Parliamentary secretaries: India
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The issue of parliamentary secretaries
Why parties create parliamentary secretary posts
From: Why parties risk action to create parliamentary secretary posts, January 20, 2018: The Times of India
The lure to create extra posts that run the risk of attracting 'office of profit' tag+ often stems from the limitation of ruling dispensations to accommodate the desire of MLAs to be inducted in the council of ministers.
The problem is more pronounced in smaller states like Delhi, where Article 239 AA of the Constitution mandates that the size of the council of ministers should not exceed 10% of the total strength of the assembly.
For other states, the ceiling for number of ministers is a little higher at 15% of the assembly's strength.
While there exists a legal window for declaring the extra posts for MLAs outside the purview of 'office of profit' as defined under Article 102 of the Constitution , the Delhi government, in a hurry to reward 21 MLAs with plum posts, overlooked this requirement+ . It was only with retrospective effect that it passed a bill to exempt the post of parliamentary secretary from 'office of profit' tag.
The bill was subsequently declined presidential assent.
Earlier governments in Delhi too had the post of parliamentary secretary. When the sole MLA appointed as parliamentary secretary by the Sahib Singh Verma government was told that this could attract his disqualification, he chose to resign.
Even the Shiela Dikshit government+ appointed parliamentary secretaries, but the constitutionality of the these posts was never challenged.
"I chose to challenge the appointment of 21 AAP MLAs as parliamentary secretaries. Many high courts have quashed such appointments when challenged," Delhi lawyer Prashant Patel, who moved the petition seeking disqualification of the 20 (earlier 21) AAP MLAs, told TOI.
For instance, the appointment of parliamentary secretaries has been stayed or quashed by the Calcutta HC (2015), Goa bench of Bombay HC (2009), Himachal Pradesh HC (2005) and Chhattisgarh HC(2017).
SC, HCs had struck down Parliament secretary posts
The impending blow of disqualification of 20 of its MLAs could have been softened if the AAP government had acted with prudence in first enacting a law creating the posts of parliamentary secretaries and exempting legislators from the “office of profit” clause.
If the AAP government had done so, the affected MLAs could have lost their seats by a court order rather than being unseated by the Election Commission. Instead, the AAP leadership committed the mistake of first appointing MLAs as parliamentary secretaries and later enacting a law to provide retrospective legal backing to the posts and prevent disqualification.
The Supreme Court and the HCs have consistently held that it was constitutionally impermissible to create posts of parliamentary secretary through legislations by states to appease MLAs who could not be accommodated in the Council of Ministers because of a ceiling imposed by Article 164(1A) of the Constitution.
Parliament had on January 1, 2004 passed the Constitution 91st Amendment Bill, 2003, to modify Articles 75 and 164 of the Constitution. This Act provided that under Article 164(1A), the size of the Council of Ministers in a state should not exceed 15% of the total strength of the Assembly.
A SC bench headed by Justice J Chelameswar had on July 26 last year struck down a law passed by the Assam Assembly 13 years ago to allow then Congress government headed by Tarun Gogoi to appoint MLAs as parliamentary secretaries even after Parliament capped the number of ministers.
The SC had also quashed appointment of parliamentary secretaries by some other states which had used the executive order route as was done by the AAP government in Delhi, terming them as illegal. In September 2016, appointment of AAP MLAs as parliamentary secretaries was also struck down by the Delhi high court.
In June 2015, the Calcutta HC had quashed appointment of 24 parliamentary secretaries in West Bengal terming it unconstitutional and said, “The statute in question is nothing but an enactment to overcome the limitation or restriction imposed under Articles 164 (1A) of the Constitution of India. Hence, it is repugnant to the Constitution and deserves to be struck down. Accordingly, the writ petitions are allowed. The enactment of West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act of 2012 is struck down.”
In 2016, the Punjab and Haryana HC had struck down Punjab Parliamentary Secretaries and Chief Parliamentary Secretaries (Terms and Conditions of Appointment) Rules, 2006 holding it to be contrary to Article 164(1A). The Bombay HC had in 2009 struck down appointment of two parliamentary secretaries in Goa. The Himachal Pradesh HC had in 2005 in a similar ruling struck down appointment of eight chief parliamentary secretaries and four parliamentary secretaries.
In the Assam case decided by the SC in June last year, it was stated that at the time of the coming into force of the 91st Constitutional Amendment Act, 2003, the strength of the Council of Ministers in the state was at 36 out of a total str0ength of 126 MLAs, or 28.57% of the strength of the Assembly. In view of the mandate contained in Article 164(1A), strength of the Council of Ministers was to be brought down to 19 to be consistent with the 15% ceiling.
Punjab HC: Chief parliamentary secretaries illegal
The Times of India, Aug 13 2016
Ajay Sura
The Punjab and Haryana high court struck down the provision of appointing chief parliamentary secretaries (CPS) in Punjab, calling the post unconstitutional. The order will have wide-ranging ramification, not only in Punjab but also Haryana and all other states where CPSs have been appointed. The court quashed the appointments mainly on the ground that these were against Article 164 (1-A) of the Constitution which restricted the number of ministers to 15% of the total strength of a state assembly . The petitioners, advocates Jagmohan Singh Bhatti and H C Arora, had argued that the Punjab government had appointed CPSs just to circumvent the Constitution to provide illegal benefits to the MLAs of the ruling party .
A division bench of Justice S S Saron and Justice Ramender Jain invalidated the appointments while allowing the petition challenging the constitutional validity of CPSs. The order would also have a bearing on the four CPSs in Haryana who were appointed by the BJP government led by Manohar Lal Khattar in July 2015. These too had been challenged on the same ground. In Delhi, the Arvind Kejriwal government has appointed 21 parliamentary secretaries which has been challenged in the high court.
Punjab had appointed as many as 24 CPSs all of whom will now lose the post.
