Factsheet and Reality-check of proposed/actual hike in Salary, Allowances and other Amenities to MLA(s) in Delhi and in some other States

Factsheet and Reality-check of proposed/actual hike in Salary, Allowances and other Amenities to MLA(s) in Delhi and in some other States

(A) Existing Salaries, Allowances And Other Amenities to  Delhi MLA(s)
(w.e.f. 04-11-2011)

1. Salary Rs. 12,000/- per mensem
2. Constituency Allowance Rs. 18,000/- per mensem
3. Secretarial Allowance Rs. 10,000/- per month
4. Conveyance Allowance Rs. 6,000/- per month
5. Telephone Facilities Rs. 8,000/- per month to meet the cost of telephone call charges
6. Daily Allowance Rs. 1,000/- per day (subject to a maximum up to 40 days per year) for attending Assembly session/committee meetings etc.
7. Conveyance Advance Upto Rs. 4,00,000/- (repayable within his office term)
8. Medical Facilities Free medical treatment and/or reimbursement and free accommodation in all hospitals run by the Government and all other panel or referral hospitals empanelled or declared as such by the government in accordance with the Medical Attendance Rules and the DGEHS as amended from time to time on priority basis as available to Group –A officers of the highest grade of the Government, provided that a compulsory monthly contribution shall be levied from every MLA at the same rate as would be payble by a Group-A officer of the highest grade of the Government which shall be recoverable from the monthly salary bill of the MLA.
9. Pension Every ex-Member who has served as Member either of the Legislative Assembly of NCT of Delhi or Member of the erstwhile Metropolitan Council of Delhi or of the erstwhile Delhi State Legislative Assembly as the case may be, shall be entitled for pension of Rs. 7,500/-p.m. for the first term of his membership and an additional pension of Rs. 1,000/- p.m for every successive year of his membership beyond the first term.
10. Family pension After the death of a member during his term of office or an Ex-Member (including Ex-Member of erstwhile Metropolitan Council of delhi and Ex-Member of erstwhile Delhi State Legislative Assembly), pension shall be payable to the surviving spouse during the remaining period of life of such spouse until he/she does not remarry and after his/her death to his/her dependent children so long as such dependent continues to be a dependent, provided that family pension shall be equivalent to one-half of the pension which such Ex-member would have received has he retired. Provided that no such family pension shall be payable to a dependent if such dependent is a sitting member of is drawing pension under section 9.
11. Elect. & Water Facility Reimbursement of the monthly electricity and water consumption charges subject to a maximum of Rs. 4,000/- p.m.
12. Traveling Facilities Reimbursement of actual expenditure annually up to maximum or Rs. 50,000/- on a travel within India for self and dependent members of the family.
13. Reimbursement of Data Entry Operator (Salary) Rs. 30,000/- per mensem (Reimbursable for two Data Entry Operators @ Rs. 15,000/- p.m. to each).

Review:  

A close scrutiny of above salary, allowances etc payable to Delhi MLAs reveals that Current “CARRY AT HOME”  salary etc of a Delhi MLA is Rs 12000 (twelve thousand) salary + Rs 4000/- (four thousand) allowance towards electricity & water facility per month.  Rest of the allowances pertains to expenses incurred by a MLA while discharging the duties towards the people of the constituency. And according to me they are highly inadequate to meet the actual expenses which a MLA necessarily has to incur in the course of performing multifarious duties and functions in the constituency. However, the most intriguing thing that always flummoxes me is that how come most of Delhi Ex MLAs and some of the present MLAs kept/keep enchantingly pompous life style in such a meager monthly pay-out. What holds good for Delhi legislators also holds valid for legislators in rest of India and thus, all legislators deserve to be paid adequately? After a recent salary hike of MLAs in Maharashtra, the CM Devendra Fadnavis said “we want MLAs and MLCs to work honestly then, we need take care of them and give a good system. Delhi CM Arvind Kejriwal had also said the same thing.

(B) Proposed hike in Salaries, Allowances and Other Amenities to Delhi MLA(s) through a Legislative Law pursuant to a Expert Committee recommendations

Find attached below (4 images) encapsulating the recommendations of said committee. Also find a table (image) below enumerating existing and proposed monthly pay-out (salary and allowances) and one-time allowances through a legislative law payable to Delhi MLAs

(C)  Recent Salary etc hike in Himachal Pradesh

http://www.tribuneindia.com/news/himachal/5-minutes-100-hike-for-himachal-mlas/219322.html

Tribune News Service

Shimla, April 7

The Himachal Assembly took barely five minutes to pass four Bills enhancing the salaries and emoluments of MLAs and former legislators by almost 100 per cent, putting an additional burden of Rs 16.52 crore on the exchequer.

No disruptions or walkouts, the Assembly on the last day of the Budget session saw complete harmony on the issue. The matter was taken up at 12.55 pm and at 1 pm, all four Bills were passed amidst thumping of desks. The state legislators will now be among the highest paid in the country. The salary of the CM and his ministers will be close to Rs 2.5 lakh and that of each MLA about Rs 2.1 lakh.

The MLAs’ daily allowance has been hiked from Rs 1,500 to Rs 1,800, constituency allowance from Rs 60,000 to Rs 90,000 per month, office allowance from Rs 10,000 to Rs 30,000 per month and computer/data entry operator allowance from Rs 12,000 to Rs 15,000 per month. The travel reimbursement amount has been raised to Rs 2.5 lakh per annum.

The pension of former MLAs has been raised to Rs 28,000 per month and additional pension to Rs 1,000 per month for each successive year after the first term. The limit for travel reimbursement has been raised to Rs 1.25 lakh.

The CM will now get Rs 95,000 a month (excluding perks) and his Cabinet colleagues Rs 80,000. The sumptuary allowance has been raised from Rs 30,000 to Rs 95,000 per month. The free travel reimbursement facility has been raised from Rs 2 lakh to Rs 2.5 lakh. The Speaker’s salary will now be Rs 80,000 and the Deputy Speaker Rs 75,000. Their sumptuary allowance has been increased to Rs 95,000 per month and travel reimbursement to Rs 2.5 lakh. The salaries of CPS have been enhanced to Rs 65,000.

(D) Recent Salary etc hike in Maharashtra

महाराष्ट्र: विधायकों की सैलरी में 166 प्रतिशत तक की बढ़ोतरी, पूर्व विधायकों की पेंशन भी बढ़ी

http://goo.gl/9in1ou

मुंबई: महाराष्ट्र विधानमंडल के मानसून सत्र के आखिरी दिन तमाम दलों ने एक राय से विधायकों की सैलरी में 166 प्रतिशत तक की बढ़ोतरी को एकमत से मंजूरी दी. अब महाराष्ट्र में विधायकों को एक लाख 70 हजार रुपये प्रतिमाह वेतन मिलेगा.

