The Bill for the appointment of the 21 Parliamentary Secretaries by Arvind Kejriwal’s Government of Delhi, which has since been rejected by the President of India, is certainly going to be a case of big constitutional fight. The question will hover around whether these Parliamentary Secretaries, who have been appointed from among the MLAs, hold the post of profit or not. If they hold the office of profit, then there is no choice left for them but to be sacked from the membership of the Legislative Assembly. As on today after the rejection of the Bill by the President of India these MLAs stand disqualified because it has been presumed that they hold the office of the profit.
Let us look at Article 239 AA (4) of the Constitution of India, which limits the number of ministers to 10% of the total strength of the Assembly. Parliamentary Secretaries have been considered within the meaning of Article 239AA (4) of the Constitution, that was the reason the Bill was rejected by the President of India. However, Arvind Kejriwal’s Government says that they are not ministers and therefore, the Bill should not have been rejected.
The Supreme Court of India has been juggling with the issue of the ‘office of profit’ right from the early fifties almost immediately after the first Parliamentary and State Assembly elections were held in 1952. The Post of Parliamentary Secretary is to be considered as the post of profit or not has been dealt with three High Courts namely; Himachal Pradesh, Calcutta and Bombay. These High Courts have clearly said: “parliamentary secretaries being holders of public office, it is not open to any individual to evolve a private arrangement whereby, by his whims he would administer oath because any such private arrangement not having the sanction of law would not cast upon parliamentary secretaries the corresponding obligation of maintaining secrecy as well as resultant legal consequences of their being exposed to the rigours of penal law if the oath is ever violated.”
Clause (a) of the Article 102 of the Constitution of India says that a person shall be disqualified for being chosen as, and for being, a Member of either House of Parliament if he holds any office of profit under the government of India or the government of any State, other than an office declared by Parliament by law not to disqualify its holder. The object of the provision is to secure independence of the members of Parliament and to ensure that Parliament does not have members who receive favours or benefits from the executive and who, consequently, being under an obligation to the executive, might be amenable to its influence. In other words, the provision appears to have been made in order to eliminate or reduce the risk of conflict between duty and self-interest amongst the members of Parliament.
While Article 102 speaks of Parliament Article 191 corresponds to the State Assemblies. Both Articles 102(1)(a) and 191(a) were incorporated with a view to eliminating or in any event reduce the risk of conflict between duty and interest amongst members of the legislature so as to ensure that the legislator concerned does not come under an obligation of the executive on account of receiving pecuniary gain or profit from it, which may render him amenable to the influence of the executive, while exercising his obligations as a legislator.
The expression “office of profit” is not defined in the Constitution or in the Representation of the People Act, 1951. It is, however, clear that before a person can be held to be disqualified under Article 102(1)(a) four things must be proved: (i) that he held an office; (ii) that it was an office of profit;(iii) that it was an office under the Government of India or the State Government and (iv) the office should be other than an office declared by Parliament by law not to disqualify its holder.
Now the question arises what construes the ‘office’? An ‘office’ embraces the elements of tenure, duration, duties and emoluments but the element of emolument is not essential to the existence of an ‘office’. It means a fixed position for performance of duties.Does the word ‘office’ necessarily imply that it must have an existence apart from the person who may hold it. The Supreme Court has held in Mahdeo v. Shantibai and Kanta Kathuria v. Manak Chand Sharma that the words ‘its holder’ occurring in the article indicate that there must be an ‘office’ which exists independently of the holder of the office. So that an office or an employment is an office or employment which is subsisting, permanent and a substantive position which has an existence independent from the person who filled it, which goes on and is filled in succession by successive holders; and if you merely have a man who is engaged on whatever terms to do duties which are assigned to him, his employment to do those duties does not create an office to which duties are attached. He merely is employed to do certain things and that is the end of it; and if there is no office or employment existing in the case as a thing, the so-called office or employment is merely an aggregate of the activities of the particular man for the time being.
