Following the recommendation of the Election Commission (EC), the President disqualified 20 MLAs of the Delhi Legislative Assembly last month for holding an ‘office of profit’. The legislators in question were appointed as parliamentary secretaries to various ministries in the Delhi government. The Delhi High Court is currently hearing a petition filed by the disqualified MLAs against the EC’s recommendation. There have been reports of parliamentary secretaries being appointed in 20 states in the past with court judgments striking down these appointments in several cases. In this context, we discuss the law on holding an ‘office of profit’.
What is the concept of ‘office of profit’?
MPs and MLAs, as members of the legislature, hold the government accountable for its work. The essence of disqualification under the office of profit law is if legislators holds an ‘office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly. The intent is that there should be no conflict between the duties and interests of an elected member. Hence, the office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.
According to the definition, what constitutes an ‘office of profit’?
The law does not clearly define what constitutes an office of profit but the definition has evolved over the years with interpretations made in various court judgments. An office of profit has been interpreted to be a position that brings to the office-holder some financial gain, or advantage, or benefit. The amount of such profit is immaterial.
In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment. Several factors are considered in this determination including factors such as: (i) whether the government is the appointing authority, (ii) whether the government has the power to terminate the appointment, (iii) whether the government determines the remuneration, (iv) what is the source of remuneration, and (v) the power that comes with the position.
What does the Constitution say about holding an ‘office of profit’? Can exemptions be granted under the law?
Under the provisions of Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the central or state government. The articles clarify that “a person shall not be deemed to hold an office of profit under the government of India or the government of any state by reason only that he is a minister”. The Constitution specifies that the number of ministers including the Chief Minister has to be within 15% of the total number of members of the assembly (10% in the case of Delhi, which is a union territory with legislature).
Provisions of Articles 102 and 191 also protect a legislator occupying a government position if the office in question has been made immune to disqualification by law. In the recent past, several state legislatures have enacted laws exempting certain offices from the purview of office of profit. Parliament has also enacted the Parliament (Prevention of Disqualification) Act, 1959, which has been amended several times to expand the exempted list.
Is there a bar on how many offices can be exempted from the purview of the law?
There is no bar on how many offices can be exempted from the purview of the law.
It was reported in 2015 that all 60 MLAs of the Nagaland Assembly had joined the ruling alliance. The Nagaland Chief Minister appointed 26 legislators as parliamentary secretaries in July 2017. Goa, an assembly of 40 MLAs, exempted more than 50 offices by means of an ordinance issued in June last year. Puducherry, an assembly of 33 MLAs, exempted more than 60 offices by passing an amendment bill in 2009. In Delhi, the 21 parliamentary secretaries added to the seven ministerial posts would constitute 40% of the 70-member legislature. In all, 20 states have similar provisions.
This raises an important concern. If a large number of legislators are appointed to such offices, their role in scrutinising the work of the government may be impaired. Thus, this could contravene the spirit of Articles 102 and 191 of the Constitution.
What is the debate around making appointments to the office of parliamentary secretaries?
Interestingly, the appointment of legislators as parliamentary secretaries, in spite of the office being exempted from purview of the office of profit law, has been struck down by courts in several states.
Why has the appointment as a parliamentary secretary been struck down while other offices are allowed to be exempt from the purview of the law? If legislators can be accommodated in positions other than ‘parliamentary secretary’, why do state governments continue to appoint legislators as parliamentary secretaries instead of appointing them to other offices?
These questions have been answered in a Calcutta High Court judgment in 2015 which held that since the position may confer the rank of a junior minister on the legislator, the appointment of MLAs as parliamentary secretaries was an attempt by state governments to bypass the constitutional ceiling on the number of ministers. In 2009, the Bombay High Court also held that appointing parliamentary secretaries of the rank and status of a Cabinet Minister is in violation of Article 164 (1A) of the Constitution. The Article specifies that the number of ministers including the Chief Minister should not exceed 15% of the total number of members in the assembly.
