On 20 January, President Ram Nath Kovind disqualified 20 Delhi MLAs from the Aam Aadmi Party (AAP) because they held offices of profit — parliament secretaries to ministers in the Delhi government. The president followed the recommendation of the Election Commission of India (ECI). Earlier, the MLAs had sought a stay from the Delhi High Court on the ECI making its recommendation to the president. At the time of the ECI’s recommendation to the president, the Delhi HC was yet to grant a stay. The MLAs have since withdrawn this petition and have filed a fresh one challenging their dismissal in the Delhi HC with the matter listed for Wednesday.
If the Delhi HC proceeds with this case, it will likely examine if (a) the procedure by which the MLAs were disqualified was correct; and (b) if the MLAs were holding offices of profit as parliamentary secretaries. If the answer to both of these questions is in the affirmative, the AAP MLAs will remain disqualified and fresh elections will have to be held in their respective constituencies.
On the face of it, there appears to be nothing amiss in the president’s order disqualifying the Delhi MLAs. Kovind's order comes pursuant to Section 15 of the Government of National Capital Territory of Delhi Act, 1991, (GNCTD), that sets out the grounds and procedure for the disqualification of Delhi MLAs. Under this section, the president is the sole and final decision-making authority — as per Section 15(3) of the GNCTD. He is, however, required by law to follow the recommendation of the ECI — according to Section 15(4) of the GNCTD — something Kovind did in this case.
Over the years, the Supreme Court has identified various grounds upon which the Delhi HC may rely to scrutinise the ECI's recommendation to the president. Among others, the court may ask if the ECI acted arbitrarily (Yadav Reddy versus EC [Statesman, 2-3-1995], 1996 SC), or in bad faith, or unfairly (Digvijay Mole versus Union of India, 1993 SC). It may also examine if the ECI had the authority to issue the recommendation, and if doing so violated any laws or the Constitution itself. (Yadav Reddy). The court may also check to see if the Fundamental Rights of the MLAs have been violated (Durgashankar Mehta versus Raghuraj Singh, 1954 SC).
On the basis of the procedure it lays out in its order, there may not be much (if any) for the MLAs to fault in the ECI’s procedure. The ECI documents intervention applications by third parties in June 2016; two hearings in July 2016, and an order later the same month; three hearings in August 2016; seeking and receiving information from the Delhi government in September 2016, followed by a hearing later the same month; two hearings in November 2016; two hearings in December 2016; one hearing in March 2017; in addition to various written submissions made by all parties.
The question of whether the ECI’s order is infructuous in light of a September 2016 order of the Delhi HC is one that the court may have to address. In September 2016, the Delhi HC had set aside the appointment of 21 MLAs (including the 20 now disqualified) as parliamentary secretaries for being bad in law — the Delhi government had acted without taking on board the view of the lieutenant-governor, violating Article 239AA of the Constitution. Questioning the ECI’s disqualification recommendation to the president will therefore involve interpreting the Delhi HC’s September 2016 order.
Arguing this before the ECI, the MLAs had said that since their appointment as parliamentary secretaries had been set aside by the Delhi HC, the offices became non-existent and the question of their disqualification did not arise. A corollary of the Delhi HC’s order was that the office of the parliamentary secretary never existed, and therefore there was no question of profit or consequential disqualification. On the other hand, Prashant Patel, who had challenged the appointment of AAP’s MLAs to offices of parliamentary secretaries, had argued that the Delhi HC’s order only came into effect in September 2016, and that for the period before the order, the MLAs held an office of profit and so, ought to be disqualified.
Section 15(1)(a) of the GNCTD disqualifies Delhi MLAs if they hold offices of profit under any government in the country, including the Union, any of the states, and any of the Union Territories. MLAs are only saved from disqualification if the Parliament or any other legislative body in the country declares by law that holding a certain office does not disqualify the office holder. This section gives effect to Article 191 of the Constitution, which contains a similar provision.
Since the MLAs were appointed to an office under the Delhi government, a law made by the Delhi Legislative Assembly would have to exempt parliamentary secretaries from disqualification.
Exemptions from disqualification are available in the Schedule of the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997. This statute only exempts an MLA appointed as parliamentary secretary to the chief minister from disqualification.
In 2015, after it had already appointed 21 MLAs as parliamentary secretaries to various ministers, the Delhi government sought to retrospectively amend the 1997 legislation. The Delhi government wanted to extend the exemption from disqualification to any MLA who had been appointed as a parliamentary secretary to any minister in the Delhi government. In 2015, then president Pranab Mukherjee, acting on the advice of the Central government had refused assent to the proposed bill. The president would have been bound to follow the Central government’s advice (Article 74 of the Constitution, interpreted in Samsher Singh versus State of Punjab, 1974 SC; UNR. Rao versus Indira Gandhi, 1971 SC)
In the absence of a statutory exemption to their disqualification, and assuming that the Delhi HC finds nothing wrong with the ECI’s procedure, 20 constituencies in Delhi appear to be headed for elections in the coming few months.
The author is the Public Policy Lead at TRA, a Delhi based law firm. She holds a Master of Laws from Harvard Law School, and an undergraduate degree in the arts and the law from NALSAR University of Law. Research assistant: Gokula Krishnan T
Updated Date: Jan 24, 2018 11:26 AM