Office of Losses


The recent ouster of 20 AAP legislators brings in the question of the roles that an elected representative could play in the polity and how they must restrain themselves from crossing the boundaries of law of the land. While the Delhi CM cited this as another instance of the central government trying to bring down the Aam Aadmi Government, the BJP claims that there is no politics in it. As both sides are engaging in the art of throwing dirt on each other, the concept of Office of Profits comes into limelight.

The concept of Office of Profits derives its legal sanctity from Articles 102 (1)(A) and 191(1) of the Indian constitution which states that the legislators are prohibited from accepting any positions other than the offices which are declared by Parliament by law as outside the purview of this law. Thus, while the law prohibits occupation of any forms of positions offered by the government, it essentially keeps the posts like that of a minister outside the scope of this law.

The ancestry of this law could be traced back to 18th century England, where laws existed to prevent the legislators from falling into the temptations of holding such offices. This law aimed at the clear separation of the three branches — the judiciary, executive, and legislator — to maintain the spirit of constitutional democracy. Indeed, these articles in the Indian constitution, along with several other similar laws, ensure that there is a proper balance of power within the public administration, and that the political landscape is not tilted in favor of interests of certain sections of the polity.

The law clearly defines the criterion through which a position amounts to an office of profit. The first principle looks at whether the government has the control over the appointment, removal, and functioning of the office. Second, and the most important of all, is whether holding the office results in any forms of remuneration or payments. Third is whether the office enables the person of interest to carry out certain government functions. Finally, whether the role helps in interfering similar appointments is considered.

In the case of 20 disqualified Aam Aadmi Party legislators, the Election Commission ruled that the violation had happened owing to all principles except the second one. The appointments were made way back in the year 2015 and there was an attempt from the AAP government to legalize the same through an amendment of Delhi Members of Legislative Assembly (Removal of Disqualification) Act 1997, in 2016. However, the fate was against the Delhi government as the Lt. Governor refused to sign the bill into a law. This further lead to the refusal to sign the bill by the then president Sri Pranab Mukherjee as well. One other disadvantages of forming a government in Delhi is that whatever proposals and bills that the State legislator passes must be signed by the Lt. Governor to make it into a law.

This has also brought in the frequent clashes and rifts between the government and the Governor.

Coming to the case of AAP legislators, the Election Commission’s decision holds good and does not violate any principles of the law. Though the timing of the decision looked a little suspicious as the Chief Election Commissioner was about to retire, the decision based on precedence is valid. Though the MLAs are disqualified, it would not affect the majority of the Aam Aadmi government; similarly, the disqualified MLAs can contest in by-polls in their respective constituencies.

Though the AAP supremo Arvind Kejriwal is accusing foul play in this matter by the center, it is indeed a win-win situation for him and his party. For the past several months, Aam Aadmi Party’s foundations have been shaking due to the dissenting voices within the party. While some are unhappy with the way Kejriwal is operating, some dissenters like Kumar Vishwas are fighting against lack of recognition within the party. Even if the State goes for a mini-poll for those 20 seats, and even if the AAP loses in all those seats, the government will still have members required for a majority. However, the AAP will gain in long-run as this event of disqualification could be used to garner some votes through sympathetic appeal. Though the office of profit turned out to be a loss for the Kejriwal-led Aam Aadmi in the short-run, it will surely help the party to strengthen its base and influence.

-Contributed by Jiss Palelil

Picture Credits: indianexpress.com

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