The two lawyers had said in their petition that there was no provision for CPSs in the Constitution and that these were a burden on the state exchequer. They argued that CPSs were treated as de-facto ministers as they enjoyed the same financial benefits. This included salary, traveling expenses, salaries of the attached staff, medical bills, telephone bills and even government accommodation.
Sheila and Sahib Singh took Opposition’s consent
Vishwa Mohan, Sheila and Sahib Singh took Oppn’s consent, January 20, 2018: The Times of India
There is no law to appoint parliamentary secretary but two former Delhi chief ministers — Sahib Singh Verma (BJP) and Sheila Dikshit (Congress) — and even ex-PM Rajiv Gandhi had such aides during their tenures as no one objected to the move.
However, they escaped scrutiny under the ‘office of profit’ provision and were given the benefit of doubt because of the “ terms of appointment’.. Rajiv Gandhi had Oscar Fernandes (1984-85) and Ahmed Patel (1985-86) as his parliamentary secretaries.
Constitutional experts said the situation was different in the current case where as many as 21 AAP MLAs were appointed parliamentary secretaries in 2015 without taking care that the constitutional provision was not violated.
“I think the Election Commission took the decision in the present case well within the Constitution and law. I, however, wonder why did the Commission take so much time. It could have taken the decision (of disqualifying AAP MLAs) much earlier as it was a clear case of office of profit,” constitutional expert and former Lok Sabha secretary general Subhash C Kashyap told TOI.
He said two conditions were to be satisfied to term a post as ‘office of profit’. “One, if it is under a government and the other, if it draws any kind of benefit. It is not necessary that to be considered an “ office of profit” a position should necessarily yield its holder pecuniary benefit. . Even a position which vests only executive powet in the occupant satisfies the condition,” Kashyap said.
Another former Lok Sabha secretary general, P D T Achary, pointed to the ‘terms of appointment’ of these Delhi MLAs and said ...“My considered view is that the 21 MLAs who are charged with holding the office of profit are in the clear given the terms of appointment and also in the light of the Hon’ble Supreme Court’s judgement in Raman v. Rahim case”... in 2014.
[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. Indian Express ]
But then, how did Sahib Singh Verma get Nand Kishore Garg appointed parliamentary secretary in 1996 and Sheila Dikshit get Ajay Maken appointed in 1998?
Former secretary of Delhi assembly S K Sharma told TOI that Verma and Dikshit did this after taking the opposition on board and the agreement ensured that, unlike in the case of AAP, no objection was raised.. “It was mutually agreed between ruling and opposition parties during their tenures to have parliamentary secretary of chief minister and that’s why no one objected,” Sharma, an advisor to petitioner Prashant Patel who had approached the EC for disqualification of the AAP MLAs, said.
Parliamentary secretaries in various states
History, 1967- 2018
The concept of a parliamentary secretary that has taken a toll on Aam Aadmi Party (AAP) and put Bharatiya Janata Party (BJP) in a spot, was originally introduced by the Congress way back in the 1960s, in undivided Madhya Pradesh. It did this by appointing the first parliamentary secretary in 1967, when it was in power in that state. What's more, it was this very party that appoint Parliamentary Secretaries (a post equivalent to state minister) in Delhi.
“It was during the tenure of D P Mishra as chief minister (of undivided Madhya Pradesh), that senior Congress MLA Rajendra Prasad Shukla was appointed as the first parliamentary secretary,” said Virendra Pandey, who was parliamentary secretary during Janata Party government in 1977.
Parliamentary secretaries were earlier appointed to assist the chief minister or senior ministers. Today however, they are are appointed to compensate the loss incurred after the 91st Amendment to the Constitution, which limits the size of the Council of Ministers at the Centre and the States to no more than 15 per cent of the numbers in the Lok Sabha or the State Legislature.
The erstwhile Congress-led government in Madhya Pradesh had formally enacted a law that empowers the the state administration to appoint parliamentary secretaries and declare that the post is not for profit. The Act had come as a breather for the Chhattisgarh government, which has as many as 11 parliamentary secretaries.
“The appointment is legal and the government has acted within the framework of the Act,” BJP spokesperson Sacchidanand Upasne says.
The matter is pending for final judgment in the Chhattisgarh High Court, after Congress leaders filed a petition challenging the appointment.
AICC spokesman Mohmmad Akbar, who is one of the petitioners, said he had moved the Election Commission seeking the disqualification of 11 BJP legislators for allegedly holding an office-of-profit. But the Governor did not take action and did not forward the complaint of the Congress to the commission, he added.
Akbar said that in 1967, the situation was different, indicating that such appointments were necessary at that time. While the Congress is crying foul, the BJP is in a catch-22 situation in Chhattisgarh, as it has been pushing for the disqualification of the 20 AAP legislators in Delhi.
If the Delhi decision is repeated in Chhattisgarh, the BJP government will have to step down and it will become a minority. In the 90-member Chhattisgarh Assembly, the saffron party has 49 MLAs compared with Congress' 39. In case its 11 MLAs are disqualified, the Raman Singh government will be down to 38 MLAs, which is below the magic figure of 46.
2016: 13 states had MLAs in OOP
The Times of India, Jul 01 2016
Finding itself in a crisis over the appointment of 21 parliamentary secretaries, AAP on Thursday submitted to the Election Commission a list of MLAs from 13 states who, it claims, are occupying offices of profit [OOP].
Senior party member Sanjay Singh, who was part of the delegation, said: “These parliamentary secretaries have been drawing fat salaries, availing the same facilities available to ministers, and have been allocated bunga lows and staff. State governments are spending crores of rupees on these parliamentary secretaries. It's a clear case of office of profit.“
He said that there could not be two sets of rules. “On one hand, political parties are targeting Aam Aadmi Party in Delhi even though its MLAs are not getting any pecuniary benefits, while, on the other, they are spen ding crores on their own parliamentary secretaries.“
The party has submitted a complaint against 13 MLAs from Arunachal Pradesh, 11 from Chhattisgarh, five from Gujarat, four from Haryana, nine from Himachal Pradesh, 10 from Karnataka, five from Manipur, 18 from Meghalaya, seven from Mizoram, 24 each from Nagaland and Punjab, five from Rajasthan and two from Madhya Pradesh.
