Delhi High Court setting aside disqualification of 20 AAP MLAs raises questions over role of EC
The order means that while the legislators will not be immediately disqualified, they are not yet out of danger.
In what will bring some relief to the Aam Aadmi Party, the Delhi High Court on March 23 set aside the January order of the Election Commission disqualifying 20 of its MLAs from the Delhi Assembly for holding offices of profit.
The HC has directed that the poll panel hear the MLAs again. This means that while the legislators will not be immediately disqualified, they are not yet out of danger.
“Opinion of Election Commission of India (given to the President of India) dated January 19, 2018, is vitiated and bad in law for failure to comply with principles of natural justice,” the court said.
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— Arvind Kejriwal (@ArvindKejriwal) March 23, 2018
The AAP had claimed that the order was passed in “complete violation of natural justice”, as the MLAs were not given an opportunity to explain their stand before the EC. They had also claimed that the post of parliamentary secretary, which they had been holding, did not entail any profit, as they were not being paid salaries.
On the other hand, Amit Sharma, appearing for the Election Commission, had argued that the pecuniary benefit was not the only requirement to establish an office of profit, and discharging duties as parliamentary secretaries could be counted as such. The EC also said that the MLAs had been adequately heard, as they were given the opportunity to file written submissions in their defence.
The MLAs had been appointed as parliamentary secretaries to the six ministers in the Delhi cabinet. The Constitution prohibits members of Parliament and MLAs from holding any government position that has any kind of benefit – financial remuneration, office space, official vehicles – attached with it.
What the order means
The order has come as a breather to the AAP, as 20 of its legislators are not going to be disqualified immediately. But more than that, it is a moral victory for the party, which had accused the Election Commission of high-handedness and acting on the behest of the BJP in passing the order.
While the HC verdict calling the order “vitiated” and “bad in law” has vindicated the AAP’s stand, it calls into question the EC’s role.
Not just the AAP, but many other legal experts, activists, and politicians, including Bengal chief minister Mamata Banerjee, had raised concerns over the order, accusing the BJP of using “a constitutional body for political vendetta”. The HC verdict seems to lend some credence to their charges.
A Constitutional body cannot be used for political vendetta. The 20 AAP MLAs were not even given a hearing by the Hon EC. Most unfortunate. This goes against the principles of natural justice.At this hour we are strongly with @arvindkejriwal and his team
— Mamata Banerjee (@MamataOfficial) January 19, 2018
However, it is to be hoped that continued hearings on the issue will help clear up the office of profit case, which time and again crops up to unseat MPs and MLAs.
In May 2006, Sonia Gandhi had to resign from her Lok Sabha seat and seek re-election because she was holding the additional office of chairperson of the National Advisory Council, a cabinet-rank post. A few months later, Parliament passed the amended Parliament (Prevention of Disqualification) Act, 1959, despite the then president APJ Abdul Kalam raising concerns over the lack of “unambiguous” definition of “office of profit”.
What the Delhi controversy is about
As an earlier DailyO article notes, the office of profit controversy has been simmering ever since the Aam Aadmi Party marched into the Delhi Assembly winning a massive 67 out of 70 seats. While the number of ministers that the Delhi cabinet can have is capped at six, the AAP appointed 21 lawmakers as Parliament secretaries in March, 2015. One of the MLAs, Jarnail Singh, resigned in 2017 to contest the Punjab elections.
The AAP’s move was met with protests, with the Opposition saying such a large number of Parliament secretaries was unnecessary and the AAP was wasting public funds to appease some leaders by creating posts for them.
In June of that year, advocate Prashant Patel petitioned the then president Pranab Mukherjee that the MLAs were holding "office of profit" and should be disqualified. The president sent the matter to the Election Commission.
To stem the controversy, the Delhi Legislative Assembly in the same month passed the Delhi Member of Legislative Assembly (Removal of Disqualification) (Amendment Bill), 2015 excluding parliamentary secretaries from "office of profit" with retrospective effect. Mukherjee, however, refused to give his assent to the bill.
In July 2016, the Election Commission held a hearing for the 21 MLAs, and in September, issued showcause notices to them. Meanwhile, in the same month, the Delhi HC, hearing a separate PIL filed by NGO Rashtriya Mukti Morcha, set aside the appointment of the parliamentary secretaries, after the AAP accepted that the decision had been taken without the Delhi lieutenant-general’s nod.
After this, the MLAs petitioned the EC, saying it shouldn’t entertain the office of profit case against them because the HC had set aside their appointment. In June 2017, the Election Commission rejected the MLAs' plea, and in October, issued a notice seeking explanation from them.
Who are the MLAs
The 20 MLAs facing disqualification were: Naresh Yadav (Mehrauli), Som Dutt (Sadar Bazar), Praveen Kumar (Jangpura), Nitin Tyagi (Laxmi Nagar), Adarsh Shastri (Dwarka), Sanjeev Jha (Burari), Jarnail Singh (Tilak Nagar) – the one who resigned was MLA of Rajouri Garden – Sukhvir Singh (Mundka), Madan Lal (Kasturba Nagar), Sarita Singh (Rohtas Nagar), Alka Lamba (Chandni Chowk), Rajesh Rishi (Janakpuri), Anil Kumar Bajpai (Gandhi Nagar) Manoj Kumar (Kondli), Kailash Gahlot (Najafgarh), Avtar Singh (Kalkaji), Vijendar Garg Vijay (Rajinder Nagar), Rajesh Gupta (Wazirpur), Sharad Kumar (Narela) and Shiv Charan Goel (Moti Nagar).