It’s about propriety, not constitutionality

The Delhi Assembly’s Bill to protect the appointment of 21 parliamentary secretaries from disqualification under the ‘office of profit’ clause is legitimate. It can be criticised politically, but not legally

June 21, 2016 12:05 am | Updated October 18, 2016 01:43 pm IST

Illustration: Deepak Harichandan

Illustration: Deepak Harichandan

The brouhaha over President Pranab Mukherjee withholding assent to the disqualification removal bill passed by the Delhi Assembly has only obfuscated the real issue. The electronic media has been discussing it with a degree of excitement which is seen only when there is a war between India and Pakistan. The media made us believe that the disqualification of the 21 unfortunate MLAs of the Aam Aadmi Party is imminent and consequently the fall of the Delhi government. The opinions of some legal experts that now the decision of the Election Commission on the disqualification is just a formality added grist to their mill.

Difficult term to explain Let us look at this issue dispassionately and objectively. The issue is whether the 21 MLAs who have been appointed as parliamentary secretaries are holding an “Office of Profit” under the government. If the office of parliamentary secretary is an office of profit under the government then they are liable to be disqualified. But this issue is at present before the Election Commission, which will decide it after proper hearings.

P.D.T. Achary

What the President refused assent to is a Bill passed by the Delhi Assembly declaring that the office of parliamentary secretary shall not disqualify the holder of this office. As a matter of fact the Constitution of India empowers every legislature in the country to pass such a law and exempt any such office from disqualifying its holder. So the Delhi government has only exercised a power which is vested in it by the Constitution. It is not known why the President withheld assent to this Bill. All legislatures including Parliament have passed such laws exempting one office or the other from the disqualifying effect and many such laws were also given retrospective effect. In any case the President’s decision to reject the Bill has no impact on the main issue before the Election Commission.

“Office of Profit” is not a term which can be easily understood or explained. This concept originated in the House of Commons in England. The history of British House of Commons is the history of conflicts with the crown. The king, in his efforts to undermine the House of Commons, used to offer positions of executive nature with pecuniary benefits to its members and buy their loyalty. This practice kept the members out of the House most of the time and thus there arose a conflict between their duty and their personal interest. The continued absence of a large number of members because of their preoccupation with executive functions weakened the House of Commons in course of time and therefore it passed a law prohibiting its members from accepting any office from the Crown which gave them any pecuniary benefits. It was provided that any such office which a member may accept will disqualify him.

In essence, the law of office of profit was introduced to end the conflict between the duty of a member of the legislature towards the House and public and his personal interest.

There is no law which defines the term “Office of Profit”. Therefore, one has to depend on the decisions of the Supreme Court of India. Fortunately for us the court has explained with great clarity the law of office of profit in a large number of cases. Articles 102 and 191 of the Constitution say that a person shall be disqualified for being chosen and for being a member of the House if he holds any office of profit under the Government of India or the government of any State. A large number of cases like Abdul Shakur v. Rikhab Chand (AIR 1958 SC 52), Ramappa v. Sangappa (AIR 1958 SC 937), Guru Gobind Basu v. Sankari Prasad Ghosal (AIR 1964 SC 254), Shivamurthy Swami v. Sanganna Andanappa (1971) 3 SCC 870, Ravanna Subanna v. G.S. Kaggeerappa (AIR 1954 SC 653), Smt. Kanta Kathuria v. M. Manak Chand Khurana (ELR Vol. XLIII, Page 158) laid down the conditions for deciding whether an office is an office of profit. These conditions are: The government makes the appointment; the government has the right to remove or dismiss the holder; the government pays the remuneration; the holder performs the functions for the government; and the government exercises control over the performance of those functions.

All the later cases decided by the Supreme Court like Jaya Bachchan v. Union of India (2006) 5 SCC 266 and U.C. Raman v. P.T.A Rahim (2014) 8 SCC 934 followed the decisions in the earlier cases. The crucial point decided in all cases is that unless some remuneration is attached to the office or the office is capable of yielding some pecuniary gains it would not be an office of profit. This point is clearly stressed by the Supreme Court in the U.C. Raman case. The court says “this court has given categorical clarification on more than one occasion that an Office of Profit is an Office which is capable of yielding a profit or pecuniary gain”. It has also been made clear by the court that compensatory allowances are meant to meet the out-of-pocket expenses and hence do no constitute any profit. It becomes thus clear that an office to which no salary or remuneration is attached or which is not capable of yielding a profit is not an office of profit.

Element of ‘retrospectivity’ A lot of uninformed discussion has taken place on the question of the retrospectivity of the bill passed by the Delhi Assembly. The Supreme Court has held in a number of cases that State Legislatures and Parliament can legislate retrospectively. In fact there are instances when the British Parliament validated even irregular elections of MPs retrospectively (for instance, the Coatbridge and Springburn Elections (Validation) Bill, 1945 quoted in my book Law & Practice Relating to Office of Profit , page 218). Halsbury’s Laws of England (3rd edition, vol. 14, page 5) says “if a person is elected when disqualified his disqualification for being a Member of Parliament may be remedied by an act of validation or immunity”. In Kanta Kathuria , an Act of the Rajasthan legislature removed the disqualification retrospectively. Ms. Kathuria, a member of the legislature was disqualified by the High Court for holding an office of profit. When the appeal was filed in the Supreme Court, the Assembly passed an Act removing the disqualification. This was upheld by the Supreme Court. The court said “there is nothing in the words of the article (191) to indicate that this declaration cannot be made with retrospective effect”.

Some news reports quoted Law Ministry officials as saying that the creation of 21 posts of parliamentary secretaries is unconstitutional as it violates Article 239 AA(4) which limits the number of ministers to 10 per cent of the strength of the Assembly and therefore the President withheld his assent to the Bill. The Law Ministry presumes that the parliamentary secretaries are Ministers. Ministers are appointed by the President. He administers the oath of office and secrecy to them. Without meeting these constitutional requirements one cannot be treated as a minister. Parliamentary secretaries are not ministers within the meaning of Article 239 AA(4) because they are not appointed by the President and are not administered the oath of office and secrecy by him. Appointing 21 parliamentary secretaries may raise a question of propriety but not a question of constitutionality.

Nothing illegal about it A funny argument heard on a prominent television channel held that it was wrong and illegal for the Arvind Kejriwal-led Delhi government to create these posts without the backing of a law. This argument is born out of total ignorance of the Constitution. Articles 73 and 162 declare that the Union executive and the State executive respectively have power to take executive action on all matters on which Parliament and State legislature have power to legislate.

The noise that is being made today on the Delhi Bill is quite unnecessary. Much of the debate that has gone on is uninformed. The Bill was a legitimate exercise of the power vested in the Delhi Assembly to declare that the office of parliamentary secretary shall not disqualify the holder. Even when this office, which has no salary or remuneration attached to it, is not an office of profit, the Bill was passed by way of abundant caution. In fact the Supreme Court has in U.C. Raman ’s case approved this course of action.

So what is this great debate all about? It is much sound and fury signifying nothing!

P.D.T. Achary is former Secretary General of the Lok Sabha.

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