Delhi is headed for a mini-election if the Election Commission disqualifies 21 Aam Aadmi Party MLAs, accused of wrongfully holding an office of profit.
A by-election to 21 constituencies does not put the Arvind Kejriwal government in any danger, but it will lend to the perception that the party violated the Constitution. It will be a setback to it’s efforts to convince the public of the Centre’s interference in its government’s functioning.
But, more importantly, efforts to win back 21 seats in Delhi is bound to take away from its ongoing efforts to create inroads in Punjab ahead of the 2017 election.
Why Does Delhi Face the Prospect of a Mini-Election?
13 March 2015: Chief Minister Arvind Kejriwal did not imagine himself to be doing anything out of the ordinary when he appointed 21 MLAs as parliamentary secretaries to Ministers.
As per the law, the government can appoint only one parliamentary secretary with the Chief Minister. But states like Punjab, Arunachal Pradesh, and Gujarat under Narendra Modi have appointed additional parliamentary secretaries. This is not to say, that such appointments have gone unchallenged in court.
What Does a Parliamentary Secretary Do?
A Parliament Secretary often holds the rank of Minister of State and has the same entitlements assigned to a government department.
The appointment is controversial because the Indian Constitution states that the total number of ministers, including the Chief Minister, need to constitute 15% of the total number of MLAs. This is to prevent an oversized Cabinet from draining public funds for salaries and other perks. Since Delhi is a Union Territory, only 10% of the MLAs can be granted Cabinet status.
But Arvind Kejriwal clarified that these 21 MLAs who would enjoy Cabinet status, “would not be eligible to any renumeration or perks of any kind” and “would be no additional burden on the exchequer”. They would, however, be eligible to use government transport for official purposes and office space in the Minister’s office.
Who Created Trouble for AAP?
December 28, 2015: Delhi-based advocate Prashant Patel filed a 97-page petition to the Election Commission of India “seeking the disqualification of the 21 Aam Aadmi Party MLAs from the Legislative Assembly holding office of profit.” His contention was that since the 21 AAP MLAs are allowed to use government transport and space in the minister’s office, they are illegally occupying an Office of Profit.
The Aam Aadmi Party has accused Prashant Patel of being an agent of the BJP and the Modi government. The party believes Patel’s petition is in line with the BJP’s strategy to derail the Delhi government through Lieutenant Governor Najeeb Jung. Prashant Patel has, in turn, accused “AAP goons” of attacking him.
What Does an“Office of Profit” Imply?
The Constitution specifies when an MP or an MLA can be disqualified. One of these conditions is holding an “Office of Profit” under the state or Central government.
It implies there is a conflict of interest between the duties and interests of an MP or in this case an MLA. The duty of an elected representative is to hold the government accountable for its work. The rationale is that is that is an MLA holds an “Office of Profit” in the government, then the MLA will not be able to discharge his duty towards the people.
An MLA can be disqualified on the grounds of holding an “Office of Profit” if the government has power over appointment, removal or renumeration.
Prashant Patel reportedly based his petition on a 2 June 2015 judgement of the Calcutta High court that struck down the appointment of twenty-three parliamentary secretaries in West Bengal.
Who are These 21 MLAs?
Some of the well known names include Alka LAmba. The Election Commission issued a showcause notice to 21 Aam Aadmi Party MLAs including Lamba, Adarsh Shastri, Jarnail Singh, Praveen Kumar and Sharad Kumar.
How did Kejriwal Firefight?
June 24, 2015: In an attempt to protect themselves from the legal repercussions, the Aam Aadmi Party which enjoys absolute majority in the Legislative Assembly with 67/70 MLAs, sought to amend the law that exempted certain offices from disqualification despite being a member of the Legislative Assembly. For example, the office of the Parliamentary Secretary to the Chief Minister.
Essentially, the amendment sought to exempt parliamentary secretaries to the “Minister” as well.
Why did the President Reject Kejriwal’s Amendment?
June 14, 2016: President Pranab Mukherjee rejected the amendment which would’ve shielded the 21 AAP MLAs from disqualification by the Election Commission. The Attorney General is reported to have opined that an elected representative cannot hold an office of profit. This opinion was forwarded by the MHA to the President.
Despite an absolute majority in the assembly, the Delhi government cannot pass a Law without the President’s nod. The President is aided by the Union Council of Matters in governing a Union Territory like Delhi.
What is Kejriwal’s Defense?
1. Precedent
Arvind Kejriwal claims his party is being victimized becuase no such problem has been created for governments in Gujarat, Punjab, Arunachal Pradesh and West Bengal. As Constitutional expert Gopal Sankaranarayanan points out in an interview to The Quint,” when Narendra Modi was Gujarat chief minister, he had inducted half-a-dozen MLAs as parliamentary secretaries just before the model code of conduct for elections came into effect during the Gujarat elections.”
2. No Profit from Office
The Delhi Chief Minister insists that none of the 21 MLAs received salaries or perks a parliamentary secretary is entitled to.
When Will Delhi Know if there Will be a By-Election?
The Election Commission will hear the Aam Aadmi Party’s argument on why the 21 MLAs should not be disqualified. No date has been announced yet by Chief Election Commissioner Nasim Zaidi.
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