Arvind Kejriwal’s AAP government in Delhi is in trouble. The bill, which would retrospectively legitimise the appointment of 21 MLAs as ‘parliamentary secretaries’, has been turned down by the president. This move of the centre can lead to a constitutional quagmire, as these 21 MLAs can face disqualification on the charge of holding an office of profit.

While various quarters have already petitioned to the president to disqualify them on this charge, it remains to be seen how the matter unfolds in the days to come.

At the core of this controversy is the post of parliamentary secretary – not a very clearly defined position. According to Wikipedia, a tradition evolved within the Westminster model of democracy to appoint people as parliamentary secretaries, who would assist ministers in discharging their duties. In India, it is neither a prominent feature nor a regular affair in all states. However, after the 2004 cap on the size of the council of minister after the 91st amendment of the constitution, many chief ministers have taken recourse to this provision to placate more and more MLAs.

The post of parliamentary secretary is a win-win situation for all: for the CM as well as for the MLAs who get a position – and trappings – of power with a beacon light atop the car and all that. Thus, many states have instituted the post.  A parliament secretary often holds the rank of minister of state and has the same entitlements and is assigned to a government department.  Manipur, HP, Mizoram, Assam, Rajasthan, Punjab, Goa are some of the states where MLAs have been appointed parliamentary secretaries by the government, according to a PRS Legislative Research blog.

However, its constitutional status is not very clear. As the PRS Legislative Research blog highlights, various high courts have deemed the appointment of parliamentary secretaries unconstitutional and have ruled against such appointments often in the past.

In 2005, the Himachal Pradesh high court cancelled the parliamentary secretaries’ appointment in the state government, calling them “usurpers of public office since their appointments did not owe their origin to any constitutional or legal provision”. In 2009, the Bombay high court followed suit for a similar move in Goa. Later, courts in Rajasthan, Punjab and Haryana also acted on the same line.

And, yet, that has not deterred political leaders from virtually expanding their cabinet by this means. Before Kejriwal, it was then Gujarat chief minister, Narendra Modi, who exploited this opportunity ahead of the general elections 2009 to keep six MLAs happy. They were to enjoy the powers of deputy ministers and also be allotted official bungalows, cars and all other facilities given to state ministers, the Times of India then reported.