Office of Profit: AAP MLAs’ Petition Not Maintainable After President’s Assent To Disqualification, ECI Tells Delhi HC [Read Affidavit]

The Election Commission of India has submitted before the Delhi High Court that the petition of AAP MLAs against their disqualification in an office-of-profit case is liable to be dismissed as not maintainable since they challenge the ECI recommendation which is non-existent once the President has taken a decision on it.

In an affidavit filed before the court, Vijay Kumar Pandey, director (law) ECI, said the petitioners have not challenged the Presidential Order dated January 20, 2018, by which the ECI's recommendation was accepted by the President.

The ECI was replying to the averments made by the disqualified AAP MLAs, including Kailash Gahlot, Rajesh Rishi, Alka Lamba and others, found guilty of holding office of profit as parliamentary secretaries to ministers in the AAP government after it came to power in 2015.

The MLAs had moved court challenging their disqualification after President Ram Nath Kovind gave his approval to the ECI's recommendation.

Referring to the Government of National Capital Territory of Delhi Act, 1991, the ECI said Section 15 envisages that "the opinion of the ECI would culminate into an order/decision of the Hon’ble President of India. It would then be followed by a necessary notification in the Official Gazette. The Petitioners have not chosen to assail the Order dated 20.01.2018 passed by the Hon’ble President on the opinion of the ECI".

It said "the opinion of ECI does not survice as on date and can therefore not be subject to challenge by way of a writ petition".

MLAs Wasted Ample Opportunities By ECI

In its affidavit, the commission has tried to punch holes in the claim of the disqualified MLAs that they were never afforded a hearing by the ECI leading to violation of the principle of natural justice.

"... the ECI afforded the Petitioners, ample opportunity to come and participate in several hearings, which clearly demonstrates and proves that the Principles of Natural Justice have been duly complied with and adhered to. However, it’s a matter of fact that the MLAs/Petitioners herein gave only illusory responses," it said.

"MLAs/ Petitioners herein willfully and deliberately abstained from participating in the said proceedings. Therefore, the defence of violation of Principles of Natural Justice is not available to the Petitioners/MLAs in the present case," it added.

The Commission further added that the MLAs are now taking vague defence that they wished to adduce evidence in their support but failed to do so when they were afforded opportunity.

Recusal Of Election Commissioner; Delay Tactics 

On the issue of recusal of then Election Commissioner OP Rawat, the ECI said it was necessitated after a statement made by Chief Minister Arvind Kejriwal questioning the former's independence.

"Thereafter, no evidence was ever produced by the Chief Minister of Delhi either by himself or through the Petitioners/MLAs herein to the ECI regarding the said allegations against the said Election Commissioner ... Thus, it is clear that the aforesaid statement made by the Chief Minister of Delhi was nothing but an attempt to malign the image of the said Election Commissioner and ensure his recusal from the proceedings, and to obfuscate the issues much less, to cause obstruction and delay in the proceedings, which ultimately would frustrate or obstruct the course of justice".

The Commission also raised the issue of misjoinder of Delhi government as a respondent in the petitions moved by the disqualified MLAs.

No Right of Oral Hearing

On the plea of the MLAs for oral hearing, the ECI placed reliance on Election Commission of India (Procedure) for Conduct of Inquiries in Reference Cases, 2016, Chapter V, Rule 17-25.

It submitted that these rules have been created in exercise of the power granted to the ECI by Section 146B of the RP Act to regulate its own procedure and these rules only supplement and do not supplant the statute which grants, in unequivocal terms, a discretion on the ECI in matters of conduct of inquiries under Section 146.

"Therefore, no right of oral hearing flows from these rules and the reliance on the rules for this purpose is completely misplaced, misconceived and erroneous," it concluded.