Is EC disqualifying 20 AAP MLAs a question of ‘office of profit’ or witch-hunt?

In a volatile development, the Election Commission of India, headed by Achal Kumar Joti, has recommended to the president of India the disqualification of 20 MLAs of the Aam Aadmi Party and part of the Arvind Kejriwal-led government of Delhi, over “office of profit”. The EC has indicated that the legislators be disqualified for holding offices of profit as parliamentary secretaries, and the president is bound by protocol to follow EC guidelines on this matter, while taking the ultimate call in this regard.

While the AAP has approached the Delhi High Court against the EC recommendation, it still has a comfortable majority in the 70-seat Delhi Assembly, retaining 46 MLAs, 11 more than the 35 halfway mark. However, given that the president wouldn’t have any choice, but to go by the EC’s recommendation, the decision has been mired in controversy, quite expectedly.

While public prosecutor Prashant Patel Umrao led the case against AAP MLAs accused of office of profit, the decision is being lapped up by the BJP, with many of its members tweeting about it. On the other hand, AAP members and neutral observers have voiced their concern over the EC eroding the democratic mandate of the people of Delhi in one stroke, but deciding to disqualify the MLAs over an issue that’s neither exclusive to the AAP alone, nor has been proven adequately and exhaustively in the court of law.

While the AAP will challenge the poll panel’s decision in the Supreme Court, its members have publicly disputed the very premise of “office of profit”, saying no benefits were taken. AAP’s Saurabh Bharadwaj has said: "Office of profit is when someone benefits. I want to ask do they use official bunglow or car? None of them can be accused of earning any salary or official facility. This entire matter was to be presented before the Election Commission. Till now there has been no hearing in this case before the Election Commission. The basic principle of justice is that the accused in the matter is given a chance to explain their point of view. No MLAs were summoned; they were not given chance to explain their version."

In fact, this is the stance that CM Kejriwal and his party members have consistently held, saying appointments violate no rules because there is no salary that’s drawn by any of the AAP legislators as parliamentary secretaries. On the other hand, political rivals in and outside Delhi have repeatedly asserted that perks such as offices and cars were equally about office of profit, and must be acted against.

The context of this tussle between AAP and others, including the Election Commission, had started when right after winning the landslide in Assembly polls of 2015, CM Kejriwal appointed 21 MLAs as parliamentary secretaries. It was then that public prosecutor Prashant Pratel Umrao appealed to the president of India that this was an “unconstitutional” move that should be examined by the EC thoroughly, after recommendation from the president.

Not just the BJP that’s celebrating, but even the Congress had petitioned the EC that the 21 MLAs should be disqualified over the same office of profit issue. In fact, the Delhi High Court had set the appointments aside in 2016 citing the fact that the Delhi lieutenant governor had not okayed them, and therefore they don’t really hold official merit.

Precisely why, the Delhi Congress chief Ajay Maken has addressed the media today, saying Kejriwal himself should step down since it was him who had made those appointments, and therefore didn’t have any “moral right to continue”. Similarly, BJP leaders like Sambit Patra and Vijay Jolly have welcomed the EC suggestion, branding it as “final nail in the coffin of Delhi government”, and “misgovernance” of the AAP in the capital.

Jolly said: "This should be an eye-opener for the misgovernance of the Aam Aadmi Party in the capital. They have subverted the constitutional norms of the government in the capital and misused the official machinery appointing parliamentary secretaries and total disregardance of the laid down norms, rules and regulation concerning the government. The Election Commission verdict is the final nail in the coffin of the Delhi government and also in the tall claims of AAP and its deliverance of the Justice to people of national capital."  

But is this the whole story? Isn’t the LG’s reluctance to clear the appointment also a part of the three-year struggle that the AAP government faced vis-à-vis the central government in New Delhi, headed by Prime Minister Narendra Modi?

The battle that’s now legendary has been seen as subverting the Constitution repeatedly, and the LG, particularly the previous office-bearer Najeeb Jung, had been accused of acting like Centre’s man in the NCR, colliding with the Delhi government of Arvind Kejriwal and scuttling its administration in myriad ways.

The result of the disqualification would be by-election in the 20 Assembly constituencies, and there is a chance that AAP wins back many of them, given its work in education and healthcare is being appreciated by Delhiites. While whether or not this is a case of “witch-hunt” is a question that can be best decided by the courts, the larger context of Delhi versus Centre tussle in today’s development must not be forgotten, since it impacts the federal structure of India at its very core.

Also read: Why AAP scares Modi