New Delhi: Even as Delhi chief minister Arvind Kejriwal is wrestling with allegations of unconstitutionally appointing 21 MLAs as parliamentary secretaries to assist various ministers, the political debate around the controversy raises larger questions about governmental practices.

Kerjiwal and the Aam Aadmi Party have been under attack from both the Congress and the Bharatiya Janata Party for violating Article 164 (1A) of the constitution, which caps the number of ministers to 15% of the total assembly strength. In Delhi, the cap is 10%, as it is not a full state. The constitutional provision was introduced through the 91st amendment in 2004 to prevent misuse of public money on politicians, who profited from over-sized cabinets. The larger idea was, of course, to prevent any conflict between a legislator’s duties and interests. In 1959, parliament enacted a law putting various offices under the ambit of ‘office of profit.’ However, it also gave parliament and legislative assemblies the power to exempt certain positions from the ‘office of profit’ law. As a result, the law has been amended several times to suit the needs of time.

The present controversy started in May when the opposition alleged that by appointing 21 MLAs as parliamentary secretaries, Kejriwal had violated this cap and demanded the disqualification of the MLAs on the ground that they held offices of profit. Kejriwal defended himself by saying that the parliamentary secretaries received no salary or perks – all they had was an office and transport facilities for the discharge of official functions – and that the opposition was deliberately misinterpreting the ‘office of profit’ clause to suit its own political interests. At the same time, perhaps by way of abundant caution, the AAP government passed a bill in the Delhi legislative assembly this May to exempt the office of parliamentary secretaries from the dual office of profit law with retrospective effect. However, President Pranab Mukherjee – acting, presumably on the advice of the Centre, recently withheld his assent to the bill, pushing the ‘office of profit’ issue to the forefront of political debate.

Whether or not the parliamentary secretaries can be considered within the ambit of ‘office of profit’ is a legal issue and will be decided by the courts sooner or later. Until then, the future of the 21 MLAs hangs in a delicate balance as AAP is fighting it out against a united opposition. However, the issue has foregrounded the manner in which political parties have found ways to skirt the restrictions of Article 164 (1A) over the past decade. Most governments have tried to exempt various offices from the ‘office of profit’ law to accommodate leaders who could not make it to the cabinet because of the restrictions imposed by that Article. The appointment of ‘parliamentary secretaries’ with the powers of a minister has almost become a norm in this backdrop.

In this, both the Congress and the BJP are equally guilty, if not more than AAP. Kejriwal is, perhaps, one of the last in a long list of chief ministers who have circumvented the law to accommodate various party leaders in such extra-constitutional posts.

Precedent in Delhi

In 1997, the BJP government in Delhi passed a bill exempting two offices from ‘office of profit’. The Sheila Dikshit-led Congress government in 2006 added a third office to this list by amending the bill. “…[The] legislative assembly of Delhi in 1997 enacted the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 in order to exempt certain offices from being disqualified for being chosen as, or for being, a member of the Legislative Assembly of the National Capital Terrritory of Delhi (NCTD),” Rajinder Goyal, a lawyer based in Delhi writes. “Certain offices prescribed in the Schedule appended to that Act of 1997 got exempted from disqualification. In the year 2006 an interesting development took place … The then BJP legislator Vijay Jolly filed a petition with President A.P.J. Abdul Kalam seeking disqualification of 18 Congress MLAs for holding ‘offices of profit’. Subsequently, the matter moved to the Election Commission and notice was issued to 18 MLAs. In the meanwhile, the Delhi legislative assembly passed the Delhi Members of Legislative Assembly (Removal of Disqualification) (Amendment) Bill, 2006 with retrospective effect from September 9, 1997 exempting 14 posts/offices from the purview of “office of profit” and the then president also readily accorded assent to the Bill.”

He further writes: “Most importantly in the present context, by virtue of the amendment of 2006, entry 7 inserted in the Schedule of the Act of 1997 specifically exempted the office of parliamentary secretary to the chief minister. It may be noted that BJP Chief Minister Sahib Singh Verma in 1997 appointed one parliamentary secretary. Then Congress chief minister Sheila Dixit also appointed one parliamentary secretary and she subsequently increased the number of parliamentary secretaries to 3 in the year 2009.”

