News: The Election Commision on 19 January, 2018, recommended to the President Ram Nath Kovind that 20 of Aam Aadmi Party (AAP) MLAs be disqualified for holding offices of profit.
Option before the President: The President is bound to accept the Election Commision’s counsel.
Options before the AAP: AAP has the option to approach the Delhi High Court. They have already approached the court against EC’s decision.
What is the matter: On March 13, 2015, AAP appointed 21 MLAs as parliamentary secretaries. AAP said that these MLAs won’t take remunerations, hence it is not office of profit. Subsequently on June 19, 2015, lawyer Prashant Patel approached to Delhi High Court against the appointment. Surprisingly, Delhi Assembly passes a bill to exclude parliamentary secretaries from the office of profit with retrospective effect. But then president Pranab Mukherjee on June 13, 2016, refuses to give assent to the bill. Even Prashant patel approached the president to disqualify the MLAs. President forwarded this matter to the Election Commision.
-On September 8, 2016, the Delhi High Court rejected the appointment of 21 MLAs as parliamentary secretaries. After that 21 MLA,s approached to EC to drop cases against them. And finally on January 19, 2018 the Election Commission disqualified the 20 MLA,s (one MLA Jarnail Singh had already resigned to fight Punjab election).
What About the Laws: Consititution of India has a provisions for diqualification of MPs and MLAs. Here are the main provisions:
1. Article 102 (1)(a): A person shall be disqualifed from being a member of either House of Parliament if he holds any office of profit, among other grounds.
Article 103: If a question arises whether a member has incurred such disqualification, it will be referred to the President’s decision. The president shall obtain the Election Commission’s opinion and act accordingly.
Article 191 (1) (a): 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 specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder.
Special provisions for Delhi: Since Delhi is not a full state, hence a provision for office of profit is made in the Government of National Capital Territory Act, 1991. Delhi MLA (Removal of Disqualification) Act, 1997, lists all positions that are exempted: there is no mention of parliamentary secretary in the list.
Which posts are office of profit: Since Constitution of India hasn’t mentioned any posts as office of profit, only judicial decisions have to be relied upon. In U.C.Raman vs P.T.A.Rahim and Others, the Supreme Court categorically stated that ‘the word profit’ has always been treated equivalent to or a substitute for the term ‘pecuniary gain’. The principle that an “office” should have “receivables” attached to it for it to qualify as an OoP, has been upheld in other cases as well. In general terms, office of profit means a post with financial and other benefits.
Those who resigned: Former Congress president Sonia Gandhi was alleged to have held office of profit as chairperson of the National Advisory Council when UPA was in office. She resigned from the Lok Sabha in 2006 ahead of an imminent decision on her disqualification and was successfully re-elected. Rajya Sabha MP Jaya Bachchan was disqualified over a post in the UP Film Development Council. Two Uttar Pradesh Legislative Assembly members, Bajrang Bahadur Singh and Uma Shankar Singh, were disqualified in January 2015 due to holding government contracts.
