Why it is in news?

• The Election Commission has recommended the disqualification of 20 AAP MLAs finding them guilty of holding an ‘office of profit’.
• The EC has written to President.
• The 20 AAP legislators were accused of being unconstitutionally appointed as parliamentary secretaries to assist various ministers of the Delhi government.
• The EC’s opinion on this matter means that the AAP legislators are set to be disqualified, which could soon force a mini Assembly election in the national capital.
• The party will now approach the Delhi HC, pleading that the recommendation be struck down.

Office Of PROFIT

• According to the Constitution, Members of Parliament or legislators are prohibited from accepting government positions which carry some financial remuneration or any other benefit such as office space, accomodation, or even a car.
• Any violation of this provision attracts disqualification of the legislator for holding an office of profit.
• The aim of this provision is to preserve the independence of the legislature by keeping its members away from any temptations from the executive.
• The AamAadmi Party, which won 67 of the 70 Assembly seats, continues to enjoy a majority in the Delhi Assembly even after the disqualification of the 20 MLAs.

What is office of profit?

• India’s Constitution does not define the term “office of profit”.
• But Articles 102(1) and 191(1) restrict lawmakers from accepting “any office of profit” under the central or state governments, other than those that are specifically exempted by laws made by Parliament or State Assemblies.
• The idea behind the concept is to preserve their independence from the executive.
• The office of minister is one such exemption.
• But there is a constitutional limit on the number of ministers – 15% of the total number of members of the Assembly ordinarily, which is limited to 10% in the case of Delhi, since it is not a “full” state.
• In 1959, Parliament enacted a law, which has been amended from time to time, specifying offices that would not attract disqualification under the Constitution.
• In 1997, Delhi Assembly passed a law listing two exemptions to the “office of profit” and a third one was added in 2006 by an amendment.
• The office of Parliamentary Secretary is not one of these three exemptions.
• Such appointments of political secretaries had earlier been struck down in Himachal Pradesh in 2005, Goa in 2009, and in West Bengal and Telangana in 2015.
• The courts have consistently held these to be an endeavour by state governments to circumvent the constitutional ceiling on the number of ministers they can appoint.

What is AAP legislators’ case?

• In March 2015, the Arvind Kejriwal government appointed 21 AAP legislators as parliamentary secretaries to “facilitate smooth functioning” of various ministries.
• The order appointing them said they would not get any remuneration or perks but would have space in the minister’s office to work and could use government transport for “official purposes”.
• The decision was challenged before the Delhi High Court by Rashtriya Mukti Morcha, a non-governmental organisation.
• In a public interest litigation filed in May 2015, the NGO claimed the appointments were “unconstitutional, illegal and without jurisdiction”.
• The next month, a lawyer named Prashant Patel petitioned President Pranab Mukherjee that the 21 MLAs were holding offices of profit and should, therefore, be disqualified. He claimed they were getting monetary compensation.
• Mukherjee sent Patel’s complaint to the Election Commission, asking for its opinion. The commission issued notices to the MLAs in March 2016.
• In response, the AAP passed a Bill amending the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 to exempt the post of parliamentary secretary from the definition of the “office of profit”.
• The party maintained that it was not an office of profit since the legislators were not getting “pecuniary benefit”.
• But the Bill was rejected by Mukherjee in June 2016.
• In September 2016, the Delhi High Court scrapped the legislators’ appointment as parliamentary secretaries.
• The legislators then went to the Election Commission arguing that since the High Court had declared their appointment null and void, the poll panel could not hear a petition against them for holding an office that never existed.
• The commission did not agree, writing to the President in June last year that the MLAs “did hold de facto the office of parliamentary secretaries” from March 13, 2015 to September 8, 2016.
• One of the MLAs, Jarnail Singh, had resigned early last year to contest the Punjab Assembly election, after which proceedings against him were dropped.
• The commission has now concluded that the post of parliamentary secretary did indeed qualify as an office of profit.

Source

The Indian express,Scroll.in