Insights into Editorial: Weakening the watchdog
17 June 2016
Appointing MLAs as Parliamentary Secretaries has been usual in the past. Along with Delhi government, several other states have been following this. However, with President of India recently declining assent to Delhi govt’s bill on appointment of parliamentary secretaries, the issue has come to the fore once again.
The Delhi government had in March last year appointed 21 of its MLAs as parliamentary secretaries in various ministries to speed up public work.
- Following criticism by members of the opposition, who called it unconstitutional, the government passed a bill was which intended to provide security cover for those legislators appointed as parliamentary secretaries.
- Through the bill, the Delhi government had sought an amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997. The bill aims to exclude the post of parliamentary secretary from the office of profit and exempt the post from disqualification provisions.
- The bill was forwarded by lieutenant governor Najeeb Jung to the centre, which in turn was sent to the President with its comments.
What’s the issue now?
At the time of their appointment, the government had said that parliamentary secretaries will not receive any remuneration or perks from the government. But later on, they were allowed use of government transport for official purposes and space in minister’s office. Hence, few people criticized this move and called it unconstitutional.
Who is a parliamentary secretary?
A Parliament Secretary is similar to a Minister of State who assists a Minister in his or her duties.
Why President did not give his assent to the Bill?
The President takes note of Section 15 of the government of NCT of Delhi Act, 1991. It says a person shall not remain an MLA if he or she holds any office of profit under the Centre or government of a state or UT. Also, according to the president, parliamentary secretaries come under the purview of `office of profit’ criteria. Besides, the Lt Governor had said the office of parliamentary secretary is defined as an “office of profit if one looks at the statutes of Delhi” and that as per the GNCT Act, the city can have only one parliamentary secretary attached to the office of the Chief Minister.
Experts argue that the post of parliamentary secretary is in contradiction to Article 164 (1A) of the Constitution which provides for limiting the number of Ministers in the State Cabinets to 15% of the total number of members of the State Legislative Assembly. But, the number of Cabinet Ministers in Delhi cannot exceed 10% of the total 70 seats — that is seven — as per Article 239AA of Constitution.
Why appointing MLAs as Parliamentary Secretaries is not a good move?
- The idea of modern republics is that no particular organ of state should have a concentration of powers. Different institutions act as a check on the actions of others. However, this move weakens the power of legislative bodies by governments, and thus weakens the principle of separation powers.
- The idea is that every legislator should be able to carry out legislative duties without any obligation to the government of the day. The latest move is in contradiction with this principle.
- This move raises questions over the ability of the Assembly to exercise its oversight role over the government. An argument has been made that these parliamentary secretaries will be able to aid the government in being more responsive to citizens’ needs. That argument, however, misses the point of separation of powers. The role of legislators is not to help the government do its job better, but to ensure that it functions in a proper manner. That is, the legislator exercises the role of a watchdog over the government on behalf of citizens and not as an agent of the government.
How Delhi government defends its move?
The Delhi government has based its defence on exemptions. The Constitution specifies that state Legislative Assemblies have the power to enact laws and keep certain offices out of the preview of Office of Profit. The Delhi government argues that as Parliamentary Secretaries are not eligible for any remuneration or perks from the government the post should be exempt from the office of profit.
How is ‘Office of Profit’ defined?
The concept of office of profit finds place in Articles 102 and 191 of the Constitution, which state that an MP or MLA will be disqualified if he or she occupies such an office. The Constitution also recognises that there may be other cases where exceptions may be required and allows Parliament and State legislatures to make exemptions by passing a law. In several cases, courts have examined this issue and concluded that the key question is whether occupation of such office will make a legislator beholden to the executive.
In general, a person is considered to hold an office of profit if four conditions are met:
- He holds an office.
- The office is one of profit, that is, it carries some benefits.
- The office is under the control of the Central or the State government.
- The office is not that of a Minister or exempted by an Act of Parliament or State legislature.
Can MLAs be disqualified even if they haven’t received remuneration?
In the Jaya Bachchan vs Union Of India case, the Supreme Court in May 2006 had dismissed actress-turned-politician Jaya Bachchan’s petition challenging her disqualification as Rajya Sabha MP by President A P J Abdul Kalam on the recommendation of the Election Commission for holding an office of profit.
It said that the law on this issue is settled since 1954 and what is material is not whether the person actually received any remuneration or pecuniary gains, but whether the office he or she holds is itself of profit.
Because a Parliament Secretary often holds the rank of Minister of State, the Calcutta High Court, in June 2015, quashed the appointment of 24 Parliamentary Secretaries in West Bengal dubbing it unconstitutional.
- Similar action was taken by the Bombay High Court in 2009 for the appointment of two Parliamentary Secretaries in Goa and by the Himachal Pradesh High Court in 2005 for the appointment of eight Chief Parliamentary Secretaries and four Parliamentary Secretaries in the State.
- In May 2015, the Hyderabad High Court stayed the appointment of Parliamentary Secretaries in Telangana. The matter is sub judice in Punjab and Haryana.
What happens if this bill is not approved?
The President’s decision is a major setback to the Kejriwal government and leaves the AAP MLAs a few steps from possible disqualification. In the event of disqualification of the AAP MLAs, by-election to nearly one–third of the seats currently held by the ruling party will be necessitated. Such a development will follow only after the EC completes its proceedings on a petition seeking the disqualification of the MLAs.
What can be done now?
The legislator can escape disqualification only if the office is declared -by law made by Parliament, state legislature or UT -as a post that does not attract loss of membership. The fate of the MLAs will now be decided by the Election Commission that is considering a petition seeking their disqualification.
The role of legislators is critical in a democracy. They are elected by citizens, and have the task of ensuring that the government is acting in the best interests of the public. In this, they are expected to exercise their independent judgements on what constitutes public and national interest. They act as a bulwark against autocratic actions of the executive. Therefore, it is imperative that their independence is protected. Actions that impinge on such independence, such as excessive appointments to executive positions, the anti-defection law and MPLADS, should be reversed. Otherwise, there is a risk of a slow erosion of the institution of legislatures, which could put at risk the very existence of our republic. Our Supreme Court has recognised separation of powers as part of the basic structure of the Constitution, and can therefore strike down even amendments to the Constitution that infringe upon this principle.