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Delhi HC asks EC to review its ‘office for profit’ order against 20 AAP MLAs

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(G.N.S) Dt. 23
New Delhi
AAP MLAs celebrate outside the Delhi High Court in New Delhi on Friday. In a relief to the Aam Aadmi Party , the Delhi High Court on Friday set aside the Election Commission recommendation disqualifying 20 ruling party MLAs for holding office-of-profit as parliamentary secretaries. The HC has asked the Election Commission to review its order on their disqualification from the Delhi legislative Assembly.
A bench of justices Sanjiv Khanna and Chander Shekhar said that the Centre’s notification disqualifying the AAP MLAs was bad in law and remanded their plea back to the Election Commission which will hear it afresh. It said there was violation of natural justice and no oral hearing was given to the MLAs before disqualifying them as legislators of the Delhi Assembly.
Striking down the Election Commission’s order disqualifying 20 AAP MLAs, the Delhi High Court on Friday quashed the Presidential notification and directed the poll body to hear the case once again. The President, acting on the recommendation from the EC, had disqualified the MLAs “for holding office of profit.” A bench, comprising Justices Sanjiv Khanna and Chander Shekhar, was hearing a petition filed by all the 20 MLAs, who had challenged the order saying “there was no communication to us (AAP MLAs) from the Election Commission (EC) about the hearing before it. It is in complete violation of natural justice.” The MLAs have been reinsted in the House.
“Opinion of Election Commission of India (given to the President of India) dated January 19, 2018, is vitiated and bad in law for failure to comply with principles of natural justice,” the court said.
Reacting to the judgment chief minister Arvind Kejriwal tweeted, “It is a victory of truth.”
सत्य की जीत हुई। दिल्ली के लोगों द्वारा चुने हुए प्रतिनिधियों को ग़लत तरीक़े से बर्खास्त किया गया था। दिल्ली हाई कोर्ट ने दिल्ली के लोगों को न्याय दिया। दिल्ली के लोगों की बड़ी जीत। दिल्ली के लोगों को बधाई। https://t.co/eDayHziHSn
— Arvind Kejriwal (@ArvindKejriwal)
Lawyer and petitioner in the case Prashant Patel said, “The court has said this case will be reopened. I had just raised a constitutional issue, there is no setback for me.”
The case dates back to March 2015 when the Delhi government appointed 21 MLAs as parliamentary secretaries. The appointments were made to assist cabinet ministers and include more MLAs in governance work. A parliamentary secretary assists a minister, and the office usually comes with perks similar to that of a minister.
The petition filed by AAP had added: “It is also that even a temporary government employer cannot be removed on the grounds of misconduct without holding a full-fledged inquiry. However, in the present case, the members of the legislative assembly were removed without holding a full-fledged inquiry and without giving them an opportunity to explain if they ever held any office of profit.”
Patel had complained to the then President, Pranab Mukherjee, that 21 of the AAP legislators were occupying offices of profit. Mukherjee referred the complaint to the Election Commission (EC).
On January 19 this year, the EC recommended disqualification of 21 AAP MLAs(one had by then resigned from the assembly, bringing the number of disqualified MLAs to 20). The President accepted the EC’s opinion the very next day. The 20 AAP MLAs include Naresh Yadav (Mehrauli), Som Dutt (Sadar Bazar), Praveen Kumar (Jangpura), Nitin Tyagi (Laxmi Nagar). Adarsh Shastri (Dwarka), Sanjeev Jha (Burari), Jarnail Singh (Tilak Nagar), Sukhvir Singh (Mundka), Madan Lal (Kasturba Nagar), Sarita Singh (Rohtas Nagar), Alka Lamba (Chandni Chowk), Rajesh Rishi (Janakpuri), Anil Kumar Bajpai (Gandhi Nagar), Manoj Kumar (Kondli), Kailash Gahlot (Najafgarh), Avtar Singh (Kalkaji), Vijendar Garg Vijay (Rajinder Nagar), Rajesh Gupta (Wazirpur), Sharad Kumar (Narela) and Shiv Charan Goel (Moti Nagar).
Reacting to the order, AAP spokesperson Saurabh Bhardwaj said, “Now that disqualification has been struck down, we want that the MLAs come and join assembly proceedings today itself.” AAP has 67 seats in the 70-member Delhi Assembly, and would have continued to enjoy a majority in the House despite the disqualification of its MLAs.
Eight of the 20 disqualified AAP MLAs moved the high court on January 23 against the presidential order. The high court, on January 24, refused to stay the Centre’s notification, but restrained the EC from taking any “precipitate measures” such as announcing dates for by polls to fill the vacancies.
The office of profit case pertains to the appointment of the MLAs as Parliamentary Secretaries in the Arvind Kejriwal cabinet. They are accused of being unconstitutionally appointed as parliamentary secretaries to assist various ministers of the Delhi government. There were originally 21 MLAs disqualified, but it fell to 20 after Rajouri Garden MLA Jarnail Singh resigned to contest the Punjab Assembly elections last year.
The Constitution prohibits Members of Parliament or legislators from accepting government positions which carry some financial remuneration or other benefits. Any representative in violation of this stands to be disqualified. The aim of this provision is to preserve the independence of the legislature by keeping its members away from any temptations from the executive.
AAP had come to power in 2015, winning 67 seats in the 70-member house. Party MLA from Rajouri Garden, Jarnail Singh, quit his post to contest the Punjab Assembly elections but the AAP failed to win the bypoll. After this, the number dropped from 67 MLAs to 66. After the disqualification of 20 MLAs, the AAP’s strength has come down to 46.

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