21 AAP parliamentary secretaries face disqualification. But AAP's loss may be BJP's gain

After successfully de-stabilising democratically-elected governments in Nagaland and Uttarakhand, the central government has now set its sights on the Aam Aadmi Party-led Delhi government. 

Sources claim that central government is planning to file an affidavit in the Delhi High Court on the petition filed by an NGO - the Rashtriya Mukti Morcha (RMM) - on the appointment of 21 AAP MLAs as Parliamentary Secretaries. 

The petition claims that the appointment of the MLAs should be deemed illegal and that they be disqualified for holding two offices of profit. Hearing the matter, the Delhi High Court sought responses from Centre, Delhi government and Lieutenant Governor for the same.

The next date of hearing has been set for 13 July, before which the central government is expected to file an affidavit which could create legal trouble for the AAP. "Earlier, the central government had decided not to file an affidavit but now it seems that they will. The court had asked the Central government to file its response by 21 March which it hasn't. But, we expect the Center soon file the affidavit which should be in our favour," said Ravinder Kumar, who filed the petition on behalf of the RMM.

The BJP has called the Delhi government's decision to appoint these legislators as Parliamentary Secretaries to assist ministers unconstitutional. The party is of the opinion that since a prior consent from the LG was not sought, these appointments are in violation of the Constitution.

In an interview with a news channel, Delhi Lieutenant Governor Najeeb Jung did not deny the possibility of these MLAs being disqualified since the "office of Parliamentary Secretary is defined as an office of profit if one looks at the statutes of Delhi". "As per the Government of National Capital Territory of Delhi (GNCT) Act, Delhi can have one Parliamentary Secretary, attached to the office of chief minister," he said.

Earlier, the LG had objected to these appointments and the Bill moved by Delhi government legitimising the move. He had even sent a scathing report to the Home Ministry and the President.

On 13 March, 2015, Delhi Chief Minister Arvind Kejriwal passed an order appointing 21 party MLAs as Parliamentary Secretaries. These legislators were administered oath by the chief minister's office the same day. 

Soon after, the RMM filed a PIL in the Delhi High Court challenging the government's decision. Calling it a gross violation of Article 239 AA of the Constitution as well as the laws governing the manner in which the Delhi government is run, the petition sought disqualification of these MLAs.

"According to Article 239 4 AA, only 10 per cent of legislators can be ministers. There should be only 7 ministers instead we have 21 more who have been appointed as Parliamentary Secretaries," said Ravinder Kumar. 

The PIL also alleges that the Delhi government had appointed these MLAs as Parliamentary Secretaries through an executive order without prior authorisation from the Lieutenant Governor.

On 10 May, 2015, the division bench of Chief Justice G Rohini and Justice RS Endlaw then sought the response of the state government which filed a response on 7 October. In its response, the Delhi government said, "The provision of Parliamentary Secretary is merely to assist the Minister in connecting to the public and the rest of the assembly and ensuring a harmonious functioning".

In July 2015, the Delhi government moved a Bill to exempt these secretaries from disqualification. The Bill was then sent to the LG and the President for approval. The new provision makes room for MLAs to remain Parliamentary Secretaries without risking disqualification. 

The Bill, then passed by the assembly, read: "It is to declare that the office of the parliamentary secretary to the chief minister and ministers of the government of National Capital Territory of Delhi shall not be disqualified and shall be deemed never to have been disqualified for being chosen as, or for being, a member of Legislative Assembly of NCT Delhi. Accordingly it is proposed to amend the schedule."

Though these MLAs are not entitled to any remuneration, the petition alleged that these individuals may use government transport for official purposes and use the minister's office to facilitate their work. 

Catch tried to reach out to AAP leaders but they were unavailable for comment.

The Election Commission, too, took note of the RMM's petition and issued showcause notices to these MLAs on 19 March, 2016, as to why they should not be disqualified. 

However, the Delhi government issued a clarification that these MLAs are not drawing salaries and said that not a single rupee has been issued to them because the Bill on office of profit is still pending with the Home Ministry. It went on to add that no perks - like an official vehicle and staff - have been given to them.

The Delhi government affidavit in response to the RMM's petition stated that such appointments are a "long standing practice" in many states and that these MLAs do not have any executive powers and the decision making solely lies with the ministers. It claimed that appointment of these MLAs as Parliamentary Secretaries does not amount to "creation of a public office, as the minister-in-charge can still seek opinion from any other MLA or person".

The AAP has an overwhelming majority - with 67 MLAs in a 70-member house. And even if 21 legislators are disqualified, the AAP would still have majority with 46 legislators. However, it would certainly be a major setback for the AAP which is busy preparing for the Punjab Assembly elections.

Meanwhile, if these legislators are disqualified, the elections would be held in these constituencies. And it is here that the BJP is sensing an opportunity to increase its numbers in the legislative assembly. At present, the BJP has only three members in the Delhi Vidhan Sabha and any addition would help boost the party's Delhi unit.