Office of Profit and Parliamentary Secretaries

The issue was in media due to disqualification of 20 MLAs by the Election Commission and subsequence legal tussle over the matter.

Origin of Office of Profit

The concept of Office of Profit had originated in England where King appointed legislators as CEOs of factories etc. The idea was to create loyalists to empire. For legislators, this was an additional perk and benefit, so it was a win-win situation for both. In due course, it came under criticism on two grounds:

• It hampers the independent functioning of the legislators
• The legislators who enjoyed offices of profit would never raise their voice against any wrongdoings of executive.

Thus, the essence of disqualification on the ground of office of profit is that legislators should not feel obligated to the executive or government in any way which could influence their independent functioning.

Office of Profit in India

The word office of profit has not been defined either in the constitution or the Representative of People Act, 1951.Thus, its meaning and various principles are derived from various Supreme Court and High Court judgments. For example, in one of the cases, the SC observed the following:

For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain”.

Jaya Bachchan was disqualified from Rajya Sabha seat on the basis of above logic.

^^Jaya Bachchan Case

In 2006 Jaya Bachchan was the member of Rajya Sabha, and she was also made the member of UP Film Development Council. Her post was challenged on the grounds of office of profit. However, she explained that she is not taking a penny as the holder of the post. But the court held that it was an office of profit even if she is not getting any actual remuneration. This was because the position she held was powerful enough to help her yield pecuniary gains in future. Therefore, she was disqualified from Rajya Sabha.

On the basis of court rulings, some other grounds can be relevant to office of profit are as follows:

• Whether the government exercises control over appointment, removal and performance of the functions of the office held by the person.
• Whether the office has any remuneration attached to it.
• Whether the body in which the office is held has government powers such as releasing money, allotment of land, granting licenses etc.

Office of Profit and Disqualification

Article 102 and Article 191 lays down disqualification criterion for MP and MLA respectively. One of the criterions says that the person cease to hold office in case he holds an office of profit. But the Ministers, who have to be members of the legislature, are exempted from this disqualification.

Concept of Parliamentary secretaries

The concept originated in England where they are appointed to help the ministers. In India many states have formed the post of parliamentary secretaries like Manipur, Assam, Rajasthan etc. In these states MLA’s are appointed as parliamentary secretaries. They hold the rank of minister of state and are appointed by Chief Ministers of the state concerned.

Discussion of entire issue

The post of parliamentary secretaries has been struck down by the courts in some other states also. We note that the 91^st amendment act, 2003 had introduced limitation on the number of ministers to be appointed in the council of ministers both at the centre and state level. For example-For the purpose of states article 164(1) says –The total number of ministers including the Chief Minister has to be 15 per cent of the total number of members of the legislative assembly of the state.

In India, parliamentary secretaries are being appointed from among the MLA’s who are not a part of council of ministers. As they held the rank of minister of state, therefore the total number of ministers exceeds the mandated 15% limit i.e in contravention to the Article 164(1). It is seen as an indirect appointment of the ministers by creating the post of parliamentary secretaries.

Similar argument was given by High Court in following case: Adv. Aires Rodrigues vs The State of Goa,2009– It held that appointing Parliamentary Secretaries of the rank and status of a Cabinet Minister is in violation to Article 164 (1A) of the Constitution and set aside the appointment of two Parliamentary Secretaries in the state government.

However many states have exempted parliamentary secretaries from office of profit.

Constitution recognizes that there may be other cases where exceptions may be required and allows Parliament and State legislatures to make exemptions by passing a law. But what happened in Delhi? Haven’t they passed such law so as to allow exemption to parliamentary secretaries?

According to Article 239AA of the constitution, number of Cabinet Ministers in Delhi cannot exceed 10 per cent of the total 70 seats i.e. seven. In March 2015, 21 MLAs made parliamentary secretaries without any remuneration or perks from the government. However it was challenged in the Delhi HC through a PIL filed by an NGO Rashtriya Mukti Morcha as a violation of Article 239 AA.

Then, the Delhi government amended with retrospective effect the Delhi members of legislative assembly (Removal of Disqualification) act, 1997 to exempt the 21 parliamentary secretaries from disqualification. But the bill was not assented by the then president, Pranab Mukherjee. So the Delhi HC set aside the appointment of 21 parliamentary secretaries in 2016.

In June 2017, election commission rejected AAP plea to drop office of profit case against their MLAs. Finally on 19^th Jan 2018, EC has recommended disqualification of 20 AAP MLAs as one MLA had already resigned from his post.

Now the recommendation of EC will be considered by the president and if it affirms the disqualification then elections will take place for the vacant seats.

Conclusion

Proponents of the post of Parliamentary Secretaries cite the importance of the office as it aids the Government in being more responsive to citizens’ needs. The role of legislators is not to help the Government do its job better, but to ensure that it functions in a proper manner. That is, the legislator exercises the role of a watchdog over the Government on behalf of citizens and not as an agent of the Government.

But it is important to understand that the legislators are the representative of the people and are expected to perform their functions in free and fair manner. They keep an eye over the actions of the executive and held them accountable. So they should not feel obligated to the executive in any manner and this can only be ensured when they take their decisions in an independent manner. Therefore the post of parliamentary secretaries stands in contradiction to the principal of separation of powers. So, it is high time that the government should look into the entire issue in an objective manner keeping in mind the duties of the legislator towards public as the primary goal.