Kejriwal extended the list to include other parliamentary secretaries by passing another bill, which has been withheld by the president. Clearly, Kejriwal followed what was started by his predecessors in Delhi. The precedence of such appointments in Delhi points to the fact that the present controversy is not merely a constitutional matter but also a political one.

The national picture

The ‘office of profit’ issue first shot to national prominence in 2006 when the BJP demanded Congress president Sonia Gandhi’s disqualification from the Lok Sabha for holding the position of chairperson of the National Advisory Council (NAC). Gandhi had then resigned from her Lok Sabha seat. She contested the by-poll from Amethi to be re-elected later. In another precedent, the Supreme Court disqualified Samajwadi Party MP Jaya Bachchan in 2004 for holding on to the post of Uttar Pradesh Film Development Council’s chairperson – a job that the SC deemed to be an ‘office of profit’. The Congress government in 2006 amended the law to exempt both the posts.

The record of the BJP, which has launched the most vocal attack against AAP, is no better. Rajasthan chief minister Vasundhara Raje Scindia appointed eight parliamentary secretaries between 2002-2008. In her latest term, she has appointed five MLAs to the same office. Similar favours were extended to many legislators in Punjab, Goa, Haryana, and Gujarat, where the BJP is ruling. Courts have intervened in such appointments quite frequently over the last decade.

The Goa bench of the Mumbai high court quashed a state assembly bill to appoint parliamentary secretaries in 2009. “In 2009, in the case of Adv. Aires Rodrigues vs The State of Goa and others (as cited in Anami Narayan Roy vs. Union of India), a division bench of the Bombay high court discussed the impact of arbitrary state action relating to appointment of parliamentary secretaries in Goa. It held that appointing parliamentary secretaries of the rank and status of a cabinet minister is in violation to Article 164 (1A) of the constitution and set aside the appointment of two parliamentarysSecretaries in the state government,” writes Anil Nair of PRS Legislative Research.

Similarly, the Punjab and Haryana High court is still hearing a case related to the appointment of 19 chief parliamentary secretaries in Punjab and 11 similar nominations in Haryana. The Arunachal Pradesh government, supported by the BJP, also allowed 13 MLAs to occupy the same office.

Even Prime Minister Narendra Modi, when he was the chief minister of Gujarat, had tried to appease six of its MLAs by appointing them as parliamentary secretaries in 2009.

If the BJP is conveniently forgetting its own wrongdoing in this matter, so is the Congress. The Ashok Gehlot government in Rajasthan had made similar appointment in 2012, following which the Rajasthan high court sent a notice to him questioning his decision. Gehlot had appointed 13 parliamentary secretaries.

Courts have frowned

The Congress-led Karnataka government, too, has appointed 10 parliamentary secretaries. Following a challenge by the founder of the Karnataka Janata Party, Padmanabha Prasanna Kumar, the state high court has sought the response of the state government on this matter. Similarly, the Himachal Pradesh high court struck down the appointments made by Congress chief minister Virbhadra Singh in 2005. The court held that “(Parliamentary Secretaries) are usurpers of public office since their appointments did not owe their origin to any constitutional or legal provision, they having been appointed by person(s) not vested with the power of appointment”.

While the hands of both the Congress and BJP are equally dirty, other parties have also used their government’s powers to ride over the law. Recently, the Calcutta high court declared the appointment of 13 MLAs as parliamentary secretaries as ‘unconstitutional’. Mamata Banerjee’s Trinamool Congress government in West Bengal had appointed them after it passed a bill to create the post of parliamentary secretaries to ‘aid and advise’ the ministers. Similarly, the Telangana government led by the Telangana Rashtra Samiti also suffered the same fate when the state high court ruled against the appointment of six legislators as parliamentary secretaries.

In all the cases, the parliamentary secretaries were given the power and privileges of a minister. And that is what led to many challenging their appointment. As most courts have ruled against such positions, the governments of the day have gone ahead and violated the rule without any fear. The controversy around AAP is not a new one but it has definitely attracted greater attention because of the party’s high moral posturing. However, the manner in which the Congress and the BJP are unitedly opposing AAP over the matter is a classic instance of the pot calling the kettle black.