LUCID MAINS CURRENT AFFAIRS 2018
- OFFICE OF PROFIT AND DISQUALIFICATION OF AAP MLAS
Office of profit
- Not defined in constitution or Representation of the people Act 1951.
- It’s a position that bring a person holding it some financial gain or advantage or benefit.
WHAT THE CONSTITUTION SAYS ABOUT OFFICE OF PROFIT
- Article 102
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.
- Article 191
A person shall be disqualified for being chosen as and for being a member of the Legislative Assembly or Legislative Council of a state.
- If he holds any office of profit under the government of India or the government of any state other than any office declared by the legislature of the state by law not to disqualify its holder.
- Appointed to help minister by PM /CM.
- Holds the rank of minister of state.
- Will go against Article 164 (1A) of the constitution if numbers are exceeded.
- Number of ministers are limited to 15% of the total members of the Assemb
- In case of Delhi, it will go against Article 239 AA of the constitution.
- Number of minister are limited to 10% of members of Delhi Assembly.
- 7 ministers as there is 70 members in Delhi Assembly.
TIME LINE OF THE ISSUE.
- 13 march 2015 – Delhi government appointed 21 AAP MLAs as parliamentary Secretaries.
- 19 June 3015 -Delhi lawyer prashanth Patel filed a petition with president secretariat questioning the legality of appointment of parliamentary Secretaries by Delhi government.
- 24 June 2015 -Delhi Assembly passed Delhi member of Legislative Assembly (Removal and Disqualification) bill 2015.
- Many states have formed office of parliamentary Secretary.
- Eg:- Karnataka ,Rajasthan
- Many high courts have stayed these post saying that it’s unconstitutional as it goes against Article 164 (1A).
- Some states made law to exempt parliamentary Secretaries from office of profit.
- Same way Delhi government also tried to pass a law to exempt parliamentary Secretary from office of profit by passing “Delhi member of Legislative Assembly (Removal of Disqualification) amendment bill 2015 .
- 13 June 2016 – president rejected this amendment.
- 8 September 2016 – Delhi High Court set aside this appointment.
- – Appointment orders issued not in concurrence with Lieutenant Governor.
- 8 September 2016 – Election Commission issued show cause notice to AAP MLAs.
- January 2018 – Election Commission recommended disqualification of 20 AAP MLAs for holding office of profit
- president given assent to this .
- March 2018 – Delhi High Court restored membership of 20 AAP MLAs
- Election Commission will hear the case afresh..
- Results are yet to be out .
How to decide whether its office of profit or not?
- In Pradyut Bordoloi vs Swapan Roy case Supreme Court outlined the criterias.
- Whether the government makes the appointment.
- Whether the government has the right to remove or dismiss the holder.
- Whether the government pays the remuneration.
- What are the functions of the holder? Does he perform them for government?
- Does the government exercise any control over the performance of those functions.
- In Guru Gobinda Basu vs Sankari Prasad case ,SC ruled that
- All factors no need to co-exist.
- Decisive test – test for appointment.
- Rest of the condition depend on case by case.
Eg: - In 2006 Jaya Bachachan was disqualified from Rajasthan for holding office of profit in UP Film Development Council.
WHY OFFICE OF PROFIT IS INCLUDED?
- To preserve Independence of the legislators.
- To maintain separation of power.
- Protect the institution of parliament and democracy.
- Avoid conflict of interest.
ARGUMENTS IN FAVOR OF APPOINTMENT.
- Parliament secretaries not taking oath of office and secrecy.
- not appointed by president – hence will not violate 164 (1A)
- Like other states Delhi also has power to make law and exempt parliamentary Secretary from office of profit
- Eg :- Karnataka ,Rajasthan .
- States have freedom to improve governance of the state.
ARGUMENTS AGAINST THE APPOINTMENT.
- Considered as a measure to please legislators.
- Destroy independence of legislators.
- Destroy the separation of power.
- Dilute system of check and balance.
- Against Article 164. (1A).
- Can opt for resignation on moral ground and seek re – election.
Eg: - Sonia Gandhi resigned from Look Sabha in similar situation.
- Need more clarity on the subject.
- A fair decision is the need of the hour to protect the credibility of Indian Democracy.
- Differentiate between Office of Profit, Office of Honour and Office of Trust like how American constitution does.
- Disqualify only who are truly holding office of profit and not holding Office of Honour and Office of Trust.
- Consider 2nd ARC recommendation on office of profit.
- says that law should be amended to define office of profit
- all offices which are purely advisory bodies ,where the experience, insights, of a legislator are beneficial in governmental policy should not be treated as office of profit .