HC verdict on 20 AAP MLAs is a major embarrassment for EC & President

The Delhi High Court landed a surprise judgement Friday, setting aside the disqualification of 20 Members of the Legisltive Assembly from the Aam Aadmi Party (AAP) for allegedly holding offices of profit.

In doing so, the court quashed the Presidential order disqualifying the legislators. The court ruled that the Election Commission (EC) did not follow principles of natural justice while holding proceedings in the case, by not inviting the MLAs to put forth their arguments.

The court has now sent the matter back to the EC for holding proper hearing. This does mean that the case is still alive as the court has not commented on the merits of the case. However, the setting aside of the disqualification will come as a major embarrassment for not just the SC, but President Ram Nath Kovind as well. 

EC's action was always suspect, President made matters worse. It was in June 2015 that Delhi-based advocate Prashant Patel had petitioned then President Pranab Mukherjee to disqualify 21 AAP MLAs for allegedly holding parallel offices of profit. 

Earlier that year, Delhi Chief Minister Arvind Kejriwal had appointed these MLAs as parliamentary secretaries, a position that Patel alleged was an office of profit.

Mukherjee had then referred the case to the EC for its opinion, which the latter then took nearly two years to formulate and provide.

The EC submitted its opinion quietly on the last working day of the retiring chief election commissioner in January 2018.

President Kovind made matters worse by displaying undue haste, issuing disqualification orders on a Saturday, which were made public on a Sunday. 

Constitutional experts had flagged concerns then itself, pointing out that EC had not followed due process of law by not hearing the MLAs. PDT Achary, Former secretary-general of Lok Sabha, had then told Catch he was at a loss to understand how the EC had given its final recommendation without hearing the MLAs.

What next?

Since the High Court has not cast any aspersions on the merits of the case, the case still stands. The EC will be required to hear the case again and give an opportunity to all the 20 AAP MLAs to present their arguments.

However, there are two other concerns at hand that have also been flagged earlier and deserve a mention again. In September 2015, the Delhi high court had struck down the post of parliament secretary itself, ruling that the appointment of the MLAs on the posts was unconstitutional, because the LG had not given his assent.

This led the AAP to argue that since the appointment itself was quashed, no office-of-profit case arose. Achary supported the contention and noted that the High Court ruling meant that the MLAs had served as parliamentary secretaries not even for a moment as the very posts were declared unconstitutional.

Achary had also pointed out that once the issue became a legal one, the case should have been heard by a court of law as EC is not an authority that can decide on a legal issue. These concerns are likely to come up again.

Institutions shamed

In whatever manner the case progresses from hear on, the latest ruling has shown the EC as well as the office of the President in negative light. Patel, the petitioner advocate, whose pro-Hindutva inclinations are clearly visible on his twitter time-line, is finding it hard to respond to the ruling.

In an earlier tweet, he had implied that Delhi HC will uphold the disqualification of the MLAs and Delhi will see by-elections after that.

Following the ruling, he said he had just raised a constitutional issue and there was no setback for him.

The petitioner's background suggests that this case does have elements of conspiracy and the HC ruling has established that EC and the President too played along. 

It is time for both the sullied institutions to make amends and take steps to ensure the restoration of their image as non-partisan defenders of the Constitution.