Key questions, cap on number of ministers, what is Office of Profit
What is the controversy over the 21 AAP MLAs who were appointed Parliamentary Secretaries to Ministers of the Delhi government?
It raises two issues. First, the Constitution specifies conditions which disqualify MPs, MLAs, Municipality and Panchayat members from membership of their respective institutions. The first is holding an “Office of Profit” under the state or central government. The essence of this disqualification is that there should be no conflict between the duties and interests of an elected member. MPs and MLAs hold the government accountable for its work, and if they held an “Office of Profit” under the government, they might be susceptible to government influence and might not discharge their constitutional mandate fully.
Second, the Constitution caps the number of members in the union and state cabinet. Article 164(1A) specifies that the number of ministers including the Chief Minister has to be within 15% of the total number of members of the Assembly. (10% in the case of Delhi, which is not a ‘full’ state) Over the last few years, courts across the country have struck down the appointment of Parliamentary Secretaries for violating the Constitution.
So what is an “Office of Profit”?
Over the years, four broad principles have evolved for determining whether an office attracts the constitutional disqualification. First, whether the government exercises control over appointment, removal and performance of the functions of the office. Second, whether the office has any remuneration attached to it. Third, whether the body in which the office is held has government powers (releasing money, allotment of land, granting licences etc.). Fourth, whether the office enables the holder to influence by way of patronage.
Has anyone been disqualified from being an MP/MLA because they held an Office of Profit?
In 2004, Jaya Bachchan, Rajya Sabha MP from the Samajwadi Party, was appointed chairperson of the UP Film Development Council (UPFDC). The apex court held that it was an Office of Profit, and disqualified her from being a member of the Upper House. In 2006, BJP MPs sought the disqualification of Congress president Sonia Gandhi from the membership of the Lower House for holding an Office of Profit. Sonia was then chairperson of the National Advisory Council (NAC). She resigned her Lok Sabha seat, recontested the election, and came back.
Are there any exemptions to the Office of Profit rule?
The Constitution specifies that Parliament and state Legislative Assemblies have the power to enact laws and keep certain offices out of the preview of Office of Profit. In 1959, Parliament enacted a law specifying offices that would not attract disqualification under the Constitution. This law has been amended on several occasions. In 2006, it was amended to include the office of chairperson of NAC and offices under UPFDC, making them immune from disqualification.
In 1997, when the BJP was in power in Delhi, the Vidhan Sabha passed a law specifying two offices, holding of which would not disqualify an MLA from being a member of the House. This law was amended in 2006, when the Congress was in power, adding a third office to the list. It is this law that was amended by the Delhi Assembly in 2015, aiming to ensure that holding the office of Parliamentary Secretary does not disqualify 21 AAP MLAs from being members of the Vidhan Sabha.
What controversies have Parliamentary Secretaries run into earlier?
Appointments in many states have been challenged. A Telangana government order appointing Parliamentary Secretaries was stuck down in 2015 by the High Court in Hyderabad. Also last year, the Calcutta High Court junked a law enacted by the West Bengal Assembly which provided for the appointment of Parliamentary Secretaries. In 2009, such appointments were held unconstitutional in Goa, and in 2005 in Himachal Pradesh.
The common thread in the judgments was that Parliamentary Secretaries had the rank and status of government Ministers. The Calcutta High Court judgment held that the appointment of MLAs as Parliamentary Secretaries was an attempt by state governments to bypass the constitutional ceiling on the number of Ministers. In the case of Delhi, even though the Parliamentary Secretaries have not been given the status of Ministers with salaries and perks, 21 of them make up as much as 30% of the House.