Similarly, the Supreme Court clarified the meaning of ‘Profit’. In Shivamurthy Swami Inamdar v. Agadi Sayanna Anandanappa, the Supreme Court observed that the ‘office of profit’ means an office capable of yielding a profit or from which a man might reasonably be expected to make a profit. The actual making of profit is not necessary. Profit means pecuniary gain or any material benefit. If there is really a gain, the quantum or amount of such gain is immaterial. But the amount of money receivable by a person is connection with the office he holds may be material in deciding whether the office really carries any profit. “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.” Laying down this proposition and upholding the disqualification in Jaya Bachchan v. Union of India, of the petitioner who held the office of the Chairperson of U.P. Film Development Council with entitlement to honorarium and several allowances and perquisites even though the petitioner claimed to have received none, the Court held that “where the office carries with it certain emoluments then it will be an office of profit even if the holder of the office chooses not to receive/draw such emoluments.”
The ‘office of profit’ must be held “under the Government of India or the Government of any State”. What are the principal tests for deciding whether an office of profit is held under the government? The Supreme Court has laid down in Shivamurthy’s case the following five tests which would apply to determine if an office is held under the government: (i) whether government makes appointment to the office;(ii) whether government has the right to remove or dismiss the holder of office;(iii) whether government pays the remuneration;(iv) whether the functions which the holder of the office performs are for government;(v) does the government exercise any control over the performance of those functions?
But it is not necessary that all these factors must coexist. Even if one of the elements is absent, the test of a person holding an office under the government may still be satisfied. Whether stress will be laid on one factor or the other will depend upon the facts of each case. Thus the circumstance that the source from which the remuneration is paid is not be public revenue is not decisive of the question. In Abdul Shakur v. Rikhab Chand, the facts that were held to be decisive were: (i) the power of the government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion; and (ii) payment out of government revenues.In M. Ramappa v. Sangappa, the question arose as to whether the hold of a village office who has a hereditary right to it is disqualified under Article 191 of the Constitution, which is the counterpart of Article 102 in the matter of membership of the State Legislature. The Court observed “the government makes the appointment to the office though it may be that it has under the stature no option but to appoint the heir to the office if he has fulfilled the statutory requirements. The office is, therefore, held by reason of the appointment by the government and not simply because of a hereditary right to it. The fact that the government cannot refuse to make appointment does not alter the situation.”
In Guru Gobinda Basu v. Sankari Prasad Ghosal, the appellant was a partner of the firm of G. Basu and Company who were auditors for Durgapur Projects Ltd. and Hindustan Steel Ltd., both of which were government companies within the meaning of the Companies Act, 1956. He fought and won an election to the Lok Sabha which was challenged on the ground that the appellant was holding an office of profit under the government and was disqualified for being a member of Parliament. The Court held that in deciding the question the material provisions which had to be considered were those relating to appointment, remuneration, and removal or dismissal. It further pointed out that stress might shift from one point to another according to the facts of a particular case. In the instant case, it came to the conclusion that as the appointment was made by the government and his remuneration was fixed by the government and as he was also removable or dismissible at the instance of the government, he was holding an office of profit under the government. The Court also pointed out that he was under the control of the Auditor and Comptroller-General who was, in his own turn, a holder of an office of profit under the government so that he also satisfied the test of control. The indirect control exercisable by the government in a government-owned company because of its power to appoint the directors and to give general directions to the company cannot be held to make the office of the director an office of profit under the government.
It has further been held that the word ‘Government’ in Article 102(1)(a) and the corresponding Article 191(a) is to be interpreted liberally so as to include within its scope the legislature, the executive and the judiciary. In Biharilal Dobray v. Roshan Lal Dobray, after an examination of the earlier decisions and the provisions of the U.P. Basic Education Act, 1972 the Supreme Court held that an Assistant Teacher employed in a Basic Primary School run by the U.P. Board of Basic Education holds an office of profit under the Government of the State. Similarly in Shibu Soren v. Dayanand Sahay, the election of the appellant as Member of Rajya Sabha was invalidated by the Court because at the time of his election he was holding (i) an office of profit insofar as he was drawing an honorarium in addition to daily allowance and other perquisites like rent free house and chauffeur-driven car and (ii) an office the Government of the State insofar as he was appointed chairman of the Jharkhand Area Autonomous Council by the Governor of the State and held office during his pleasure.
Here in the case of Delhi Government’s Parliamentary Secretaries, the constitutionality and morality both factors stare in face of the Bill with equal force. The Delhi Government’s argument rests heavily on the technicality but that will undoubtedly blunt and tarnish the image of a government, which came to power by giving more emphasis to the morality and integrity than technicality.