New Delhi: The AAP government's decision to appoint 21 Parliamentary Secretaries to seven ministers is attracting question of propriety, legality and political vendetta.
After coming to power in February 2015, the AAP government appointed the parliamentary secretaries, saying this would facilitate smooth functioning but made it clear that they would not receive any remuneration or perk from the government, that is, no burden on the exchequer.
President Pranab Mukherjee in June refused to sign a bill that allowed the 21 MLAs to hold the second paying position as parliamentary secretary, leaving their fate hanging in balance.
The Election Commission has summoned the legislators to clarify their position on July 14.
What is the issue?
On March 13, 2015, AAP government passed an order appointing 21 MLAs as Parliamentary Secretaries. This was challenged by Advocate Prashant Patel who petitioned President Pranab Mukherjee on June 19, 2015 that these MLAs were now holding "Office of Profit" and therefore should be disqualified. The Delhi Legislative Assembly, then passed the Delhi Member of Legislative Assembly (Removal of Disqualification) (Amendment Bill), 2015 excluding Parliamentary Secretaries from "Office of Profit" with retrospective effect.
However, the President withheld assent to the amendment bill and referred the matter to the Election Commission. Interestingly, the Delhi High Court is also hearing a writ petition challenging the appointment of 21 Parliamentary Secretaries.
The issue in front of the Election Commission is whether the office of Parliamentary Secretary in the GNCTD, 1991 constitutes an "Office of Profit". Article 191 in the Indian Constitution has not defined what is an "Office of Profit" which has paved the way for the courts to interpret it.
What is the status now?
Following notices by the Election Commission, the 21 AAP MLAs have given their reply in writing seeking, additionally, a personal hearing. Advocate Prashant Patel has also submitted his rejoinder to the replies of AAP MLAs. The Election Commission has asked all the 21 and the petitioner to appear before it on July 14.
After the hearings are over, the Election Commission will take a decision and communicate the same to the President. The President will have to sign on the decision taken by EC, a quasi judicial body.
What are the options before the 21 AAP MLAs?
If the Election Commission decides that the office of Parliamentary Secretary is not an "Office of Profit", then the 21 MLAs are safe.
If the Election Commission decides that the ‘Office of Parliamentary Secretary’ is indeed an "Office of Profit" and recommends disqualification, the 21 seats will fall vacant with effect from the moment the President signs on it paving way for by-elections.
The 21 AAP MLAs have two options: (a) choose not to contest the decision and prefer fight elections again (b) Contest the decision in a court and try to win a stay on the Election Commission’s order.
Who are the 21 AAP MLAs whose fate hangs in balance?
Adarsh Shastri- Dwarka; Alka Lamba- Chandni Chowk; Anil Vajpayee- Gandhi Nagar; Avtar Singh- Kalkaji;Jarnail Singh- Rajouri Garden; Jarnail Singh- Tilak Nagar; Kailash Gehilot- Najafgarg; Madan Lal- Kasurba Nagar; Manoj Kumar- Kondli ; Naresh Yadav- Mehrauli ; Nitin Tyagi- Laxmi Nagar; Praveen Kumar- Jangpura; Rajesh Gupta- Wazirpur; Rajesh Rishi- Janakpuri; Sanjeev Jha- Burari; Sarita Singh- Rohtas Nagar; Som Dutt- Sadar Bazar; Sharad Kumar- Narela; Shiv Charan Goel- Moti Nagar; Sukhbir Singh- Mundka; Vijendar Garg- Rajinder Nagar.
What is Advocate Prashant Patel’s plea before the President?
According to Article 191 of the Constitution and section 15 of the GNCTD Act, 1991 a person shall be disqualified for being a member of the Legislative Assembly if he holds any "Office of Profit".
Delhi Assembly has not enacted any law that excludes ‘Parliamentary Secretary’ post from "Office of Profit" category. The one introduced later with retrospective effect is malafide.
The appointment of these 21 MLAs as Parliamentary Secretary is unconstitutional and illegal and therefore they should be disqualified from Delhi Legislative Assembly membership.
What is the reply of AAP MLAs to the Election Commission?
Complainant has suppressed the fact that in the State of Delhi,the position of Parliamentary Secretary is 'honorary' in nature and no financial benefits are attached to it.
No facilities such as official space, vehicle, staff for office, residential accommodation, technical devices, travelling allowance or any additional emoluments/re-imbursement of any nature is being given to the MLAs in their capacity as Parliamentary Secretary.
The veracity and legality of the March 13, 2015 order is subjudice and is being considered by the High Court(WP (c) No 4714 of 2015) and, it would be in the fitness of things to await the decision in the said matter before the arguments in the present case is heard.
What is the rejoinder of petitioner Prashant Patel?
The March 13, 2015 order of the Delhi government appointing 21 Parliamentary Secretaries also declared that the Parliamentary Secretaries ‘may use government transport for official purpose and office space in the Minister’s office would be provided to them’. Rooms were allotted to Parliamentary Secretaries though not in the Minister’s office but in the Assembly.
Parliamentary Secretary is a wholly unrecognized and non-existent post in Delhi and MLAs who have been appointed as Parliamentary Secretaries have become holders of "Office of Profit" as they have been extended the facility of government transport, room, office space etc.
Their appointment is a violation of Section 15 of the Government of NCT of Delhi Act 1991 which provides for disqualification of a member of he holds any "Office of Profit".
Delhi Government’s Delhi Member of Legislative Assembly (Removal of Disqualification) (Amendment Bill), 2015 excluding Parliamentary Secretaries from "Office of Profit" with retrospective effect is malafide and malicious in intent.
The bill being a Money Bill, it was obligatory on party of Delhi Government to first refer the bill to the Central Government according to Section 55 of Transaction of Business Rules, 1993.
Did previous governments in Delhi have Parliamentary Secretaries?
Yes. Parliamentary Secretaries were appointed to the Chief Minister. During the time of Lt Sahib Singh Verma, then BJP MLA Nand Kishore Garg was appointed as Parliamentary Secretary.
During Sheila Dikshit's term, the then Congress MLAs M Sharma, PS Sawhney, Ajay Maken were appointed as Parliamentary Secretaries
Do other states have Parliamentary Secretaries?
Yes. Currently, 11 other states have Parliamentary Secretaries including Haryana, Punjab, Madhya Pradesh, Rajasthan and Karnataka.
In Himachal, West Bengal and Goa, the appointment of Parliamentary Secretaries has been challenged and, significantly these appointments have been annulled by the High Courts of respective states. The appointment of Parliamentary Secretaries has also been challenged in the High Court of Punjab and Haryana where the High Court is yet to deliver and order.
What is the difference between Delhi and the other 11 states?
In 1991,the 69th Amendment of the Constitution Act inserted Articles 239 AA and 239 AB of which Article 239AA relates to special provisions in relation to Delhi:
It is administered by the following:
1. The Constitution of India ( Article 239 AA and 239 AB)
2. The Government of NCT of Delhi Act, 1991.
3. The Transaction of Business Rules 1993 and the Allocation of Business Rules
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