Office-of-profit row: Delhi HC raps EC for denying oral arguments

NEW DELHI: The Election Commission of India has come out poorly in the Delhi high court’s judgement on the manner in which it conducted proceedings for the office-of-profit complaint against the AAP MLAs.
This is reflected in how the court upheld the EC’s order of June 23, 2017 on “maintainability” of the complaint against the legislators but faulted it for procedural failures.



Directing the EC to hear the issue afresh, a bench of justices Sanjiv Khanna and Chander Shekhar also rejected its contention that having given its opinion on the issue, it had become "functus officio” (coming to an end of duty or authority) and it can’t hear the matter again. The bench termed this argument of EC as “untenable” and noted that “once the opinion and notification are set aside, proceedings before the EC would continue from the stage the error and lapse had occurred.”

The court reminded the EC that once it decided to delve deep into the facts of the case and sought affidavits from parties, it was required to grant a proper hearing to the affected lawmakers.



Though the bench agreed with the EC’s central claim that it enjoys “wide discretion, latitude and flexibility on the matter of procedure to be followed when examining whether an elected member has incurred disqualification”, it reminded the poll watchdog that “the procedure adopted and followed must be just, fair and equitable.”

The court listed “lapses” by EC, such as failure to allow oral arguments where the MLAs could bring out finer nuances of the “complex and divergent views” on the office-of-profit aspect. It noted how one of the comissioners, O P Rawat (now CEC), recused from the hearing for some time and then rejoined, but both decisions were not communicated by the EC to the petitioners.

The conduct of commissioner Sunil Arora was cited as yet another violation of natural justice norms by the HC, as it found he had not participated in the hearings on the disqualification complaint and was yet a part of the three member panel which gave the January 19, 2018 opinion to the President.

“We have already observed and held that the ECI need not give an oral hearing where it can dispose of and give its opinion at the initial stage or even after the pleadings or documents in favour of the elected member. However, where the situation is converse and contentious and a complicated issue arises for consideration, or when the final decision or opinion would or could go against the elected representative, hearing is mandated and compulsory, for otherwise there would be violation of principles of natural justice and fairness,” it noted.

HC also took a dim view of EC’s failure to either answer or reject the argument of the MLAs that the Commission must consist of three members without which the quorum would be incomplete.