अब तक मिलते थे 75 हजार रुपये प्रति माह
महाराष्ट्र में लोकप्रतिनिधि और सरकारी बाबुओं की तनख्वाह में समानता लाने के लिए बीजेपी सरकार ने वेतन बढ़ोतरी का प्रस्ताव रखा था. इसके तहत अब विधिमंडल सदस्यों में पद के अनुसार वेतन का फर्क होगा. मुख्यमंत्री और कैबिनेट मंत्रियों को प्रतिमाह दो लाख रुपये मिलेंगे. जबकि राज्य मंत्रियों को एक लाख 80 हजार और साधारण विधायक को एक लाख 70 हजार रुपये प्रतिमाह वेतन मिलेगा. इससे पहले सभी को हर महीने न्यूनतम 75 हजार रुपये मिलते थे.

पीए की तनख्वाह भी बढ़ी, टेलीफोन ऑपरेटर मंजूर
मौजूदा स्थिति में महाराष्ट्र के मुख्यमंत्री से लेकर साधारण विधायक की तनख्वाह राज्य के मुख्य सचिव की तनख्वाह की आधे से भी कम थी. शुक्रवार को मंजूर वेतन बढ़ोतरी से जनप्रतिनिधि और सरकारी बाबुओं की तनख्वाह में बना अंतर कम होगा. वैसे विधायकों की सैलरी बढ़ाते हुए सरकार ने उनके पीए की तनख्वाह भी हर महीने 15 हजार से 25 हजार रुपये बढ़ा दी है और साथ में 10 हजार रुपये के वेतन पर टेलीफोन ऑपरेटर रखने को भी मंजूरी दे दी है.

x

पूर्व विधायकों को 40 हजार की जगह 50 हजार रुपये पेंशन
इस बीच, पूर्व विधायकों के पेंशन में बढ़ोतरी करना भी महाराष्ट्र सरकार भूली नहीं है. इस पेंशन को 40 हजार रुपये से 50 हजार रुपये प्रतिमाह किया गया है. साथ ही हर टर्म के लिए अतिरिक्त 10 हजार रुपये प्रतिमाह मिलेंगे. इसी के साथ महाराष्ट्र देश का विधायकों को सर्वाधिक पेंशन देने वाला राज्य बन गया है.

वर्ष 2012 में की गई थी वेतन वृद्धि
इससे पहले विधायकों की सैलरी और पेंशन 2012 में बढ़ाई गई थी. तब इसके खिलाफ पत्रकार एसएम देशमुख ने हाई कोर्ट में याचिका दायर कर इसे रोकने की मांग की थी. हाई कोर्ट ने इस मामले में दखल देने से इनकार कर दिया था.

वैसे शुक्रवार को हुई महाराष्ट्र के विधायकों की वेतन बढ़ोतरी दिल्ली में विधानसभा सदस्यों के बढ़ाए वेतन के मुकाबले कम ही है। दिल्ली में विधायकों को प्रतिमाह 3 लाख रुपये बतौर स्टाइपेंड और एलाउंस दिए जा रहे हैं. (this is plain lie..existing salary etc of Delhi MLAs is much low than what is claimed here as stated above and proposed salary is also not 3 lakh as discernible from a table JPEG image attached below)

 (E) Scenario in Haryana (my beloved State)

(a) Facilities/Amenities to Members under the provisions of “The Haryana Legislative Assembly

(Salary, Allowances & Pension of Members_ Act, 1975 and Rules framed under Section 9 thereof”

Sr No	Particulars	Entitled amount/other relevant details
1.	Salary	` 30,000/- P.M.
2.	Daily Allowances	` 1,500/- per day
3.	Other Allowances
	a) Constituency Allowance	` 30,000/- per month
	b) Office Allowances	`  10,000/- per month
	c) Other Allowance if any
	i) Compensatory Allowances	` 5,000/- per month
	ii) Sumptuary Allowance	` 5,000/- per month
4.	Secretarial allowance	A member is entitled to Secretarial allowance @ ` 10,000/- per mensem which the Haryana Vidhan Sabha Secretariat pay to the person notified by the member to the Secretariat as his Secretary and the person so notified by the member is to render assistance to him/her at his/her pleasure
5.	Telephone Allowance	An amount of ` 15,000/- per month is paid is to a Member provided with a telephone, under the Act.
6.	Accommodation	(i) There are 40 rooms in the MLAs Hostel, Haryana and  charges for One room are ` 25.00 per day including Water & Electricity Charges. ii) Telephone has also been provided in each room in the MLAs Hostel, Haryana An amount of `  5/- per day is charged as rent towards local calls. iii) There are 38 MLAs flats, 09 Servant Quarters and 27 Motor Garages for the use of Members. The charges/rent is as under:- a) MLAs Flat @ ` 200/- per month (including furniture charges ) b) Servant quarter @ ` 50.00 per month. c) Motor Garage @ ` 50.00 per month.
7.	Payment of Water/electricity Charges in the MLAs Flats/SQs/MGs	The Members are responsible for the payment of Electricity and  Water Charges at their level.
8.	Private Accommodation facility during Committee tour	Every Member is entitled to hire private accommodation while on tour to other State as a Member of the Committee of Haryana Vidhan Sabha and claim reimbursement subject to the submission of bill upto ` 5,000/- per day.
9.	Medical Facilities	Each Members is entitled to such Medical Facilities for himself and dependent Members of his family including the dependent parents as are provided to Group ‘A’ Officers before the issuance of notification dated 06th May, 1986. A member and members of his family may get medical treatment in case of emergency as indoor patient from a private hospital/ institution and is also entitled to the facility of reimbursement of expenditure subject to certain conditions.
10.	Advances	i) Motor Car Advance: ` 10,00,000/- or anticipated price thereof, whichever is less. He/she can draw second car advance also on the repayment of first motor car advance along with interest thereon which may be for a period or five years or less in a tenure of Vidhan Sabha.
		ii) House Building Advance: a) ` 40,00,000/- for construction of house or purchasing a built up House/flat. b) ` 1,75,000/- for major repairs to the House of MLA.         “Provided that a member who had drawn repayable advance for purchasing a built house or for building a house for the first time, he may draw repayable advance for second time immediately after the completion of recovery of principal amount along with interest on previous advance if:             Provided further that the amount of repayable advance under clauses (a) and (b) shall not exceed fifty  lakhs rupees.”
11.	Traveling Allowance for  journey performed on duty
	i)    By Rail/Air	If a member travels alone or with one companion (spouse or any other dependent family member), he shall be entitled to travel by rail by Air Conditioned 1st Class or by air (Executive class) and will be paid an amount equal to the actual rail fare by Air Conditioned 1st Class or air fare (Executive class) as the case may be, subject to submission of actual rail/air tickets.
	ii) By own Car	` 15/- per kilometer.
12.	Free travel Facilities/Passes	Every member shall be provided with- (i) the facility of free travel which shall entitle him (including members of his/her family) to ravel any place in India or outside India through any mode of transport. He shall be reimbursed the actual expenses incurred by him/her for undertaking such journey subject to a a "maximum of two lac rupees per annum." The Members are entitled to get advance for performing  journey by Air outside India.
		iii) Two free non-transferable passes, which shall entitle him and his wife or any other person accompanying him to travel at any time by any public service vehicle of  Haryana State Transport Undertaking including air conditioned coach and air;
		iii) One free non-transferable pass, which shall entitle him to travel at any time within the state of Haryana or the Union Territory of Delhi or the Union Territory of Chandigarh by any public service vehicle of the Pepsu Road Transport Corporation.
13.	Facility of Laptop	All the MLAs including the CM/Speaker/Ministers/Dy.Speaker/State Ministers/ CPS/PS are provided with a Laptop at the expenses of this Secretariat for a term
14.	Petty Grant	Every Member shall be given a petty grant of ` Three lac per year. Subject to the condition that the entire amount shall be utilized only within their respective constituencies.
15.	Chief Parliamentary Secretary/ Parliamentary Secretary	(a)	Salary	` 50,000/- P.M
		(b)	Sumptuary Allowance	` 12,000/- P.M
		(c)	Office Allowance	` 2,000/- P.M
		(d)	Telephone allowance	` 15,000/- P.M
		(e)	Constituency Allowance	` 30,000/- P.M
		(f)	Daily Allowance	` 1,500/- per day while on official tour up to ceiling of 15 days in a month.
		(g)	Petty Grant	` Three lac annual.
		(h)	Free Traveling facility	` Two lac annual.
16.	Liability to the pay Income Tax	The Members Salaries/Allowances shall  be exclusive of the tax payable in respect thereof under any law relating to income-tax for the time being in force, and such tax shall be borne by the State Government.

