Arvind Kejriwal
Source: PTI

On 19th January 2018, the election commission of India recommended to the president Ram Nath Kovind to disqualify 20 MLA of AAP party for holding the office of profit, setting the stage for their ejection from the Delhi assembly.

Chief Election Commissioner Nasim Zaidi along with Election Commissioners A. K. Joti said that the AAP MLAs did hold “de facto the office of parliamentary secretaries from March 13, 2015, to September 8, 2016” so they are liable to be disqualified for holding the office of profit as legislators.

Disqualified AAP MLAs
Source: Indian Express

A parliamentary secretary is a member of a Parliament who assists a more senior minister with his or her duties so they assist ministers with their work.

AAP party insisted that despite holding the office of profit these MLAs did not take any salaries or perks. The Election Commission said that “whether or not the individual actually derived the benefit or participated in executing function of the government is of no relevance” as the Supreme Court in the case of Jaya Bachan V. Union of India (2006) had declared that if the post falls under office of profit the disqualification is inevitable, under Article 191.

Coming next to the Election Commission recommendation, the MLA moved to the Delhi High Court but Justice Rekha refused to pass any interim order because the Delhi HC has no locus as the EC has only answered a reference to the President.

In this case, two issue raised;-

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 of central government. The essence of this disqualification is that there should be no conflict between the duties and interests of an elected member

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.

Courts across the country have struck down the appointment of Parliamentary Secretaries for violating the Constitution.

After observing every aspect of the case and in the light of opinion expressed by the Election Commission president Ram Nath Kovind has disqualified 20 of AAP party MLAs in Delhi for holding the office of profit which is “unconstitutional and dangerous for democracy.

This step of the president on the recommendation of the election commission will develop confidence among the people of our county in the constitution, and they will surely believe that illegal act of anyone will not be accepted.

This issue came into existence when Arvind Kejriwal government on March 13, 2015, passed an order for appointing 21 MLAs as Parliamentary Secretaries. This was challenged by Advocate Prashant Patel who petitioned President Pranab Mukherjee on June 19, 2015, that these MLAs were now holding ‘office of profit’ so they should be disqualified.

Aam Adami Party party came into the fear that there 21 MLA will be disqualified because of the illegality of holding two offices of profit at once. So The Delhi Legislative Assembly, passed the Delhi Member of Legislative Assembly (Removal of Disqualification) (Amendment Bill), 2015 excluding Parliamentary Secretaries from “office of profit’ with retrospective effect.

However, the bill will be considered passed only when it gets the consent of the Lt-Governor and the President. Then, the President withheld assent to the amendment bill and referred the matter to the Election Commission.

The AAP has so maintained that the post of parliamentary secretary is “not an office of profit” because of not receiving pecuniary benefit. The amendment bill brought by the government has the sense of protection of the 21 MLAs.

Initially, 21 MLAs were named in the case. The number came down to 20 after Rajouri Garden MLA Jarnail Singh resigned to contest against Parkash Singh Badal in the Punjab Assembly elections.