21 MLAs appointed as parliamentary secretaries face the threat of disqualification

Simple explainer Why is the AAP in trouble in Delhi and what happens next
news Tuesday, June 14, 2016 - 16:54

What is the controversy?

The fate of 21 MLAs from the ruling Aam Aadmi Party in Delhi hangs in the balance.

In March 2015, Delhi Chief Minister Arvind Kejriwal appointed 21 MLAs as parliamentary secretaries to ministers for “smooth functioning” of the government, reported Indian Express.

Under the Constitution, elected representatives stand to be disqualified if they hold an office of profit.  

Following several petitions to the President seeking disqualification of the MLAs, the state assembly passed a bill amending the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997. The bill passed with retrospective effect was an attempt to save the MLAs from disqualification.   

But President Pranab Mukherjee has refused to give assent to the Bill passed by the Delhi assembly in June 2015 shielding these MLAs, putting AAP in a precarious situation.

What is a parliamentary secretary?

A parliamentary secretary works as a Minister of State or a junior minister in the department assigned. States like Harayana, Nagaland, Rajasthan, Punjab, Gujarat and West Bengal have appointed MLAs as parliamentary secretaries. So, why then is the Delhi government in trouble?

Subhash Kashyap, the former secretary general of the Lok Sabha says, “Unlike Delhi, other state assemblies did not come up with legislation to shield MLAs form disqualification.” The very fact that Kejriwal’s government had passed a bill was acceptance that that the MLAs were holding an office of profit, he argues. Kashyap also observes, “If a thief is caught he cannot seek exemption on the ground that there are other thieves. You have to be punished under law.”  

In the past, courts have declared the appointment of MLAs as parliamentary secretaries by state governments as illegal. Last year, the Telangana government was forced to scrap parliamentary secretary appointments after the Hyderabad High Court declared it as illegal. The TRS government had notified the appointment of six MLAs as parliamentary secretaries through a Government Order and had also passed the Telangana Parliamentary Secretaries (Appointment, salaries, allowances, and miscellaneous provisions) Act.

The Constitution has set a limit for the total number of cabinet ministers including the Chief Minister. In the case of Delhi, the cabinet has to be within 10 per cent of the total number of MLAs in the state or seven ministers.  This is to avoid burdening the state exchequer. The Delhi Cabinet, including Chief Minister Arvind Kejriwal, has seven members. But when the 21 parliamentary secretaries are included, this number goes up to 28, far exceeding the Constitutional mandate.  

Is it an ‘office of profit’?

AAP argues that the post of parliamentary secretary is not an office of profit simply because the MLAs do not receive any financial benefit and are not entitled to any perks.

Kashyap says there is no merit to AAP’s argument, noting, “For constituting office of profit, it is not necessary that pecuniary benefit should be derived from it.”  

What happens next?                                                            

The President has sought the opinion of the Election Commission. Indian Express reports that the EC has issued notices to the 21 MLAs seeking an explanation on the appointment. Based on the Commission’s advice, the President can then disqualify the MLAs.

The AAP government will not, however, be in any danger, in the event of disqualification, having 67 out of 70 seats in Assembly. If 21 seats do fall vacant, Delhi will see a mini-election with Kejriwal and co once again having to prove themselves before the electorate.