By Harihar Swarup
The Delhi High Court has acted wisely by restraining the Election Commission from holding by-election to the seats fallen vacant following disqualification of 20 MLAs of the Aam Aadmi Party. However, the court refused to stay the Centre’s notification disqualifying 20 MLAs for holding office of profit. The High Court will meet on January 29 to further hear the contention of the disqualified MLAs and the Government. It observed that the matter required consideration, and it would hear it on day-to-day basis.
Meanwhile, the court summoned the entire set of records pertaining to the recommendation of the EC for 20 MLAs disqualification which received the President’s assent on January 20.
The promptness with which the President, perhaps at the bidding of the Modi government, endorsed the Election Commission’s opinion that 20AAP MLAs stand disqualified for holding “an office of profit”, carries with it a distinct odour of political maliciousness. The Election Commission and its chief AK Joti has, once again, left itself open to a charge of unfairness, if not outright partnership, when it decreed the 20 MLAs as guilty, without giving them a hearing, in total disregard of its own June 23, 2017 speaking order.
The 20 MLAs are in a soup because they were appointed as Parliamentary Secretaries, a devise used by all political parties to get around the constitutional ceiling on the number of ministers as a percentage of the total strength of the assembly in a state. The ceiling has been unevenly observed. Parliamentary secretaries’ appointments had been stuck down in Himachal Pradesh (2005), Goa (2009), West Bengal and Telangana (2015).
In a number of states the law has been amended to exempt the position of parliamentary secretary from the ‘office of profit’ clause, but this precaution was not operative in Delhi. The APP leadership was careless towards the established procedures. An amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, which sought exemption, did not receive presidential assent and thus 20 MLAs remained vulnerable to disqualification.
The AAP government faces no threat to its parliamentary majority. If the party does not get relief from the higher judiciary, the Kejriwal regime will find itself subjected to a substantive referendum in 20 Assembly constituencies. The massive majority that the APP carved up in 2015 was widely seen as an expression of the disenchantment with the established political parties, the Congress and the BJP. These two parties have remained relentless in their opposition to the AAP; perhaps the AAP too, disappointed all those who had high hopes from the new party. But its political stupidities cannot be seen as a license of misuse of constitutional muscle by its rival.
Whether or not EC’s decision is in accordance with the spirit of law is a matter for the courts to decide. But beyond the immediate debate, there is a larger question at hand over two constitutional principles that have played out at regular intervals in Delhi since 2015; the letter of law and the role of the elected legislature. In most other states, an act by the legislature would have resolved the “office of profit” issue.
It is hoped that the Chief Election Commissioner, Om Prakash Rawat, would do his utmost to arrest the decline in the Nirvachan Sadan’s prestige and reputation. Rawat succeeds AK Joti as CEC. Unfortunately, Joti has come to be seen as a partisan figure, all too inclined to give undeserving breaks to the ruling party. The Election Commission’s reputation as a neutral referee suffered all too palpably during the Gujarat Assembly elections last year.
It will be Rawat’s primary task to recover the lost ground. He has the reputation of being a man of great integrity and rectitude, someone who can be entrusted to perform well the task of presiding over the Nirvachan Sadan. On his watch, Assembly elections will be held in Northeast, Karnataka, Madhya Pradesh, Rajasthan and Chhattisgarh. Since TN Seshan’s day, Nirvachan Sadan has transformed itself into a formidable constitutional watch dog; so much so, that no Chief Election Commissioner has tried to dilute the Nirvachan Sadan’s autonomy— that is till AK Joti tried to write a different script. (IPA Service)