Explainer: What is the office of profit controversy that is about to cost Aam Aadmi Party 20 MLAs

On Friday, the Election Commission recommended to President Ram Nath Kovind to disqualify 20 Aam Aadmi Party members of the Delhi Legislative Assembly for holding the post of parliamentary secretaries, considered an “office of profit”.

The MLAs moved the Delhi High Court for interim relief, but it refused to pass an order and asked the poll panel to inform it by January 22 whether a final communication has been sent to the President. The President’s decision, when it is made, cannot be challenged.

But what exactly is this case about? Have there been similar cases before? How would it affect the AAP government in Delhi? Here’s a low-down:

What is office of profit?

India’s Constitution does not define the term “office of profit”. But Articles 102(1) and 191(1) restrict lawmakers from accepting “any office of profit” under the central or state governments, other than those that are specifically exempted by laws made by Parliament or State Assemblies.

The idea behind the concept is to preserve their independence from the executive so that they do not feel any government pressure in the discharge of their legislative duties.

The Supreme Court has held that “an office of profit is an office which is capable of yielding a profit or pecuniary gain.”

“For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the ‘pecuniary gain’ is ‘receivable’ in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not... If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102 (1)(a)“

— Supreme Court in Jaya Bachchan vs Union of India

The office of minister is one such exemption that is not considered an office of profit under the law. But there is a constitutional limit on the number of ministers – 15% of the total number of members of the Assembly ordinarily, which is limited to 10% in the case of Delhi, since it is not a “full” state.

In 1959, Parliament enacted a law, which has been amended from time to time, specifying offices that would not attract disqualification under the Constitution.

In 1997, Delhi Assembly passed a law listing two exemptions to the “office of profit” and a third one was added in 2006 by an amendment.

The office of Parliamentary Secretary is, however, not one of these three exemptions in the case of Delhi.

Rajasthan, Karnataka and Telangana also have political secretaries but they happen to have explicitly exempted this post in laws passed by their assemblies.

Such appointments of political secretaries had earlier been struck down in Himachal Pradesh in 2005, Goa in 2009, and in West Bengal and Telangana in 2015 where explicit exemptions have not been provided for. The courts have consistently held these to be an endeavour by state governments to circumvent the constitutional ceiling on the number of ministers they can appoint.

What is AAP legislators’ case?

In March 2015, the Arvind Kejriwal government appointed 21 AAP legislators as parliamentary secretaries to “facilitate smooth functioning” of various ministries. The order appointing them said they would not get any remuneration or perks but would have space in the minister’s office to work and could use government transport for “official purposes”.

The decision was challenged before the Delhi High Court by Rashtriya Mukti Morcha, a non-governmental organisation. In a public interest litigation filed in May 2015, the NGO claimed the appointments were “unconstitutional, illegal and without jurisdiction”.

The next month, a lawyer named Prashant Patel petitioned President Pranab Mukherjee that the 21 MLAs were holding offices of profit and should, therefore, be disqualified. He claimed they were getting monetary compensation. Mukherjee sent Patel’s complaint to the Election Commission, asking for its opinion. The commission issued notices to the MLAs in March 2016.

In response, the AAP passed a Bill amending the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 to exempt the post of parliamentary secretary from the definition of the “office of profit”. The party maintained that it was not an office of profit since the legislators were not getting “pecuniary benefit”. Kejriwal claimed they were “working for free”. But the Bill was rejected by Mukherjee in June 2016. Unlike “full states”, in the case of Delhi a bill passed by the Assembly do not become law unless approved by the Lieutenant Governor and the Centre. And that is what makes this case different from others.

In September 2016, the Delhi High Court scrapped the legislators’ appointment as parliamentary secretaries.

The legislators then went to the Election Commission arguing that since the High Court had declared their appointment null and void, the poll panel could not hear a petition against them for holding an office that never existed. The commission did not agree, writing to the President in June last year that the MLAs “did hold de facto the office of parliamentary secretaries” from March 13, 2015 to September 8, 2016.

One of the MLAs, Jarnail Singh, had resigned early last year to contest the Punjab Assembly election, after which proceedings against him were dropped.

The commission has now concluded that the post of parliamentary secretary did indeed qualify as an office of profit.

The AAP has argued that the Election Commission did not hold a single hearing on the case after its order of June 23, 2017. The order explicitly stated that “the Commission will intimate the next date of hearing to all the concerned parties in the present proceedings in due course”.

As per experts, the Commission had so far only addressed the first of the three questions it is supposed to answer:

1. Did the legislators hold any office? 
2. Was the office held under the government? 
3. Did the office carry any profit?

Have there been such controversies before?

In 2004, the Congress-led government appointed the party’s chief, Sonia Gandhi, to head the National Advisory Council. In the wake of allegation that hers was an office of profit, Gandhi resigned as a member of the Lok Sabha and sought re-election. She returned to the Parliament and to the National Advisory Council as well after the Parliament (Prevention of Disqualification) Act, 1959 was amended in 2006 to specify that the post of the National Advisory Council’s chairpersons was not an office of profit. The law was again amended in 2013 to exempt the chairpersons of the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes from disqualification.

Samajwadi Party MP Jaya Bachchan lost her seat in 2006 for holding the post of chairperson of the Uttar Pradesh Film Development Federation, deemed to be an office of profit.

In 2015, Bharatiya Janata Party’s Bajrang Bahadur Singh and Bahujan Samaj Party’s Uma Shankar Singh were disqualified from the Uttar Pradesh Assembly for holding office of profit.

What would be the impact on AAP?

If the President does accept the Election Commission’s recommendation, the 20 AAP legislators will lose their membership of the Assembly, necessitating bye-elections.

This will, however, not affect AAP’s majority given the party has 66 MLAs in the 70-member Assembly. But it will likely erode the Kejriwal government’s political capital, not least because ensuring propriety in public life is fundamental to its appeal. Moreover, if a significant number of the disqualified MLAs lose the bye-elections, it would embolden AAP’s rivals, especially the BJP.