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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.

The budget session of Parliament every year starts with the President’s Address to both Houses.  In this speech, the President highlights the government’s achievements and legislative activities in the last year, and announces its agenda for the upcoming year.   The address is followed by a motion of thanks that is moved in each House by ruling party MPs.  This is followed by a discussion on the address and concludes with the Prime Minister replying to the points raised during the discussion.

Today, the Budget Session 2019 commenced with the President, Mr. Ram Nath Kovind addressing a joint sitting of Parliament.  In his speech, he highlighted some of the objectives that the government has realised in the past year.  The President also highlighted the progress made by the government under various development schemes such as the Swachh Bharat Abhiyan, the Pradhan Mantri Jan Dhan Yojana, and the Pradhan Mantri Gram Sadak Yojana. 

Given that today’s address comes at the end of this government’s term, we examine the status of some key policy initiatives announced by the current government, that have been highlighted in speeches made in the past five years.  

Policy priority stated in President’s Addresses 2014-2018

                                                                       Current Status

Economy and Finance

Despite a global economic downturn, the Indian economy has remained on a high growth trajectory.

 

  • Growth Rate: The GDP is estimated to grow at 7.2% in 2018-19.[i]  In the last five years, GDP growth rate stayed within 7% and 8% per year, with a dip to 6.7% in 2017-18, the year of demonetisation.[ii],[iii]
  • Inflation: A target of 4% for the Consumer Price Index (CPI) inflation was notified by the Ministry of Finance for the period 2016-2021.[iv] CPI stayed within this band for most of the period between 2014 and 2018.
  • Foreign Exchange Reserves stood at USD 397 billion on January 2019, as compared to USD 313 billion in May, 2014.[v],[vi]

Measures to deal with corruption, black money and counterfeit currency will be introduced

 

  • Demonetisation:  On November 8, 2016, the Government announced the demonetisation of Rs 500 and Rs 1000 notes.[vii]  During the period from November 2016 to October 2017, undisclosed income of over Rs 24,800 crore was detected.[viii]
  • The Fugitive Economic Offenders Bill, 2018 was passed in July, 2018.  The Bill seeks to confiscate properties of economic offenders who have left the country to avoid facing criminal prosecution.[ix]
  • The Prevention of Corruption (Amendment) Bill, 2013 amends the Prevention of Corruption Act, 1988.  Under the 1988 Act, taking of a bribe by a public official was an offence.  The Bill also makes the giving of a bribe an offence.[x] 

To promote the concept of cooperative federalism through One Nation-One Tax and One Nation-One Market, the government introduced the Goods and Services Tax

  • Goods and Services Tax was introduced across the country from July 1, 2017.[xi]  

Agriculture

Agriculture is the main source of livelihood for a majority of people.  For holistic development of the agricultural sector, the Pradhan Mantri Fasal Bima Yojana was launched in 2016

  • Pradhan Mantri Fasal Bima Yojana (PMFBY):  PMFBY was launched with the aim of providing insurance coverage and financial support to farmers in the event of crop failure.  The number of farmers enrolled under the scheme declined from 5.7 crore in 2016-17 to 5.2 crore in 2017-18.[xii]  

Employment and Entrepreneurship

The government has continuously worked for reforms of labour laws.  Minimum wages have increased by more than 40%

 

  • Over the last three years, the Ministry of Labour and Employment has introduced three draft Codes to simplify labour laws.  These are: (i) the draft Labour Code on Industrial Relations, (ii) the draft Code on Social Security and (iii) the draft Code on Occupational Safety, Health and Working Conditions.60  Additionally, in 2017, the Code on Wages Bill, 2017 was introduced in the Lok Sabha.
  • In 2017, the central government increased minimum wages by 40% through a gazette notification.  Minimum wages (per day) for non-agricultural workers increased from Rs 250 to Rs 350 for unskilled workers and Rs 523 for skilled workers.[xiii],[xiv],[xv]

Infrastructure

Cities are the engines of economic growth.  The Smart City programme was initiated to build modern amenities and infrastructure.

 

  • Smart Cities and the Atal Mission for Rejuvenation and Urban Transformation (AMRUT) have an outlay of Rs 48,000 crore and Rs 50,000 crore for the period 2015-2020, respectively.[xvi]
  • As of January 19, 2018, 100 smart cities have been selected.  As of 2018, the total proposed investment in these cities is Rs 2,05,018 crore.[xvii],[xviii]

All rural habitations will be connected with all-weather roads. So far, 73,000 kilometres of roads have been laid in rural areas.

