President Ram Nath Kovind has given consent to the Election Commission’s recommendation to disqualify 20 Aam Aadmi Party (AAP) MlAs for holding office of profit as Parliamentary Secretaries.
This comes two days after the EC submitted its report deeming the AAP lawmakers as “unfit” to continue as MlAs.
Under the Government of National Capital Territory of Delhi Act 1991, an MlA cannot hold any post in the Government that entitles them to perks or powers unless a law has been passed to exempt the posts.
The disqualification of the 20 lawmakers will not dent the Arvind Kejriwal Government’s majority in the Delhi Assembly. Currently, the AAP has 66 seats in the Assembly. With one MlA Kapil Mishra been suspended from the party, its numbers will now be down to 45 seats, which is well past the half-way mark of 35. It means even if the AAP loses bypolls for all these seats, there will be no threat to the Kejriwal Government.
The notification issued by law Ministry on Saturday quoted the President stating that the office of Parliamentary Secretaries was not exempted from the ‘office of profit’ rule. The President is bound by the recommendation of the Commission. Under the rules, petitions to the President seeking disqualification of MlAs are referred to the EC.
“...Having considered the matter in the light of the opinion expressed by the Election Commission, I, Ram Nath Kovind, President of India, in exercise of the powers...do here hold that the aforesaid 20 members of the Delhi legislative Assembly stand disqualified from being members of the said Assembly,” said the notification issued by law Ministry quoting the President.
“In the present case, it is not in dispute that the respondents were appointed as Parliamentary Secretaries to the Ministers of Delhi Government by the order of March 13, 2015. Then, the Delhi High Court in Rashtriya Mukti Morcha set aside this order on September 08, 2016. Thus, it is evident that from the date of their appointment on March 13, 2015 till the date of setting aside their appointment order on September 08, 2016, the respondents were de facto holders of the office of Parliamentary Secretaries, albeit, by way of illegal appointment order and, hence, the present proceedings before the Commission on the question of their disqualification is maintainable and shall continue,” the notification read.
The President’s approval of the EC’s recommendation paves the way for by-elections in the 20 Assembly seats, giving the Opposition BJP and Congress an opportunity to increase their tally. The BJP has four seats in the House, the Congress none.
The 20 MlAs had a meeting with Chief Minister Arvind Kejriwal, Deputy Chief Minister Manish Sisodia, and other senior AAP leaders at the Chief Minister’s residence on Saturday, after which they decided to approach the President as MlAs were not given an opportunity for defence according to the principles of natural justice. The party has maintained that there is no merit in the case as the 20 MlAs, who were appointed as Parliamentary Secretaries, had not utilised any Government perks associated with the post.
In its recommendation, the EC said, “…the respondents did hold de facto the office of Parliamentary Secretaries from March 13, 2015 to September 8, 2016 and the interpretation as sought to be put by them on the order dated September 8, 2016 of the Delhi High Court that they did not hold any office is not legally tenable. Hence, without prejudice to the merits of the case, the reference relating to the question of alleged disqualification of the respondents under Section 15(4) of the GNCT of Delhi Act, 1991 for holding the said office survives and is maintainable in respect of all the said respondents, except respondent no. 16 (Jarnail Singh, MlA of Rajouri Garden) who has resigned his office as MlA on January 17, 2017 and even a by-election has been held in April to fill that vacancy in the Delhi legislative Assembly.”
In its opinion to the President, the EC had said, “Whether or not the individual Parliamentary Secretaries had actually derived the benefits or participated in executive functions of the Government is of no relevance” as the Supreme Court in the Jaya Bachchan case had laid down that if the post falls under office of profit, the disqualification is imminent.
The EC had also stated while citing several judgments, including the case of Tamil Nadu Chief Minister J Jayalalitha, whose appointment as Chief Minister was invalidated by the apex court in 2001.
The Commission had said it is basing its opinion on judicial pronouncements of the past, the Government of National Capital Territory of Delhi Act and the Constitution.
All the 20 AAP MlAs AAP had approached the High Court on Friday with the judge adjourning the matter for hearing on Monday.
Soon after sweeping the Delhi elections in 2015, the AAP government passed an amendment to the Delhi Members of legislative Assembly (Removal of Disqualification) Act, 1997 to exempt the post of parliamentary secretary from the definition of office of profit with retrospective effect. On March 13, the Government appointed the 21 MlAs as Parliamentary Secretaries, saying they won’t take remuneration and hence it didn’t fall under the office of profit regulations. later, the AAP Government tried to push a Bill through Delhi Assembly, giving protection to Parliamentary Secretaries under Office of Profit law. But, the then President Pranab Mukherjee did not give his assent to the Bill.