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Is questioning independence of a constitutional body itself not unconstitutional?

The recent decision by the Election Commission to disqualify 21 MLAs of the ruling AAP in Delhi has raised serious questions.

Updated: Jan 21, 2018, 11:40 AM IST

The recent decision by the Election Commission to disqualify 21 MLAs of the ruling Aam Aadmi Party (AAP) in Delhi has raised serious questions about conflict of interests and degradation of political ethics in India’s Parliamentary system of governance. The framers of the Constitution, realising the possible conflict of interest, have already provided certain provisions based on the principle of separation of powers. Yet, on a number of occasions our ‘law makers’ have been found to have avoided such ethical provisions enshrined in the Constitution. The language used by the political persons has been very denigrating and mostly appears to be unconstitutional though they take the oath of protecting and safeguarding the Constitution. Article 102 and 191 provide for disqualification of members on various grounds. Before delving into the details of the present case lets us have a perusal of the provisions for disqualification. Article 102 says that,

(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament

(a) 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;

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament Explanation For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State

(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.

Similarly, Article 191 deals with disqualifications for membership of a member of the Legislative Assembly or Legislative Council of a State on the similar grounds as incorporated under Article 102.

The decision on the issue of disqualification on the ground of defection according to the Tenth Schedule, shall be taken by the Speaker/Chairman in Parliament or Assembly as the case may be.

However, on all other grounds the President is authorised to take decision on the advice of the Election Commission under Article 103. This Article says that,

(1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final.

(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.

As per the provision under Article 103 (2), the language makes it evident that the advice of the Election Commission shall be binding on the President. 

Disqualification on the ground of holding an ‘office of profit’ has very often been in question and controversy. The phrase ‘office of profit’ has not been defined neither in the Constitution nor in the Representation of People Act 1951. Hence, the power is held by the Parliament to define it by law or the Supreme Court might interpret and explain the significance and meaning of this concept. India had the Parliament (Prevention of Disqualification) Act, 1950-51 and 1953, however, all such Acts were replaced by Parliament (Prevention of Disqualification) Act, 1959.

Further, an amendment act was passed in 2006 on which the Supreme Court had held that the Parliament (Prevention of Disqualification) Amendment Act, 2006 exempting 55 offices occupied by members of Parliament from disqualification was constitutionally valid. It is to recall here that the Bill was sent for reconsideration by the then President questioning its retrospective effect.

However, the Bill was passed with a retrospective effect. The court was also of the view that Parliament had the legislative competence and was within its power to bring the legislation with retrospective effect. This signifies that the law takes care of any unwarranted decision and provides a safeguard to the members. 

On the other hand, the provision related to disqualification especially on the ground of holding an office of profit has been very often in news. The Supreme Court in Ashok Kumar Bhattacharya Vs. Ajoy Biswas AIR 1985 SC 211 held that to determine whether a person holds an office of profit under the government, each case must be measured and judged in the light of the relevant provisions and sections.

The Supreme Court in Shivamurthy Swami Vs. Agadi Sanganna Andanappa (1971) 3 SCC 870 has pointed out five major parameters to examine whether an office should be called an office of profit:

1. Whether the government makes the appointment;
2. Whether the government has the right to remove or dismiss the holder;
3. Whether the government pays the remuneration;
4. What are the functions of the holder and
5. Does the government exercise any control over the performance of those functions?

The AAP government has argued 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.

However, the top notches of the party must also consider that the apex court has held on different occasions that all the five tests (parameters, mentioned above) need not co-exist conjointly for determining whether an office is an office of profit under the Government. Earlier, the Calcutta High Court had quashed the appointment of 24 parliamentary secretaries in West Bengal in 2015 on the ground that a parliamentary secretary holds the rank of a Minister of State hence such appointments were unconstitutional.

An argument made by the Delhi’s chief minister that Delhi also has the status of a state and it should not be singled out in the context that other states also appoint parliamentary secretaries appears to be ridiculous. This is seminally because under Article 164 (1) the size of the Council of Ministers in a state Assembly is limited to 15 per cent of its total membership and as said earlier, Parliamentary Secretary holds the rank of a Minister of State hence he shall also be included in the total size. On the contrary, Delhi is a Union Territory with an Assembly, and under Article 239AA the size of the Council is limited to 10 per cent of the total membership. In lieu of the fact, Delhi Assembly in any case cannot have 21 such secretaries. This itself looks unconstitutional.

Moreover, the way the AAP MLAs and the entire party has reacted to the Election Commission’s recommendation for disqualification, it is crystal-clear that they are not fully aware of the constitutional facts and have taken only a political approach and that too in a totally unethical manner.

The political system in India is probably passing through a period of political populism which often goes beyond the dignity of constitutional bodies and definitely gives a very wrong message to the people especially the youngsters who are now participating into the political process with their pragmatic approach. The ‘so-called lawmakers’ need to understand it at the earliest.

(CBP Srivastava is an expert on the Constitution of India. He is President of the Centre for Applied Research in Governance, New Delhi.)

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL.)