                           Facilities/Amenities to Ex-members

1.	Pension/Dearness Allowance to Ex-MLAs and conditions of admissibility
	a) Minimum qualifying period and minimum pension.	Every person shall be paid a pension of ` 10,000/- + `5,000/-  D.P. + Admissible DA per mensem if he served as a member for a period not exceeding five years and an additional pension of `1,500/- per mensem for every additional year or part thereof exceeding a period of five years and if the period of first Assembly membership falls less than the terms of five years of the Assembly, it will be treated as full period of five years for the purpose of pension.
	b) Family pension (rate/conditions of admissibility)	The surviving spouse or after his or her death, the Children (up to the age of eighteen years) of a Member who was entitled for drawing pension under the Act, shall be entitled to draw family pension of ` two thousand  five hundred rupees or fifty percent of the last pension drawn, whichever is higher, per mensum by the Member"
	c) Admissibility of Dearness Allowance on Pension/Family Pension	Every person, who draws pension or family pension or is entitled to draw the same shall, in addition to the pension or family pension, as the case may be, admissible under the Act shall be paid dearness allowance on pensioners of the State Government.
2.	Free Facilities to Ex-MLAs in respect of
	i) Travel	Every person, who is entitled to pension shall be provided with:- a) One free non-transferable pass, which shall entitle him to travel at any time by any public service vehicle of the Haryana State Transport Undertaking including Air-Conditioned Coach; b) One free non-transferable pass, which shall entite him/her to travel at any time within the State of Haryana or the Union Territory of Delhi or the Union Territory of Chandigarh by any public service vehicle of the Pepsu Road Transport Corporation.
	ii) Medical	Each Members is entitled to such Medical Facilities for himself and dependent Members of his family including the dependent parents as are provided to Group ‘A’ Officer before the issuance of notification dated 06th May, 1986. A member and members of his family may get medical treatment in case of emergency as indoor patient from a private hospital/institution and is also entitled to the facility of reimbursement of expenditure subject to certain conditons.
	iii) Accommodation	Rooms are provided to the Ex-MLAs in the Haryana MLAs Hostel at Chandigarh subject to their availability.
	iv) Identity Card	The Ex-MLAs As are also provided Identity cards, which entitle them to avail various facilities.

(b) Ex MLAs in Haryana are receiving pension upto Rs 2,30000/- (two lakh thirty thousand) per month. See below an image incorporating a factoid about quantum of pension etc receivable by an Ex MLA in Haryana.

(c) Salaries and allowances of the Haryana legislators are set for massive increase in Haryana

http://www.tribuneindia.com/news/haryana/community/assembly-nod-to-salary-hike-for-mlas/215986.html

Salaries and allowances of the Haryana legislators are set for s massive increase from April 1 with the Vidhan Sabha today unanimously passing a resolution, clearing decks for a Bill in this regard in the next session.

In the absence of Congress MLAs, the INLD, BSP and Independents batted for the “unprecedented” and “tax-free” increase in salaries, allowance and other fringe benefits, prompting Chief Minister Manohar Lal Khattar to have at dig at legislators saying, “Today, everyone is beaming with joy, there is clapping and unprecedented unity is seen (on the issue).”

Three days ago, a House committee was formed under the chairmanship of BJP chief whip Gian Chand Gupta (Panchkula MLA) to study the salary structure of other states and recommend increase in salaries and allowances.

On the concluding day of the of the Budget Session today, lone BSP MLA Tek Chand Sharma moved a resolution, saying salary and allowances of the MLAs should be increased in view of the “price rise”.

INLD’s Zakir Hussain seconded the proposal, saying it was need of the times. Repeatedly pleading with members, the CM said: “If the House wants, what we can do is when the next session is convened, let’s say after three months, we can have the thing (hike) implemented in retrospective effect from April 1.” The members agreed.

