A day after the Election Commission (EC) informed him that 20 MLAs of the Aam Aadmi Party (AAP) were guilty of holding ‘Offices of Profit’ by being parliamentary secretaries to ministers in the Delhi government, President Ram Nath Kovind ordered their disqualification.
The President’s decision, made Saturday, was notified by the Law Ministry Sunday. With 20 out of 70 Assembly seats falling vacant, Delhi is now set to witness a mini state election in the next six months.
LIVE UPDATES | Delhi HC to hear AAP’s plea against disqualification today
Kovind’s decision was based on the EC’s opinion that the AAP MLAs profited from holding the office of parliamentary secretary. The Commission’s conclusion was based on five legal questions:
* Whether the MLAs held the office of parliamentary secretary:
The Commission opined that there is no question over the existence of an office since the appointments were made through a government order of May 13, 2015. “It is only to an office to which an appointment can be made,” the EC said. The parliamentary secretaries were even administered an oath of office.
* Whether the office of parliamentary secretary is an office under the government:
The Commission said that it was undisputed that the 20 parliamentary secretaries were appointed by the Delhi government and, hence, could be removed by the revocation of the order. The appointment order stated that each parliamentary secretary would have his or her work allocated by the concerned minister, which meant “continuous control of the Government on the functionary occupying this office”.
Also, every expense related to this office was paid out of government revenues, the poll panel said.
* Whether the 20 MLAs profited from holding the above office:
The EC, in its opinion, felt the legislators profited in mainly three ways.
First, the Commission noted that even though their appointment order entitled the 20 legislators to use office space in the offices of the ministers with whom they were attached, in many instances more than one office space was provided to the parliamentary secretaries, and liberal grants were approved for their renovation. This, the EC opined, clearly fell under the definition of ‘profit’.
Second, it pointed out that the appointment order provided for an official car for each parliamentary secretary without prescribing any duties for them. “While official car is a benefit per se, the provision of it without assignment of any work is in the nature of undue benefit and it further establishes the intent to accord benefits to the Parliamentary Secretaries,” the poll panel said in its opinion to the President.
Third, the EC felt that the parliamentary secretaries were in a position to wield power or influence by way of patronage as they participated in high-level meetings of the governments and, sometimes, even chaired those meetings. This is a test enunciated by the Joint Parliamentary Committee on ‘Office of Profit’ in its report submitted to Rajya Sabha last year.
“These Parliamentary Secretaries had full time access to the Ministers and ministerial files and notings and this access enabled them to wield influence and power by way of patronage,” the opinion states.
* Whether the office of parliamentary secretary had executive functions:
“Parliamentary Secretaries have attended and chaired meetings where policy framing or executive decisions were taken and in many cases the Committee meetings chaired by Parliamentary Secretaries ‘decided’ and not just recommended on the subject under consideration,” the poll panel’s opinion reads.
Moreover, the parliamentary secretaries had conducted inspections and given oral instructions during inspections, it said.
* Whether the office in question is exempted from disqualification by law:
As on date, a total of 14 offices are exempted under the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997. However the office of parliamentary secretary to a cabinet minister, other than the chief minister, is not among them, the EC noted.
The Commission also flagged the Delhi government’s effort to “wipe their footsteps” by introducing a Bill to exempt the posts of parliamentary secretaries from disqualification within five days of the office-of-profit complaint being filed against the 20 AAP legislators.
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“Furthermore, the Order dated 23.09.2015 for allocation of offices to the Parliamentary Secretaries in the Legislative Assembly Secretariat was withdrawn/kept in abeyance on the very next day, i.e. 24.09.2015, which further shows that the GNCTD has treaded very cautiously to ensure that the true nature of the office does not get revealed,” the EC said.
Interestingly, the poll panel, in its opinion, took a strong view of the point raised by AAP with regard to Election Commissioner OP Rawat’s recusal from the case. The party, in its submission to the EC, had pleaded that since important constitutional rights of the MLAs were at stake, the matter must necessarily be heard by a full quorum, that is all three Election Commissioners.
Slamming the party, the EC said, “…that after leveling unsubstantiated allegations against one of the Election Commissioners, which resulted in his recusal, the Respondents took a specific plea that the Commission cannot proceed in the matter in the absence of full quorum. The aforesaid act of the Respondents makes it evident that their intention and motive was to ensure that the present case does not proceed any further.”
The EC said it had complete autonomy in deciding its procedures, and the decision in the office of profit matter can be taken unanimously or by majority.
The EC’s findings were based on written submissions of the MLAs and of petitioner Prashant Patel. The EC had given the MLAs two opportunities to file their response on the merits of the case after its ruling on June 23, 2017, in which the EC had decided that the office-of-profit complaint was “maintainable”, and that it would continue to hear the case. In the June 23 ruling, the EC had rejected AAP’s plea that since the Delhi High Court, on September 8, 2016, had set aside the appointment of parliamentary secretaries as being illegal, the question from profiting from such office did not arise. The Commission ruled that even though the appointment was done illegally, there was no dispute that the party MLAs had held the office.
AAP had filed its response urging the poll panel to not proceed until their challenge to the June 23 order was disposed of by the Delhi High Court. Since there was no stay from the court, the EC went ahead and dispatched its final opinion to the President on January 19. However, this was based on written submissions and no hearings on the merits of the case were held before doing it.
AAP reacted to the disqualification of its MLAs by accusing “constitutional authorities” of working like the “handmaidens of the central government” and as “political stooges”. While the party declared it would challenge the disqualification in court, Chief Minister Arvind Kejriwal, speaking in Najafgarh, the constituency of one of the disqualified MLAs, appeared to have already begun his campaign for the by-elections.
“I feel that there should be no politics in matters of welfare of the people. If you want to do politics, do it before elections. Campaign and abuse before elections; but after a party wins, it becomes the duty of every party to work for society, the people and the country. After a government is formed, if people get in the way of the government’s work, then they are traitors,” Kejriwal said Sunday.
He was speaking at the inauguration of newly laid sewer lines in Najafgarh. The seat was won by Kailash Gahlot, now the transport minister, by just 1,240 votes, the narrowest margin of victory when AAP won 67 seats in 2015.
While promising to finish laying sewer lines and providing water in Delhi over “the next two years”, Kejriwal accused the BJP of repeatedly creating obstacles in the government’s path. “There are false cases against 20 persons, they raided me too… but only found four mufflers. They tried everything and finally, today they have disqualified 20 MLAs. But when we won 67 seats, I wondered why? Now I know that the universe knew that these MLAs would get disqualified. When you walk on the path of truth, you will face a number of problems and obstacles, but the unseen and unknown forces of the universe will help you. Ultimately truth prevails, and I have faith in the people of Delhi,” he said.
Party spokesperson Saurabh Bhardwaj said the EC had failed to answer the “basis test” of spelling out “what pecuniary gain these 20 MLAs got by becoming parliamentary secretaries”. The party, he said, “has complete faith in the judiciary and will challenge this biased, illegal and illogical order of the Modi government in courts of law”.