As of April 26, Rajasthan has 2,083 confirmed cases of COVID-19 (fifth highest in the country), of which 493 have recovered and 33 have died. On March 18, the Rajasthan government had declared a state-wide curfew till March 31, to check the spread of the disease. A nation-wide lockdown has also been in place since March 25 and is currently, extended up to May 3. The state has announced several policy decisions to prevent the spread of the virus and provide relief for those affected by it. This blog summarises the key policy measures taken by the Government of Rajasthan in response to the COVID-19 pandemic.
Early measures for containment
Between late January and early February, Rajasthan Government’s measures were aimed towards identification, screening and testing, and constant monitoring of passenger arrivals from China. Instructions were also issued to district health officials for various prevention, treatment, & control related activities, such as (i) mandatory 28-day home isolation for all travellers from China, (ii) running awareness campaigns, and (iii) ensuring adequate supplies of Personal Protection Equipments (PPEs). Some of the other measures, taken prior to the state-wide lockdown, are summarised below:
Administrative measures
The government announced the formation of Rapid Response Teams (RRTs), at the medical college-level and at district-level on March 3 and 5, respectively.
The District Collector was appointed as the Nodal Officer for all COVID-19 containment activities. Control Rooms were to be opened at all Sub-divisional offices. The concerned officers were also directed to strengthen information dissemination mechanisms and tackle the menace of fake news.
Directives were issued on March 11 to rural health workers/officials to report for duty on Gazetted holidays. Further, government departments were shut down between March 22 and March 31. Only essential departments such as Health Services were allowed to function on a rotation basis at 50% capacity and special / emergency leaves were permitted.
Travel and Movement
Air travellers were to undergo 14-day home isolation and were also required to provide an undertaking for the same. Besides, those violating the mandated isolation/quarantine were liable to be punished under Section. 188 of the Indian Penal Code. Penalties are imposed under this section on persons for the willful violation of orders that have been duly passed by a public servant.
All institutions and establishments, such as (i) educational institutions, theatres, and gyms, (ii) anganwadis, (iii) bars, discos, libraries, restaurants etc, (iv) museums and tourist places, were directed to be shut down till March 31.
The daily Jan Sunwai at the Chief Minister’s residence was cancelled until further notice. Various government offices were directed to shut down and exams of schools and colleges were postponed.
On March 24, the government issued a state-wide ban on the movement of private vehicles till March 31.
Health Measures
Advisories regarding prevention and control measures were issued to: (i) District Collectors, regarding sample collection and transportation, hotels, and preparedness of hospitals, (ii) Police department, to stop using breath analysers, (iii) Private hospitals, regarding preparedness and monitoring activities, and (iv) Temple trusts, to disinfect their premises with chemicals.
The government issued Standard Operating Procedures for conducting mock drills in emergency response handling of COVID-19 cases. Training and capacity building measures were also initiated for (i) Railways, Army personnel etc and (ii) ASHA workers, through video conferencing.
A model micro-plan for containing local transmission of COVID was released. Key features of the plan include: (i) identification and mapping of affected areas, (ii) activities for prevention control, surveillance, and contact tracing, (iii) human resource management, including roles and responsibilities, (iv) various infrastructural and logistical support, such as hospitals, labs etc, and (v) communication and data management.
Resource Management: Private hospitals and medical colleges were instructed to reserve 25 % of beds for COVID-19 patients. They were also instructed to utilise faculty from the departments of Preventive and Social Medicine to conduct health education and awareness activities.
Over 6000 Students of nursing schools were employed in assisting the health department to conduct screening activities being conducted at public places, railways stations, bus stands etc.
Further, the government issued guidelines to ensure the rational use of PPEs.
Welfare Measures
The government announced financial assistance, in the form of encouragement grants, to health professionals engaged in treating COVID-19 patients.
Steps were also taken by the government to ensure speedy disbursal of pensions for February and March.
The government also initiated the replacement of the biometric authentication with an OTP process for distribution of ration via the Public Distribution System (PDS).
During the lockdown
State-wide curfew announced on March 18 has been followed by a nation-wide lockdown between March 25 and May 3. However, certain relaxations have been recommended by the state government from April 21 onwards. Some of the key measures undertaken during the lockdown period are:
Administrative Measures
Advisory groups and task forces were set up on – (i) COVID-19 prevention, (ii) Health and Economy, and (iii) Higher education. These groups will provide advice on the way forward for (i) prevention and containment activities, (ii) post-lockdown strategies and strategies to revive the economy, and (iii) to address the challenges facing the higher education sector respectively.
