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. Counsel for the Delhi government had to concede the point in court, leading to the appointment of 21 Delhi legislators as > parliamentary secretaries being set aside . The appointments, made in March 2015, suffered from multiple legal infirmities. 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. 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.
Mr. Kejriwal could have avoided this setback had he > not given executive oversight responsibilities to so many of his party’s legislators. 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. All told, Mr. Kejriwal got himself into a legal quagmire by seeking to take on the LG in the belief he had the same leeway as other CMs did. He will continue to maintain that the post of parliamentary secretary, inasmuch as it entails no salary or perquisites, is not an office of profit. Yet, it cannot be denied that the issue has caused him loss — of face, of credibility and some of the moral righteousness that propelled him to power.
