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7 hearings & 4 answers led Election Commission to recommend disqualification of AAP MLAs

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The poll panel concluded that as parliamentary secretaries 20 AAP MLAs executed functions like ministers & the office had the potential to yield profit.

New Delhi: The 20 Aam Aadmi Party MLAs disqualified by President Ram Nath Kovind Sunday held an office of profit; their position as parliamentary secretaries was a government office; this office had the potential to yield profit; and the office had executive functions akin to that of a minister – these are the four main conclusions of the Election Commission of India (EC) that form the basis of its controversial recommendation to disqualify the legislators.

President Kovind ordered the disqualification of the MLAs Sunday under Section 15(4) of the Government of National Capital Territory of Delhi (GNCTD) Act, 1991. His decision was subsequently notified by the law ministry.

The notification says that before the EC recommended their disqualification it had held at least seven hearings and answered four key questions on the controversial ‘office of profit’ issue. The four questions are:

  1. Did the MLAs hold the office of parliamentary secretary?
  2. Is the office of parliamentary secretary an office under the government?
  3. Is it an office which yields profit, or has the potential to yield profit?
  4. Does the office of parliamentary secretary have executive nature of functions?

Did the MLAs hold office?

Yes, the EC order categorically said. The AAP MLAs “de facto held the office of parliamentary secretaries from 13.03.2015 to 08.09.2016”.

It noted that “there is no doubt on the fact that the office of parliamentary secretary was an ‘office’ as required to fall within the purview of the ‘office of profit’ doctrine, irrespective of the fact that these respondents were appointed as parliamentary secretaries without the creation of such a post by any law or order”.

Is it an office under the govt?

Since the parliamentary secretaries were to perform functions as delegated and directed by ministers, the EC said there was no question that they would be doing the work of the government, and therefore, would be working for the government. The government could therefore influence them, and thus interfere in their independent functioning as MLAs.

“Therefore, it is abundantly clear that the office of parliamentary secretary was an office under the government, and the occupants of such office suffered from the vice of conflict of interest,” the EC stated.

Is it an office yielding profit or having the potential to?

The EC said it was clear that the office of parliamentary secretary had adduced benefits which could be taken out of the purview of ‘profit’, and therefore, it could be concluded that it yielded profit and had the “potential” to yield profits to the incumbents.

Citing the Supreme Court judgment in Jaya Bachchan vs. Union of India (2006), the EC argued that it was not the actual ‘receipt’ of profit but the ‘potential’ for profit that was the deciding factor in an ‘office of profit’ case – that whether individuals had derived benefits was of no relevance.

“The precedent established by the Hon’ble Supreme Court in Jaya Bachchan Case (supra) would render all appointees to such office as disqualified,” it stated.

Did the post have executive functions?

The EC cited observations made by various high courts to point out that the office of parliamentary secretary was akin to that of minister, given their functions, access to government files, and influence over governance and decision-making.

Parliamentary secretaries were allowed to participate in high-level government meetings, and to even chair those meetings. They were allotted office space in the assembly secretariat and elsewhere, and were given official transportation.

“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 EC stated.

AAP’s other arguments

Delhi HC order– The EC rejected AAP’s argument that the office of parliamentary secretary had now ceased to exist, as their appointment was quashed by the Delhi High Court in 2016, and that since they were no longer parliamentary secretaries, there was no longer a case to disqualify them. The EC termed it a “flawed understanding of the law”.

Intent– The EC order noted that while a total of 14 offices were exempted under the GNCTD Act, the office of parliamentary secretary to a minister other than the Chief Minister was not added to the schedule of the act.

The Delhi government attempted to put the post of parliamentary secretary for other cabinet ministers in the exempted category through the Delhi Members of Legislative Assembly (Removal of Disqualification) (Amendment) Bill on 23 June 2015. The EC noted that this bill was passed the very next day, and termed the AAP’s argument that the bill was moved under the principle of ex abundanti cautela (abundant caution) as “not legally tenable”. Then-President Pranab Mukherjee had refused to ratify the bill.

The EC said the very nature of the office was executive, and it was necessary to exempt this office in order to save the MLAs from being disqualified for holding office of profit.

“The principle of abundant caution finds no mention in the ‘statement of object and reason’ of the 2015 bill. Thus, it can be concluded that the legislative assembly of Delhi, in its wisdom, considered the office of parliamentary secretary as an office of profit,” the EC stated.

“Since, the President of India has refused to give assent to this bill, the disqualification attracted on the respondent MLAs for holding office of profit is not removed and stands,” the EC said in its conclusion while recommending disqualification.

Attempts to delay

One of the three Election Commissioners, O.P. Rawat, had recused himself from hearings in this case after AAP convenor and Delhi CM Arvind Kejriwal made statements alleging that two election commissioners were politically aligned. Once Rawat had recused, AAP argued that hearings could not be held properly as the quorum was not complete. On a special request from the Chief Election Commissioner, Rawat re-joined the hearings later in 2017.

The EC said these were attempts by the respondents to delay the procedure with unsubstantiated allegations, and cited Section 10 of the EC Act and Section 146(B) of the Representation of the People Act to argue that it was entitled to conduct its business with full autonomy. It said even if a member may have recused, that did not prevent the EC from conducting its business.

Details of hearings

The case began with a writ petition filed by the Rashtriya Mukti Morcha in the Delhi High Court challenging the appointments on 13 May 2015.

The EC sent out an initial notice on 4 December 2015, to which petitioner Prashant Patel filed a reply on 28 December. EC proceedings on the case began on 24 June 2016, and “all concerned parties were heard” on 14 and 21 July. AAP MLAs challenged the petitioner’s reply at three hearings – on 10, 19 and 29 August.

The Delhi High Court then set aside the appointments on 8 September 2016, as the appointment order did not have the Lieutenant Governor’s approval.

The EC then sought detailed information on these MLAs from the Delhi government, which filed 2,500 pages of supporting documents on 20 September. Granting the parties’ request for a copy of the government’s reply, the EC asked the parties to reply on or before 7 October (respondents) and 14 October (petitioners). Each of them replied 10 days late.

Five more submissions and hearings followed in November and December 2016 and March 2017, where the MLAs argued that there was no case for disqualification now that the HC had set aside their appointment.

On 28 September 2017, the EC issued another notice asking all parties to file their detailed responses to the Delhi government documents. It warned the respondents that if they failed to file their arguments, the commission “would assume that they have nothing further to say in this matter”.

The AAP MLAs submitted their response on 16 October, and the petitioner submitted his rejoinder a week later.

‘Sound Ground’ says one former CEC

Former chief election commissioner S.Y. Quraishi said the EC order was on sound ground but added that there is a lack of clarity around whether adequate opportunity was given to the respondents and this is where it will probably be argued in court.

“I do think the EC opinion is quite sound,” Quraishi told ThePrint. “The point raised by Aam Aadmi Party on the parliamentary secretary not drawing any monetary benefit also has been responded to adequately.

There is, however, some lack of clarity around whether the AAP was given adequate opportunity and that is probably the ground the respondents will take in court.”

“This is the first time that the EC has invoked the recommendations of the Joint Parliamentary Committee on office of profit. These clearly pointed to disqualification for an office which gave power of patronage,” he said.

The JPC on office of profit that submitted its report to the Rajya Sabha in March 2017 had observed that disqualification would apply in cases where it is established that the office held “enables the holder to wield influence or power by way of patronage”, among others.

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