Services of retiring medical and paramedical professionals retiring between March and August have been extended till September 2020.
Essential Goods and Services
A Drug Supply Control Room was set up at the Rajasthan Pharmacy Council. This is to ensure uninterrupted supply of medicines during the lockdown and will also assist in facilitating home delivery of medicines.
The government permitted Fair Price Shops to sell products such as masalas, sanitisers, and hygiene products, in addition to food grains.
Village service cooperatives were declared as secondary markets to facilitate farmers to sell their produce near their own fields/villages during the lockdown.
A Whatsapp helpline was also set up for complaints regarding hoarding, black marketing, and overpricing.
Travel and Movement
Once lockdown was in place, the government issued instructions to identify, screen, and categorise people from other states who have travelled to Rajasthan. They were to be categorised into: (i) people displaying symptoms to be put in isolation wards, (ii) people over 60 years of age with symptoms and co-morbidities to be put in quarantine centres, and (iii) asymptomatic people to be home quarantined.
On March 28, the government announced the availability of buses to transport people during the lockdown. Further, stranded students in Kota were allowed to return to their respective states.
On April 2, a portal and a helpline were launched to help stranded foreign tourists and NRIs.
On April 11, an e-pass facility was launched for movement of people and vehicles.
Health Measures
To identify COVID-19 patients, district officials were instructed to monitor people with ARI/URI/Pneumonia or other breathing difficulties coming into hospital OPDs. Pharmacists were also instructed to not issue medicines for cold/cough without prescriptions.
A mobile app – Raj COVID Info – was developed by the government for tracking of quarantined people. Quarantined persons are required to send their selfie clicks at regular intervals, failing which a notification would be sent by the app. The app also provides a lot of information on COVID-19, such as the number of cases, and press releases by the government.
Due to the lockdown, people had restricted access to hospitals and treatment. Thus, instructions were issued to utilise Mobile Medical Vans for treatment/screening and also as mobile OPDs.
On April 20, a detailed action plan for prevention and control of COVID-19 was released. The report recommended: (i) preparation of a containment plan, (ii) formation of RRTs, (iii) testing protocols, (iv) setting up of control room and helpline, (v) designated quarantine centres and COVID-19 hospitals, (vi) roles and responsibilities, and (vii) other logistics.
Welfare Measures
The government issued instructions to make medicines available free of cost to senior citizens and other patients with chronic illnesses through the Chief Minister’s Free Medicine Scheme.
Rs 60 crore was allotted to Panchayati Raj Institutions to purchase PPEs and for other prevention activities.
A one-time cash transfer of Rs 1000 to over 15 lakh construction workers was announced. Similar cash transfer of Rs 1000 was announced for poor people who were deprived of livelihood during the lockdown, particularly those people with no social security benefits. Eligible families would be selected through the Aadhaar database. Further, an additional cash transfer of Rs 1500 to needy eligible families from different categories was announced.
The state also announced an aid of Rs 50 lakh to the families of frontline workers who lose their lives due to COVID-19.
To maintain social distancing, the government will conduct a door-to-door distribution of ration to select beneficiaries in rural areas of the state. The government also announced the distribution of free wheat for April, May, and June, under the National Food Security Act, 2013. Ration will also be distributed to stranded migrant families from Pakistan, living in the state.
The government announced free tractor & farming equipment on rent in tie-up with farming equipment manufacturers to assist economically weak small & marginal farmers.
Other Measures
Education: Project SMILE was launched to connect students and teachers online during the lockdown. Study material would be sent through specially formed Whatsapp groups. For each subject, 30-40 minute content videos have been prepared by the Education Department.
Industry: On April 18, new guidelines were issued for industries and enterprises to resume operations from April 20 onwards. Industries located in rural areas or export units / SEZs in municipal areas where accommodation facilities for workers are present, are allowed to function. Factories have been permitted to increase the working hours from 8 hours to 12 hours per day, to reduce the requirement of workers in factories. This exemption has been allowed for the next three months for factories operating at 60% to 65% of manpower capacity.
For more information on the spread of COVID-19 and the central and state government response to the pandemic, please see here.