Six of these states are ruled by the BJP or a BJP-combine. The ruling party in Nagaland is the Naga Peoples Front, an ally of the NDA.
2018: How things stand across India
The EC on Friday recommended to the President the disqualification of 20 of AAP MLAs+ for holding "office of profit". The EC recommendation came as a blow to the ruling party in Delhi, after recent electoral setbacks.
The president is bound to go by the EC's recommendation.
Here is a lowdown on what is an "office of profit" and how things stand across India:
What is an 'office of profit'?
If an MLA or an MP holds a government office and receives benefits from it, then that office is termed as an "office of profit". A person will be disqualified if he holds an office of profit under the central or state government, other than an office declared not to disqualify its holder by a law passed by Parliament or state legislature.
How things stand in other states
West Bengal: Mamata Banerjee government appointed 24 parliamentary secretaries for "coordination between government departments". Kolkata HC called it unconstitutional. Matter pending in SC. Posts currently non-functional
Karnataka: Karnataka government appointed 11 MLAs and MLCs as parliamentary secretaries. Says posts not equivalent to minister of state and they are only assistants to ministers. Case pending in HC
Rajasthan: Rajasthan government has 10 parliamentary secretaries who enjoy status of ministers of state. Passed a bill in October 2017 to give them constitutional validity, which has been challenged in HC
Odisha: Odisha appointed 20 MLAs as chairpersons of district planning committees in 2016 and gave them minister of state status by amending an Act. DPCs get vehicles and secretarial staff, but don't draw extra salary
Telangana: Telangana appointed six MLAs as parliamentary secretaries in 2014 and gave cabinet status by enacting law. Hyderabad HC quashed appointments in June 2016
Northeast: Nagaland and Arunachal Pradesh have 26 parliamentary secretaries each. After SC held law enacted by Assam in 2004 unconstitutional, other NE states discontinued the posts. Eleven parliamentary secretaries resigned Manipur, seven in Mizoram. Meghalaya HC, too, held Meghalaya Parliamentary Secretaries Act "invalid", 17 resigned
Haryana and Punjab: Punjab and Haryana HC set aside appointment of four MLAs as chief parliamentary secretaries in July 2017. HC had struck down appointments of 18 Punjab MLAs as CPSs by SAD-BJP government in Punjab on similar grounds. Even SC had refused to stay the order
Assam law of 2004 unconstitutional: SC
Dhananjay Mahapatra|SC nixes Assam law bypassing mantri cap|Jul 27 2017 : The Times of India (Delhi)
Order May Spell Trouble For Kejriwal Govt
The Supreme Court on Wednesday struck down as unconstitutional a law passed by Assam assembly 13 years ago to allow the then Congress government headed by Tarun Gogoi to appoint MLAs as parliamentary secretaries after Parliament had put a cap on the number of ministers.
A bench of Justices J Chelameswar, R K Agrawal and A M Sapre allowed a petition by late Bimolangshu Roy , whose plea was first filed in Gauhati high court in 2005 and later transferred by the SC to itself in 2006. It said, “We are of the opinion that the legislature of Assam lacks the competence to make the impugned Act. In view of the above conclusion, we do not see it necessary to examine the various other issues identified by us earlier in this judgment.The writ petition is allowed.The impugned Act is declared unconstitutional.“
The SC had earlier declared appointment of parliamentary secretaries by some other states by executive order, as done by the AAP government in Delhi, as illegal and struck down these appointments. This SC order striking down a law for appointment of parliamentary secretaries could nudge the Election Commission to decide the issue of disqualifica tion of 21 MLAs who were appointed parliamentary secretaries by Delhi CM Arvind Kejriwal. The appointment of AAP MLAs as parliamentary secretaries was struck down as unconstitutional by the Delhi high court in September last year.
Parliament had on January 1, 2004 passed the Constitution 91st Amendment Bill, 2003, to modify Articles 75 and 164 of the Constitution. The Act provided that under Article 164(1A), the size of the council of ministers in a state should not exceed 15% of the total strength of the assembly .
When the 91st Constitutional Amendment Act, 2003, came into force, the Assam council of ministers had 36 members in a House of 126 MLAs, or 28.57% of the strength of the assembly. In view of Article 164(1A), the number of ministers was to be brought down to 19 tobe consistent with the 15% ceiling. To appease MLAs who lost their place in the council of ministers, the government promulgated As sam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Ordinance, 2004, which took the shape of a law on December 29, 2004.
In the first instance, the Tarun Gogoi government appointed eight parliamentary secretaries. Six months before elections in September 2015, the government appointed 13 more parliamentary secretaries.
In June 2015, the Calcutta HC quashed appointment of 24 parliamentary secretaries in West Bengal and termed it unconstitutional. The Bombay HC in 2009 had struck down appointment of two parliamentary secretaries in Goa. The Himachal Pradesh HC in 2005 had in a similar ruling struck down appointment of eight chief parliamentary secretaries and four parliamentary secretaries.In May 2015, the Hyderabad HC had stayed appointment of parliamentary secretaries in Telangana.
A similar case is pending before the Punjab and Haryana high court.
Delhi
The issue, its history, HC judgements
The Times of India, Jun 20 2016
Dhananjay Mahapatra
The brazen corruption of the high and the mighty may grab headlines, but for ordinary people it is the ubiquity of everyday corruption that weighs heaviest. And that demoralises. Arvind Kejriwal, founder of India's `Parivartan', understands this, which is why his campaign for change begins with small things“ -this was what Ramon Magsaysay Award citation said about Kejriwal, who won it in the Emergent Leadership category a decade back. Kejriwal's watershed moment came with Anna Hazare's Jan Lokpal movement in 2011. He did not look back.His mentor fell on the way side as his crusade against corruption fuelled and fired the public imagination. Buoyed by seismic public support, he floated Aam Aadmi Party in November 2012.
