Appointment of 21 MLAs as parliamentary secretaries unconstitutional, Delhi govt’s legal department had warned

New Delhi: In the latest in the string of allegations and counter allegations in the controversial appointment of 21 parliamentary secretaries by the Arvind Kejriwal-led Aam Aadmi Party government, a crucial note suggests that the CM was well aware of the consequences that the city government’s legal department had pointed out to him and that he may have deliberately chosen to overlook the advice of his own legal department.

According to a note by the legal department under the Ministry of Law and Justice, Government of Delhi, accessed by IndiaTV,  the government had been clearly warned that the move was a violation of the Constitution and that doing so could result in 21 of his legislators losing their membership.

Kejriwal, however, deliberately or for other considerations, chose to ignore the advice of the Legal department on the appointment of parliamentary secretaries. Instead, the Cabinet on June 11, 2015 decided to bring a Bill to amend the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, by inserting ‘and Minister’ after the words ‘Chief Minister’.

On June 19, the Cabinet reviewed its earlier decision and took a decision to give retrospective effect w.e.f. 14.02.2015 to the proposed amendment.

All the 21 MLAs, who are currently facing disqualification, were appointed parliamentary secretaries on March 13, 2015 whereas the Delhi Assembly, dominated by AAP lawmakers, passed the amendment Bill on June 23 -- ignoring the suggestions of the legal department. The decision to amend the Act was probably taken as the last resort available to Kejriwal in order to protect his 21 MLAs from disqualification.

Meanwhile, on June 19, 2015, a complaint was filed with President Pranab Mukherjee seeking disqualification of these 21 MLAs for holding an Office of Profit.

“Clause (a) of sub-section(1) of section 15 of the Government of NCT of Delhi Act, 1991, provides that a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly if he holds any office of profit under the Government of India or the Government of any state or the Government of any Union Territory other than an office declared by law made by the Parliament or by the legislature of any State or by the Legislative Assembly of Delhi or any other UT, not to disqualify its holder. The provision of the Government of NCT of Delhi Act, 1991 are, more or less, on the lines of the provisions contained in articles 102 and 191 of the Constitution relating to the disqualification for membership of either House of Parliament or either House of Legislature of State, respectively,” the note by the Law Ministry’s legal department reads.

“In addition to the Office of the Parliamentary Secretary to the Chief Minister mentioned at serial number 7 in the schedule appended to the said Act, the office of the Parliamentary Secretary to the Minister is also to be included. It is considered to amend the Delhi Member of Legislative,” it further reads.

The note also says that Lt. Governor should refer to the Home Ministry every legislative proposal which is required to be reserved for the consideration of the President. It should be noted that any Bill passed by the Delhi Assembly is not considered an applicable law unless it is passed by the Lieutenant Governor and the President of India.

“Clause (a) of sub-rule (1) rule 55 of the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, is attracted in the present proposal which provides, inner-alia, that the Lt. Governor shall refer to the Central Government every legislative proposal which is required to be reserved for the consideration of the Parliament under the provision to section 24 of the Government of National Capital Territory of Delhi Act, 1991,” it says.

Kejriwal’s troubles began when the President rejected an amendment by the Delhi government to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, which sought to make the position of Parliamentary Secretary in the Delhi Assembly exempt from the definition of Office of Profit.

Meanwhile, Home Ministry sources said once the President has refused to sign the Bill, the legislators will automatically stand disqualified, making an election in Delhi necessary. AAP has 67 seats in the 70-member assembly. The remaining three MLAs are of the BJP.

These are the 21 MLAs in question:

1- Sharad Kumar
2- Shanjeev Jha
3- Sukhvir Singh
4- Rajesh Gupta
5- Som Dutt
6- Alka Lamba
7- Shiv Charan Goel
8- Jarnail Singh
9- Jarnail Singh
10- Rajesh Rishi
11- Adarsh Shastri
12- Kailash Gahlot
13- Vijender Garg
14- Praveen KUmar
15- Madan Lal
16- Naresh Yadav
17- Avtar Singh
18- Manoj Kumar
19- Nitin Tyagi
20- Anil Kumar Bajpai
21- Sarita Singh