The Election Commission’s advice to the President that 20 legislators of the ruling Aam Aadmi Party in Delhi are liable for disqualification will inevitably invite legal and political scrutiny. The party claims it was denied a hearing and alleges political motives behind the action. It has questioned the timing of the decision, just ahead of the Chief Election Commissioner’s retirement. Regardless of the charge of political malice, the correctness of the EC’s decision will be decided on legal grounds. The courts will have to rule on the question whether the post of parliamentary secretary, which these MLAs were holding, is an ‘office of profit’. They may also examine whether there was any violation of natural justice. Twenty-one MLAs were appointed parliamentary secretaries in March 2015. The Delhi High Court set aside the appointments in 2016 on the ground that the Lieutenant Governor had not given his approval. The EC has been hearing a complaint by an advocate that these legislators had incurred disqualification by holding these posts, which, he contended, were offices of profit. The key question was whether the post was an office of profit even after the Delhi government made it clear that parliamentary secretaries would not be eligible for any remuneration or perquisites. They were only allowed the use of government transport for official uses and office space in the respective ministries. The EC has answered the question in the affirmative, and the President has acted on it.
Going by Supreme Court decisions, the test to decide whether a post is an office of profit is the role of the government in appointing and paying the person concerned. In Jaya Bachchan , the court said it was an office of profit even if one did not actually receive payment; it was enough if some pay was ‘receivable’. In Raman v. P.T.A. Rahim , the court said only posts that are capable of yielding pecuniary gains, as distinguished from compensatory allowances, would be offices of profit. It is indeed true that the Arvind Kejriwal regime is politically disadvantaged because, unlike State governments, it cannot make many decisions without the Lt. Governor’s concurrence. It could not pass, as States have done, legislation to save the post from disqualification. The President withheld assent to a law it passed without the LG’s nod. However, Mr. Kejriwal should have been mindful of the growing perception, as evident in several judicial decisions, that the post of parliamentary secretary is a way of getting around the constitutional limit on the size of ministries. He could have avoided controversy by not appointing MLAs in posts that involved an executive role. After all, there can be no dispute over the principle behind the bar on legislators holding such posts: that there be no conflict between their duty and their interest.
