Appointment of Parliamentary Secretary illegal in Delhi on the following grounds? The appointments, made in March 2015, suffered from multiple legal infirmities.
1. After the categorical verdict of the Delhi High Court last month that the Capital is a Union Territory, it was quite clear that any decision made by Chief Minister Arvind Kejriwal without the Lieutenant Governor’s approval will be rendered illegal.
2. Apart from the lack of the LG’s concurrence, it raised the question of whether it was an ‘office of profit’ under the government, something legislators are barred from holding. The penalty stipulated in the Constitution for a legislator holding an office of profit is disqualification.
Decision in hands of Election Commission on Disqualification
The Election Commission has reserved its verdict on the question whether these 21 MLAs have incurred such disqualification, and it is possible for the Aam Aadmi Party now to ask the matter to be closed, citing the court’s setting aside of the appointments. At the same time, it cannot be denied that the EC could still choose to decide whether these MLAs had indeed held an office of profit for nearly a year-and-a-half. They had been rendered further vulnerable after the President withheld assent to a Delhi Bill to protect them from incurring disqualification — once again because it was introduced without the LG’s approval.
Flaw of Kejriwal Government
Mr. Kejriwal could have avoided this setback had he not given executive oversight responsibilities to so many of his party’s legislators.
Who are Parliamentary Secretaries?
In practice, parliamentary secretaries are junior ministers. In this case, their appointment could also have been challenged on the ground that after their inclusion, the strength of the Council of Ministers had exceeded the constitutional limit of 10 per cent on the strength of the Delhi Assembly.
In the case of other States, the limit is 15 per cent. In some States, parliamentary secretaries have been able to stave off disqualification by getting the post saved from disqualification by legislation. However, no one has been able to get around the numerical cap on the size of the Ministry under Article 164(1A) of the Constitution.