Issue:

Whether the (Removal of Disqualification) Amendment Act, 2019 is constitutionally valid?

Research:

Articles 102 and 191 of the Constitution of India provide for disqualification of MPs and MLAs
respectively, including on grounds of holding an ‘office of profit.’ However, this term is not
defined.

Even though there is no definition of the term, and the deciding authority has discretion to decide
what it refers to, this does not mean that there are no guiding principles to be followed.

At the outset, it should be noted that the disqualification doesn’t relate to having any other job or
profession – it refers specifically to a position with the Central government or a state/UT
government.

This is because the idea behind providing for this disqualification is to ensure that there is no
conflict of interest between the legislature and the executive.

The Supreme Court has also provided guidance on the concept, most notably from the 1963
decision in Gurugobinda Basu vs Sankari Prasad Ghosal & Ors. In this case, a five-judge bench
of the Supreme Court held that the factors to be considered when considering whether or not a
particular position is an office of profit under a particular government are:

1. Who has made the appointment to the position?

2. Who has the power to terminate the appointment?
3. Who has the power to decide what remuneration is paid for the appointment?
4. What is the source of the remuneration?
5. Who has control over how the appointee performs their duties and to give directions
regarding these?

Analysis:
The present case is similar to the appointment of 21 MLAs by the Delhi Government in 2015 as
Parliamentary secretaries. This was challenged by Advocate Prashant Patel who petitioned
President Pranab Mukherjee that these MLAs should be disqualified. The Delhi Legislative
Assembly, then passed the Delhi Member of Legislative Assembly (Removal of
Disqualification) ( Amendment Bill), 2015 excluding Parliamentary Secretaries from “ office of
profit’ with retrospective effect. However, the President withheld assent to the amendment bill
and referred the matter to the Election Commission. Interestingly, the Delhi High Court heard a
writ petition challenging the very appointment of 21 Parliamentary Secretaries by the Delhi
Chief Minister and quashed it. The issue in front of the Election Commission is whether the
office of Parliamentary Secretary in the GNCTD,1991 constitutes an ‘ office of profit’. Article
191 in the Indian Constitution has not defined the term ‘office of profit’, therefore paving the
way for courts to lay down the law.

in Dr Deorao Laxman Anande Vs Keshav Laxman Borkar AIR 1958 Bom 314 interpreting
Article 191 (a) notes that the post cannot be regarded as office for the following reasons:

(a) non- remunerative and without a dedicated salary unlike ministerial posts.

(b) No perks attached to the post / appointment

(c) No dedicated office or office support systems designated

(d) No exclusive responsibilities or functions , with the sole purpose being to assist the Minister-
in-charge for any assistance he may need in connection with his work for the govt.

(e) No exclusive prerogative to tender opinion on any subject of governance , or authority to

execute ministerial work given.

(f) No access to documents of information meant for the exclusive domain of the Minister

Conclusion:

Thus relying on the above cases the (Removal of Disqualification) Amendment Act, 2019 is
constitutionally invalid.