In a major blow to the Aam Aadmi Party (AAP), the Election Commission (EC) of India on Friday recommended that 20 of its MlAs be disqualified for holding ‘office of profit’. Sources said the poll panel recommended to the President to disqualify these MlAs after a marathon meeting.
Soon after the EC’s recommendation, seven of the MlAs moved a petition in the Delhi High Court, which refused to pass any interim order. After a brief hearing, the court posted the matter for January 22.
If the President assents to the disqualification of the MlAs, it will leave the AAP with 45 MlAs in the 70-member Delhi Assembly and necessitate bypolls to these seats. Currently, 66 of the 70 seats in the Delhi Assembly are held by the AAP. However, one of the AAP MlAs Kapil Mishra of Karawal Nagar was suspended from the party’s primary membership in May 2017 after he made corruption charges against party convener and Chief Minister Arvind Kejriwal.
The EC decision came three days before Achal Kumar Joti retires as the Chief Election Commissioner. Interestingly, OP Rawat, the next Chief Election Commissioner, had decided to recuse himself from hearing all AAP-related issues.
The controversy over the “office of profit” started soon after the party’s victory in the 2015 Assembly elections in Delhi. On March 13, 2015, the Kejriwal Government passed an order appointing 21 MlAs as Parliamentary Secretaries. This was challenged by lawyer Prashant Patel, who petitioned President Pranab Mukherjee on June 19, 2015, that these MlAs were holding ‘office of profit’ and should be disqualified. The petition was forwarded to the EC for its recommendation.
Initially, the petition was directed against 21 MlAs. However, one of the MlAs Jarnail Singh of Rajouri Garden had resigned last year to contest against Parkash Singh Badal in the Punjab Assembly elections.
The Delhi legislative Assembly then passed the Delhi Member of legislative Assembly (Removal of Disqualification) (Amendment Bill), 2015 excluding Parliamentary Secretaries from “office of profit” with retrospective effect. However, the President withheld assent to the amendment Bill.
In August 2017, the Delhi High Court had refused to entertain AAP MlAs’ plea for staying the commission’s order upholding maintainability of Prashant Patel’s petition for their disqualification. They had appealed to the HC asking it to not allow the EC taking up the petition.
In September 2016, the Delhi High Court had also set aside the AAP Government’s order appointing 21 MlAs as Parliamentary Secretaries as it lacked the approval of the lieutenant-Governor.
According to sources, the issue in front of the EC was whether the office of Parliamentary Secretary in the GNCTD, 1991 constitutes an ‘office of profit’. Article 191 of the Constitution has not defined what an ‘office of profit’ is which has paved the way to the courts to lay down the law.
During the course of the EC proceedings, the AAP leaders argued that when other State Governments appointed Parliamentary Secretaries, it was deemed legal, but when the Delhi Government did so, it was accused of committing a wrong. They also argued that in the previous Congress-led Sheila Dikshit Government too, Parliamentary Secretaries were appointed.
However, the Congress and BJP leaders had admitted that these appointments happened as there was no Opposition to them. It was also stated that in 1997, when Delhi had a BJP Government, a Bill was passed to allow a Parliamentary Secretary to be appointed for the Chief Minister and it was declared that this office would remain outside the scope of office of profit. Despite that post being for one Parliamentary Secretary, the Congress Government had later appointed three Parliamentary Secretaries. As there was no objection to the move, they held on to their posts.
Interestingly, despite AAP arguments, then Delhi Chief Secretary KK Sharma in its report to the EC had stated that this is the fit case of office of profit and these MlA comes under purview of office of profit. In his report, the Chief Secretary had stated that as per PWD information, a total Rs 11,75,828 were spent on 21 executive chairs-tables, 136 visitor chairs for 21 rooms allotted in the Assembly for parliamentary secretaries. “Assembly had approved Rs 13,26,300 for this purpose,” the report said.