(d)  Red beacons, land for flats to Haryana MLAs recommended

      http://www.tribuneindia.com/.../red-beacons.../216399.html

Red beacons, land for flats to MLAs recommended Published on: Apr 2, 2016, 12:33 AM Pradeep Sharma Tribune News Service Chandigarh, April 1 The committee constituted by the Vidhan Sabha to suggest a hike in salaries and allowances of the MLAs has recommended red beacons atop the vehicles used by the legislators and allotment of land for flats under group housing in Gurgaon or Panchkula. Besides, the committee recommended that former Speakers be provided with all facilities equivalent to the former Chief Ministers . A resolution to hike the pay and perks of the legislators from April 1 was unanimously passed by the Vidhan Sabha yesterday paving the way for a Bill in this regard in the next session. Sources said the committee was of the opinion that as per protocol the MLAs were above the Chief Secretary, they be provided with red beacon atop one vehicle. Currently, they are entitled to amber beacon atop their vehicles. In fact, INLD legislator Zakir Hussain, who was a member of the committee, yesterday pointed out that purchasing a small flat these days cost anywhere between Rs 1and Rs 1.5 crore. This had apparently prompted the committee to bat for the allotment of land for apartments for the legislators under the group housing scheme either in Panchkula or Gurgaon. Meanwhile, the committee also recommended several incentives for the former MLAs, including an increase in pension, family pension, travel in Volvo buses, cash treatment for ex-MLAs and their dependents and reservation of rooms in state guest and circuit houses @Rs 200 per day. Exemption from income tax on the pattern of the sitting MLAs, exemption from toll and nomination as the exofficio members of the respective district grievances committee were other recommendation for the former MLAs
(e) Haryana MLAs exhibit drive, salary up by 60%

http://www.tribuneindia.com/news/haryana/haryana-mlas-exhibit-drive-salary-up-by-60/288663.html

Pradeep Sharma

Tribune News Service

Chandigarh, August 31

On the last day of the monsoon session of the Vidhan Sabha, the Haryana legislators today unanimously voted for themselves a hefty pay hike — over 60 per cent —which will take their monthly salary to Rs 1.5 lakh from the current Rs 95,000. The hike will be effective from  April 1.

Moving the Haryana Legislative Assembly (Salary, Allowances and Pension of Members) Amendment Bill, 2016, Parliamentary Affairs Minister Ram Bilas Sharma cited the ‘rise in the cost of living’ as the reason for the substantial hike in the monthly salaries, allowances and fringe benefits to the legislators. The hike will put an additional burden of over Rs 9 crore on the state exchequer per year. 

After revision, the salary and allowances would include the monthly salary (Rs 40,000, up from Rs 30,000), constituency allowance (Rs 60,000, up from Rs 30,000), office allowance (Rs 25,000 from Rs 10,000), telephone allowance (Rs 15,000, without any increase) and sumptuary allowance (Rs 10,000 from Rs 5,000 at present). 

However, the ‘tax-free’ salary excluded  daily allowance of Rs 2,000 per day (up from Rs 1,500 per day at present) and Rs 3 lakh per annum free travelling allowance (up from Rs 2 lakh currently paid to the members).

A committee constituted by the Haryana Assembly under the chairmanship of BJP chief whip Gian Chand Gupta had recommended an over 100 per cent hike in legislators’ pay and perks in the last budget session.

The salary hike, ironically, came on a day when the ruling BJP MLAs made quite a show of coming to the House on bicycles and rickshaws to promote eco-friendly travel, and also as a symbol of frugality.

 Existing and proposed salary etc in Delhi

Expert Committee Report re Delhi MLAs

Pension etc pay-out to Ex MLAs in Haryana

TAKE-AWAY (MORAL) FROM TODAY’S DELHI HIGH COURT JUDGMENT (RE GOVERNMENT OF NCTD VS UOI, WP© 7887/2015):

TAKE-AWAY (MORAL) FROM DELHI HIGH COURT JUDGMENT (RE GOVERNMENT OF NCTD VS UOI, WP (C) 7887/2015, DOD AUGUST 04, 2016):

Amend the existing legal regime governing the NCTD and empower its elected government. It warrants no constitutional amendment. A simple parliamentary amending law under Article 239AA(7)(a)&(b) will suffice or alternatively, merely slight tweaking of the Government of NCTD Act, 1991 and in particular Section 24  thereof,  and Transaction of Business of the GNCTD Rules, 1993 and in particular Rule 55 thereof  may adequately serve the propose.

OR

Do away with Delhi Legislature/elected government and restore back pre-1993 position.

OR

Put in place a law providing for a “nominated government” in NCTD by the Central Government (Central government will nominate MLAs in each constituency and in turn, they will elect a CM, and CM will appoint Ministers, and Council of Ministers headed by CM  in consultation with Lt Governor (also a Central government nominee) will govern the NCTD.

CAVEAT:

The Hon’ble Supreme Court of India under Articles 131 or 136 R/W Article 142 of the Constitution may also fill the gaps and level-up the inadequacies and inconsistencies in the existing LAW governing NCTD.

(so SHOW IS NOT YET OVER from the standpoint of a final court verdict)…In Supreme Court, the thrust of argument may primarily hinge on:

1. Literal provisions enshrined in Articles 239 and 239AA of the Constitution must be harmonized with peremptory tenets of Parliamentary form of Cabinet system of government ie primacy of ELECTED GOVERNMENT (council of ministers headed by CM) over SELECTED (Administrator/Lt Governor) by Central Government. Besides, “federal character of the Constitution” has been recognized a “basic structure of the Constitution” by the Hon’ble Supreme Court in “basic structure case” (Kesavananda Bharti vs State of Kerala, 1973) itself. Moreover, current dispensation at Centre especially Prime Minister Sh. Narender Modi Ji professes to be great votary of “co-operative federalism”. Furthermore, “Constitution” and “Constitutionalism” go in tandem in a “constitutional democratic republic”.     
2. Special law overrides General law i.e. Article 239 should give way to Article 239AA
3. Functional aspect mounts over nominal aspect i.e. NCTD, although, is not a State but nevertheless the Article 239AA itself mandatorily provides for a Legislature and Elected Government. Conversely, in case of Puducherry, the Article 239A sets out that PARLIAMENT MAY BY LAW create for the Union territory of Pondicherry—a body, whether elected or PARTLY NOMINATED AND PARTLY ELECTED, to function as a Legislature for the Union territory, or a Council of Ministers, or both with such constitution, powers and functions, in each case, AS MAY BE SPECIFIED IN THE LAW. Hence, the NCTD with constitutionally mandated Legislature/Elected Government ought to be treated like a State as far as possible.
4. Article 239AA (6) provides for collective responsibility of council of ministers to the Legislative Assembly. If the LG is not bound by the advice of the council of ministers even on the matters wrt which the Legislative Assembly has power to make laws, there can be no question of it being collectively responsible to the assembly or Delhiites as the council has ‘no control over the process of government decision-making’. 
5. Effect of Constitution 69th Amendment Act, 1991 (inserting Article 239AA) on certain terms viz. State, State Government defined/employed in General Clauses Act, 1897                                   
6. 
    FULL JUDGMENT:                                                                                                         http://lobis.nic.in/ddir/dhc/GRO/judgement/04-08-2016/GRO04082016CW58882015.pdf

