Office of Profit; AAP MLAs
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The Disqualification

On 21st January 2018, the President of India confirmed the disqualification of 20 AAP MLAs on the recommendation of the Election Commission. This was the result of a petition filed against them by a young lawyer in 2015, alleging that they were holding “office of profit” with the Government as all of them were Parliament Secretaries.

Post Of ‘Parliamentary Secretary’ Constitutes Office Of Profit?

The question of whether the post of a ‘Parliamentary Secretary’ constitutes an ‘office of profit’ or not is to be decided judiciously. As a Parliamentary Secretary assists a Minister, the office usually comes with perks as well as a measure of political influence. Hence, it would ideally constitute an “office of profit”. But in a notification confirming their appointment, it was stated by the Government of India that they would not be given any kind of perks or remuneration by the Government. Nevertheless, on 19th January 2018, the Election Commission (EC) had written to the President asking him to disqualify the 20 AAP MLAs on the grounds that they held offices of profit while occupying the post of Parliamentary Secretaries between March 13, 2015 and September 8, 2016.

The Decision

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The President has held in favor of the EC and passed a 120-page order disqualifying 20 MLAs. The MLAs who have been axed are Alka Lamba, Adarsh Shastri, Sanjeev Jha, Rajesh Gupta, Kailash Gehlot, Vijendra Garg, Praveen Kumar, Sharad Kumar, Madan Lal Khufiya, Shiv Charan Goyal, Sarita Singh, Naresh Yadav, Rajesh Rishi, Anil Kumar, Som Dutt, Avtar Singh, Sukhvir Singh Dala, Manoj Kumar and Nitin Tyagi.

The appointment of the respondent MLAs as Parliamentary Secretaries by the GNCTD bypasses and frustrates the objective sought to be achieved by Section 15(1)(a) of The Government Of National Capital Territory Of Delhi Act, 1991 and is also against the principle of legislative oversight of the Government which is the basic tenet of Parliamentary form of Democracy,” the EC said in its exhaustive recommendation to the President, which was accepted by the latter.

Preceding Circumstances And Resulting Consequences

All the members of the AAP were enraged by the hasty decision taken by the President of India. They were trying to hold a meeting with the President in regard to this matter but their efforts could not materialize due to the President’s busy schedule. Earlier attempts were made by the Delhi Chief Minister to exclude the office of Parliament Secretary from the ambit of “Office of Profit” but they were not successful. In response, it was alleged by the MLAs that the ruling Central Government is misusing the Constitutional machinery in order to win the upcoming elections in Delhi. All the 20 AAP MLAs had moved the Delhi High Court challenging the EC’s recommendation but Justice Rekha Palli had refused to pass any interim order.

The Congress party members alleged that AAP was being helped by BJP and the Election Commission as the decision was delayed by 3 weeks. If the MLAs would have been disqualified before December 22, they would have been ineligible for voting in the Rajya Sabha elections. However, this development will not affect the AAP’s position in Delhi Assembly as it has already 66 out of 70 seats in the same. But the BJP and the Congress parties have demanded resignation from Arvind Kejriwal on moral grounds.

The Constitutional experts have stated that the Courts have the power to set aside the recommendations of the Election Commission. In case they are not set aside, fresh elections are to be held in the next six months. The recommendation can be subjected to legal scrutiny.

The decision of the High Court is greatly awaited as it is going to make a breakthrough in the jurisprudence of the concept of “Office of Profit”. Though the Government has given criteria to define the same, this is a unique situation where the President has allegedly used his power in haste and delivered an incorrect decision.

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