In Depth: Why Election Commission Disqualified 20 AAP MLAs And What It Means For Delhi

Posted by Sourodipto Sanyal in Politics, Staff Picks
January 23, 2018

The Aam Aadmi Party (AAP) has moved the Delhi High Court today, seeking the quashing of the disqualification of the 20 AAP MLAs. The court will hear the matter tomorrow.

On January 19, the election commission (EC) recommended the disqualification of the 20 AAP MLAs to the President on the ground that they had held the ‘office of profit’ while being members of the legislative assembly.

On Sunday, January 21, President Ram Nath Kovind accepted the election commission’s recommendation to disqualify the 20 MLAs, leading to the AAP describing the President’s order as ‘dangerous for democracy’ and ‘unconstitutional’.

After the disqualification of the MLAs, chief minister Arvind Kejriwal said in a gathering in Najafgarh, “They filed fake cases on our 20 MLAs, conducted CBI raids on me and still they found nothing. In the whole of India, they found only Kejriwal corrupt, everyone else was honest. When they couldn’t do anything else, they managed to disqualify 20 of our MLAs.”

The AAP has alleged that none of the MLAs was given a hearing by the EC for them to explain their version.

But Just Why Did The Election Commission Recommend The MLAs Be Disqualified?

According to Article 191(1)(a) of the Indian Constitution, a member of a legislative assembly and legislative council of a state stands disqualified if they hold any ‘office of profit’ under either the Government of India or the Government of Any State specified in the First Schedule. An exemption exists only when an ‘office of profit’ is declared by the legislature of the state to not disqualify the holder.

Hadn’t This Issue Been Carrying On For Long?

Yes. In March 2015, the Aam Aadmi Party government issued an order, appointing 21 members as parliamentary secretaries to the various ministers of the Delhi government. The order clearly stated, “These parliamentary secretaries will not be eligible any remuneration or any perks of any kind, from the government – meaning no burden on exchequer.”

The decision to appoint 21 parliamentary secretaries by the Delhi government was first challenged by an NGO called the Rashtriya Mukti Morcha in a PIL filed in May 2015.

The Delhi High Court made the appointment of Delhi MLAs as parliamentary secretaries null and void in September 2016.

Meanwhile, lawyer Prashant Patel had filed a petition with then President Pranab Mukherjee that the 21 MLAs should be disqualified for the same reason. In March 2016, the election commission issued notices to the MLAs, after it received Patel’s complaint from the President, in which its opinion was asked for.

The election commission wrote to the President last year, saying that they ‘did hold de facto the office of parliamentary secretaries from March 13, 2015, to September 8, 2016‘.

Is This The First Time The ‘Office Of Profit’ Has Caused Controversy?

No. Jaya Bachchan, a Samajwadi Party MP was expelled from the Rajya Sabha by then President of India APJ Abdul Kalam based on the recommendations of the election commission in March 2006.

Jaya Bachchan had filed a petition in the Supreme Court challenging her disqualification. The SC had dismissed it in May 2006. While dismissing her petition, the SC had said, “For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain.”

The ‘office of profit’ had earlier also made life hard for former Congress President Sonia Gandhi. She had to resign from the Lok Sabha in 2006, amidst allegations that her post as the head of the National Advisory Council was an ‘office of profit’.

These are arguably the two most covered instances before this where the ‘office of profit’ caused huge controversy. However, there have been other instances as well.

What Does This Mean For The AAP? Does This Mean That Delhi Could Be Headed For Fresh Elections?

This development is a huge blow to the political party which came to power with a massive mandate in February 2015, winning 67 of 70 seats in the Delhi assembly elections. This decision means that AAP’s strength in the assembly has been reduced to 46 seats from sixty-six (Jarnail Singh, an AAP MLA had resigned to contest for the Punjab elections last year).

And even though this doesn’t mean fresh elections ( To have a majority in the Delhi assembly, a political party needs to just have 35 seats. AAP has 46, eleven more than required), it does mean that by-elections can now be expected in the 20 vacant seats.

So while they still will remain in power, this is a major setback for the party. Indian Express reported that a party insider said, “Winning all 20 seats again will not be easy as anti-incumbency will always play a part. The party has done a lot of work but we still have two more years to go, during which more was to be done, as per our manifesto.”

This means that some very prominent members of the AAP are no longer members of the assembly. They include transport minister Kailash Gehlot, Adarsh Shastri and Alka Lamba. A party insider also told the Indian Express, “Gehlot is integral in the party’s expansion in the rural parts of Delhi, a former BJP bastion that AAP has managed to crack, particularly after the victory in Bawana where Gehlot played a key role and was projected as the village face being made a minister.”

The AAP believes that the Bharatiya Janata Party (BJP) led by Narendra Modi is working in tandem with the election commission to weaken the party. Senior AAP leader Gopal Rai said, “The Election Commission’s (EC’s) decision to disqualify 20 AAP MLAs for holding offices of profit, was its chief AK Joti’s parting gift to Prime Minister Narendra Modi.”

The Lok Sabha elections are also expected to take place in 2019, where seven seats will be contested from Delhi and the Delhi assembly elections in 2020.

_

Image source: Aam Aadmi Party/ Facebook