EC's Disqualification of AAP MLAs

Why in news?

Election Commission (EC) has recommended to the President that 20 of Aam Aadmi Party's (AAP) MLAs be disqualified for holding offices of profit.

How did the issue evolve?

The Arvind Kejriwal-led Delhi government passed an order back in 2015, appointing 21 MLAs as parliamentary secretaries.
The appointment of MLAs was challenged by an advocate arguing that these MLAs were holding 'office of profit'.
There was also a petition before the then President seeking their disqualification.
In response, the Delhi Assembly passed the Delhi Member of Legislative Assembly (Removal of Disqualification) (Amendment Bill), 2015.
The bill excluded the parliamentary secretaries from 'Office of Profit' with retrospective effect.
However, President declined assent to the Bill.
Later on, the Election Commission (EC) held a personal hearing for 21 AAP MLAs.
Subsequently, the Delhi High Court set aside a government order that appointed 21 of the party’s MLAs as parliamentary secretaries.
Very recently, the Election Commission has recommended the President for disqualification of the 20 AAP MLAs (one resigned).

Who is a Parliamentary Secretary?

A Parliament Secretary often holds the rank of Minister of State and has the same entitlements.
He/she is appointed to assist the ministers and is assigned to a government department.
Many states in the Indian Union have instituted the post of Parliamentary Secretary and have also appointed MLAs to the post.

What is an 'Office of Profit'?

‘Office of profit’ (OoP) is not clearly defined in the Constitution.
But deriving from the past judicial pronouncements, five tests have been laid down to check if an office is an OoP or not.
They are:

whether the government makes the appointment
whether the government has the right to remove or dismiss the holder
whether the government pays remuneration
what the functions of the holder are
does the government exercise any control over the performance of these functions

In all, the word ‘profit’ has always been treated equivalent to or a substitute for the term 'pecuniary gain' (financial gain).

What are the legal concerns?

Office of Profit - MPs and MLAs are supposed to hold the government accountable for its work.
Logically, holding an “Office of Profit” under the government may make them susceptible to government influence.
They may fall short of discharging their constitutional mandate.
Number of members - Article 164(1A) specifies that the number of ministers including the Chief Minister has to be within 15% of the total strength of the Assembly.
In the case of Delhi, which is not a ‘full’ state, the number of Cabinet Ministers cannot exceed 10% of the total 70 seats.
This is as per Article 239AA of Constitution which deals with Special provisions with respect to Delhi.
As a Parliament Secretary often holds the rank of Minister of State, their numbers should also be considered in meeting this limitation.
On violation of this, various High Courts have earlier struck down the appointment of Parliamentary Secretaries as unconstitutional.

What next?

The constitutional procedure is that if there is any petition pertaining to an office of profit, it goes to the President.
She/he checks Article 102 and 191 of the constitution and Section 15 of the National Capital Territory of Delhi Act 1991 and takes the EC's opinion.
After the presidential sign and seal is placed on the EC’s recommendation, the 20 MLAs will stand disqualified.
Notably, the remedial measures for the AAP in court are limited.
This is because the Delhi High Court has already heard the matter and quashed the appointments.
Moreover, the Election Commission, mandated by the Constitution to deal with such matters, has already dealt the issue at length.

Source: The Hindu, The Wire