AAP exults over Delhi High Court verdict in office of profit case, but threat of disqualification still looms

The Aam Aadmi Party (AAP) may be jubilant over the Delhi High Court verdict setting aside the Election Commission’s order on the disqualification of 20 MLAs in the office of profit case. However, it is not celebration time for the party as yet.

The 20 MLAs need to know that the sword of disqualification continues to hang over them.

The President had disqualified the 20 MLAs after the EC found their posts of parliamentary secretaries to be offices of profit.

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The High Court has transferred the matter to the Election Commission so that the MLAs get a chance to present their side through an oral hearing.

However, constitutional experts and the petitioner in the case feel that the relief provided by the High Court is a temporary one.

“These MLAs have been found fulfilling all those criteria which make their post an office of profit. The present situation is like a convict in whose case the judgment has been stayed. In such a situation, the convict cannot be said to be free for all times to come,” constitutional expert SK Sharma told Firstpost.

File image of Delhi chief minister Arvind Kejriwal. PTI

"If the EC has to conduct a hearing again of the 20 MLAs, they should be eligible as MLAs and not disqualified ones. That is why a status quo has been maintained on the President’s order on a temporary basis to make these disqualified MLAs eligible and call them for a hearing,” he explained.

However, the petitioner in this case Prashant Patel — who was the first one to file a PIL questioning whether the post of parliamentary secretary was an office of profit or not—differs with the plea of these MLAs.

“The hearing at EC took place 11 times and these 20 MLAs were called to present their side. However, they either didn’t turn up or raised extraneous issues. This has been established from the fact that when the MLAs approached the High Court on being disqualified by the President, the High Court pulled them up for not responding to EC notices,” remarked Patel.

Parameters for deciding on ‘Office of Profit’

In general, there are three parameters considered as the touchstone for deciding on whether a post is an ‘office of profit’.

1. Does the person hold a post that is an Office of Profit?
2. Whether the office is in the government?
3. Whether by virtue of holding that office—that person is earning some profits?

In the case of the 20 AAP MLAs, it was found that the MLAs were holding an office of profit.

The office was in the Delhi government as chief minister Arvind Kejriwal administered them the secrecy oath. The chief minister passed the order for their appointments.

Under the third parameter, the MLAs responded in the negative, saying they didn’t earn any profit (salary etc). However, according to the Supreme Court, ‘earning profit’ doesn’t mean only cash. It can be in the form of power, position, miscellaneous facilities, etc. Even an official car, furniture bought for the office, etc are considered as earning an income. All these constitute an office of profit.

Five issues framed by Election Commission

The EC framed five issues on the basis of which it declared that the MLAs had been holding an office of profit.
1. Did MLAs hold office of profit? (Yes, according to EC).
2. Whether they earned profit out of the post? (Yes, according to EC).
3. Whether facilities were provided? (Yes, according to EC).
4. Whether an exemption from the purview of office of profit was granted to the MLAs? (No exemption granted, according to EC)
5. Whether functions and responsibilities were decided for these MLAs as parliamentary secretaries? (EC noted that nothing was decided).

Based on these five issues, the EC concluded that the posts held by the 20 MLAs fell under the purview of ‘office of profit’.

“These MLAs acting as parliamentary secretaries attended meetings with the respective ministers. Even in the absence of a minister, a parliamentary secretary held meetings with the officials. They gave directions to officials, which were executive in nature,” said Sharma, who was also an adviser to Patel.

“Using official cars and buying furniture for one’s office and the way parliamentary secretaries attended meetings and gave directions shows authority — all these constitute office of profit. Only earning salary doesn’t makes any post an office of profit. There is no escape for the MLAs in this case,” added Sharma.

What does the AAP say?

“The issue we had raised was that we should have been orally heard, which didn’t take place. The EC will now start a proper hearing. We’ll put forth our side of the truth. The court had no option but to set the order aside. There is no merit in it. Justice has prevailed. It’ll now help us to start working in our respective constituencies with new vigour,” AAP MLA from Dwarka, Adarsh Shastri told Firstpost.

Shastri was one of the 20 MLAs disqualified in the office of profit case.

At a strategy level, the AAP is working on its next level of planning with respect to what will happen if the EC again disqualifies the 20 MLAs.

“It wasn’t natural justice. Earlier, we weren’t given an opportunity to present our side through an oral hearing. Our MLAs weren’t informed that CEC OP Rawat rejoined the proceedings after recusing himself from the case. Now, the HC has referred it back to the EC. But nothing can be said about what the EC will decide after hearing our MLAs. If it goes against us, the party will move the High Court. But till then, this relief will help our MLAs reach out to the people of Delhi  and work for them,” said AAP national secretary Pankaj Gupta.

The ball is now in AAP’s court. It remains to be seen whether it handles the issue astutely or not.