He effortlessly portrayed himself as a victimised common man who wanted prevailing conditions to improve.His maiden attempt at elections fetched an impressive 27 seats in Delhi assembly in December 2013. But in February 2015, it was a landslide. AAP's broom swept away BJP and Congress. It won 67 of the 70 assembly seats. Kejriwal promised parivartan and a governance that would have nothing in common with those of past provided by Congress and BJP . But, the massive mandate had become a headache. Law permitted him to pick only six of 66 MLAs as members of his council of ministers.
How would he satisfy hopes, aspirations and expectations of 60 MLAs? In Delhi, a politician gets little attention if he had no governmental position. Congress and BJP , when in power, had appointed two or three MLAs as parliamentary secretaries to the CM. But, Kejriwal had to placate the vocal among 60 MLAs, who deserved but did not get a ministerial berth.
His mandate was to do things differently . But cir cumstances forced him to choose the much beaten track. He appointed 21 MLAs as parliamentary secretaries despite knowing that law counted these posts as `office of profit', which would disqualify them.
The appointments were made within two months of Kejriwal becoming CM. In April last year, he administered oath of office to them.Then he realised that he has pushed the 21 MLAs into a danger zone. Swiftly , an amendment to Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, was tabled in Assembly on June 23 last year. It retrospectively exempted these MLAs from `office of profit' disqualification. AAP's overwhelming majority made passage of the Bill a formality .
As a face saver, the Bill said parliamentary secretary post would not involve any additional financial assistance from the Central Government through substantive expenditure from the Consolidated Fund of the NCT Delhi. It also said that the Bill did not propose to confer power of legislation on the parliamentary secretaries.
But, the anti-corruption and anti-nepotism image of Kejriwal had got dented. The broom that was wielded in public to show his unwavering intent to sweep out corruption was used to sweep glaring political nepotism under the carpet. Unable to stomach criticism, Kejriwal asked -why is it wrong when he appoints parliamentary secretaries but right when BJP and Congress appointed them? By asking this, he blurred the distinguishing line between AAP, Congress and BJP. He had promised to eschew the nepotistic political path devised by BJP and Congress. The educated AAP leadership knew about rulings of high courts of Himachal Pradesh, Calcutta and Bombay , each branding the post of parliamentary secretary as unconstitutional. Probably Prashant Bhushan co uld have advised Kejriwal against it. But, like Hazare, he too had fallen aside during Kejriwal's tryst with power.
All three judgments ran on same line. The HP HC's 2005 verdict applied squarely to Delhi because Kejriwal had administered oath to 21 parliamentary secretaries at a time when no law authorised the CM to do so.
The HC had said -“parliamentary secretaries being holders of public office, it is not open to any individual to evolve a private arrangement whereby , by his whims he would administer oath because any such private arrangement not having the sanction of law would not cast upon parliamentary secretaries the corresponding obligation of maintaining secrecy as well as resultant legal consequences of their being exposed to the rigours of penal law if the oath is ever violated.“
“We therefore hold that the act of the CM in administering oath to parliamentary secretaries and the parliamentary secretaries subscribing oath of before the CM is without any sanction of law on the simple ground that no law empowers the CM to administer oath on them nor does any law prescribe the form of such oath.“
If Kejriwal wants to continue his crusade against corruption and nepotism, he must re-read the 2006 citation along with Magsaysay Award and the SC judgment in DTC Vs DTC Mazdoor Congress [1991 SCC Supl (1) 600] that warned political executives against exercising power arbitrarily .
It had said: “Vesting arbitrary power would be a feeding ground for nepotism and insolence; instead of subserving the constitutional purpose, it would defeat the very object, in particular, when the tribe of officers of honesty , integrity and devotion are struggling under despondence to continue to maintain honesty , integrity and devotion to the duty, in particular, when moral values and ethical standards are fast corroding in all walks of life including public services as well.“
The legality of the Delhi CM’s decision
The Times of India, Jun 15 2016
CM's authority to appoint parliamentary secys in question
Who are parliamentary secretaries and what are their roles?
Parliamentary secretaries are ruling party members appointed to assist ministers. They are regarded for all practical purposes as deputy ministers having access to all official files and documents. Practice of appointing parliamentary secretaries is almost a century old. Canada had appointed three such secretaries to assist ministers during World War-I. Apart from Canada, it is in vogue at present in the United Kingdom, Australia, Ireland, Malaysia and most of the states in India.
How are they appointed?
In foreign countries, it is the Prime Minister who appoints his party members and legisla tors as parliamentary secretaries. In foreign countries, they are paid salaries and perks and special laws have been passed to exempt them incurring disqualification under “office of profit“ clause, which prohibits elected representatives from drawing salary in addition to emolu ments as legislator.
In India, state governments have been appointing parliament secreta ries from among MLAs, especially those who could not be included in the council of mini sters as junior mini sters because of Article 164 (1A) which limits the total number of ministers to 15% of the strength of the assembly .
In India, chief ministers appoint parliamentary secretaries and administer oath of office. In general, the number of parliament secretaries corresponds to the number of cabinet ministers.
Why high courts have struck down post of parliamentary secretaries?
Prior to the President's refus Prior to the President's refusal to give assent to the Bill passed on June 24, 2015, amending Delhi Members of Legislative Assembly (Removal of Disqualification) Act exempting 21 AAP MLAs appointed as parliamentary secretaries from the “office of profit“ disqualification, three high courts--Himachal Pradesh, Bombay and Calcutta--had quashed appointment of MLAs as parliamentary secretaries.
