NEW DELHI: In a reversal of fortune for 20
AAP MLAs, the Delhi high court on Friday restored their status as legislators, setting aside Election Commission of India’s disqualification decision for violating principles of natural justice. The court ended any scope for bypolls in Delhi in the near future as it remanded the original complaint of advocate
Prashant Patel of breach of office-of-profit norms back to the
EC so that the MLAs get an oral hearing and a chance to address the arguments on merit.
This means the MLAs are not off the hook on the tricky issue of whether or not they held an office of profit as EC will now have to take a fresh call. But till then, they continue to remain legislators since the HC didn’t go into the merits of the case and limited itself to the EC’s lapses in procedure.
A bench of justices Sanjiv Khanna and Chander Shekhar also quashed the President’s order disqualifying the AAP MLAs on the ground that the EC opinion "is vitiated and bad in law for failure to comply with principles of natural justice".
In a detailed 79-page order, the bench set aside the EC’s opinion for "violation of principle of natural justice, namely failure to give an oral hearing and opportunity to address arguments on merits of the issue.” While remanding the matter back to EC, the court directed it to “to hear arguments and thereafter decide the all-important and seminal issue — what is meant by the expression “office of profit held under the Government”. It said the EC must then "re-examine” the facts to decide if the AAP MLAs “incurred disqualification on appointment as parliamentary secretaries.” It added the usual rider that EC must not be “influenced by the earlier order or observations on the said aspect in this order.”
Interestingly, the order didn’t come as a suprise to many MLAs since during the day-to-day hearings, the bench had specifically sought their stand on whether they had any objection to the court sending the matter back to EC for an oral hearing.
The MLAs, who were appointed parliamentary secretaries, had challenged their disqualification for holding an office of profit. In response to the HC poser, they had requested it to remand the case back to the poll panel with a direction to hear the matter afresh, a plea that was answered in their favour on Friday. In its judgment, HC noted that while EC was free to frame its rules and procedure on how to conduct hearings, these must be fair and not arbitrary.
The “flexibility” provided to EC in this regard, the court pointed out, ends once it decides to go deeper into facts of a particular complaint. Proper hearings must then be accorded since “consequences of disqualification are serious as an elected representative of the people would cease to be a member of the legislature. Factual disputes and legal issues could arise and require determination.” HC also faulted the failure of EC to communicate to the petitioners that one of the commissioners, O P Rawat, had first recused from the case and then rejoined.
In its defence, EC had filed a list of reference cases from 2008 onwards in which no oral hearing or hearing was given. Backing its recommendation to the President for AAP MLAs' disqualification, the poll panel had submitted that the legislators cannot claim that they were not holding an office of profit as they were appointed parliamentary secretaries to ministers in the Delhi government in March 2015.
In September 2016, the Delhi high court had abolished their appointment as parliamentary secretaries but the EC maintained the violations don’t get erased automatically, a point Friday’s bench agreed with. The high court had on January 24 refused to stay the Centre's notification disqualifying them but had restrained the poll panel from taking any "precipitate measures", such as announcing dates for byelections to fill the vacancies.
