EC disqualifies 20 AAP MLAs: Why didn’t it hear merits of the case?
Since Delhi is not a full-fledged state, it is the President, and not the Lieutenant Governor, who has the power to disqualify an MLA on such grounds. His decision, however, is not immune from judicial appeal. If he does decide to disqualify the AAP MLAs, the latter can appeal against that order in the Delhi High Court.
EC's recommendation has come as a momentary setback for AAP, which will be exacerbated if the President takes an adverse decision. It will not send, at the outset, the AAP-government in Delhi crumbling down, because even after losing 20 MLAs the party will continue to have 2/3rd majority in the Assembly.
However, it will be a moral boost for the opposition parties like BJP and Congress, which have already started demanding resignation of the government on moral grounds.
EC's role raises questions
The way this case unfolded has shown the EC in a negative light. It was in June 2015 that Delhi-based advocate Prashant Patel had petitioned then President Pranab Mukherjee to disqualify 21 MLAs of the AAP, because they were holding parallel offices of profit, he alleged.
In March that year, Delhi Chief Minister Arvind Kejriwal had appointed these MLAs as parliamentary secretaries, a position which Patel alleged was an office of profit. Mukherjee then referred the case to the EC for its opinion, which the latter then took nearly two years to formulate and provide.
Armed with the recommendation, it is up to the President now to determine the future course of action. However, much has happened in the last 2 years that could have had a crucial impact on the case but appears to have been ignored.
Merits of the case not heard
In September, 2015, another private petition had led the Delhi high court to strike 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.
AAP has since then been arguing that since the appointment itself was quashed, no office-of-profit case arose. Former secretary general of the Lok Sabha PDT Achary, a well-known Constitution expert, supports the contention.
Achary told Catch that EC conducted hearings only on the maintainability of the case and not its merits. He said 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. This is a point which ought to have been considered, Achary asserted, by the EC.
He said he was at a loss to understand how the EC had given its final recommendation without hearing the MLAs. Achary also pointed out that following the High Court's ruling, the issue became a legal one and EC is not an authority that can decide on a legal issue. The case should have been heard by a court of law, he noted.
With AAP also taking the same line, a protracted legal battle does appear imminent if the President decides to disqualify the MLAs. In that case, Delhi appears headed for another round of bitter political turmoil.