Legal Perspective on Anti-nationalism & Unpatriotism in JNU vis-à-vis Law of Treason (देशद्रोह) & Sedition (राजद्रोह) in India

Legal Perspective on Anti-nationalism & Unpatriotism in JNU vis-a-vis law of Treason (देशद्रोह) & Sedition (राजद्रोह) in India

At the very outset, let me clarify that offences of Treason (देशद्रोह) and Sedition (राजद्रोह) are distinctly different and separate offences. Treason (देशद्रोह) is punishable with death penalty or life imprisonment along with mandatory levy of some fine. On the other hand, Sedition (राजद्रोह) attracts a wide range of punishment extending from only fine (yes only fine) to life imprisonment along with or without fine in the discretion of court

TREASON (देशद्रोह): 
The word treason occurs nowhere in the Macaulay’s Indian penal code enacted in 1860 and as further amended several times till this date. However, the offence defined in Section 121 IPC (Waging, or attempting to wage war, or abetting waging of war, against the Government of India) is popularly known as treason (देशद्रोह). The Sections 121A (inserted in 1870), 122, 123 IPC set out offences of conspiracy, preparation, concealment respectively qua treason and are held punishable for imprisonment extendable upto 10 years or imprisonment for life along with mandatory levy of some fine.

Sedition (राजद्रोह):

1. Sedition and IPC:
No offence of Sedition (राष्ट्रद्रोह) in original Macaulay’s Indian penal code of 1860. Sedition brought in Anglo-Indian law in 1870 (further amended in 1898) when Sir Barnes Peacock found that the Indian Penal Code of 1860 had overlooked its inclusion. It may be interesting to know that even today the word ‘sedition’ does not occur in the main body of Section 124A, it is only found as a marginal note to Section 124A, and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known. 
 124A. Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, [***] the Government estab¬lished by law in [India], [***] shall be punished with [im¬prisonment for life], to which fine may be added, or with impris-onment which may extend to three years, to which fine may be added, or with fine. Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation 2.—Comments expressing disapprobation of the meas¬ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.—Comments expressing disapprobation of the admin¬istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section

2. Section 124 A as read down by the Supreme Court (Kedar Nath Singh v. State of Bihar, 1962)
The operation of Section 124A is limited only to such activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace. Very strong speech (or) very vigorous words, very strong criticism of measures by government or acts of official would be outside the scope of the section. Further, merely creating disaffection or feelings of enmity against the government is not sedition. Mere hooliganism, disorder and other forms of violence, though punishable under other provisions of the penal code and under other laws, are not punishable under Section 124A of the penal code.

JNU ISSUE: Various slogans raised and criminality involved as per my understanding of germane law :

1. Pakistan zindabad..Go India go back..'Bharat ki barbaadi tak jung rahegi, jung rahegi…Kashmir ki azadi tak jung rahegi, jung rahegi.. Bharat Tere Tukde Honge. InshaAllah InshaAllah

A clear cut case of sedition made out in terms of section 124 A IPC as interpreted in said Constitution Bench decision of the Supreme Court in 1962 and it needs to be taken to logical conclusion and harshest punishment envisaged in said Section 124 A must be handed-down to perpetrators. However, various media reports suggest that perpetrators are Kashmiri students who are studying in a Government Dental College, Jammu and Kashmir and other Universities/Institutions in India. Further, it appears that some of them have been identified/or most of them are identifiable. Intriguingly, no arrest has happened so far.

2. Afzal hum sharminda hain, tere qatil zinda hai… Tum kitney Afzal maroge, har ghar mein Afzal niklega….Afzal tere khoon se inqualab aayega

A fairly good case of sedition in view of above discussion and also a case of criminal contempt of court… Be that as it may, abolitionists of death penalty across the globe pass off “death penalty” as “judicial killing” or “state sponsored killing or execution”. Mr. Sashi Tharoor’s similar utterance had raised a major controversy recently. Moreover, we can afford to lose sight of undernoted authoritative pronouncements of the Hon’ble Supreme Court at our own peril only: 
(i)Balwant Singh v State of Punjab, (1995), the Supreme Court overturned the convictions for sedition, (124A, IPC) and “promoting enmity between different groups on grounds of religion, race etc.”, (153A, IPC), and acquitted persons who had shouted, “Khalistan zindabaad, Raj Karega Khalsa,” and, “Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da”, late evening on October 31, 1984, i.e. a few hours after Indira Gandhi’s assassination – outside a cinema in a market frequented by Hindus and Sikhs in Chandigarh.
(ii) In Indra Das v State of Assamand Arup Bhuyan v State of Assam (authored by MARKANDEY KATJU, J in 2011) the Supreme Court unambiguously stated that only speech that amounts to “incitement to imminent lawless action” can be criminalized.
(iii) In Shreya Singhal v Union of India, ( SC Judgment of 2015 striking down Section 66A of IT Act, 2000) the Supreme Court drew a clear distinction between “advocacy” and “incitement”, stating that only the latter could be punished.

3. Kanhaiya Kumar
(i) HUM KYA CHAHTE AZADI..

The copious material already available in public domain indicates that he is victim of a well-orchestrated smear campaign of mis-information, dis-information and non-information. The raw footage shows that he was seeking azadi from povery, communalism, unemployment, narrow-mindedness, gender injustice etc etc. The alleged doctored video showed otherwise. A section of media (self-proclaimed SENTINEL QUI VIVE of patriotism, nationalism, sovereignty, integrity etc) went to town flaunting about a CFSL report allegedly nailing down the incotrovertible culpability of Kanhaiya Kumar. Others are reporting that said CFSL report has only authenticated the raw footage and not the doctored video and they are still holding steadfastly to their original version of truth about HUM KYA CHAHTE AZAD. However, JURY IS STILL OUT and hence, instead of indulging into GUN JUMPING SPREE, restraint & wait are well-advised. Besides, mere presence at a gathering (unlawful assembly) doesn't make one culpable. He/she, must be aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to me member of an unlawful assembly. Moreover, every act of unpatriotism and anti-nationalism is not necessarily seditious.

