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Here are AAP’s defenses in Office of Profit matter, and why they are not logical

The Aam Aadmi Party is set to suffer a big jolt as the Election Commission (EC) has recommended the disqualification of 20 of its MLAs. The news came in today on 19th January. The EC has sent its recommendation to the president regarding the disqualification of the said MLAs. If the President clears it, the number of MLAs of Aam Aadmi Party will reduce to 47 from its current 67. One MLA from the original 21 “escaped” since he had already resigned, to contest elections from Punjab.

Expectedly, AAP has brought forth various arguments to defend itself, but they do not seem valid. Firstly, we need to look at the cold facts and the timeline:

19th June 2015: Advocate Prashant Patel files a petition before the President of India to disqualify the 21 MLAs on grounds that the post of “parliamentary secretaries” was an “office of profit” and the MLAs could not hold such office.

23rd June 2015: Fearing disqualification of its 21 MLAs because of the above illegality, the AAP government passed a bill to give exemption to these secretaries from disqualification with retrospective effect.

June 2016: The President rejects the above bill of the Delhi government.

From the above itself, AAP’s guilt is confirmed. The AAP Government brought in the retrospective amendment, precisely because they realised that they had been caught off guard. The amendment was brought in hurriedly, just 4 days after the case was filed.

The Excuses

Inspite of this, AAP has been brazening it out. One of the arguments put forth by AAP is that since the High Court had set aside the order appointing 21 MLAs as Parliamentary Secretaries, the posts never existed and hence there was no question of EC disqualifying the MLAs. They fail to understand that the High Court found their appointment in violation of the law, and that does not mean the appointment never happened. Sources in the EC also held that since the High Court judgment did not explicitly say that the appointments were void ab initio, the EC had to look into the matter.

Also, the grounds which the High Court went into are totally different. The court order had come after the AAP government itself conceded that since the order was passed without the approval of the LG, it went against the August 4 order of the High Court holding the LG’s approval to be mandatory. Thus the High Court had set aside the appointment because the Government had not taken the LG’s approval. This has nothing to do with the “office of profit” matter.

“Not an Office of Profit at all”

AAP has also claimed that there were no benefits accruing to these parliamentary secretaries hence it was not an “office of profit”. However, the official circular said they may use vehicles and space for official purposes. AAP on its part again claims that they had only planned to give these benefits, which were eventually not given. Again, documents from an RTI application showed that the 21 MLAs who held the posts were allotted rooms as office space by the Speaker.

Advocate Prashant Patel, the petitioner, added that generally, “profit” is interpreted to mean monetary gain but benefits other than monetary gain may also come within its meaning. He also said that by accepting the position of Parliamentary Secretary which certainly has some position, prestige or patronage attached to it, these legislators have become an inseparable and an integral part of the Executive and the dividing line between Legislature and the Government has been completely obliterated.

“Insufficient time”

Now, sources say AAP is claiming that they were not heard properly by the EC. Nothing can be further from the truth. A case which began in Mid 2015 has ended in 2018. That itself is substantial time. Plus, the facts show that AAP actually got more time than normal. The original deadline seeking response from the AAP MLAs was October 7 2016. This was extended by another 10 days as some AAP MLAs had failed to file replies. AAP MLA Alka Lamba, had said that she could not submit her reply due to “faulty pen drives” given by the EC and unavailability of lawyers on account of holidays last week.

More recently, in November 2017, the EC had given one last chance to the MLAs to submit their response. The EC had initially served a notice to the 20 AAP MLAs on September 28 seeking their written submissions, but many of their replies did not address the central issue and ended up raising other queries, hence they were given one last opportunity. Advocate Patel had called this as “delaying tactics”.

AAP to move High Court?

It appears that AAP has now decided to move High Court against this decision of the EC. This was probably inevitable since disqualification of 20 MLAs would mean a mini-election which could turn up some very interesting results. AAP’s stock is quite low recently, with its debacle in Goa and Punjab, and more recently, Kumar Vishwas’s open rebellion against AAP’s “compromised” Rajya Sabha candidates. Will Kejriwal once again roar back to abuse the EC for this decision? Only time will tell.

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