HP HC had said the CM had no authority to either appoint or administer oath of office to parliamentary secretaries. It had in August 2005 struck down appointments made by CM Virbhadra Singh and said: “Parliamentary secretaries are usurpers of public office since their appointments did not owe their origin to any constitutional or legal provisions, they having been appointed by a person not vested with the power of appointment“ [Citizen Rights Protection Forum case]. In 2009, the Goa bench of Bombay High Court had struck down ordinances issued by Digambar Kamat government appointing three parliamentary secretaries saying it violated the constitutional mandate under Article 164 (1A) [Aires Rodrigues case].
In June 2015, the Calcutta HC had struck down appointment of 13 parliamentary secretaries made by Mamata Banerjee government in 2013 despite these appointments being made under a 2012 law [Vishak Bhattacharya case].
Challenge to appointment of parliamentary secretaries in Punjab, Haryana and Rajasthan is pending adjudication in respective high courts.
What is the Supreme Court's take on this issue?
The SC has kept pending since 2005, the Himachal Pradesh government's appeal against the HC decision quashing the appointment of parliamentary secretaries. However, it had not stayed the HC judgment. Goa government did not appeal against the 2009 Bombay HC decision. But, the West Bengal government had appealed in SC against the Calcutta HC's last year decision. That too is pending. Given the spread of the issue tou ching almost every state, the SC would soon have to take a decision to lay down the binding law.
Will appointment of MLAs and MPs as chairman of public sector undertakings invite disqualification?
The possibility of attracting constitutional disqualification by MPs (under Article 102) and MLAs (under Article 191) on appointment as chairman of PSUs or government undertakings would kick in if the elected representative concerned draws any salary or perks as holder of the office to invite the wrath of these two Articles. However, there would be no disqualification if the posts so held by MPsMLAs have been duly exempted by Parliament or the state legislature.
What is the fate of the 21 AAP MLAs after President refused to give assent to the Bill exempting the office of parliamentary secretaries from the `office of profit' disqualification?
The first problem is that the Bill, which was moved in the assembly on June 23 last year and passed a day later, attempts to retrospectively exempt MLA-parliamentary secretaries from disqualification under Article 191 of the Constitution.
The problem gets compounded if one goes by the Calcutta HC verdict which had quashed the appointments despite these being made under West Bengal parliamentary secretaries (appointment, salaries, allowances and miscellaneous provisions) Act, 2012.
If there is no law, as is the case in Delhi now since President has declined assent to the Bill, the Election Commission would be inclined to accept the view of various high courts to ask these 21MLAs why they be not disqualified.
Parliamentary secretaries are de facto ministers: Law Ministry
The Times of India, Jun 15, 2016
Bharti Jain
Parl secys de facto ministers: Law min
While declining assent to Kejriwal government's bill seeking to exempt 21 AAP MLAs appointed as parliamentary secretaries from the purview of “office of profit“, the President went by the law ministry's opinion that the appointees were de facto ministers and, taken with regular ministers, exceeded the rule that the council of ministers cannot exceed 10% of the strength of the assembly . The Delhi Members of Legisla tive Assembly (Removal of Disqualification) Amendment Act, 2015, was referred to the home ministry which opined that the “bill is violative of Article 239AA(4) of the Constitution, which provides that the council of ministers shall not be more than 10% of the total number of members in the legislative assembly of Delhi“.
The home ministry reached the conclusion that the situation could have been avoided if the AAP government had stuck to procedures set out in the transaction of business rules and the existing legal provision which states that just one parliamentary secretary can be appointed to the CM.
The legal affairs department is said to have cited two high court orders regarding the matter. The first relates to Aires Rodrigues vs The State of Goa, 2009, where the court ruled that parliamentary secretaries represented the government in the assembly and, while assisting the CM, would have the authority to pass orders. They would also participate in the decision-making process and take decisions themselves and this, in “spirit and substance“, meant they were equivalent to Cabinet ministers.
Quoting another verdict in Vishal Bhattacharya vs The State of West Bengal and Others (2015), the department pointed out how the court quashed the Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act, 2012, on the ground that “the description of parliamentary secretary and duties assigned to them is nothing but allowing an MLA to become de facto minister“.
Incidentally , the appointment of parliamentary secretaries in states like Punjab, Haryana and Karnataka has been challenged in court, stayed in Telangana, and quashed in Goa and West Bengal. In Rajasthan, their number is within the ceiling laid down for its council of ministers.
The opinion on the illegality of the appointments was approved at the highest level in the law ministry and formed the basis of the home ministry's recommendation to the President to reject the bill on the grounds of being “unconstitutional“. The President withheld assent to the bill and this was communicated to lieutenant governor of Delhi Najeeb Jung on June 10.
A MHA officer dismissed Kejriwal's argument that the post of parliamentary secretary in Delhi was not an “office of profit“ as none of the 21 appointees were drawing salaries, perks or other benefits. “If a parliamentary secretary is handling government files and taking decisions, it is deemed an office of profit,“ he told.
Ministry officials also refuted that a decision on the bill referred to it by the Delhi government was being delayed, saying that each of the 10 pending bills had either been returned with queries or was at different stages of consultation with central ministries concerned.
As regards the sub-judice matter relating to appointment of parliamentary secretaries, the MHA said appointments were not covered under the existing law. As per the GNCTD Act, 1991, the maximum number of ministers can be seven for Delhi.
Delhi HC sets aside 21 parliamentary secretaries
The Times of India, Sep 09 2016
Abhinav Garg
HC sets aside Kejriwal govt's appointment of 21 parl secys
In a major setback to the Arvind Kejriwal government, the Delhi high court set aside on Thursday its decision to appoint 21Aam Aadmi Party (AAP) MLAs as parliamentary secretaries on the ground that it lacked the LG's approval. A division bench of Chief Justice G Rohini and Justice Sangita Dhingra Sehgal set aside the March 2015 administrative order after the Delhi government conceded that it had neither sought the LG's concurrence nor communicated its decision to him.