Links of some relevant videos doing rounds in public domain:

http://abpnews.abplive.in/…/jnu-controversy-real-truth-of-…/
http://www.abplive.in/…/revealed-know-the-truth-behind-vide…
http://indiatoday.intoday.in/…/watch-jnu-row-…/1/604700.html …
https://www.youtube.com/watch?v=gn3Xq9eqqbk&feature=youtu.be
http://indiatoday.intoday.in/…/watch-part-3-o…/1/604695.html …

(ii) DUTY TO REPORT

Kanhaiya Kumar was JNUSU, President at the germane time. Was not he legally duty bound to report  to the police about the said seditious activities (more precisely alleged until proved in a court of law) being planned/taking place in JNU campus? Suffice to say that every person (citizen & non-citizen) vide Section 39 of CrPC, 1973 is under a legal obligation to immediately report to the nearest Magistrate or Police Officer if he/she is aware of the commission of, or of the intention of any other person to commit, any offence enumerated therein (in the absence of any reasonable excuse, the burden of proving which excuse, shall lie upon the person so aware). And offence of sedition (124A) finds mention therein. Further, Section 202 of the IPC sets out that “Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”. 
It’s no gainsaid to emphasize that a definitive judgment from a court of law will finally decide on this aspect of the matter. But, nevertheless, 3 things need to be highlighted. Firstly, not only Kanhaiya Kumar but every tom, dick, harry in terms of said Section 39, CrPC was under a legal obligation to report to Magistrate/Police about the said seditious mumbo jumbo/hocus pocus. Secondly, an office bearer of JNUSU belonging to a student wing situated adversely to Kanhaiya Kumar’s student wing, in fact, had reported to the police accordingly. Thirdly, as reported in the media, personnels of Delhi Police were present at the time of seditious occurrences (Read “Was JNU sedition case ‘based’ on a TV report?”, Hindustan Times, 18 Feb, 2016 http://www.hindustantimes.com/…/story-ISAOsXEtdFuFnHJijoqY8… and “3 Policemen Were Present, But Kanhaiya Kumar Case Based On TV Footage” http://www.ndtv.com/…/3-policemen-were-present-but-kanhaiya… )

I have been saying ad nauseam that “first and foremost demand of ” PATRIOTISM & NATIONALISM” today is to strive for the eradication of the evils of “CRONY CAPITALISM; CORRUPTION; CASTISM; politically motivated and sponsored COMMUNALISM”; Self-seeking PSEUDO-SECULARISM; DADGIRI & APPEASEMENT based on CASTE/RELIGION”; DYNASTY politics; CRIMINALIZATION & COMMERCIALIZATION of politics” and “SCOURGE of self-styled GOD-MEN and बाबातन्त्र (CRONY BABAISM)” in addition to menacing threats of “TERRORISM and NAXALIZM” in India. I also wrote in THE TRIBUNE, NEW DELHI, JUNE 25, 2010 a short piece entitled “Fighting terrorism” read thus: 
“It is not so uncommon to hear that India is a soft state for its weak-kneed approach to combat terrorism largely because of want of strong political will and efficacious law (Editorial, “Amending AFSPA: Humane law can’t weaken fight against militancy”, June 22). Terrorism is the worst form of assault on the sovereignty of a nation and sanctity of human lives. Before branding any law as draconian, it must be understood that democracy and terrorism are dichotomous, and to save the former sometimes the state has to take recourse to some unsavoury legal mechanism. Moreover, everything, including the law created by some human agency, is vulnerable to misuse. The remedy lies in minimising such misuse by awarding exemplary punishment. History bears testimony to the fact that the menace of terrorism can be stamped out only if it is confronted with an iron hand. However, the sustained focus on constructive measures in terrorist-infested areas and respect for the notion of human rights will also contribute immensely to the task of eliminating the menace.
RAJENDER GOYAL, Bahadurgarh”
Same also hold true for eradicating the menace of naxalizm.

RELEVANT STATUTORY PROVISIONS:
121. Waging, or attempting to wage war, or abetting waging of war, against the Government of India.—Whoever, wages war against the 75 [Government of India], or attempts to wage such war, or abets the waging of such war, shall be punished with death, or 76 [imprisonment for life] 77 [and shall also be liable to fine]. 78 [Illustration] 79 [***] A joins an insurrection against the 80 [Government of India]. A has committed the offence defined in this section.

121A. Conspiracy to commit offences punishable by section 121.—Whoever within or without Indiaconspires to commit any of the offences punishable by section 121, [***]or conspires to overawe, by means of criminal force or the show of criminal force, [the Central Government or any [State] Government [***], shall be punished with [imprisonment for life], or with imprisonment of either description which may extend to ten years, [and shall also be liable to fine]. Explanation.—To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall make place in pursuance thereof.]
122. Collecting arms, etc., with intention of waging war against the Government of India.—Whoever collects men, arms or ammuni¬tion or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against the [Govern¬ment of India], shall be punished with91 [imprisonment for life] or imprisonment of either description for a term not exceeding ten years,[and shall also be liable to fine].
123. Concealing with intent to facilitate design to wage war.—Whoever by any act, or by any illegal omission, conceals the existence of a design to wage war against the [Government of India], intending by such concealment to facilitate, or knowing it to be likely that such concealment will facilitate, the waging of such war, shall be punished with imprisonment of either de¬scription for a term which may extend to ten years, and shall also be liable to fine.
Section 39(1) in The Code of Criminal Procedure, 1973
(1) Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code, (45 of 1860 ), namely:-
(i) sections 121 to 126, both inclusive, and section 130 (that is to say, offences against the State specified in Chapter VI of the said Code);
(ii) sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquillity specified in Chapter VIII of the said Code);
(iii) sections 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification);
(iv) sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and drugs, etc.);
(v) sections 302, 303 and 304 (that is to say, offences affecting life);
(va) 1 section 364A (that is to say, offence relating to kidnapping for ransom, etc.);
(vi) section 382 (that is to say, offence of theft after preparation made for causing death, hurt or restraint in order to the committing of the theft);
(vii) sections 392 to 399, both inclusive, and section 402 (that is to say, offences of robbery and dacoity);
(viii) section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.);
(ix) sections 431 to 439, both inclusive (that is to say, offences of mischief against property);
(x) sections 449 and 450 (that is to say, office of house- trespass);
(xi) sections 456 to 460, both inclusive (that is to say, offences of lurking house- trespass); and
(xii) sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank notes) shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention.

