Current Public Administration Magazine (January-2018) The Office of Profit and disqualification under constitution of India

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::The Office of Profit and disqualification under constitution of India::

The President in exercise of powers conferred under Section 15 (4) of the Government of National Capital Territory of Delhi Act, 1991 has disqualified 20 Aam Aadmi Party members of the Delhi Assembly for holding the “office of profit” as parliamentary secretaries to the Ministers of the National Capital Territory. The reference was sent to the Election Commission by then President Pranab Mukherjee in 2015 to examine the question of alleged disqualification on account of office of profit.
An office of profit is an office which is capable of yielding a profit or pecuniary gain. Holding an office under the Central or State government, to which some pay, salary, emolument, remuneration or non-compensatory allowance is attached, is “holding an office of profit” for the purpose of Article 102 of the Constitution of India.
The 20 MLAs were appointed as parliamentary secretaries to Delhi Ministers on March 13, 2015. Upon filing of present petition before the President, the AAP government in Delhi introduced the Delhi Members of Legislative Assembly (Removal of Disqualification) (Amendment) Bill, 2015 on June 23, 2015. The Bill sought to save these MLAs from disqualification.
The proceedings before the Election Commission commenced on June 24, 2016 and the poll panel also considered several intervention applications in the matter. It is pertinent to mention here that while these proceedings were pending before ECI, a Public Interest Litigation was filed by an outfit called Rashtriya Mukti Morcha challenging the appointments.

PIL before Delhi High Court

The High Court of Delhi placing reliance on its decision in the Delhi govt. vs Union of India [powers of Delhi LG case under Constitution of India which has been reserved by the Constitution Bench of Supreme Court in December 2017] set aside the appointment order saying:
“Having considered the very same issue in W.P.(C) No.5888/2015 and batch titled Government of NCT of Delhi v. Union of India & Ors., by judgment dated 04.08.2016 this Court held that :-
“…It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the Lt. Governor even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution and an order thereon can be issued only where the Lt. Governor does not take a different view and no reference to the Central Government is required in terms of the proviso to clause (4) of Article 239AA of the Constitution read with Chapter V of the Transaction of Business of the Government of NCT of Delhi Rules, 1993."
“…Therefore, we find force in the submission of the learned counsel for the petitioner that the issue is squarely covered by the decision in W.P.(C) No.5888/2015 and batch titled Government of NCT of Delhi v. Union of India & Ors. Accordingly, without going into the other contentions raised in the writ petition, the impugned order dated 13.03.2015 is hereby set aside.”
Only time would allow us to understand the validity of the above order as the Supreme Court is yet to pronounce its decision in the Centre-Delhi power tussle over who between them wields the power of administration and governance over the National Capital.
However, as the ECI had decided the Reference Case No. 5 of 2015 on merit separately, the only recourse for these disqualified MLAs is to challenge the January 21, 2018 notification by way of a writ petition before a court.

Tests to determine ‘office of profit’

The ECI examined the rich jurisprudence of office of profit and disqualification of a Member of Legislative Assembly and enlisted three determinative tests — test of pecuniary gain, executive nature of office, test of exercise of constitutional/ executive powers while functioning as parliamentary secretary. The poll panel placed much reliance of the third test as under:
“The third test in the criteria noted above is of great significance in the present case. The office of Parliamentary Secretary allowed the incumbents to participate in high level meetings of the Government and to even Chair those meetings. The Parliamentary Secretaries were allotted office space in the Legislative Assembly Secretariat and in many cases even elsewhere and were allotted official transportation. These Parliamentary Secretaries were to assist the concerned Minister in the discharge of his functions and the actual delegation of work or authority was left to the discretion of the Minister. These Parliamentary Secretaries had full time access to the Ministers and ministerial files and notings and this access enabled them to wield influence and power by way of patronage.”
The ECI relied on these criteria, which have been adopted and developed in the Report of Joint Parliamentary Committee on Offices of Profit (16th Lok Sabha).
The ‘potential doctrine’ as established in Jaya Bachchan case The Supreme Court in its seminal decision in the Jaya Bachchan v. Union of India case developed the doctrine of ‘potential effect of an office’ to ascertain the nature of office, which reads as under:
“…The question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of the payment must be considered as a matter of substance rather than of form. Nomenclature is not important. In fact, mere use of the word “honorarium” cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient. Payment of honorarium, in addition to daily allowances in the nature of compensatory allowances, rent free accommodation and chauffeur driven car at State expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit. 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).”
The ‘potential doctrine’ presumes certain things associated and attached with the ‘office’ in question. It calls for further facts to be established beyond a particular standard. Too much reliance on the ‘potential doctrine’ by the ECI makes it more susceptible for challenge on that account alone. It is time for the Supreme Court to examine and streamline the confusing elements related to the ‘office of profit’ and tests evolved thereto.

(Source : The Hindu News by S. Sivakumar)

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