Till it changed its stance in court, the AAP government had been vigorously defending the appointments, maintaining that “the provision of parliamentary secretary was merely to assist the minister with the public and the rest of the assembly and ensuring harmonious functioning“.
Following the Delhi government's submission, the bench refused to go into any other ground raised in the PIL challenging the appointments. It said the “issue is squarely covered“ by its ru ling of August 4 where it interpreted Article 239AA of the Constitution to hold that the LG was the administrative head of the Union territory of Delhi and his concurrence was “mandatory“ in administrative decisions. All eyes are now on the Election Commission which too is hearing a petition against the appointments. Government sources argued that since HC had said the appointments were never valid, the case can now be given a burial. But legal experts pointed out that HC had not declared that the MLAs didn't hold an office of profit, an issue that EC was examining.
As soon as the hearing on the PIL filed by Rashtriya Mukti Morcha began for arguments, senior advocate Sudhir Nandrajog on behalf of Delhi government admitted the government decision lacked the LG's nod and had to be struck down. Referring to the August 4 verdict, Nandrajog said, “Today , I have to concede that the judgment stands against me.“
The bench took note of his submission and said “the impugned order is set aside following the ratio laid down (in the August 4 verdict).“
During the brief hearing, additional solicitor general Sanjay Jain also informed the bench that the poll panel was examining if the appointments attracted disqualification.
Earlier, the government's affidavit had said, “It is pertinent to note that the PS are not provided any dedicated vehicle, driver or other support systems. Further, they do not have any executive powers and hence are not responsible for decision-making unlike the ministers.“
“Therefore, irrespective of assistance sought from them by the minister concerned, since such assistance is not exclusive as minister is not bound to consult the PS, and not binding, since minister can opine against the view of the PS, the PS does not form part of the administration,“ it had said.
The Centre throughout opposed the appointments, saying as per the Constitution and Delhi Members of Legislative Assembly (Removal of Disqualification) Act of 1997, only one post was permitted, that of parliamentary secretary to the CM. MHA had also said Delhi had tried to legalise the appointment of the 21 parliamentary secretaries by amending the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, but the President had withheld his assent.
Rashtriya Mukti Morcha claimed that the chief minister issued “unconstitutional and illegal order“ in gross violation of the constitutional provisions and the Transaction of Business of Government of the National Capital Territory of Delhi Act 1991.
Attempt to give MLAs immunity failed
Ambika Pandit, Attempt to give MLAs immunity failed, January 20, 2018: The Times of India
From: Ambika Pandit, Attempt to give MLAs immunity failed, January 20, 2018: The Times of India
HC Order On Supremacy of LG Was Cited To Argue That Complaint To EC Was Not Maintainable
On April 27, 2015, the Delhi government issued a press statement formalizing its decision to appoint 21of the newly-elected MLAs as parliamentary secretaries by administering an oath of office. The government, led by chief minister Arvind Kejriwal, had been formed just over two months back. This move was justified on the ground that they would assist in speeding up work in various departments. However, this decision ran into the office-of-profit row before these MLAs could settle down in their new roles.
This political battle has since then seen many flipflops with the AAP government going all out at first to defend its decision after the move was challenged in the Delhi high court and Election Commission of India.
The appointment of some of Kejriwal's best MLAs as parliamentary secretaries was justified in March 2015 as a beginning towards administrative reforms. In September 2016, however, the government suddenly chose to declare the appointments as illegal in view of a high court judgement on August 4, 2016, which established the supremacy of the lieutenant-governor as administrator of Delhi under the Constitution. They then argued that in the backdrop of the high court order, the complaint made to the Election Commission of India was not maintainable. The EC later rejected the claim, holding that the complaint was maintainable.
The situation that the AAP MLAs find themselves in today is the government’s own creation. The appointments were made not only without the LG’s approval but despite the fact that there was no provision in the law for parliamentary secretaries to ministers under the act that gives immunity to certain posts from the "office of profit" clause. The AAP government has from day one stressed on one point — that these parliamentary secretaries were not deriving any pecuniary benefits from being in that position.
When the appointments began to draw flak in 2015, the government had in desperation resorted to corrective action. It tried to bring amendments to the law to provide immunity to its 21MLAs. In June that year, it moved an amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997. It sought to exempt parliamentary secretaries from the office-of-profit disqualification provisions retrospectively, so that "necessary benefits could be given to them to enable them to execute their duties".
The assembly had passed the draft bill without the approval of the LG or the Centre. An AAP government spokesperson had then asserted that the legislation was aimed at bringing the parliamentary secretaries into the category exempted from disqualification on grounds of office of profit so that they could be given some "essential perks" which they were not getting now.
On June 13, 2016, the President refused to give his assent for the amendment. The act had been amended during Congress rule when chief minister Sheila Dikshit had sought to appoint then MLA, Ajay Maken, as a parliamentary secretary to her. No provision was made for a parliamentary secretary to ministers. Delhi anyway can have only 10% of the strength of the House as ministers.
2018: EC Moots Disqualification Of 20 AAP MLAs Who Were Parl Secys
Bharti.Jain, January 20, 2018: The Times of India
From: Bharti Jain, January 20, 2018: The Times of India
See graphic:
The 20 MLAs in Delhi facing charges in the OOP issue, Jnauary 2018
Poll Panel Moots Disqualification Of AAP MLAs Who Were Parl Secys
The stage could be set for a “mini election” in the capital, with the Election Commission understood to have recommended the disqualification of 20 Aam Aadmi Party MLAs for holding “office of profit” as parliamentary secretaries.
The likely disqualification will significantly reduce AAP’s massive majority in the Delhi assembly.
The EC’s recommendation was communicated to President Ram Nath Kovind on Friday and he is expected to refer it to the home ministry. The EC’s advice is binding on the President whose role is limited to despatching it to the MHA.
