A party in trouble

Print edition : February 16, 2018

Chief Minister Arvind Kejriwal spins the coin for the toss before a badminton match at the Delhi Assembly Sports Tournament 2018 in New Delhi on January 21. Photo: Kamal Singh/PTI

Aam Aadmi Party MLAs outside the High Court in New Delhi on January 24. The Delhi High Court refused to stay the disqualification of the 20 MLAs for holding offices of profit. Photo: PTI

Advocate Prashant Patel. His petition to the President in 2015 set off the chain of events that led to the MLAs' disqualification. Photo: Ravi Choudhary/PTI

A demonstration by Congress workers demanding the resignation of Chief Minister Arvind Kejriwal on corruption charges and because of the disqualification of the AAP MLAs, in New Delhi on January 22. Photo: Manvender Vashist/PTI

The President’s order disqualifying 20 AAP MLAs on the office of profit issue may push Delhi towards a round of byelections.

ON January 20, President Ram Nath Kovind ordered the disqualification of 20 Aam Aadmi Party (AAP) members of the Delhi Assembly after the Election Commission (E.C.) opined that the post of Parliamentary Secretary, to which they were appointed in March 2015, was an office of profit.

The President’s two-page order said, “And whereas, the Election Commission of India, after examining the totality of the facts and circumstances viewed in the light of the law as contained in the Constitution of India, the GNCTD [Government of National Capital Territory of Delhi] Act, and the judicial pronouncements in the past, lead to this inference that the office of the Parliamentary Secretary upon which the… 20 MLAs were appointed vide GNCTD Order dated 13.03.2015 is an office of profit held under the Government and therefore the Election Commission opined that the (20) MLAs are liable to be disqualified under section 15 (1) (a) of the GNCTD Act.”

Having explained the legal foundation on which the E.C.’s opinion rests, the order added, “Now, therefore, having considered the matter in the light of the opinion expressed by the Election Commission of India, I, Ram Nath Kovind, President of India, in exercise of the powers conferred on me under section 15 (4) of the Government of National Capital Territory of Delhi Act, 1991, do hereby hold that the aforesaid 20 members of Delhi Legislative Assembly stand disqualified for being members of the said Assembly.”

Typically, the post of a Parliamentary Secretary is an adjunct position to a Cabinet Minister. When Parliamentary Secretaries were appointed by the AAP government in 2015, it was officially stated that they would help the Ministers in administering various flagship projects such as mohalla clinics and free Wi-Fi, among others. They were not eligible for any remuneration or perks and thus the AAP leadership did not expect its decision to yield an order of disqualification for the MLAs from the President.

When the order did arrive on January 20, it stirred up the national capital’s politics.

A couple of days after the order, Deputy Chief Minister Manish Sisodia wrote an emotionally charged two-page open letter addressed to the citizens of the national capital indicating how the AAP was planning to frame the narrative in the byelections, which are expected to be held in the near future in Delhi on account of the disqualification.

Sisodia wrote: “Three years ago, you had elected 67 out of 70 MLAs and formed the Aam Aadmi Party government. Today, they have disqualified your 20 MLAs. They say that these 20 MLAs were holding an office of profit. We made these 20 MLAs Parliamentary Secretaries and gave them different responsibilities. Like one MLA was given the responsibility of government schools. He would go to the schools every day and see if the teacher has come and everything was going on well. Where it was necessary, he would take action. In a similar manner, one MLA was given the responsibility of government hospitals; another was given the responsibility of mohalla clinics. In this way, we had given 20 MLAs different responsibilities. In return, these MLAs did not receive any government vehicles, bungalows, or salaries. We gave nothing. These MLAs would spend their own money to do public works because they came from the (anti-corruption) agitation and had a passion for working for the nation. So if they were given nothing, then how did it become an ‘office of profit’?”

