Setting the stage for the disqualification of 20 AAP MLAs and another confrontation involving the party, the Election Commission has found them guilty of holding office of profit by being parliamentary secretaries to Delhi ministers. The EC is learnt to have conveyed its opinion to the President Friday afternoon. Chief Election Commissioner (CEC) A K Joti, who is set to retire in two days, refused to comment on the issue, citing the quasi-judicial nature of the proceedings.
Based on the EC’s opinion, President Ram Nath Kovind is now expected to pass an order on the petition filed by an advocate, Prashant Patel. Under the law, the President is bound by the EC’s view on matters of office of profit and, therefore, the disqualification of the MLAs seems inevitable.
Six AAP MLAs sought an immediate stay on the EC order but the Delhi High Court declined to pass any interim order. The court will hear the matter Monday.
Justice Rekha Palli directed the EC counsel to take instructions on whether a final order for disqualification had been passed by the poll panel. “Presently, I am not inclined to pass any interim order. It is deemed appropriate for the respondent to find whether a final order has been passed by them and whether the same has been sent to the honourable President,” she said.
The High Court also questioned the conduct of AAP MLAs, saying they did not appear before the EC by taking the stand that their pleas were pending in court. “You (AAP) very conveniently say that the HC is seized of the matter. You cannot dictate terms to the EC. Just because the court issued notices, you took the whole system for granted,” Justice Palli said.
“You were aware of the ongoing proceedings at the EC. Despite that, you did not press for a stay during proceedings in the High Court on November 21,” she said. On that date, a bench was hearing petitions of 21 AAP MLAs who had challenged the maintainability of the EC proceedings.
“The EC kept giving you reminders but you did not bother to respond. Presently, I am not looking at the merit of the case but your conduct,” the judge said.
Counsel Manish Vashisht, appearing for one of the MLAs, said the EC did not inform them prior to passing such an order. He said all MLAs had filed a detailed reply as sought by the EC and had mentioned the litigation pending in the High Court.
At this, Justice Palli said: “You have used the pendency of your pleas in the High Court as a shield… The High Court did not prevent you from appearing before the EC,” she said.
An office of profit prohibits MPs and MLAs from accepting government positions that carry some financial remuneration or pecuniary gain. If the office carries with it or entitles the holder to any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit, according to a Supreme Court order in 2006 upholding Jaya Bachchan’s disqualification from Rajya Sabha. Any violation of this provision attracts disqualification of the legislator.
The EC had first received a reference from the President on November 10, 2015, seeking its opinion on the petition filed by Patel on June 22, 2015. The petitioner had sought disqualification of 21 AAP legislators for holding office of profit as parliamentary secretaries to ministers of the Delhi government.
While the EC was hearing the matter, the High Court, on September 8, 2016, set aside the appointment of the 21 MLAs as parliamentary secretaries. In the wake of this development, the AAP pleaded with the EC that the office-of-profit case is no longer “maintainable” since the question of profiting from an office set aside by the court does not arise.
But on June 23, 2017, the EC said it will continue hearing the case because, in its opinion, the AAP legislators had held the office of parliamentary secretaries from the date of their appointment — March 13, 2015 — till the date it was set aside by the the High Court — September 8, 2016. Therefore, the party’s interpretation that its MLAs did not hold any office was “not legally tenable”, the EC said.