By Kunwar Vijay Pratap Singh
The Delhi High Court has recently quashed a Presidential Notification disqualifying 20 Members of Delhi Legislative Assembly belonging to Aam Admi Party. The notification was issued on 20 January 2018 under Section 15 (4) of the Government of National Capital Territory of Delhi Act 1991 invoking the provisions of Article 191(1)(a) of the Constitution of India on the recommendation of the Election Commission of India on the ground of holding office of profit as parliamentary secretaries. The High Court has observed that the opinion of the Election Commission of India (ECI) dated 19th January 2018 is vitiated and bad in law for failure to comply with the principles of natural justice. The High Court has referred the matter back to the ECI to reconsider afresh the issue by giving them a proper hearing.
Meaning of office of profit
An office of profit involves two elements, namely, that there should be an office and that it should carry some remuneration. In order to determine whether a person holds an office of profit under the Government several tests are ordinarily applied such as whether the Government makes the appointment, whether the Government has the right to remove or dismiss the holder of the office, whether the Government pays the remuneration, whether the functions performed by the holder are carried on by him for the Government and whether the Government has control over the duties and functions of the holder. In Jaya Bacchan versus Union of India and others (AIR 2006 SC 2119), the Supreme Court held that an office of profit is an office which is capable of yielding a profit or pecuniary gain. If the ‘pecuniary gain’ is receivable in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.
According to Article 102(1)(a), a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder. Similar provisions are there under Article 191(1)(a) for the members of the Legislative Assembly or Legislative Council of a State.
Position of Parliamentary Secretaries
Indian Parliamentary system is based upon the British Model of Westminster system of Parliamentary Democracy. Under the British Model, the Prime Minister used to appoint some of the Parliamentarians (very restricted in number) to assist the Prime Minister or a senior Minister mainly in the legislative work. Under this scheme, Parliamentary Secretaries may make a statement during the time devoted to ‘Statements by Members’ (whereas ministers may not); table documents in the House on behalf of a minister; speak on behalf of a minister during adjournment proceedings; and act on behalf of a minister during debate on a motion for the production of papers.
The Constitution of India has no mention of the post of Parliamentary Secretaries. Prime Minister Rajiv Gandhi had Oscar Fernandes (1984-85) and Ahmed Patel (1985-86) as his parliamentary secretaries. Delhi Chief Ministers Sahib Singh Verma got Nand Kishore Garg appointed as parliamentary secretary in 1996 and Sheila Dikshit got Ajay Maken appointed in 1998. However, both the Chief Ministers did it with the consent of the party in opposition.
The Parliament (Prevention of Disqualification) Act 1959 exempts the office of Parliamentary Secretary from the ambit of the office of profit [Entry No. 3(b)]. However, such exemption is limited to the extent of performing legislative work and not executive work. It is clear from the nomenclature also that the post does not enjoy any executive work. Thus, correct interpretation is that if a Parliamentary Secretary is assigned some executive work in a ministry or department, the said post shall certainly attract disqualification under Article 102(1)(a) or Article 191(1)(a), as the case may be.
Minister’s post is not an office of profit
The general rule of disqualification is applied subject to the exceptions provided under Article 102(1) and Article 191(1)(a). According to the explanation appended to Clause (1) of Article 102, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State. Similar explanation has been appended to Clause (1) of Article 191 for the members of state legislatures. Thus, the position of a Minister has been exempted from the disqualification provision in the name of ‘office of profit’. In the Indian system of Parliamentary Democracy, a Minister for the Union is required to be a member of either House of Parliament. Similarly, a Minister for a State is required to be a member of the concerned State Legislature.
The number of Ministers cannot be more than 15 percent
The provisions of Article 75(1A) and Article 164(1A) as inserted vide the Constitution (Ninety-first Amendment) Act 2003, limits the size of the Council of Ministers should not exceed 15% of the total strength of the Lower House, Lok Sabha or Vidhan Sabha, as the case may be. Therefore, appointing Parliamentary Secretaries in disproportionate manner and assigning executive work shall attract the provisions of Article 75(1A) and Article 164(1A).
Assam law declared unconstitutional by the Supreme Court
In a landmark verdict, the Supreme Court, on 26 July 2017, has held that the Legislature of Assam lacks the competence to enact a law for appointment of parliamentary secretaries enjoying the rank and status of minister of state. As such the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 was declared unconstitutional by the Supreme Court of India [Bimolangshu Roy (dead) through L.Rs. versus State of Assam and others (AIR 2017 SC 3552)].
Chief Parliamentary Secretaries case of Punjab
The Punjab and Haryana High Court, on 12 July 2016, quashed the appointment of 18 Chief Parliamentary Secretaries (CPS), who were appointed in April 2012. In H.C. Arora versus State of Punjab and others (CWP No. 10167 of 2012), the High Court invalidated the appointments of Chief Parliamentary Secretaries declaring the same contrary to the Constitutional intent of limiting the number of Ministers or the size of the Cabinet.
It was observed by the High Court that the appointments as made were, in fact, a roundabout way of bypassing the Constitutional mandate of the provisions of Article 164 (1A) of the Constitution of India. Accordingly, the Punjab Parliamentary Secretaries and Chief Parliamentary Secretaries (Terms and Conditions of Appointment) Rules 2006 made under Article 162 of the Constitution of India was declared unconstitutional by the High Court. We have many other similar verdicts of various High Courts on similar footings.
The writer is a senior IPS officer in Punjab and a scholar of Constitutional & Criminal Law. The views expressed are his own.