I am reading a lot of opinions, blaming Election Commission for recommending disqualification of AAP MLAs for holding office of profit. In my humble opinion, it is unfair to blame ECI for this just order. They are bound to adjudicate as per the laws, currently in force. The law is very clear. Even Sonia Gandhi had to resign from Parliament, under the same laws.
Yes, I agree that there are other states where the system of appointing MLAs as Parliamentary Secretaries or holders of such other posts is prevalent. However, those states have managed to create specific exclusions to the Office of profit laws, for those posts.
It s not that the Delhi Govt was not aware of the issue. On the contrary, the Delhi Legislative Assembly, had passed the Delhi Member of Legislative Assembly (Removal of Disqualification) (Amendment Bill), 2015, to exclude Parliamentary Secretaries from office of profit, with retrospective effect. If the contention of Kejriwal Govt is that the Parliamentary Secretary post does not fall under the category of office of profit, then why pass such an Bill?
In the case of Delhi, the infamous tussle between the Govt and Lt Governor has ensured that the Amendment Bill was not allowed to become the law. Hence, unlike other states, no such exemptions could be created for Delhi Assembly. I am not going into the merits of that tussle as the same is now before the Supreme Court for final decision. The fact of the matter is, the post held by those disqualified MLAs is not exempted under the existing laws.
Blame Lt Governor or Central Govt for not allowing the amendment. One may even call it discriminatory or against the principles of federalism. My limited point here is that ECI is right in disqualifying those MLAs. We should not be rushing to blame the constitutional authorities where they are acting within the scope of the letter and spirit of existing laws.
Before I end, let me state a general principle. MLAs are supposed to hold the Ministers (executive) to account in the Assembly. If these MLAs are holding any office under the same Ministers, they may not be able to discharge their constitutional responsibility in a free and fair manner. Some people are arguing that the Delhi Parliamentary Secretary posts did not involve any monetary benefits and, therefore, do not fall under the office of profit. My response is, the office of profit provisions are not there to prevent MLAs from getting some monetary benefits, but to ensure their independence from the will and command of the Executive.Can we expect a Secretary to question the Minister in the Assembly? Can we allow such a free run to the Executive, when there is virtually no opposition as in the case of Delhi?
So, I believe all unessential posts should be brought under the office of profit rule, rather than diluting the law by creating more exemptions. We have no dearth of efficient and qualified people that our MLAs and MPs have to be made secretaries to Ministers!
