Of Kejriwal and his controversies

Anil Anand
It seems controversies and Delhi Chief Minister Arvind Kejriwal are made for each other. It will not be out of place to state that he has been eking his political livelihood out of generating and then exploiting situations emerging out of controversies. At least the ascending graph of his political career during the last over two years testify the significance of controversies in his political enterprise.
But did he at any point in time imagine that the ‘theory of controversies’ could recoil and put him in a spot? Perhaps he did not! And this is clear from the manner in which he appointed 21 Parliamentary Secretaries even going against the advice of a senior Law Department bureaucrat of Delhi Government. He must have been sitting pretty living in his own make-believe-world until the AAP dispensation was shook out of slumber by President Pranab Mukherjee’s refusal to grant assent to Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 which was to introduce second amendment to this Law.
According to the Government of National Capital Territory of Delhi Act, 1991, Delhi can have one parliamentary secretary, attached to the office of chief minister. But Kejriwal wished to expand the scope of this provision to provide legal sanction to all his 21 parliamentary secretaries.
Kejriwal, in March last year, had passed an order to appoint 21 MLAs as parliamentary secretaries fin the name of smooth functioning of the Delhi government. The original Act exempting two offices from disqualification under Office of Profit criteria— chairman of the Khadi and Village Industries Board and Chairperson of the Delhi Commission for Women-was amended in 2006 by the then BJP government. Similarly, the third exemption was to the Office of the Parliamentary Secretary to chief minister.
The AAP government through a second amendment sought to insert the words ‘and ministers’ after the words ‘chief minister’. The idea was to seek exemption from the office of profit for all 21 Parliamentary Secretaries and paving the road for their attachment to the ministers instead of just to one attached to the chief minister.
Sensing a political opportunity to strike back the arch political rivals of Kejriwal Congress and the BJP had sought disqualification of the 21 MLAs and the Election Commission of India was also seized of the matter. The Congress and BJP had sought disqualification under Article 191 of the Constitution of India and Section 15(1) of Government of National Capital Territory Act, 1991. The two legislative provisions debar legislators from holding any “office of profit”.
The question here arises, as the ignominy of disqualification of 21 MLAs looms large, is whether Kejriwal and his then Law Minister Kapil Mishra were justified in overruling the advice of a top Law Department official. At that point of time Mishra’s views prevailed over that of his officer and paved the way for the CM to appoint Parliamentary Secretaries.
This revelation, post Presidential denial of assent to the Bill, has made it untenable for Kejriwal to defend his move and prevent disqualification of the MLAs. There are two main factors that could weaken his defence. Firstly, the questions are being raised whether Delhi’s seven Ministers need three Parliamentary Secretaries each to assist them.
The 1:3 ratios between the ministers and Parliamentary Secretaries are the highest in Delhi if compared to other states having similar posts. This ratio is higher than even Punjab which has 24 Parliamentary Secretaries to assist 18 ministers.
The second problem for Kejriwal arises out of the fact that the Constitution does not have any provision of a Parliamentary Secretary post. In his hurry to accommodate more MLAs in the power structure he perhaps forgot to follow the right legislative path to provide them cover against disqualification.
Other states having these office-bearers with due diligence first created a law taking route of Money Bills before making these appointments. On the contrary the AAP dispensation passed a non-Money Bill and later sought to exempt the Parliamentary Secretary post from the Office of Profit clause with retrospective effet. The retrospective exemption has been sought by other states and even earlier Governments in Delhi ostensibly under different circumstances and it went unchallenged.
It is not that AAP dispensation is the only Government to have come face to face with controversies on laws related to “office of profit”. The BJP and Congress, who are raking this issue and some of the regional parties, also had a brush with such controversies.
The areas of differentiation between Delhi and other states is the legislative character of the city-state which raises a question mark on powers of Delhi Assembly to provide a retrospective effect to the issue. And the route followed to achieve the end.
The other question involved, in the face of the AAP claim, on whether the post of Parliamentary Secretary is an office-of-profit. Kejriwal and his team feels it is not since the government communication in this connection clearly said that the 21 MLAs in their new avtar will not be entitled to any remuneration of any kind.
These provisions viewed in the light of Supreme Court ruling in the case of cine star turned politician Jaya Bachchan’s case wherein it was opined that not paying any remuneration does not absolve the post of the office-of-profit tag. This can turn out to be another trouble spot for Kejriwal government.
All eyes are now fixed on Election Commission of India where a petition challenging the appointment of 21 MLAs as parliamentary secretaries and seeking their disqualification is pending. In the aftermath of Rashtrapati Bhawan denying assent to the case, the ECI seems to have hastened the proceedings in this case to arrive at an early conclusion.
What if 21 AAP MLAs are disqualified? Kejriwal’s next big bet is in Punjab where Assembly elections are due early next year and AAP is currently a hot favourite. There is no guarantee, after AAP lost some ground in the recently held bi-elections to 13 MCD wards, that the party would win all the seats in case of a snap poll. A loss of face could damage his party in Punjab.
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