Unless the MLAs receive relief from the courts, the process of disqualification could see byelections being held in the next six months. The bypolls will be a serious test for the Arvind Kejriwal government, with BJP looking to regain its footing in the capital where it holds all seven Parliament seats and Congress hoping to end its irrelevance in the city where it held office till 2013.
The EC’s recommendation comes just ahead of chief election commissioner A K Joti’s retirement on January
22. TOI had exclusively reported on Thursday that the fate of the 20 AAP MLAs embroiled in the office-of-profit row would be decided before Joti demitted office.
While AAP reacted angrily to the development and accused the poll panel of bias, BJP and Congress called for chief minister Arvind Kejriwal’s resignation.
The EC remained tightlipped on the opinion forwarded to the President. However, sources indicated that the disqualification of respondent MLAs was in line with a June 2017 order stating that the AAP MLAs did hold “de facto the office of parliamentary secretaries from March 13, 2015 to September 8, 2016”.
The EC’s view was crucial in the light of the Delhi high court order in September 2016 that set aside the appointment of the MLAs as parliamentary secretaries “ab initio”, or as invalid from the start. The EC debated whether this meant there was no case for disqualification, as argued by AAP, but finally said the MLAs did enjoy the benefits of office by way of facilities made available to them until the high court scrapped their appointment.
Jinx? 5th AAP law minister faces axe
Call it AAP’s law ministry jinx. Among the MLAs facing the axe is Kailash Gahlot, the fifth AAP minister to hold the law portfolio. All his predecessors, except Manish Sisodia, quit amid controversy. They include Somnath Bharti, Jitender Tomar and Kapil Mishra. P 3
HC refuses to grant interim protection to MLAs, will hear case
The Delhi high court refused interim protection to the 20 AAP MLAs facing disqualification, observing that it was not inclined to grant any relief because of the legislators’ “conduct” before the EC, reports Abhinav Garg. Six of the MLAs had moved the court, pleading that they were never given a hearing in the matter. At a late-evening hearing, Justice Rekha Palli pointed to records that showed the MLAs had refused to participate in EC proceedings. “Your conduct is such that you do not care to go before the EC. Who stopped you?” the judge remarked, posting the case for hearing on Monday. P 5
Of 66 MLAs, some have rocked boat
The AAP government came to power with 67 seats in a 70-member House. A lot has changed since February 2015. Some MLAs have turned rebels, a few have been suspended and two seats have witnessed byelections, with AAP winning one and losing one. P 3
March 2018/ Delhi HC restores membership of 20 disqualified AAP MLAs
March 23, 2018: The Times of India
From: Abhinav Garg, March 24, 2018: The Times of India
From: Abhinav Garg, March 24, 2018: The Times of India
HIGHLIGHTS
The MLAs has been earlier disqualified for holding offices of profit
That's because they were appointed parliamentary secretaries to ministers in the Delhi government in 2015
The MLAs told the Delhi high court the EC’s order disqualifying them was passed in 'complete violation of natural justice'
In a big victory for the Aam Aadmi Party (AAP), the Delhi high court restored membership of its 20 disqualified MLAs and referred the case back to the Election Commission (EC).
The HC said the disqualification of AAP MLAs was bad in law, and therefore remanded their plea back to the EC which will hear it afresh. The court further said there was a violation of natural justice and no oral hearing was given to the AAP MLAs before disqualifying them as legislators.
On January 19, the EC recommended the AAP MLAs be disqualified for holding offices of profit. Two days later, President Ram Nath Kovind approved the disqualification. The EC was referring to the fact the MLAs had been appointed parliamentary secretaries to ministers in the Delhi government in March 2015.
"The truth has triumphed. The people whom Delhi had voted as their representatives were wrongly disqualified," tweeted party chief Arvind Kejriwal + , after the Delhi HC verdict.
The MLAs then approached the Delhi high court challenging their disqualification. The MLAs who had been axed were 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.
A Delhi high court bench of justices Sanjiv Khanna and Chander Shekhar wrapped up hearings in the case on February 28, and reserved its judgment after the legislators, the EC and other parties had concluded their arguments.
The MLAs had told the court that the EC’s order disqualifying them was passed in “complete violation of natural justice” as they were not given an opportunity to explain their stand before the poll panel.
In response to a query from the bench during the hearings, the legislators had agreed to have the case sent back to the poll panel so that the MLAs could be granted an oral hearing.
Backing its recommendation to the President for AAP MLAs’ disqualification, the poll panel had submitted that the legislators cannot claim that they were not holding office-of-profit. It had also claimed that these MLAs' pleas were not maintainable and were liable to be dismissed.
2018: President rejects plea to disqualify 27 AAP MLAs
October 26, 2018: The Times of India
Move Comes As EC Rules Posts Out Of OoP Purview
A petition seeking disqualification of 27 AAP MLAs for having held “office of profit” has been dismissed by President Ram Nath Kovind after the election commission held that the posts in consideration — chairpersons of patient welfare committees — are exempted from OoP status.
The petition had referred to the rogi kalyan samitis constituted by Delhi government. The decision was based on an opinion tendered by the Election Commission in July, stating the said office was exempt from purview of ‘office of profit’ under provisions of the Delhi MLAs (Removal of Disqualification) Act, 1997.
The EC primarily relied on replies of the Delhi government on the disqualfication petition moved by one Vibhor Anand on June 21, 2016. Government of NCT of Delhi, in its submission to EC, made it clear that Rogi Kalyan Samitis were constituted by it and that their chairpersons were not entitled to any remuneration and would therefore fall under the exemption granted by item 14 of the Schedule of the Delhi MLAs (Removal of Disqualification) Act.
