Elected representatives of people cannot hold offices of profit. This principle, settled in law, has been upheld in several states. In over half a dozen states, the judiciary has set aside similar steps taken by incumbent governments. In effect, the judiciary has indicated that it has zero tolerance in such matters. The disqualification of 20 Aam Aadmi Party (AAP) MLAs from the Delhi assembly brings these issues into the centre of political discourse yet again and it is unlikely that all sides concerned will see it strictly as a legal issue.
The Delhi High Court, which will hear a petition in the matter on Monday (today), had earlier rejected the Arvind Kejriwal government’s move to appoint the disqualified MLAs as political secretaries to state ministers that would have enabled them to get perks related to the offices. One of the grounds for setting aside the appointments was that their appointment orders were issued without the concurrence of the Lieutenant-Governor of Delhi. That apart, the then president of India, Pranab Mukherjee, had turned down a bill adopted in the state assembly — it was called the Delhi Member of Legislative Assembly (Removal of Disqualification) (Amendment Bill), 2015 — that had sought to exclude parliamentary secretaries from ‘office of profit” with retrospective effect. That decision made Delhi chief minister Arvind Kejriwal’s move untenable even as president Mukherjee had sought the Election Commission’s recommendations on the disqualification issue.
The final nail in the coffin was the Election Commission’s recommendation to disqualify these elected representatives who apparently held the offices of profit for over one and half years. Some controversy is apparently being made of the fact that chief election commissioner AK Joti will retire shortly. However, the commission has been unambiguous on such matters. It has stated that, irrespective of whether or not the legislators concerned received salaries and perks pertaining to the office they held, they will be considered to be holding an office of profit if the post they hold qualifies as an ‘office of profit’.
The Delhi chief minister now perceives a conspiracy by both prime minister Narendra Modi and the Election Commission to weaken his government in Delhi — for the record, AAP will continue to hold a comfortable majority in the state assembly without the disqualified MLAs. However, there is no doubt that he should not have gone ahead with the appointments. Caught on the wrong foot, he seems to be acting a victim of political machinations.
The case points to two vital issues in governance. Like in several countries, why can’t expenses of elected representatives, like an office and car, be provided by the state government concerned or the centre? Elected representatives need the wherewithal to not only sustain but also discharge their duties towards their constituents. The purse strings of Parliament and state legislatures must be loosened for members of state legislatures and Parliament. Structured pay and facilities may go on to cleanse the political system. This is important for smaller or newly-constituted states, where elected representatives, among them those with modest means, should not be constrained in discharging their responsibilities.
AAP’s inexperience in governance and immaturity as a political formation seems to have contributed to the current fiasco. Hitherto, important leaders like the Congress party’s Sonia Gandhi had to face the ignominy of holding office with profit. She had to seek re-election after having benefited from her position as chairperson of the National Advisory Council during UPA regime. Given the number of cases on office of profit being dealt with by different courts, a national consensus on what constitutes an ‘office with profit’ may have to be clearly defined. The state legislatures and the centre will have to spell out norms for elected representatives.
On the legality of issues raised in the public domain, the courts must have their say. Being the body that conducts elections, it is natural that the Election Commission’s views will get due weightage when it gives its opinion to the president on matters pertaining to elected representatives. In the present case, 20 AAP MLAs may have to face re-election. That’s particularly important given the limited powers that the state legislature in Delhi and the chief minister’s office enjoys. Till the National Capital Region gets full autonomy and statehood, the fissures within different arms of governance are bound to persist.