In order reinstating disqualified AAP MLAs, Delhi High Court says Election Commission must be fair

Invalidating the Election Commission of India’s order in January disqualifying 20 Aam Aadmi Party legislators in Delhi on the charge of holding offices of profit, the Delhi High Court on Friday reminded the poll panel that its procedures must be fair and reasonable.

The court held that the commission’s opinion, on the basis of which the president had approved the removal of the MLAs from office, had violated the principles of natural justice. Under this principle of law, all parties to a case are to be heard before a judgement is pronounced.

The High Court also referred to past judgements of various courts on the question of office of profit. But it stopped short of commenting on whether the post of parliamentary secretary held by the 20 MLAs belonged to this category. It left this analysis to the Election Commission, to which the matter has been sent back for a fresh hearing.

The High Court’s order reiterated that the proceedings before the Election Commission were quasi-judicial in nature and, therefore, the principle of natural justice has to be an integral part of it.

The case

On March 13, 2015, the Delhi government appointed the 20 legislators as parliamentary secretaries to ministers. A notification said the secretaries would not receive any remuneration but would be given office space and certain reimbursements, including for transport.

On June 22 that year, the president received an unsigned petition from Prashant Patel, a lawyer, who alleged that the post of parliamentary secretary was an office of profit and the legislators should be disqualified.

The office of the president forwarded this petition to the Election Commission on two occasions that year, in July and then in August. But the commission refused to look into it, saying it could take up the case only if the president made a formal reference. This was done in November, when the office of the president sent yet another communication to the commission, which accepted it as a formal reference. The MLAs were then issued notices.

Meanwhile, on September 8, 2016, the Delhi High Court struck down the appointments as bad in law as the Delhi government had not communicated them to the lieutenant governor. The legislators used this judgement to argue before the commission that since the appointments had become invalid, the disqualification proceedings were infructuous. However, the commission rejected their claim and went ahead with the case, saying the MLAs had held the office between March 2015 and September 2016.

Natural justice

The main contention of the legislators before the Delhi High Court was that the Election Commission did not allow them to make oral arguments during the proceedings and passed the order disqualifying them without regard to the principle of natural justice.

In response to this charge, the commission argued that under law, it has the power to decide its own procedures. It also presented before the High Court past instances where petitions were dismissed without hearings.

Dismissing this contention of the commission, the High Court in its judgement elaborated on the procedures to be followed in a case involving disqualification proceedings.

The court held that even though the commission is given flexibility as far as procedures are concerned, it cannot negate these procedures entirely by invoking this flexibility. This is because the Election Commission is a quasi-judicial body when it handles such disputes, it said. The commission had argued that the proceedings before it were not quasi-judicial but only inquisitional, a point the court rejected. It said: “Looking at the nature of powers conferred on the ECI [Election Commission of India] which are similar to powers of the civil court, it would be correct and appropriate to hold that inquiry proceedings under Chapter IV relating to disqualification of members are in the nature of quasi-judicial proceedings.”

Therefore, the fact that the legislators were not given an opportunity to make oral arguments violated the principles of natural justice, the court held. It said:

“Where the situation is converse and contentious and complicated issue arises for consideration, or when the final decision or opinion would be 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.” 

The court also said that while the law recognises the primacy of the commission in matters such as these, the procedures followed by the commission should be fair and reasonable.

Points of contention

Another point of contention was Election Commissioner OP Rawat’s recusal during the proceedings. Following allegations of favouritism levelled against him by Delhi Chief Minister and Aam Aadmi Party leader Arvind Kejriwal, Rawat had withdrawn from the case in April 2017. “I have recused myself so that he [Kejriwal] can have faith in the independence of the institution,” Rawat had said. However, he rejoined the proceedings a few months later. This was not communicated to the legislators, a point the court held as improper.

On the subject of office of profit, the court cited past judgements to drive home the importance of proper proceedings in determining whether a position qualifies as such. However, it did not analyse whether the post of parliamentary secretary held by the 20 legislators was an office of profit. This task now lies with the Election Commission, after it hears the oral arguments of the legislators.