In a major respite to the Arvind Kejriwal-led Aam Aadmi Party, the Delhi High Court on Friday quashed the Election Commission’s notification disqualifying its 20 MLAs in connection with the office-of-profit case.
A bench of justices Sanjiv Khanna and Chander Shekhar stated that the Centre’s notification disqualifying the AAP MLAs was “bad in law” and termed the EC’s recommendation on disqualification as “vitiated”. Maintaining that disqualified legislators were not given the opportunity to address the issue, the bench remanded their plea back to the EC, which will hear it afresh.
“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.
What is ‘office of profit’ and what are the basic criteria to disqualify an MP or MLA?
The word ‘office’ has not been defined in the Constitution or the Representation of the People Act of 1951. But different courts have interpreted it to mean a position with certain duties that are more or less of public character. However, a legislator cannot be disqualified from either the Parliament or state Assembly for holding any office. It can be done for holding: a) An office; b) An office of profit; c) An office under the union or state government; d) An office exempt by law from purview of disqualificatory provisions. All four conditions have to be satisfied before an MP and MLA can be disqualified.
Basic disqualification criteria for an MP are laid down in Article 102 of the Constitution, and for an MLA in Article 191. They can be disqualified for: a) Holding an office of profit under the government of India or state government; b) Being of unsound mind; c) Being an undischarged insolvent; d) Not being an Indian citizen or for acquiring citizenship of another country
What did Delhi HC say while setting aside Centre’s notification?
In the 79-page order, the bench stated that the opinion of EC is quashed for “violation of principle of natural justice namely failure to give oral hearing and opportunity to address arguments on merits of the issue”. “The order of remand is passed to the Election Commission of India to hear arguments and thereafter decide all the important and seminal issues, like what is meant by expression office-of-profit held under the government…,” the court said. It also asked the EC to re-examine the factual matrix to decide whether the petitioners (AAP MLAs) had incurred disqualification on appointment as parliamentary secretaries, without being influenced by the earlier order or observations on the said aspect in this order.
How did the controversy start?
The MLAs are accused of holding offices of profit, as they were appointed parliamentary secretaries to ministers in the Delhi government in March 2015. This was soon after they were elected to the Delhi Assembly. In September 2016, the Delhi High Court had ruled against their appointment as parliamentary secretaries, after hearing their pleas on a daily basis since February 7.
On January 19, the EC had recommended the disqualification of 20 AAP MLAs – Alka Lamba, Adarsh Shastri, Sanjeev Jha, Rajesh Gupta, Kailash Gahlot, Vijendra Garg, Praveen Kumar, Sharad Kumar, Madan Lal, Shiv Charan Goyal, Sarita Singh, Naresh Yadav, Rajesh Rishi, Anil Kumar, Som Dutt, Avtar Singh, Sukhvir Singh Dala, Manoj Kumar, Nitin Tyagi and Jarnail Singh.
The president had accepted the EC’s opinion the next day. Days later, the high court had refused to stay the Centre’s notification disqualifying them, but had restrained the poll panel from taking any “precipitate measures” such as announcing dates for bye-elections to fill the vacancies.
What does this order mean?
The 20 MLAs, embroiled in the office-of-profit row, will now be able to attend the ongoing Budget session in the wake of the high court setting aside their disqualification in the case. AAP MLAs Alka Lamba, Nitin Tyagi entered the House after the Speaker allowed their entry following HC order.
With PTI inputs