Twenty AAP MLAs Disqualified for Holding ‘Office of Profit’

According to IANS, the Election Commission on January 19 recommended the disqualification of 20 AAP MLAs. The concerned MLAs had been appointed as Parliamentary Secretaries to Ministers in the Delhi Government. In all 21 AAP MLAs had been appointed, however, one had previously resigned in order to contest the Punjab Assembly elections. In 2015, Prashant Patel, an advocate and member of Hindu Legal Cell had petitioned the then President Pranab Mukherjee about the appointments. AAP has petitioned the Delhi High Court on the matter, and the hearing will take place on January 22. Newsclick tried to speak to two former Chief Election Commissioners, both of whom refused to comment on the matter.

Section 15 of the Government of National Capital of Delhi Act, 1991 deals with disqualification of membership to the Legislative Assembly. Subsection 1 clause (a) specifically states that a person shall be disqualified for membership to the Legislative Assembly “if he holds any office of profit under the Government of India or the Government of any State or the Government of any Union territory other than an office declared by law made by Parliament or by the Legislature of any State or by the Legislative Assembly of the Capital or of any other Union territory not to disqualify its holder”.

However, the term ‘office of profit’ has not been specifically defined under any legislation. In Shibu Soren vs. Dayanand Sahay and Ors. the Supreme Court determined office of profit to be one in which a person occupies a position that allows the executive a quantum of control over his behaviour, what in the Court’s opinion was of importance was the ‘substance’ and not the ‘form’. Therefore, it is immaterial whether the person draws a large salary or not. In other words, the concept of office of profit is linked to the doctrine of separation of powers. ‘Office’ as defined by the Supreme Court in Mahadeo vs. Shantibai and Ors. is “a position or place to which certain duties are attached, especially one of a more or less public character.”

The position of a parliamentary secretary is an executive post and through the doctrine of separation of powers, a legislator cannot occupy the post. Pondicherry however, has a legislation which prevents the disqualification of MLAs for being parliamentary secretaries as well as holding posts under six specific statutory and non-statutory bodies. However, Delhi does not have any such legislation. In 2015 the AAP had moved an amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, to retrospectively exempt the post of Parliamentary Secretary from the definition of office of profit. President Mukherjee at the time refused to assent to the amendment. The Delhi High Court set aside the appointments declaring them illegal since the order had been passed without the approval of the Lt Governor. Therefore, on the face of it, the likelihood of the Election Commission’s decision to be affected by the petition to the High Court is highly unlikely.