Politics of positions

Updated - November 17, 2021 04:50 am IST

Published - June 16, 2016 01:34 am IST

Legal issues become needless controversies when politics casts a dark shadow on them. The issue of the >President withholding assent to a Delhi government Bill seeking to protect its 21 parliamentary secretaries from incurring disqualification on the grounds of holding an office of profit, is a flagrant example. Chief Minister >Arvind Kejriwal accuses the Narendra Modi government of having a political motive in advising the President against granting assent. He cites the prevailing practice of appointing parliamentary secretaries in several other States, notably in Gujarat and Punjab, where the BJP and its allies are in power. Further, laws in these States expressly protect them from disqualification — a protection that he says Delhi is being denied by the Centre. The matter is essentially a mix of two legal questions: whether the post of parliamentary secretary, paid or unpaid, is an office of profit; and whether MLAs are given the positions only to get around the constitutional limit on the number of ministers a State can have. These questions can be settled through the Election Commission and the courts of law, and attempts to politicise them are unnecessary. The parliamentary secretaries are under notice from the EC to show cause why they should not be disqualified for holding an ‘office of profit’. The Centre appears reluctant to clear the Bill as it may amount to granting retrospective protection and pre-empting the EC’s opinion.

Mr. Kejriwal contends that his parliamentary secretaries do not draw any salaries or perquisites. He ought to canvass this point before the Election Commission. The EC will have to go by the set of tests evolved by the Supreme Court on whether a particular post is an ‘office of profit’: whether the government makes the appointment, remunerates the appointee, has the right to remove the appointee and controls the appointee’s functions. Further, some High Courts have ruled that parliamentary secretaries are essentially ministers and their appointment would be struck down if it resulted in the ministry’s strength breaching the constitutional limit. Under Article 164 (1A) of the Constitution, introduced in 2003, the Council of Ministers should not comprise more than 15 per cent of the strength of a Legislative Assembly. In the case of the 70-member Delhi Assembly, the limit is 10 per cent, or seven ministers. Such questions arise because the term ‘office of profit’ and the post of parliamentary secretary do not yet have a clear legal definition. A legislative solution applicable across the country is needed. That should ensure that there are no double standards in applying the law on office of profit.

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