Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997

• The President rejected an amendment by the Delhi government to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, which sought to make the position of Parliamentary Secretary in the Delhi Assembly exempt from the definition of “Office of Profit”.
• Twenty-one Aam Aadmi Party MLAs had been appointed Parliamentary Secretaries on March 13, 2015.
• Now that the President has rejected the Bill, the 21 AAP MLAs can potentially be disqualified should the Election Commission of India so decide.

What is a parliamentary secretary

• A parliamentary secretary works as a Minister of State or a junior minister in the department assigned.
• Office of parliamentary secretary is defined as an ‘office of profit if one looks at the statutes of Delhi’ and that as per the Government of National Capital Territory of Delhi Act, 1991, the city can have only one parliamentary secretary attached to the office of the chief minister.
• AAP argues that the post of parliamentary secretary is not an office of profit simply because the MLAs do not receive any financial benefit and are not entitled to any perks.
• While constitutional observers says that there is no merit to AAP’s argument, noting, “For constituting office of profit, it is not necessary that pecuniary benefit should be derived from it.”

Constitutional Provisions

• Under Article 102(1)(a) and Article 191(1)(a) of the Constitution, a person shall be disqualified for being chosen as, and for being, a member of Parliament or of a Legislative Assembly/Council if he holds an “Office of Profit” under the central or any state government, other than an office declared not to disqualify its holder by a law passed by the Parliament or state legislature. The Delhi MLA (Removal of Disqualification) Act, 1997 did not include the post of Parliamentary Secretary as an “exempted post”.

Previous cases:

• A Telangana government order appointing Parliamentary Secretaries was stuck down in 2015 by the High Court in Hyderabad.
• In 2009, such appointments were held unconstitutional in Goa, and in 2005 in Himachal Pradesh

Way Ahead
The President’s decision cannot be challenged in any court as it is his executive power under the Constitution of India. The Supreme Court cannot interfere. However, any decision taken by the ECI can be challenged before the Delhi High court by the aggrieved party. This means that the AAP can approach the court if the EC decides to disqualify the MLAs.

By: Vishal