The Act provides for exemption of office of chairman, vice-chairman and members of the hospital advisory committee, Delhi, from purview of ‘office of profit”. The Delhi government informed EC that the exemption available to hospital advisory committee was also applicable to Rogi Kalyan Samiti as “the two are same thing having an organic connection”. EC also pointed out that exemption was provided for office of chairman, director or member of a statutory or nonstatutory body constituted by Delhi government. Rogi Kalyan Samiti is such a body.
Election Commission, in its opinion sent to the President on July 10, 2018, said that upon examining the petition as well as reply of the Delhi government on the same, it had concluded that the 27 AAP MLAs had “not incurred any disqualification under Section 15(4) of the Government of National Capital Territory of Delhi Act, 1991 for holding office of profit in view of item 14 of the Schedule of the Delhi MLAs (Removal of Disqualification) Act, 1997”.
The President of India, in an order dated October 15, said that having considered the matter in light of the opinion expressed by EC, “the petition dated June 21, 2016 filed by Shri Vibhor Anand on the question of alleged disqualification of Ms Alka Lamba and 26 other members of Delhi legislative assembly, is not maintainable”.
The order marks relief for Arvind Kejriwal government and AAP, which is also embroiled in another office-of-profit case against 20 MLAs being heard afresh by EC. The Commission had sought written submissions from the respondent MLAs in the case, which have been received as a voluminous reply running into nearly 5,000 pages.
The decision was based on an opinion tendered by the EC in July, stating the said office was exempt from purview of ‘office of profit’ under provisions of the Delhi MLAs (Removal of Disqualification) Act, 1997
The office of profit issue
Office of profit tripped Sonia, Jaya too
Bharti.Jain, January 20, 2018: The Times of India
Office of profit tripped Sonia, Jaya too
The Delhi HC had quashed the notification issued by the AAP government in March 2015, by which it appointed 21 of its MLAs as parliamentary secretaries, as the decision was taken without the concurrence or approval of the lieutenant governor. The President also rejected a bill brought by the AAP government to protect the MLAs from the provisions of the office-of-profit rule. One of the 21 MLAs, Jarnail Singh, later resigned to contest the Punjab polls.
Under Article 102(1)(a) of the Constitution, holding any “office of profit”, which means a post with financial and other benefits, is ground for disqualification of an MP or MLA. Some big names that have been tripped by the rule include former Congress president Sonia Gandhi and Rajya Sabha MP Jaya Bachchan. Sonia, who was alleged to have held office of profit as chairperson of the National Advisory Council when UPA was in office, resigned from the Lok Sabha ahead of an imminent decision on her disqualification and was successfully re-elected.
Bachchan was disqualified over a post in the UP Film Development Council.
In the event of bypolls being necessitated, AAP faces the challenge of sustaining the overwhelming majority of 66 in the assembly of 70. In fact, it had won 67 seats. BJP has since won elections to Delhi’s three municipal corporations and an assembly bypoll. Though AAP convincingly won the bypoll for Bawana seat, the two opposition parties are challenging AAP’s integrity plank, already dented by corruption charges against some ministers and its decision to elevate two businessmen to the Rajya Sabha. Opponents have also tried to corner the Kejriwal government on the performance front.
On the other hand, BJP had stumbled in the last byelection and Congress is yet to taste any significant success since it was blanked in the 2015 assembly polls. The current court-ordered sealings have created considerable unrest in the capital and while BJP has projected a new leadership, the city unit is not exactly united with some veterans unhappy over their loss of clout.
AAP has also carved out pockets of influence among the underprivileged sections on the basis of power and water subsidy. More importantly, it has turned “pragmatic” and can hold its own against its older rivals in that respect.
While the exact grounds that led to the EC decision will be known after the disqualification order is put out once cleared by the President, petitioner and Delhi lawyer Prashant Patel Umrao said contentions made by the Delhi chief secretary before the EC, detailing expenses incurred on providing offices, rooms and cabins and their having attended conferences and chaired review meetings, may have helped his case against the AAP MLAs.
“Rs 11 lakh was spent by the PWD on furnishing rooms allotted to the parliamentary secretaries in the Delhi assembly and Rs 13 lakh approved by the assembly for the purpose... So money did change hands, making the post an office of profit,” Patel told.
2018: Punjab bid to shield MLAs from OoP law
June 28, 2018: The Times of India
The Punjab cabinet, led by CM Captain Amarinder Singh, approved amendment to the Punjab State Legislature (Prevention of Disqualification) Act 1952 to ensure that the ruling party MLAs don’t face disqualification for holding offices of profit.
The decision is being seen as a step to pacify disgruntled Congress MLAs by appointing them as chiefs of various state boards and corporations. Through the proposed amendment to the Act, the Cabinet has given its approval to the Congress MLAs holding new categories of offices of profit, besides those already in the Act that will not face disqualification. As per the proposed amendment, a person shall not be disqualified for being a member of the Punjab legislature for holding any of the offices of profit under the central or the state government.
2019, Delhi: President does not disqualify AAP MLAs, on EC advice
Nov 6, 2019: The Times of India
President Ram Nath Kovind, based on opinion tendered by the Election Commission, has rejected a petition demanding disqualification of 11 Aam Aadmi Party (AAP) MLAs in Delhi for allegedly holding office of profit as co-chairpersons of district disaster management authorities (DDMA).
The President, in an order dated October 28, referred to the EC’s observation that the office of DDMA co-chairperson fell under the exempted category “as per item 14 of the Schedule of the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997”. This provision exempts the office of chairman, director or member of a statutory or non-statutory body constituted by the Delhi government from the purview of ‘office of profit’, provided that such officer shall not be entitled to any remuneration other than compensatory allowance.
In March 2017, one Vivek Garg had filed a petition before the President seeking disqualification of 11 AAP lawmakers, including transport minister Kailash Gahlot, claiming that they were holding ‘office of profit’ by being cochairpersons of DDMA in 11 Delhi districts.
The term of the 70-member Delhi assembly ends on February 22, 2020.
