EC’s disqualification of 20 AAP MLAs is no surprise, but office of profit case marks moral loss for Kejriwal

It is not surprising that the Election Commission recommended disqualification of 20 MLAs of Aam Aadmi Party (AAP) for holding ‘office of profit’. It was already signalled when the President of India refused to give assent to an amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, to exempt parliamentary secretaries from being termed as an ‘office of profit’.

Ideally speaking, the amendment proposed by the Delhi Assembly should have been accepted by the president. Because the proposed amendment was very much in accordance with Article 191(1)(a) which empowers the legislature of a state to make laws to declare any office as the ‘office of non-profit’ and thus not to disqualify its holder even from retrospective effect. It has happened in the past on many occasions and also was also held by the Supreme Court in its numerous decisions. For instance, the Supreme Court in Kanta Kathuria vs Maneck Chand Surana (1970) case held the power of Rajasthan Legislative Assembly to remove the disqualification retrospectively by Section 2 of Rajasthan Legislative Assembly Members (Prevention of Disqualification) Act, 1969. It was also the case with Office of Profit Amendment Act, 2006.

Two points can be made here. One, the president by denying assent to the proposed amendment by the Delhi Assembly has denied the power what is constitutionally vested in the legislative assemblies of the states. Second, the president acted in denial of his power by referring the matter to the Election Commission as the president is now bound to act in accordance with the majority opinion of the Election Commission as per the provision of Article 192(2).

Given the above context, the Election Commission was left with no choice except to test the merit of the case in the light of certain yardsticks already put in place by the Supreme Court in its very first case on office of profit in Ravanna Subanna vs GS Kageerappa in 1954 to determine whether the office of parliamentary secretary is an ‘office of profit’ under the government.

It was further reiterated with several other additions by the Supreme Court in Guru Govinda Basu vs Shankari Prasad Ghoshal in 1964, Umrao Singh vs Darbara Singh and Others in 1969, Kanta Kathuria vs Maneck Chand Surana in 1970, Surya Kant Roy vs Imamul Hai Khan in 1975, Madhukar GE Pakakar vs Jasciant Chabbildas Rajani and Others in 1976, Satrucharala Chandrashekhar Raju vs Vyricherla Pradeep Kumar Dev in 1992, and AK Subbaiah vs Ramakrishna Hegde and Others in 1993.

These yardsticks include: whether the government has the right to exercise full control over the office in terms of appointment, removal or dismissal and determining duties and functions; whether the functions of the office are carried out for the government; whether the office enables the holder to wield influence or power by way of patronage, and whether the government pays any remuneration other than ‘compensatory allowances’. However, the compensatory allowances are excluded from the purview of pecuniary gains only when these allowances do not bring the holder of the office under the influence of the government (Shibu Soren vs Dayanand Sahay, 2011).

In the Jaya Bachchan case in 2006, the Supreme Court has gone beyond the test of direct pecuniary gains while incorporating the capability of the office to yield a profit or gain in any form. Nevertheless, the Supreme Court in Divya Prakash vs Kuttar Chand Rana (1975) case held that if a person appointed to a post in an honorary capacity without any remuneration, though the post carried remuneration, the person did not hold an office of profit.

Notably, India as a parliamentary democracy adopted the principle of ‘fusion of power’ instead of ‘separation of powers’. And for this reason, it is difficult to maintain a fine balance between the Legislature and the Executive. Therefore, the members of our Constituent Assembly also did not discuss the ‘office of profit’ in great detail.

The suggestion to take away the parliamentary prerogative by putting the disqualifications only in the Constitution by BN Rao, advisor to the Drafting Committee was not given heed. Similarly, the proposal of KT Shah on 19th May 1949 in the Constituent Assembly to disqualify any person “who accepts any office or post carrying a salary… shall be deemed forthwith to vacate his seat” was not accepted. In fact, unlike the provisions dealing with ‘office of profit’ in relation with the president [Article 58(2)], vice-president [Article 66(4)], governor [Article 158(2)], the power to exempt the offices held by legislators as the ‘offices of profit’ was leniently left to the wisdom of the Parliament and legislatures of the states. It can be safely argued here that the issue of ‘office of profit’ is more of moral character than legal.

The issue of ‘office of profit’ was also debated on 9 March, 1950, in the Interim Parliament which was pointed out by Sardar Vallabhbhai Patel in his communication with Jawaharlal Nehru in following words:

“You will recall that when the question came up about granting disqualification on account of holding an office of profit under the government, the question arose about their holding office as members of various committees, boards, etc, appointed by government…. As for the future, we might exempt those who might be appointed as members by the government with the consent of the speaker.”

Thereafter, our Parliament enacted three acts in 1950, 1951 and 1954 merely to exempt certain offices from disqualification. These acts were finally replaced by the Parliament (Prevention of Disqualification) Act, 1959, which provided an exhaustive list of offices exempted from disqualification based on the Bhargava Committee recommendations in 1958. It was since then amended further a number of times (1960, 1977, 1993, 1999, 2000 and 2006) to expand the list of exempted offices that too without any serious attempt to define what is ‘office of profit’. The state governments too have added to the already growing lists.

The 2006 Amendment Act has the unique distinction of having been returned for reconsideration for the first time in the parliamentary history of India by the then president APJ Abdul Kalam before being passed again and enacted. In his book Turning Points, Kalam argued in following terms: “In the proposed Office of Profit Bill, I did not find a systematic approach towards deciding the question of what constituted an office of profit. Instead, exemption was given to only the existing offices which were occupied by MPs…”

He further states: “I suggested that the Bill should clearly mention the criteria for exempting a particular office from the provisions of the Office of Profit Bill which should be ‘fair and reasonable’ and applicable in ‘clear and transparent’ manner across the states and Union territories.”

In every sense, it was certainly a marvellous example of a President using his constitutional authority with independent judgment and without succumbing to the dictate of the Cabinet.

It may appear opportunistic or travesty to constitutional morality, the law to prevent disqualification arising from the office of profit has always been the convenience of the Parliament and state legislature. AAP was unfairly denied this opportunity. Whatever may be the reason, the loss for AAP now is more moral, less legal and extraordinarily political.