Section 202 in The Indian Penal Code
202. Intentional omission to give information of offence by person bound to inform.—Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

POST SCRIPT: 28/2/2017

JNU sedition case: Probe gives Kanhaiya Kumar clean chit. India Today exclusive

Anti-India sloganeering did ring through the JNU campus last year, but Kumar's voice has tested negative in forensic tests, sources have revealed. Most of the other slogan shouters were Kashmiri students, sources further added.
Last week's violent fracas at Delhi's Ramjas College has ignited, yet again, a nationwide debate on freedom of speech and what it means to be (anti) national.
The script of the current unrest seems similar to last year's Jawaharlal Nehru University controversy when a group of students was alleged to have raised anti-national slogans.
However, JNU student leader Kanhaiya Kumar raised no anti-India slogans for which he was charged with sedition last year, top officials investigating the case have revealed to India Today, citing forensic examination of voice samples. 
 Controversial slogans resonated through the JNU campus in February, 2016, sparking a national debate on freedom of expression and nationalism.
Bhim Sen Bassi was commissioner of the Delhi police when several students of the Jawaharlal Nehru University, including Kumar, were charged with sedition for alleged anti-India cries.
POLICE YET TO FILE CASE
But an India Today investigation has found police have yet to file a formal chargesheet in the case that involved charges as serious as sedition. Bassi and his successor Alok Verma have, in the meantime, moved on from the city's police force.
A senior special-cell officer, requesting anonymity, said, "We are trying to connect the lose ends and are in the process of filing a chargesheet." The officer added that it would be incorrect to say there is no evidence against accused in the case.
Top sources in the Delhi police's special cell, which is investigating the matter, have revealed they sent as many as 40 video samples of the controversial JNU event for forensic examination
Most of the footage, they said, have been found to be authentic.
UMAR KHALID MAY HAVE RAISED ANTI-INDIA CRIES
Anti-India sloganeering did ring through the JNU campus that day, but Kumar's voice has tested negative in the forensic tests, highly-placed special-cell sources revealed.
Kumar, the investigators said, had reached the scene after a clash broke out between JNU students and Akhil Bharatiya Vidyarthi Parishad activists.
But lab examinations have identified nine students as possible slogan-shouters, including Umar Khalid and Anirban Bhattacharya, special-cell sources said.
Most of the other slogan shouters were Kashmiri students from several universities, Jamia Millia Islamia and the Aligarh Muslim University included, according to special-cell officials.
But no FIR has since been lodged against the Kashmiri suspects, they said.

KANHAIYA: HAVE ALWAYS MAINTAINED MY INNOCENCE
India Today spoke to Kanhaiya Kumar, who said he has not seen this report, but added that he has always maintained that he has been wrongly implicated. "I was always sure that truth will come out... and conspiracy against JNU will also revealed," he said.
He went on to question if those who attacked him when he was brought to court would be booked and also asked if the BJP leaders who spoke against him would apologise.
On the matter of Khalid and Anirban, Kumar said, "Let court decide who is anti national and who should be punished... but this case and event of last February can't be used by the ruling party at their convenience to fool people and defame educational institutions."

http://indiatoday.intoday.in/…/jawaharlal-neh…/1/893780.html

Delhi LG cannot enjoy the best of both worlds

The Tribune, July 2, 2016

Apropos “A legislative Assembly cannot summon the Governor” (June 30), during the final hearing of petitions dealing with separation of powers between the Delhi Government and the Centre, and the interpretation of Article 239AA regarding the powers of the LG, the Additional Solicitor General argued that Delhi remained under Central Government control since it was a UT and that the office of the LG has wider powers than those enjoyed by the Governor of a state since the LG is also an administrator. The Governor enjoys constitutional immunity, but not the LG. The Chief Minister and his council of ministers have to aid and advise the LG but he is not bound by it. If there is a difference of opinion, the issue must be referred to the President. The LG is not a mayor or a titular head. The LG cannot enjoy the best of both worlds. He is either like a Governor of a state (generally bound by advice of council of ministers) and thus enjoys immunity of appearing before the petition committee of the Delhi Legislative Assembly, or like any other executive authority, he is bound to honour the summons of the said committee.

RAJENDER GOYAL, Bahadurgarh     

The original write-up sent to THE TRIBUNE, read thus:

Delhi LG cannot enjoy the best of both

Apropos the article “A legislative Assembly cannot summon the governor” by Devender Singh (30 June),  as reported in the media, during final hearing of a batch of petitions dealing with separation of powers between Delhi Government and the Centre, and on the issue of interpretation of Article 239AA regarding the powers of the Lieutenant Governor (LG) on governance of Delhi, the Additional Solicitor General (ASJ) Sh. Sanjay Jain, appearing for the Centre  inter alia argued in Delhi High Court as follows:

1. That Delhi remains under Central Government control since it is a Union territory not a full fledged State.

2. That the office of the LG is unique and has wider powers than those enjoyed by the Governor of a State, since the LG is also an Administrator.

3. Governor enjoys constitutional immunity but not the LG.

4. The Chief Minister and his Council have to aid and advise the LG but he is not bound by it. If there is a difference of opinion, the issue has to be referred to the President. LG is not a mayor or a titular head. The CM of Delhi is not like that of other States because of Delhi being a Union Territory.

Without commenting on the merits of above contentions of learned ASJ, however, it becomes clear that LG cannot enjoy the best of both worlds. He is either like a Governor of a State (generally bound by aid and advise of Council of Ministers) and thus enjoys the immunity of appearing before Petition Committee of Delhi Legislative Assembly or like any other executive authority he is bound to honour the summons of said Committee.

RAJENDER GOYAL, Bahadurgarh

UNIFORM CIVIL CODE: AN ELUSIVE NOTION

In India, we have different set of laws for various religious communities relating to personal matters like marriage, divorce, adoption, maintenance and property known as personal laws.  UNIFORM CIVIL CODE is the proposal to replace the PERSONAL LAWS  of each religious community in India with a common set governing every citizen irrespective of religion.  Article 44 of the Constitution exhorts the State to endeavour to secure for the citizens a UNIFORM CIVIL CODE throughout the territory of India. However, even a cursory glance through the Hindu Law (applicable on about 81% Indian population) and Mohammedan Law (applicable on largest minority i.e. Muslims constituting about 15% of Indian population) reveals that these laws vary in myriad ways both in theory and practice as applicable on people belonging to different caste, race, sects etc within a religious community. 

