How AAP fell into its ‘profit’ mess

Holding an office of profit under any government is not a sin for a member of a legislature; it’s not even a minor offence. It’s just one of the grounds of disqualification specified in the Constitution for being so chosen and for being a member of any House. The phrase “office of profit” is not defined by any statute, but over six decades and more of the working of our Constitution, the Supreme Court had occasion to interpret it several times. The meaning that emerges from these decided cases is that it is an official position under any government with profit to the holder. The obvious meaning of “profit” is pecuniary gain, but that’s not all. That term has tremendous potential — and the final definition is yet to be given.

The philosophy behind the constitutional prohibition against holding an office of profit is that a legislator’s freedom to take objective and impartial decisions may be compromised if he/she can be lured by offer of offices. The expression “profit” must be understood in this context.

Complaints against any legislator holding an office of profit is to be lodged with the governor in case of states and the President in case of Parliament or the Assembly of a Union territory like Delhi; the matter shall be referred to the Election Commission, whose decision shall be binding on the governor or President, and the appropriate orders will follow.

If no one complains against a particular case, it will pass unnoticed. So Delhi CM Arvind Kejriwal’s defence that many others had parliamentary secretaries is senseless. In such cases, no one might have complained to the governor or President. Further, the constitutional provision permits the appropriate legislature to pass laws giving a holder immunity from disqualification. Parliament passed such a law in 1959, and the states didn’t lag behind. At present, the exempted category comprises almost all categories of offices of profit except government jobs. The instances quoted by Mr Kejriwal could be in that class. In any case, one wrong cannot justify another. And many appointments in states are being challenged before the courts — in some cases these challenges were successful.

Delhi’s rookie government made the appointments first, and tried to save its legislators with a law made applicable retrospectively. Emoluments and perks would surely have followed; and every one lived happily thereafter for the remainder of the term. Unfortunately, the required assent by the President for the bill was not forthcoming.

Why appoint Delhi MLAs as parliamentary secretaries (Or as interns — as someone pointed out ) Why not as ministers, whose offices are surprisingly not of profit, under the constitutional provision itself. The reason is that the size of the Delhi council of ministers can only be 10 per cent of the strength of the House (70) as prescribed by Article 239AA(4) — that means seven, including the CM, while the council of ministers in states (where the size of the legislature is also much larger) is set at 15 per cent. Mr Kejriwal had too many MLAs in his party eager to serve in public offices. They were named “parliamentary secretaries”, for want of a better term, to convey adequate importance of the honourable MLAs, but without any salary or perks. Keeping the restless and impatient MLAs together was the need of the hour. The EC will soon decide if the “no salary, no perks” fig leaf is large enough.

The much-hyped claim that the EC had determined that there is no office called “parliamentary secretary” in the rulebook is of little relevance. The commission can only decide if the position in question is an office of profit.

Way back in 1989, the late Ramakrishna Hegde, a Rajya Sabha member, was appointed deputy chairman of the Planning Commission.

T.N. Seshan, then Cabinet Secretary, reportedly took special care in vetting Mr Hegde’s letter of appointment by listing every conceivable pecuniary benefit that he was not entitled to — in order to ensure that the wrath of “office of profit” was not attracted. The omnipresent Subramanian Swamy, a pronounced bête noire of Mr Hegde, petitioned the President to disqualify Mr Hegde on the grounds that he held an office of profit. The President referred the matter to the EC as required by law. By then Mr Seshan, who vetted Mr Hegde’s letter of appointment, was chief election commissioner, and he promptly recommended Mr Hegde’s disqualification. It’s a different matter that the Karnataka high court stayed that order and eventually set it aside. So the AAP’s team of 21 MLAs have a long way to go. In any case, with such illustrious names like Ramakrishna Hegde, Shibu Soren, Jaya Bachchan and Sonia Gandhi among “office of profit” victims in the past, Mr Kejriwal’s men can breathe easy for now — they are in good company. And they have not committed any crime!

But why has there been so much criticism in the media over something that was at the worst an incorrect step — a sort of “cart before the horse” situation The provocation really was Mr Kejriwal’s claim that his AAP would do politics with a difference. He rode to power on the shoulders of a good man, Anna Hazare; enlisted the support of many credible names like Shanti Bhushan and won the votes of an entire metropolis despite a disastrous first innings. The high pedestal from which he used to preach soon started crumbling, with his chief lieutenants and others in the party getting exposed with discomforting regularity. Day in and day out he held out alibis over his failures and showed ignorance about the legal status of a territory of which he is CM. The number of those feeling let down seems to be swelling, and some of the outrage may be a consequence of this.

The AAP has clearly demonstrated that it is just another political party, and Mr Kejriwal just another leader hungry for power, willing to make all the compromises needed to remain in office.

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. He can be reached at knbhat1@gmail.com