The sudden recommendation of the Election Commission to disqualify 20 Aam Aadmi Party MLAs and the post haste Presidential order to disqualify them in January this year had raised eyebrows over the conduct of the EC and the Delhi High Court’s reversal of their disqualification now has underlined the need to respect principles of democracy and natural justice.
The EC had declared that the MLAs were holding “office of profit” just two days before the retirement of AK Joti as the Chief Election Commissioner. Joti, who had served as chief secretary of Gujarat when prime minister Narendra Modi was the chief minister of that state, appeared so much in a hurry to give his recommendations that he failed to even give a chance to the MLAs to defend their position. With the President taking an uncharacteristic quick decision in less than a day to disqualify the MLAs, it was clear that there was more that what met the eye.
In a stinging directive the High Court has declared that the EC recommendation in the office-for-profit case was “bad in law…. and failed to comply with the principles of natural justice”. While calling the recommendations ‘vitiated’ it asked the EC to hear the matter afresh and also decide the “all important and seminal issue” to define “office of profit in government”.
Thus the AAP has got only a temporary relief and it shall have to appear before the EC again with just arguments that appointment of the MLAs concerned as Parliamentary Secretaries to ministers was not an office of profit. AAP leaders have been taking the plea that none of these MLAs were drawing any salary or was claiming any perks for appointment as Parliamentary Secretary.
Several states in the country have adopted the system of appointment of MLAs as Chief Parliamentary Secretaries to the Chief Minister but in the case of Kejriwal government it appointed Parliamentary Secretaries to ministers. Unfortunately for the Kejriwal government, and thanks to its tussle with the Centre, the then Lieutenant Governor refused to endorse the amendment proposed to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act. In this light, the High Court had already set aside the appointments. Despite this the EC took up the case that led to their disqualification.
The moot question now is whether MLAs assisting the chief minister or ministers can be charged with holding an office-of-profit. More so if they are not drawing any emoluments. Those who consider it office-of-profit point out that even if the legislators do not draw any emoluments, they wield influence and enjoy powers not due to them.
The point, however, is whether MLAs appointed with the government (and not in private organisations) should be treated at the same level ? In fact there are several MLAs in different states, who continue to face much serious and criminal charges and still remain members of Parliament or State Assemblies. Taking a recent example, former Bihar chief minister Lalu Prasad Yadav, continued to hold office for years after the crimes were committed. It is only now that he is being awarded punishments in a series of cases involving corruption in fodder and other scams.
Likewise there are dozens of MPs and MLAs who are facing serious charges ranging from murders to corruption but are nevertheless carrying on with the membership of Parliament and Assemblies. Compared to these, the grounds for disqualification of the AAP MLAs are very weak.
Under the current laws only those convicted by courts for criminal offences can be disqualified from membership of legislatures. Those facing prosecution in the courts can carry on and as is well-known it takes several years, even a life time, to get the final judgment.
The High Court judgement in the AAP office-of-profit case has set up a precedent where constitutional machineries cannot arbitrarily take decisions without due process of law. In the long run such institutions would hopefully get a deterrent. The Election Commission, which has been maintaining a tradition of keeping itself above board, has certainly dented its image by the hurried and malafide order by Joti. The ruling dispensation, which undoubtedly played a role in the entire episode, would also hopefully have learnt a lesson. It obviously cannot ride roughshod with its influence on various institutions.
As for AAP, it is still only a temporary reprieve. The order has given AAP leaders some reason to smile after a long long time but it can’t expect reversal of adverse public perception building up against it. The High Court verdict is no vindication for its performance or even the siege mentality it appears to be suffering from.


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