 

  • The Pradhan Mantri Gram Sadak Yojana (PMGSY) aims to connect all eligible unconnected habitations in rural areas with all-weather roads by March 2019.[xix],[xx]  As of January 29, 2019, of the target of 1.52 lakh habitations to be covered since the inception of the scheme, 1.46 lakh (96%) habitations have been connected.[xxi]  

Housing is a fundamental right.  All households shall have a dwelling unit under the Mission Housing for All by 2022.

 

  • Pradhan Mantri Awas Yojana (PMAY) was launched in 2015.  The Yojana has two components: rural and urban. 
  • Under PMAY-Urban, 5,33,000 have been completed in 2018-19.  Under PMAY-Rural, 14,21,850 have been built in 2018-19. [xxii],[xxiii]

Health and Sanitation

Poor sanitation weakens the economic wherewithal of a poor household.  The Swachh Bharat Abhiyan aims to ensure health and sanitation. 

  • Swachh Bharat Mission: Swachh Bharat Mission (SBM) was launched on October 2, 2014 to achieve a clean and open defecation free India.  It has two components: SBM Urban and SBM Rural. [xxiv],[xxv]
  • Under SBM Urban, as of January 29, 2019, 24,130 individual household toilets have been constructed.[xxvi]
  • Under SBM Gramin, as of January 30, 2019, 919 lakh individual household toilets have been constructed (98.81% of target). [xxvii],[xxviii]

The government is committed to providing affordable and accessible healthcare to all its citizens, particularly the vulnerable groups.

  • Ayushmaan Bharat: In the General Budget 2018-19, the Government announced two major initiatives in health sector as a part of the Ayushman Bharat program.  These were: Health and Wellness Centres and the Pradhan Mantri Jan Arogya Yojana (PMJAY).[xxix]
  • Ayushmaan Bharat aims to create 1,50,000 health and wellness centres providing comprehensive primary healthcare. Rs 1200 crore has been allocated for this purpose.[xxx] PMJAY will cover over ten crore poor and vulnerable families. [xxxi]  It will provide coverage of up to five lakh rupees per family per year for secondary and tertiary care hospitalisation.  For the year 2018-19, Rs 3,125 crore has been allocated for this scheme.[xxxii]

Source: President’s Addresses 2014-2018; PRS.

For important highlights from the President’s address in 2019, please see here.  For a deeper analysis of the status of implementation of the announcements made in the President’s addresses from 2014 to 2018, please see here.

 

[i] “Press Note on First Advance Estimates of National Income: 2018-19”, Ministry of Statistics and Program Implementation, Press Information Bureau, http://www.mospi.gov.in/sites/default/files/press_release/Presss%20note%20for%20first%20advance%20estimates%202018-19.pdf.

[ii] “Second Advance Estimates of National Income, 2017-18”, Ministry of Statistics and Program Implementation, Press Information Bureau, http://pib.nic.in/newsite/PrintRelease.aspx?relid=176847

[iii] “Second Advance Estimates of National Income, 2016-17”, Ministry of Statistics and Program Implementation, Press Information Bureau, http://pib.nic.in/newsite/PrintRelease.aspx?relid=158734

[iv] Overview-Monetary Policy, Reserve Bank of India, https://www.rbi.org.in/scripts/FS_Overview.aspx?fn=2752

[v] “Foreign Exchange Reserves,”  Reserve Bank of India, January 25, 2019, https://www.rbi.org.in/Scripts/WSSView.aspx?Id=22729.

[vi] RBI Database, https://dbie.rbi.org.in/DBIE/dbie.rbi?site=home.

[vii] Table No.  160, Handbook of Statistics on the Indian Economy, Reserve Bank of India, https://www.rbi.org.in/Scripts/AnnualPublications.aspx?head =Handbook%20of%20Statistics%20on%20Indian%20Economy

[viii] Lok Sabha Unstarred Question No.  1319, Ministry of Finance, December 22, 2017, http://164.100.47.194/Loksabha/Questions/QResult15.aspx?qref=59329&lsno=16.

[ix] “The Fugitive Economic Offenders Bill, 2018”, PRS Legislative Research, March 16, 2018, http://www.prsindia.org/sites/default/files/bill_files/Fugitive%20Economic%20Offenders%20Bill%20-%20Bill%20Summary.pdf.

[x] “The Prevention of Corruption (Amendment) Bill”, PRS Legislative Research, February 12, 2014, http://www.prsindia.org/sites/default/files/bill_files/Bill_Summary-_Prevention_of_Corruption_1.pdf.

[xi] “GST roll-out – Complete transformation of the Indirect Taxation Landscape; Some minute details of how it happened, Ministry of Finance”, Press Information Bureau, June 30, 2017, http://pib.nic.in/newsite/PrintRelease.aspx?relid=167023.

