Why Delhi HC quashing disqualification of AAP MLAs is a big win for us
On March 23, the High Court (HC) of Delhi, in a landmark judgement, quashed (not set aside or stayed) the Election Commission of India’s (ECI) order of disqualifying 20 Aam Aadmi Party (AAP) MLAs, and advised ECI to re-hear the case on its merits. The EC had ruled that the 20 MLAs had, in violation of established legal norms, occupied an “Office-of-Profit” while discharging duties as parliamentary secretaries.
In the past, constitutional and legal experts like former Secretary General of Lok Sabha, PDT Achary, and Faizan Mustafa, Vice-Chancellor of NALSAR, have gone into the details of the speciousness of the ECI’s order disqualifying the 20 AAP MLAs and have shown that this case has more to do with political partisanship and blatant abuse of constitutional institutions rather than any legal infirmities on AAP’s part.
Let us now see what the High Court’s stinging order states:
- “…Opinion of the ECI dated 19th January, 2018 is vitiated and bad in law for failure to comply with the principles of natural justice…”
- “…Petitioners (that is AAP MLAs) were not given an opportunity to oral hearing before the opinion on merits was authored… and thus the principle of natural justice was violated…”
- “…Petitioners (that is AAP MLAs)…were kept in dark and not informed…that Mr. O.P. Rawat (Present Chief Election Commissioner)… who earlier recused himself from the case… had agreed to rejoin the hearings…and this could have affected the petitioner’s response…”
Such damning indictment shows that the ECI, in its haste to pass the disqualification order and please its political masters, committed blatant procedural lapses and was in clear contravention of nemo iudex in causa sua (rule against bias) and audiatur et altera pars (right to a fair hearing) – both vital and essential to the concept and form of natural justice in free and fair democracies such as ours.
In its order dated July 23, 2017, the ECI, giving a lease of continuity to a case which had been languishing in its coffers for over two years, had remarked that it would continue hearing the office-of-profit case and would intimate the next date of hearing to the parties concerned.
However, the poll panel failed to hold a single oral hearing thereafter, and on January 19, 2018, after an unexplained abeyance of six months, passed the order of disqualification and sent it to the President of India, who assented to it, rendering the Vidhan Sabha membership of 20 AAP MLAs null-and-void.
It is true that as per Section 146 of the Representation of People’s Act (1951), the ECI is vested with the powers to decide whether oral hearings are required in a case or not. However as a proponent of jurisprudence, it is assumed that in complex issues such as disqualification of democratically elected representatives, the ECI would follow a just and fair procedure of investigation and the accused would be given ample opportunity to present their contention – something it failed to do.
In this instance, even the esteemed office of President of India does not cover itself in glory. It is usually an accepted norm that the President takes considerable amount of time before assenting or dissenting in such cases to avoid undue haste and errors of judgement.
Instead, what we saw was that the President received the 54-page, detailed order from the ECI when he was overseas on Presidential duties, and instead of pausing for a breath, he assented to it immediately, that too on a Sunday. Contrast this with the fact that the last time the ECI sent its opinion in an Office-Of-Profit case, the President took 86 days to act upon it.
What was the tearing hurry is indeed the question on everybody’s lips.
It is said that even the slightest appearance of misuse of power on part of the judiciary or constitutional institutions can jeopardise the independence of such bodies. The Election Commission, thanks to its constitutional mandate, had been, so far, relatively untouched by political interference. However, it is now clear that the totality and finality with which rules and precedents are infringed upon left, right and centre, public institutions (or whatever is left of them) under the present political dispensation have become mere tools of oppression, repression and political vendetta.
First Arunachal Pradesh, then Uttarakhand, and now Delhi – the BJP has repeatedly tried to play a dangerous and clever by half power game – and has ended up with an egg on its face every single time.
Friday’s judgement, though a victory for democracy and a re-affirmation of faith in the judiciary, was yet another stone in the epitaph of constitutional autonomy in India. It is high time that the Centre stops playing fast and loose with basic democratic processes and constitutional norms.
(Pranav Jain works with the AAP and the Delhi government on key issues.)