In September last year the Meghalaya Legislative Assembly passed the Prevention of Disqualification (Member of Legislative Assembly Meghalaya) Amendment Bill, 2015, which barred legislators from simultaneously holding the post of members of the autonomous district councils.This Bill was allegedly passed to pre-empt a Court ruling pending a Public Interest Litigation which challenges why an MLA who is also holding the post of MDC cannot be disqualified under the Office of Profit clauses flowing from Articles 102(1) and 191 (1) of the Constitution. The PIL brings in the contentious argument that an MLA who is also an MDC receives a salary for both posts and is therefore violating the Office of Profit clauses which prescribe restrictions at the central and state level on lawmakers accepting government positions. Any violation attracts disqualification of MPs or MLAs, as the case may be. The dichotomy arises because the term office of profit has not been clearly defined in the Constitution.
Sonia Gandhi, a member of Lok Sabha, was appointed the chairperson of national advisory council by the UPA- 1 government. After the issue of office of profit was raised, she quit as an MP and sought re-election. The Prevention of Disqualification Act was amended in 2006 to add the position of NAC chairperson to the list of exempted posts. The then Speaker Somnath Chatterjee, too, faced disqualification but was saved by amending the Act. MP Jaya Bacchan of the Samajwadi Party lost her seat for holding the post of chairperson of the Uttar Pradesh Film Development Federation. The Act was again amended in 2013 to save the chairpersons of the National Commission for the Scheduled Castes and National Commission for Scheduled Tribes from disqualification.
In that sense the disqualification clauses can be played around with to protect those that the system desires to. In the case of the 21 MLAs of the AAP who also held the posts of Parliamentary Secretaries, President Pranab Mukherjee has refrained from giving assent to the amendment of the disqualification clause passed by the Delhi Assembly.
In the case of Meghalaya the holding of dual posts of MLA and MDC is to be seen from the point of it being a direct conflict of interests since the laws passed by the Council can be struck down by the Legislature under Article 12 (A) of the Sixth Schedule. How can MDCs who are also MLAs pass a law in the Councils and revoke the same in the Assembly? This is confounding to say the least. So more than the office of profit it is the conflict of interest issue that the voters should be engaging with.