In conversation with the lawyer who has single-handedly taken on the Arvind Kejriwal government in the office of profit legal fiasco.
The office of profit issue is in the spotlight again. Piqued by the president’s rejection of a bill passed by it to ‘legalise’ the appointment of 21 of its MLAs in Delhi as parliamentary secretaries, the Aam Aadmi Party (AAP) has urged the Election Commission (EC) to also disqualify over 100 legislators holding the post in 11 other states.
The EC has, in turn, asked the party to approach the president and the governors in these states to take the necessary action, and has decided to give a personal hearing to all the MLAs in Delhi on July 14. It has also asked the Delhi chief secretary to submit the details of all the facilities being provided to these parliamentary secretaries.
As the issue has snowballed and may now provide newer directions on the practice of state governments violating the norms of limiting the number of MLAs in the government to 15% in full states and 10% in union territories, the lawyer behind the original petition, 29-year-old Prashant Patel, insists that it is important to keep the MLAs out of the executive so that they are able to fearlessly raise the voice of the people. In an interview with The Wire, Patel discusses how he has only been raising issues related to violation of the law and does not hold a brief for any camp.
Gaurav Vivek Bhatnagar: How and why did you think of filing a petition against the appointment of 21 parliamentary secretaries by the AAP government?
Prashant Patel: My petition was filed with the president on June 19, 2015 after the AAP government sought to get the legal sanction with retrospective effect for the appointments by amending the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997.
The constitutional procedure here is that if there is any petition pertaining to an office of profit, that goes to the president, who checks Article 102 and 91 of the constitution and Section 15 of the National Capital Territory of Delhi Act 1991 takes the opinion of the EC. So, the EC had issued them notices. On June 19, when I filed the petition, they passed the bill in a hurry. When I filed my reply again with the EC, I had given proof of how the bill had been passed unconstitutionally and I had appealed to the president to use his rights to withhold the bill, and he has done that. Now the EC will take the views of all. I have given my reply. The Delhi government has also asked that it be made a party [to the proceedings]. I have replied to that too by saying that the government’s intention was mala fide because they had passed the bill without following the required procedure or without taking the prior approval of the central government. So I have requested that they not be made a party. Only the accused MLAs should remain a part of the proceedings.
GVB: What is the status of the petition now?
PP: Now the EC will hear the MLAs and then give its opinion to the president, who will take a final decision.
GVB: You had objected to the MLAs being heard again. Why?
PP: The MLAs had urged that they be called for an oral hearing. They had already submitted their written reply. On June 9, I just urged the EC to ensure that delaying tactics are not adopted and to call them but at one go on a given day so that there is early disposal of the matter.
GVB: Delhi chief minister Arvind Kejriwal says that when other state governments appointed parliamentary secretaries, it was deemed legal, but when his AAP government did it, it has been accused of committing a wrong. He has cited the examples of Gujarat, Punjab, Arunachal Pradesh and West Bengal, stating that they have parliamentary secretaries. How is Delhi different then?
PP: I will give the reason. When we talk of Delhi, it is not a state, it is a union territory. In the constitution, the post of the parliamentary secretary does not exist. In Delhi, the parliamentary secretaries made earlier were also illegally made. BJP government did it with the approval of the Congress and they did not object, and then Congress made Ajay Maken parliamentary secretary, and BJP did not object. Then, Sheila Dikshit made three. Since no one opposed, they kept doing it.
A bill was also passed in 1997 when the BJP government was in power. It allowed a parliamentary secretary to be appointed for the chief minister and declared that this would remain outside the scope of office of profit. Though the post was for one parliamentary secretary, Congress made three parliamentary secretaries and since no one objected, they kept holding on to the post.
If someone does something wrong, you cannot repeat the mistake by saying he did so.
Moreover, earlier, the parliamentary secretaries were under the chief minister. This time they have been appointed for the ministers. There is no rule to keep such parliamentary secretaries out of the purview of office of profit.
In other states, if they have made parliamentary secretaries, they have first passed a bill to the effect of keeping the post out of the purview of the office of profit.
GVB: So, the problem was that in Delhi, the government made the appointments first and then passed the bill?
PP: In Delhi, they first made the appointments and when the petition was filed against it, then, four days later, they passed a bill in a hurry without even following the procedures.
GVB: Would it have been okay if they would have passed the bill first and then made the appointments?
PP: Yes, there would have been no problem if they would have passed the bill first, taken the centre’s approval and then made the appointments of parliamentary secretaries.
GVB: AAP says they were not giving any monetary benefits or perks and so, these appointments of parliamentary secretaries do not come under the definition of office of profit.
PP: The definition of “profit” is very broad. Profit is not merely money. It can be given or passed on in many forms. I also did not mention monetary benefit or pecuniary benefits in my petition. Basically, MLAs are part of the legislature and when you become a parliamentary secretary, it is not a constitutional post. Rather, you become attached to the ministries and become a part of the executive. In Delhi, which has 70 MLA seats, there can be only seven ministers. But now, when 21 people are made parliamentary secretaries, they become a part of the executive, whereas their responsibility was towards the public. So, how will they raise the questions for them? Now they have become a part of the government, which has seduced them. So, they will not be able to represent the people properly. So, it is a clear violation of the constitution.
Secondly, the prestige of the MLAs increases when they become parliamentary secretaries. They get patronage and their status is enhanced. The other MLAs do not have rooms in the assembly, but these MLAs do. Other MLAs do not write the designation of “parliamentary secretary” with their name, but these 21 do. Their status has increased. This is profit.
You become a part of the executive. The post itself is a profit. You come under the minister and assume the role of a deputy minister. All the 21 MLAs are attached to one ministry or the other. Besides, these parliamentary secretaries have also been provided official vehicles, which is also a profit.
GVB: AAP is accusing you of being a BJP agent. What do you have to say?
PP: I have no association with BJP. For the last one year, I have been working as an independent person. When I filed the petition last year, the reply was filed and they did not accuse me of being a BJP person. This is a straightforward legal matter, what has it got to do with a government or party? This only pertains to the president and the Election Commission.
But if someone has to divert the issue, they can always take the plea.
Even if I were associated with a party, does it take away my legal rights to complain? Arvind Kejriwal was trying to get an FIR registered against Sheila Dikshit, so, was that also for politics alone?
I have no links to the BJP, Congress, RSS or any other political group.
GVB: You are only 29 years old. For how many years have you been practising law?
PP: I have been practising law for the last two years. Earlier I had done my MBA and I was in the corporate line. But my interest was in the social field. So, I came to this side.
GVB: Is this your first major case or have you raised issues of public interest earlier too?
PP: I had also filed a petition in the Jawaharlal Nehru University matter in the Supreme Court and the high court. When Kanhaiya had approached the Supreme Court on February 19, I had intervened, saying that the bail procedure starts from the trial court. My petition was on the issue of procedure. The Supreme Court had accepted my plea and had sent him back to the high court, though I had asked that he be sent to the trial court. My complaint was not against Kanhaiya, but against the procedure and that the law be the same for all.
I had also filed a complaint against, and got an FIR registered against film actor Aamir Khan at the time of release of his film PK in 2014 for hurting the religious feelings of the people.
My belief is that religion is a personal issue and it is not right to hurt anyone’s feelings.
GVB: Perhaps it is for these reasons that you are seen as a right-wing activist and a BJP supporter?
PP: Maybe. But, I had also raised the issue of corruption in Shriram Bharatiya Kala Kendra when Leela Samson was its chairperson. It was related to illegal construction on campus.
I just raise legal points. I stand up against what I believe is against the law.