[xii] Lok Sabha Unstarred Question No. 17, Ministry of Agriculture and Farmers Welfare, December 11, 2018, http://164.100.47.190/loksabhaquestions/annex/16/AS17.pdf.

[xiii] “Year End Review, Ministry of Labour and Employment”, December 18, 2017, http://www.pib.gov.in/PressReleseDetail.aspx?PRID=1512998.

[xiv] Rate of Minimum Wages, Ministry of Labour and Employment, March 1 2017, https://labour.gov.in/sites/default/files/MX-M452N_20170518_132440.pdf.

[xv] Gazette Number 173, Ministry of Labour and Employment, January 19, 2017, Gazette of India, http://egazette.nic.in/WriteReadData/2017/173724.pdf.

[xvi] “Union Cabinet approves Atal Mission for Rejuvenation and Urban Transformation and Smart Cities Mission to drive economic growth and foster inclusive urban development”, Press Information Bureau, April 29, 2015, http://pib.nic.in/newsite/PrintRelease.aspx?relid=119925.

[xvii] “Shillong (Meghalaya) gets selected as the 100th Smart City”, Ministry of Housing and Urban Poverty Alleviation, Press Information Bureau, June 20, 2018, http://pib.nic.in/newsite/PrintRelease.aspx?relid=180063

[xviii] “Year Ender- Ministry of Housing and Urban Affairs-2018”, Ministry of Housing and Urban Affairs, Press Information Bureau, December 31, 2018, http://pib.nic.in/PressReleseDetail.aspx?PRID=1557895.

[xix] PMGSY Guidelines, Ministry of Rural Development, last accessed on October 23, 2018. http://pmgsy.nic.in/.

[xx] “Implementation of PMGSY”, Ministry of Rural Development, Press Information Bureau, December 27, 2018, http://pib.nic.in/newsite/PrintRelease.aspx?relid=186837.

[xxi] Online Management, Monitoring and Accounting System (OMMAS), Pradhan Mantri, Gram Sadak Yojana, last accessed on October 23, 2018, http://omms.nic.in/Home/CitizenPage/#.

[xxii] High Level Physical Progress Report, PMAYG, Ministry of Rural Development, last accessed on January 25, 2019, https://rhreporting.nic.in/netiay/PhysicalProgressReport/physicalprogressreport.aspx

[xxiii] “Year Ender-6-PMAY-Ministry of Housing and Urban Affairs, 2018”, Press Information Bureau, December 27, 2018, http://pib.nic.in/PressReleseDetail.aspx?PRID=1557462.

[xxiv] “Swachh Bharat Mission needs to become a Jan Andolan with participation from every stakeholder: Hardeep Puri, 1,789 Cities have been declared ODF conference on PPP model for waste to energy projects”, Ministry of Housing and Urban Affairs, Press Information Bureau, November 30, 2017, http://pib.nic.in/newsite/PrintRelease.aspx?relid=173995.

[xxv] “PM launches Swachh Bharat Abhiyaan”, Prime Minister’s Office, Press Information Bureau, October 2, 2014, http://pib.nic.in/newsite/PrintRelease.aspx?relid=110247.

[xxvi] “Individual Household Latrine Application”, Ministry of Housing and Urban Affairs, last accessed on January 30, 2019, http://swachhbharaturban.gov.in/ihhl/RPTApplicationSummary.aspx.

[xxvii] “Individual Household Latrine Application”, Ministry of Housing and Urban Affairs, last accessed on January 30, 2019, http://swachhbharaturban.gov.in/ihhl/RPTApplicationSummary.aspx.

[xxviii] Swachh Bharat Mission (Gramin), Ministry of Drinking Water and Sanitation, last accessed on January 30, 2019, https://sbm.gov.in/sbmdashboard/Default.aspx.

[xxix] “Ayushman Bharat for a new India -2022, announced”, Ministry of Finance, Press Information Bureau, February 1, 2018,s http://pib.nic.in/newsite/PrintRelease.aspx?relid=176049

[xxx] About NHA, Ayushmaan Bharat, Ministry of Health and Family Welfare, https://www.pmjay.gov.in/about-nha.

[xxxi] “Ayushman Bharat –Pradhan Mantri Jan AarogyaYojana (AB-PMJAY) to be launched by Prime Minister Shri Narendra Modi in Ranchi, Jharkahnd on September 23, 2018”, Ministry of Health and Family Welfare, Press Information Bureau, September 22, 2018, http://pib.nic.in/newsite/PrintRelease.aspx?relid=183624.

[xxxii] National Health Accounts, estimates for 2014-15 Ministry of Health and Family Welfare, https://mohfw.gov.in/newshighlights/national-health-accounts-estimates-india-2014-15.