Sisodia then proceeded to claim in his letter that these 20 MLAs had been given no opportunity for a hearing despite the E.C. promising them in a written communication on June 23 that a date for hearing would be given. The “Central government” eventually disqualified the MLAs, he wrote.

A significant part of the letter described what the AAP considered to be the negative role played by the Central government in Delhi’s governance. It mentioned all clashes that the AAP government and its functionaries had with the Central government in the past three years and characterised the President’s order as one which had been forced upon the people of Delhi by the Centre. The letter claimed significant successes in the implementation of welfare measures by the AAP government pertaining to water, power, government schools, and hospitals, and flyovers, among other things. But it also pointed out the challenges that the future implementation of key projects such as CCTV and free Wi-Fi installation would face on account of the limitations imposed by the election code of conduct.

The Deputy Chief Minister concluded the open letter with what appeared like an appeal to the electorate of Delhi. He wrote, “They have imposed elections on Delhi by the disqualification of MLAs. Now code of conduct will come in force and all work by the government will be stopped. After that will come the Lok Sabha polls and with them, the return of code of conduct; and the work being done by the government will stop yet again. And after that will be time for the (Delhi) Vidhan Sabha elections. So, in one way, the BJP [Bharatiya Janata Party] has stopped all development work in Delhi for the next two years by imposing elections on these 20 Assembly constituencies. There will be needless expenditure for conducting polls in these 20 constituencies. Isn’t this dirty politics? Is it fair to push Delhi towards elections? Is it right to stop all development work in Delhi for two years? Is it right to disqualify elected MLAs in such an unconstitutional and illegal manner? I expect you will give the right and effective answer to this.”

What was indicated in this letter was confirmed by AAP spokesperson and MLA Saurabh Bharadwaj. Speaking to Frontline, he said, “For the past two years, these 20 MLAs were conscious about the possibility of disqualification and were thus working to be ready for midterm elections. But poll-related work didn’t have the same momentum it has when it's made official. However, if the possibility does arise, the party is ready to face elections.”

And surely, the momentum of an election campaign appeared to be building on the ground. Reports emerged in the last week of January about the 20 former MLAs doing the rounds of their constituencies to informally reach out to voters. If the AAP has started its outreach, the BJP, which is seen as the potential big gainer out of this, had been eagerly preparing too. This was indicated by the BJP's Delhi State unit president Manoj Tiwari. Responding to Sisodia’s open letter, he tweeted, “People’s answer: come contest election, don’t write letters. Not just 20 bring all 70.”

Petitions in the High Court

While both the parties started their campaigns for the elections unofficially, efforts to prevent the elections were also made simultaneously by the AAP’s disqualified MLAs by filing petitions in the Delhi High Court.

Their main argument in the petitions was summed up by Bharadwaj. He said, “The Election Commission decided this matter in haste because Mr. [A.K.] Joti, the then Chief Election Commissioner, was retiring in the next two days, so the opinion was sent to the President without even giving a chance to the MLAs to put forth their proofs, evidence and arguments.

This is totally against the principles of natural justice which are followed across the world in all kinds of inquiries, inspections, tribunals and judicial proceedings. We are confident that the court will strike down the said opinion of the ECI as it had done in the case of dismissal of the elected governments of Arunachal and Uttarakhand.”

However, advocate Prashant Patel, whose petition to the President in 2015 set off the chain of events which led to the MLAs’ disqualification, contradicted the AAP spokesperson’s contention. Speaking to this correspondent, he pointed out, “There have been 11 hearings in the E.C., and the Chief Secretary [C.S.] of the Delhi government even gave evidence against the 20 MLAs. The E.C. called them on September 20 and November 2 to put [up] their defence against the submission made by the C.S. of the Delhi government, but they did not come. So, their argument about the principle of natural justice is untenable.”

The relative value of each one of the two contrary perspectives about the office of profit issue will be judged first by the higher judiciary and, finally, if the situation does arise, in the people’s court during the elections.