President disqualifies AAP MLAs: Party says office of profit charge false as MLAs were not entitled to any benefits

The Aam Aadmi Party-Election Commission slugfest continued on Tuesday after newly-appointed Chief Election Commissioner Om Prakash Rawat defended the poll body’s decision to disqualify 20 AAP MLAs for holding offices of profit. Responding to the party’s allegation that the Commission did not give it a proper hearing, Rawat said that the party did not avail of two opportunities for requesting a hearing on the matter.

After President Ram Nath Kovind approved the EC’s recommendation to disqualify the legislators for allegedly holding offices of profit, the legislators mentioned the matter before a division bench of the Delhi High Court seeking the quashing of the notification disqualifying them and got it listed for hearing on Wednesday.

Firstpost spoke to a source close to the party to understand AAP’s case and how it planned to contest the EC’s decision.

The primary question which arose was how was AAP’s appointment of parliamentary secretaries was not against the law prohibiting MLAs from holding offices of profit. AAP leader Manish Sisodia answered this by insisting that the charges were “false” as they “were not given any government vehicles, bungalows or salary. They were working without getting any benefits with the passion to make a contribution to the development of the city” in a letter he tweeted out.

The source too said that the post of parliamentary secretaries as it existed in Delhi did not entitle the MLAs to any extra privileges. “As the work was done pro bono (professional work done without charge for the public good), the office could not be called an office of profit,” they said.

The source compared the scenario in Delhi to other states where the office came with emoluments and perks attached. The MLAs were able to get the facilities accorded to ministers using the office of parliamentary secretaries. The source insisted that this was used as a workaround to go over the legal limit of no more than 15 percent of a state’s legislators being a part of its Cabinet.

When asked why was there a need to create such an office in the first place, the source said that it gave the MLAs the powers to carry out certain functions which they could not carry out ordinarily. He gave an example where some MLAs had to survey schools outside their constituencies but did not have the authority to do so. The office was made to give them these extra powers.

Furthermore in September 2016, the Delhi High Court had ruled that the office of the parliamentary secretaries in Delhi was void ab initio (invalid from the start). Therefore since the office never existed, there was no cause of action against the AAP MLAs. The source said that a clear jurisprudence is developing around the issue as the judiciary has marked its disapproval of the office of parliamentary secretaries regardless of their being an office of profit or not.

the hypocrisy of other political parties who employed similar offices in other states. The BJP government in Chattisgarh had 11 parliamentary secretaries before the appointments were quashed by the high court. Rajasthan has had a tradition of accommodating aspirations and ambitions of legislators by appointing them not just as parliamentary secretaries but also heads of various corporations and agencies, both under the BJP and the Congress. In Arunachal Pradesh, Chief Minister Prema Khandu has 31 parliamentary secretaries in a 60 member house.

The party’s Madhya Pradesh unit on Monday asked the EC to disqualify 116 BJP MLAs in the state for holding offices of profit. State AAP convener Alok Agrawal said, “The EC exhibited alacrity in taking action against (AAP) MLAs in New Delhi. I hope the EC would show the same kind of promptness in taking action in case of Madhya Pradesh. The state government will be reduced to a minority if action is taken against these MLAs.”

Procedural irregularities

Moving on to the procedural aspect of the case, the source said that the EC in its order dated 23 June, 2017 had said that it will intimate the next date of hearing. However, without conducting any more hearings, it passed the order disqualifying the MLAs. The party has filed an appeal against that order as well alleging that there were multiple procedural problems with the proceedings in addition to there being jurisdictional issues in the case. While admitting that the Representation of the People Act does not explicitly provide for a hearing, the source said any judicial or quasi-judicial proceeding is bound by the principles of natural justice which mandate the hearing of both parties.

Rebel BJP leader Yashwant Sinha too had alleged a miscarriage of natural justice in the disqualification order as no hearing took place.

AAP had also received support from the Shiv Sena which had raised questions over “the haste” with which the 20 legislators were disqualified. “This is an unprecedented incident in which so many elected legislators have been disqualified in a wholesale manner. Delhi chief minister Arvind Kejriwal is facing a crisis, and that is because of the public campaign against corruption and injustice,” the Shiv Sena said.

The source said that in the short term, the party is asking for a stay to the president’s order and is approaching the Delhi High Court under Article 226 of the Constitution. He expects the court to rule on the matter in a couple of weeks but admits that the timeline will depend on the judiciary. The party has also filed petitions against the earlier EC order dated 23 June, 2017 which the court will adjudicate on.