Office of Profit Issue and AAP Government in Delhi
The President rejected Delhi government’s amendment bill of Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, which exempted the Parliament Secretaries from disqualification on grounds of holding Office of Profit. It is serious development as far as Delhi government is concerned as the disqualification of MLAs will invite fresh elections which shall act as a barometer of the Delhi Government’s governance.
Background: The bill has been on table for past one year. Non-assent by President has put future of 21 MLAs at stake as they face prospect of disqualification. The Constitution and legal position has clearly stated that ‘these parliamentary secretaries are occupants of Offices of profit under government.’
Art 191 and 192 of Constitution of India and the NCT Act: They are very categorical about any MLA holding Office of Profit being subject to disqualification. Delhi Assembly passing bill to remove disqualification on grounds of Office of Profit may prove that they tacitly accept them as Office of Profit.
For being Office of Profit by definition, absence of pecuniary benefit or financial profit to the office incumbent is not sufficient. The influence of positon wherein one can influence governmental decision, where there is executive power also adds up to occupying Office of Profit even if there is no salary, accommodation or other positional benefits.
However, before disqualification of such MLAs, the opinion of the Election Commission is to be sought by President. The SC cannot interfere in President’s decision as it is under his executive power under Constitution of India. However, the decision of Election Commission can be challenged in court by the aggrieved party.
There is popular notion that Office of Profit necessarily involves perks and other emoluments. It was established in Jaya Bacchan case that even if one doesn’t draw salary or perks of position, it will be considered as Office of Profit.
Another incident is President Abdul Kalam’s assent to amend Parliament (Prevention of Disqualification) Act, 1959, popularly known as the Office of Profit bill with retrospective effect. The Act exempted 56 posts from the purview of the bill, giving a reprieve to MPs who could have otherwise faced disqualification. The Parliament has power to enforce such decision.
Genesis of Office of Profit:
It is not just Office of Profit, but Office of Profit under the government. It includes
The members who don’t hold any office of profit
Others who are specifically exempted, like the Ministers, from disqualification.
The argument that other states like Haryana, Nagaland, Himachal Pradesh, Rajasthan, Gujarat, Pondicherry and West Bengal have Parliamentary Secretaries and gives Delhi government right to have too is not applicable on grounds that
These states passed specific laws before such appointments. This gives the validity of law to the position of Parliamentary Secretaries. (However, courts have also disqualified such appointments in past)
Delhi government tried to retrospectively pass the law (similar to Parliament’s power) to exempt incumbents from disqualification.
Constitution Review Commission, 2000 had recommended the limit on number of ministers to 10% of lower house which was modified to 15% of lower house and accepted by passing 91st Constitution Amendment Act. However, the state governments still appoint MLAs to autonomous bodies, corporations which do not have any cap on them, despite Commission’s recommendation of 2% of members of lower house.
The jumbo sized cabinet and inflated council of ministers to appease coalition has had put heavy pressure on public exchequer. Increasing the size of ministry is not guarantee to better governance. Overstaffing hampers the principles of good governance like transparency, accountability etc.
Office of Profit: The concept was evolved in England- to preserve independence of legislature by keeping members away from temptations of executive (enforces feature of separation of power between legislature, executive and judiciary). The expression “office of profit” has not been defined in the Constitution or in the Representation of the People Act, 1951. It is for the courts to explain the significance and meaning of this concept. Over the years, courts have decided this issue in the context of specific factual situations.
Art 102 of Constitution of India disqualifies MPs from holding Office of Profit under government.
Fixed number of ministers of Delhi: As per article 239AA of Indian Constitution, number of Council of Ministers cannot exceed ten percent of Delhi assembly seats. Therefore, there can be a maximum of 7 Ministers (10% of 70 Delhi assembly seats)