Can People Who Hold Honorary Positions Continue With Political Activities While In Office? Delhi HC On Jasmine Shah's Plea Against LG's order

The Delhi High Court on Tuesday asked the Lieutenant Governor Vinai Kumar Saxena and the planning department to respond to the Dialogue and Development Commission of Delhi (DDCD) Vice Chairperson Jasmine Shah's petition against Saxena's decision asking Chief Minister Arvind Kejriwal to remove Shah from the post, and restricting him from discharge of functions as the V-C in the meantime.

In the order conveyed through Director (Planning) Vijendra Singh Rawat on November 17, the LG requested Kejriwal to remove Shah from his post for allegedly misusing the public office for political activities. Pending the decision of the Chief Minister, Shah has been restricted by the LG from using his office space and the staff and facilities assigned to him have also been withdrawn. According to the petition, Shah's office has been sealed and all the privileges and facilities extended to him as the vice-chairperson have been withdrawn.

Justice Yashwant Varma asked Delhi's Standing Counsel (Civil) Santosh Kumar Tripathi, who said he appears for LG as well as the Director (Planning), to seek instructions and listed the matter for hearing on November 28.

"Mr Tripathi, we are only concerned with the challenge to jurisdiction which has been assumed by the Hon'ble Lieutenant Governor. What will have to be considered is the scope of the power the Hon'ble LG can exercise...," the court said.

Senior Advocates Rajiv Nayar and Dayan Krishnan represented Shah before the court. During the hearing, Nayar argued the LG has no power to pass such decision and that the clauses on which the action against Shah is based is "completely unfounded."

"One section and one rule have been pressed into service in the impugned order. Both of them only talk about duties of Chief Minister in respect of furnishing of information to LG," Nayar submitted, adding seeking of 'information' cannot mean LG can pass an order. 

The appointment is by the decision of the cabinet and coterminous with the government, the court was told. "The LG recognises the fact by asking the Chief Minister to take action," argued Nayar.

The court observed that the order is only a recommendation and asked whether Chief Minister has acted on it.

However, Nayar submitted a direction has been passed by the LG in the meantime restricting Shah from discharging his functions as the vice-chairperson.

"Without the Chief Minister acting, he has unilaterally sealed office etc. I ask myself if you are asking somebody to take action and when you have no power, can you say in the interim, I will pass this order," Nayar argued.

As Nayar contended that Shah's office has been sealed, Justice Varma orally remarked "that is not his office... in any case, that is not his [Shah's] personal space. Doesn't matter."

Justice Varma also asked how the vice-chairperson of the DDCD is appointed.

"This particular notification does not prescribe as to how the vice-chairperson is appointed. It could be anybody? There are no qualifications? Nothing prescribed at all? It is what... is it a political office?" asked the court.

When Nayar referred to Shah's accomplishments, Varma said: "I want to understand the nature of this commission. This is a body found by the GNCTD, funded by the GNCTD. These are all honorary positions to look after the affairs of GNCTD?"

"The point is you may be a very accomplished person ... but what has been noted in the Hon'ble LG's order, that also gets us thinking that whether people who hold these honorary positions could also be ... because that is what has actually started the action by the LG," said the court. 

Justice Varma further observed: "... that is what is striking us whether once you take up this honorary position, whether you are obliged to give up another part of the activities. While holding that office or post, can you continue ... and whether that should be permitted to continue".  

In September, BJP MP Pravesh Sahib Singh had filed a complaint alleging that Shah was acting as official spokesperson of the Aam Aadmi Party before the media, and called it a misuse of public office.

Shah, who was appointed as the chairperson of the government think tank in 2020, was issued a show cause notice last month by the Director of Planning Department for alleged "misuse of public resources" for political activities. Shah had chosen to submit his response to the Chief Minister through Deputy Chief Minister/Minister (Planning). The LG had earlier sought a copy of the reply from the Chief Minister's office but same was not provided, according to the planning department.

Shah has argued that the terms of constitution of the DDCD reflect that the sole supervisory jurisdiction and authority over the appointment and discharge of the functions of the vice chairperson is that of the Cabinet and the Chief Ministers. Director (Planning) did not have jurisdiction to take cognizance of the complaint or to seek the petitioner's explanation or pass any directions.

"In the fitness of things and as per law, the complaint ought to have been forwarded to the competent authority namely, the Chairperson DDCD for examination and necessary action," Shah said in the plea.

Submitting that the November 17 order itself concedes the position that any action against him can only be taken by the Chief Minister/Chairperson DDCD, Shah said the direction to restrict him from discharging the functions as vice chairperson is evidently premature, without any authority and mala fide. "All consequent actions and steps taken in this regard are also, therefore, illegal," he argued.

Defending his political activities, Shah argued that the expectation of 'political neutrality' is only associated with 'government servants' who constitute the 'permanent executive' in a parliamentary system of democracy such as the one adopted by India.

"It is only persons appointed to a civil service or holding a civil post in connection with the affairs of the Union who are governed by the CCS (Conduct) Rules. The Petitioner, on the other hand, has been appointed by the Cabinet of the GNCTD to advise the Government on issues of governance and his term is coterminous with the present Government. He is not a part of the "permanent executive" but at the highest could perhaps be stated to be an extension of the "political executive," the plea contends.

Shah has also said that he is not entrusted with the responsibilities, duties or functions which would involve the exercise of executive, administrative or judicial powers of the State or authority in the name of or on behalf of the Government of the NCT of Delhi such as sanctioning of the budget for the DDCD, appointment of staff or payment of salaries and he, therefore, does not have a master servant relationship with the government.

He also said that he has never used the official premises of the DDCD for any television debate or media interaction "as alleged in the complaint, and rubber stamped in the impugned order". The proceedings against Shah are a witch hunt aimed only at achieving maximum publicity at the cost of humiliating him and denigrating "his tireless efforts dedicated to the service of the residents of the national capital," the plea before court alleges.

"The sole object and purpose of the impugned orders is to victimise the Petitioner for expressing his political views in television debates which were not to the liking of the Complainant, Shri. Parvesh Sahib Singh Verma, Member of Parliament of the BJP from West Delhi, and Respondent No.3 [LG] who acted on a complaint made by the former with alacrity, in a pre-meditated manner," Shah's counsel have said in the plea.

The order passed against Shah is a gross abuse of power and process, argues the plea, adding the "colourable exercise" of authority is patently lacking in jurisdiction apart from being wholly without merit.