The Election Commission of India (ECI) has dismissed a plea by 21 Delhi MLAs of Aam Admi Party (AAP) challenging its power to rule on the “office of profit” case against them. The legislators' arguments have given a sneak preview into the AAP MLAs’ defence in the matter, which did not seem to have impressed the ECI.
The ECI has also kept out the BJP, Congress and the AAP-led Delhi government from its final hearing on the matter in August 2017.
The legislators had filed an application on whether the ECI could decide on their disqualification. On June 24, the ECI held that it was empowered under the Representation of the People’s (ROTP) Act to adjudicate on the issue.
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As of now, the ECI has only decided on the issue of maintainability. It will decide the petition on merits later in August.
The AAP MLAs had been appointed as parliamentary secretaries on March 13 2015. The Delhi HC had set aside their appointments as parliamentary secretaries in September 2015 in a separate petition.
The AAP MLAs’ lawyers had argued that the ECI should not have taken up Patel’s direct complaint. They also said that since their appointments had already been set aside, the disqualification on the basis of office of profit was no longer valid.
The legislators’ counsel argued that Patel had filed two separate complaints — the first with the President in June 2015 and a later one directly with the ECI in December 2015. The ECI however pointed out that the second complaint was not a plea but a reply to a notice it had sent to Patel based on his petition to the President.
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A division bench of the Delhi HC division bench earlier held that the constitutional scheme had not been followed during the appointment of the MLAs as parliamentary secretaries, so the HC quashed the appointments ab initio (simply: as if it never happened in the eyes of the law).
The AAP legislators’ counsel had stated before the ECI that if the posts to which they were appointed and the appointments had been quashed from the date that the appointments had been made. Therefore, the AAP MLAs’ lawyers contended, there was nothing more left for the election commission to decide upon since the appointments no longer existed in the eyes of the law.
Senior advocate Meet Malhotra, appearing for Patel, pointed out the fallacy in the argument to the ECI. He said that though it may never have happened in law, time has not been rolled back and the MLAs had benefited in various ways.
The AAP MLAs now have to prove that they did not profit from the said appointments. There is precedence in law that ‘office of profit’ does not mean financial profit alone.
In 2006, Sonia Gandhi had to resign her parliamentary seat for holding an ‘office of profit’. Veteran actor and then Samajwadi Party MP Jaya Bachchan had also lost her seat for holding a position in a UP government film federation.
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The Congress and BJP had also tried to become parties in the matter claiming to be ‘national parties’ but the ECI refused to entertain them. It held that the issue had been taken up on the basis of a presidential reference, which clarified that the petition was the advocate Prashant Patel and the respondents were the AAP MLas. Therefore, it held, that there could be no other parties who would be heard in this matter but it reserved the right to call them if the Commission so felt.