Notwithstanding having codified enacted Hindu laws (on inheritance, succession, adoption, marriage, divorce etc), customs/usages having force of law (as saved by said laws) govern different castes among Hindus as discernible from some examples given below:

1.   The Section 3 (g) of Hindu Marriage Act, 1955 enumerating the “Degree of Prohibited Relationship” prohibits the marriage with a widowed bhabhi. However, Kareva marriage (known as latta or chaddar udhana in Haryana) is prevalent in certain castes among Hindus and same has been saved by Section 5(iv) of HMA, 1955 (ie giving primacy to custom/usage). The legal position qua Hindu Marriage may be summed up as “stricter enacted law gives way to liberal custom”.

2.   Section 29(2) of HMA, 1955 saves customary divorce prevalent in certain castes.

3.   Under Mitakshara Law a son (although now daughter also) can ask for partition of ancestral/HUF property from the father during his lifetime.  However, customary law in agriculturist communities among Hindus in northern India does not recognize such right of a son.

4.   Conditions governing adopted child and adoptive person as prescribed by Sections 10 & 11 of the Hindu Adoption and Maintenance Act, 1956 are subject to customs or usages applicable to parties.

Likewise, the Sunni and the Shia schools of Mohammedan Law  do have important points of differences on the matters of Marriage,  Talaq, Dower, Maternity, Guardianship, Maintenance, Gift, Waqf, Pre-emption, Wills, Inheritance e.g.  

1.    Among the Shias temporary marriage (Muta) is lawful but not so among the Sunnis.

2.    The Sunni law prescribes the presence of two male witnesses at the time of marriage which the Shia law does not deem it a necessary condition.

3.    Talaq under Sunni  laws may be effected orally or by a written document. Under Shia law a Talaq must be pronounced orally in the presence of two witnesses and a Talaq communicated in writing is not valid unless the husband is physically incapacitated. Most importantly, Shia Law does not recognize Talaq-ul-Biddat (Instant Triple Talaq).

Uniform Civil Code may indeed be a good proposition. Nonetheless, it's immensely pertinent to mention herein that The Hindu Marriage Act, 1955 clearly enumerates the persons who are out of bounds in the form of ‘sapinda relationship’ and 'degree of prohibited relationship' for the purposes of marriage. At the same time it does not prohibit the same gotra marriage in toto. Marriage with a person placed beyond the third generation in the line of ascent through the mother, and the fifth generation in the line of ascent through the father is valid and legal. However, ultra sensitive disposition of certain people among Hindus especially in northern India over the issue of same gotra/same village/bhaichara/ghwand marriages sometimes even leading to bloodshed  (Honour Killings) although Hindu Marriage Act, 1955  unequivocally permitting such marriages since 1955 shows that every good idea is not necessarily practicable and acceptable to all.

Hence, instead of chasing after an elusive and politically loaded notion of UNIFORM CIVIL CODE, need of hour is to remove the vices (gender discriminations, archaic practices etc) from the different personal laws governing the different religious communities and to modernize them in sync with  the demand and challenges of the modern age to attain UNIFORMITY OF RIGHTS /EQ UALITY OF LAWS (distinguishable from uniformity of laws)  as far as possible in tune with FRs enshrined in part 111 of the Constitution. 

The Tribune’s editorial vis-à-vis imbroglio of the position of the Parliamentary Secretaries in NCTD

The Tribune’s editorial “AAP pays for its duplicity: Kejriwal follows the Badal model” (15 June) (available at http://www.tribuneindia.com/news/editorials/aap-pays-for-its-duplicity/251737.html) is utterly shocking and highly misleading, and to put it in AAP’s plain and blunt characteristic style “it’s a pack of white lies”. Firstly, it justifies the refusal of the President (Constitutionally speaking the Central Government) to give assent to the Delhi Members of Legislative Assembly (Removal of Disqualification) (Amendment) Bill, 2015 on the premise that no such exemptions can be granted retrospectively. However, history belies this contention in toto. During Sheila Dixit regime, the similar law in 2006 had exempted 14 posts/offices from the purview of “office of profit” with retrospective effect from 9 September 1997 and thereby had saved 18 Congress MLAs from disqualification. During UPA-1 regime, the Parliament (Prevention of Disqualification) Amendment Act, 2006 had excluded 45 posts/offices, including the office of Chairperson, National Advisory Council, held by Members of Parliament from the operation of Article 102 with retrospective effect from the year 1959. A challenge was put by an NGO the ‘Consumer Education and Research Society’ in the Supreme Court against the said Parliamentary amending law and the Supreme Court in 2009 upheld the power of legislature to pass such law retrospectively. Even in States viz. Chhattisgarh, Jharkhand and Uttar Pradesh similar laws have been passed in the past.  Secondly, the GNCTD’s order dated March 13, 2015 whereby Parliamentary Secretaries were appointed explicitly states that “Parliamentary Secretaries will not be eligible for any remuneration or any perks of any kind, from the government. However, they may use government transport for official purposes and office space in the minister’s office would be provided to them to facilitate their work”. Conversely, in other States the appointee enjoyed/enjoys the status of Cabinet Minister or Minister of State with associated remuneration, perk and entitlement viz. salary, allowance, luxury car with police escort vehicle, office in the secretariat with staff, fully furnished government house and other facilities in tune with conferred status/rank The Supreme Court way back in 1954 in the case of Ravanna Subanna vs. G.S. Kaggeerappa had  held that even the remuneration which the person gets while holding the office to enable him to carry out day to day expenses (i.e. compensatory in nature)  should not be considered as accruing any profit to holder. Thirdly, it is wrongly set-out that other states have no Delhi-like law on dual office inasmuch as the Article 191 of the Constitutions specifically mandates that a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder. Section 15 of the Govt of NCTD Act, 1991 prescribing similar disqualification for Delhi MLAs is nothing but a replica of Article 191 of the Constitution. Fourthly, even very thinly populated states like Nagaland, Arunachal Pradesh, Meghalaya (current population of Delhi is about 2 crores) have 24, 19, 18 such positions respectively. The record needs to be put straight accordingly.

READ FULL PIECE FOR MORE INFORMATION “THE IMBROGLIO OF THE POSITION OF PARLIAMENTARY SECRETARIES VIS-À-VIS OFFICE OF PROFIT IN NATIONAL CAPITAL TERRITORY OF DELHI @

http://rajkhushiniti.blogspot.in/2016/05/the-imbroglio-of-post-of-parliamentary.html