out that such an interpretation is misplaced. The Supreme Court in Jaya Bachchan v. Union of India, (2006) 5 SCC 266 at page 269 Para 6 has held that “For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the “pecuniary gain” is “receivable” in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not. If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102(1)(a).” These observations were made by the Court to refute the arguments made on behalf of Smt Jaya Bachchan that “she did not receive any remuneration or monetary benefit from the State Government; that she did not seek residential accommodation, nor used telephone or medical facilities; that though she travelled several times in connection with her work as chairperson, she never claimed any reimbursement; and that she had accepted the chairpersonship of the Council honorarily and did not use any of the facilities mentioned in the OM dated 22-3-1991.” It was in this context that the Court held that it did not matter if the incumbent actually derived benefit, what matters is whether the office carried with it or entitled the holder to any pecuniary gain.

Another aspect, which requires consideration is Article 239AA (4) of the Constitution which places a limit on the total number of ministers that can be appointed in the National Capital Territory of Delhi, being 10 per cent of the total legislative strength, which makes it 7 out of a total strength of 70. It is well settled that what cannot be done directly, cannot be done indirectly. Article 239AA (4) of the Indian Constitution is a mandatory provision and the test will be whether the Parliamentary Secretaries were in fact, functioning as de facto Ministers, carrying out similar responsibilities and entitled to such perks, benefits and/or salaries as the Ministers themselves. From the official clarification, it appears that no remuneration or any perks of any kind were even receivable by the Parliamentary Secretaries and if this is factually correct and verifiable, then Article 239AA (4) would not be attracted. The Bombay High Court in the case of Aires Rodriegues v. State of Goa 2009 Supp Bom CR 16, arising out of a PIL challenging appointment of Parliamentary Secretaries had held that since the appointment, duties, functions, perks and privileges of Parliamentary Secretaries were akin to Ministers, it was intended to overreach the constitutional restrictions in Article 164(1-A) and therefore the appointments were struck down as unconstitutional. Similarly, the Calcutta High Court in Vishak Bhattacharya vs The State Of West Bengal & Ors on on 1 June, 2015  struck down the law appointing Parliamentary Secretaries on the ground that the Parliamentary Secretaries were given the same status as a Minister of State and had become de facto Minsters.

Worst-case scenario for AAP

  1. If the office of Parliamentary Secretary is found to be one of profit, the 21 MLAs will be disqualified in terms of Article 191(1) (a) of the Constitution. Out of 67 MLAs, the AAP would be reduced to 46 in a house of 70 members and still continue to be in majority; and/or
  2. Assuming that the office of Parliamentary Secretary is deemed to be that of a de facto Minister, then the vice of Article 293AA(4) will be attracted and the appointments of Parliamentary Secretaries will be liable to be struck down as unconstitutional.

For either of the above scenarios to be true, it must first be positively proved that the Parliamentary Secretaries were entitled to any form of profit by way of salaries, perks, emoluments, benefits or privileges by virtue of holding the office of Parliamentary Secretary.

 

Conclusion

The Office-of-Profit issue poses both a Constitutional and a political problem. There is a need for political restraint on appointments out of patronage and transparency in respect of all appointments. It is about time that the Supreme Court laid down principles for exercise of legislative powers to exempt offices of profit from disqualification. As a mark of judicial statesmanship, the Supreme Court while refusing to add an additional disqualification in Manoj Narula (2014) 9 SCC 1, had invoked the doctrine of Constitutional trust reposed in high functionaries and stated that there is legitimate constitutional expectation that the PM/CM would not choose persons as Ministers with criminal antecedents. Exercise of legislative power is also a matter of constitutional trust, which is reposed in the legislature and therefore, any departure from the office-of-profit rule would require the Government to justify such exemption on the touch-stone of public interest. The well-tempered words of Justice Krishna Iyer in Madhukar Pankakar v. Jaswant Chobbildas Rajani (1977) 1 SCC 70, Para 22 will be of guidance to the Courts and Legislatures alike that any exemption from the office-of-profit rule must be based on public interest:-

“Doctors, lawyers, engineers, scientists and other experts may have to be invited into local bodies, legislatures and like political and administrative organs based on election if these vital limbs of representative government are not to be the monopoly of populist politicians or lay members but sprinkled with technicians in an age which belongs to technology. So, an interpretation of ‘office of profit’ to cast the net so wide that all our citizens with specialties and know-how are inhibited from entering elected organs of public administration and offering semi-voluntary services in para-official, statutory or like projects run or directed by Government or Corporations controlled by the State may be detrimental to democracy itself.”

 

(Zoheb Hossain is an Advocate-on-Record in the Supreme Court of India. He can be reached at @ZohebHossain)

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