Office of Profit; AAP MLAs
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The major relief to the AAP government in Delhi came on 23.03.2018 from the Delhi High court. The issue of disqualification of 20 AAP MLAs for holding Office of Profit as Parliamentary Secretaries came in the wake of already prevalent controversies surrounding the Aam Admi Party. The High Court set aside the disqualification of the MLAs on the grounds of violation of the principles of natural justice.

Facts:

The Writ Petition was filed before the Hon’ Delhi High Court against the President’s approval of the recommendations of the Election Commission of India for the disqualification for holding Office of Profit. The brief facts of the case as follows:

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The AAP led Delhi Government issued an order on 13th March 2015 to appoint 21 MLAs (one resigned) as Parliamentary Secretaries to the Ministers of the Government of NCT of Delhi. The appointment was brought to notice to the President by Mr. Prashant Patel. Section 15 of the Government of the National Capital Territory of Delhi Act mandates disqualification for membership. The provision enumerates upon the disqualification of the Member of the Legislative Assembly for holding an office of profit unless declared by the law made by the Parliament or the Legislative Assembly of the State or the Union Territory. The provision further states the decision of the President rendered to be final after obtaining the opinion of the ECI. The petitioners filed the present petition before the Court praying to issue the writ of certiorari or any appropriate order to set aside the recommendations of the ECI receiving the President’s approval for the disqualification of 20 MLAs.

Issue:

The petitioners challenged the order on various contentions such as

  • Whether the reference made by the President to the ECI was valid?
  • Whether the recommendation made by the ECI was in accordance with law?

The Court took cognizance on the ground of violation of natural justice as a due opportunity was not provided to the petitioners before the order was passed for their disqualification. The ECI in the said opinion failed to provide a due opportunity to the petitioners.

Decision:

The Court in its judgment passed the writ of certiorari and set aside the order for disqualification. The court observed that the opinion of the ECI was bad in law. The failure to provide an opportunity for oral hearing was in violation of the principles of natural justice negating the contention put forth by the ECI. The Court directed ECI to conduct hearing and decide upon the important issues.

The reinstatement of the MLAs may have brought some relief to the Party Convener Arvind Kejriwal, but the issue has not ended in totality. Section 15 of the Act provides an exception if a law is legislated to declare the office, but to effectuate the same the attempt by the Delhi Government would be in vain. Therefore, the judgment could be deemed as a partial victory and the ultimate result would depend upon the final opinion of the ECI that is to be conducted after fresh hearings as directed by the Court.

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