The scare-mongering over the Office of Profit case against AAP’s 21 MLAs is mere propaganda. This article published in The Quint by Mohan Parasaran, former Solicitor General of India explains why AAP’s MLAs cannot be disqualified.
First, two important questions:
A. Whether the appointment of 21 AAP MLAs as parliamentary secretaries attracts the “office of profit” disqualification under Article 191(1)(a) of the Constitution?
B. Whether the president’s refusal to give assent to the amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, which exempts parliamentary secretaries from “office of profit” disqualification would render the MLAs disqualified?
From a constitutional perspective, the office of profit disqualification is warranted for two specific issues emanating from the doctrine of separation of powers. The principle ensures (i) candidates for election may not have an undue advantage and (ii) legislators should be free to discharge their legislative functions without a conflict of interest between their constitutional functions and any office of profit they may hold under any government.
The raison d’etre behind disqualification of an MP holding an office of profit under Article 102(1)(a) and the analogous provision of Article 191(1)(a) for MLAs is to prevent conflicts of interest, and the executive’s undue influence on the legislature, which has been reaffirmed by a number of Supreme Court judgments on the issue.
Conditions that Fulfill an ‘Office of Profit’
The three elements, which are a sine qua non for attracting disqualification under Article 102(1)(a), are:
a) there must be an office;
b) the office must be one where the holder derives profit; and
c) such an office must be under the government.
Therefore, we need to undertake this enquiry to ascertain whether the above conditions are conjointly fulfilled in order to incur an MLA’s disqualification under the office of profit rule by virtue of holding the office of parliamentary secretary.
In the present facts and circumstances, there is no dispute that the office of parliamentary secretary exists and that such office is under the government.
Establishing Pecuniary Benefit
The Supreme Court in Shibu Soren v. Dayanand Sahay upheld the key proposition laid down in Sivamurthy Swami Inamdar v. Agadi Sanganna:
In Shibu Soren, the SC also reasoned that mere use of the word ‘honorarium’ could not take the payment out of the purview of profit, if there is some pecuniary gain for the recipient.
“Profit” connotes an idea of pecuniary gain other than “compensation”. In Shibu Soren, payment of an “honorarium” in addition to daily allowances in the nature of compensatory allowances, rent free accommodation and chauffeur-driven car at state expense, was in the nature of remuneration and a source of pecuniary gain and hence constituted profit.
Therefore, irrespective of the nomenclature of the remuneration, if the office were capable of giving rise to any pecuniary benefit to its holder over and above any out-of-pocket expenses, it would be an office of profit.
In Umrao Singh v. Darbara Singh and Others the question that arose for consideration was whether payment of a monthly consolidated allowance for performing all official duties and journeys and daily allowances would convert the office of chairman of a panchayat samiti into an office of profit. The Supreme Court held that these were allowances paid for the purpose of ensuring that the chairman did not have to spend money out of his own pocket for discharging his official duties, and therefore, receipt of such allowances did not make the office one of profit.
Again, in Jaya Bachchan v. Union of India, the only issue for consideration was whether the petitioner had received any pecuniary gain while holding the post of chairperson of the Uttar Pradesh Film Developmental Council. The court held that what was relevant was whether the office carried it with, or entitled the holder, to any pecuniary gain other than the reimbursement for out-of-pocket/actual expenditure. It also held that it did not matter whether the holder of the office chose not to receive/draw such emoluments, but whether such pecuniary gain was ‘receivable’ in regard to the office.
Why No Disqualification
Therefore, if the Delhi government’s March 2015 clarification was factually correct, then, based on the jurisprudence evolved by the Supreme Court, it cannot be said that the MLAs were enjoying office of profit and thus, would not attract disqualification under Article 191(1)(a) since the office under the government must yield profit for the incumbent in order for disqualification to be attracted.
This does not appear to be fulfilled in the present case, so long as no perquisites or remuneration of any kind or by any name whatsoever has been received or is receivable by the incumbent by virtue of holding the office of parliamentary secretary over and above any expenses to defray out-of-pocket expenses.
It may be added that Article 191(1)(a) of the Constitution vests the state legislature to exempt any office from an “office of profit” disqualification. The amendment to the 1997 Act sought to exempt the office of parliamentary secretary from such disqualification to which the president has refused/withheld his assent.
However, if no perquisite or remuneration was available to the MLAs, then disqualification will not be attracted in the first place and the fact that the president has refused to give assent to the law exempting these offices from disqualification will make no difference to their membership as MLAs.