Section 15 of the GNCTD Act deals with disqualification of the MLAs of the Delhi Assembly. Clause 3 of the section very clearly states that if any dispute has arisen with respect to the disqualification because of holding office of profit, it shall be referred to the President and his decision shall be final, and as per clause 4, the President has to act on the advice of the Election Commission, not the Central Government. So, where is the controversy?
I think the AAP pre-empted the dispute by removing the disqualification by way of a law, which was a political self goal. This bill unnecessarily brought the Central Government into the picture. In any case, the rejection of the bill by the President is inconsequential because it has been rejected on the advice of the Central Government, and the dispute with respect to disqualification (if any) has to be decided on the advice of the EC.
I was reading some interview of a Senior Advocate of the SC, wherein he suggested that the best course for the AAP is to make it a national issue by raising disputes with respect to other states before the EC. Well, I agree to an extent though of course the dispute has to be raised before the President, not the EC. And whether the AAP has the locus standi to raise such disputes; that I am not sure. But I am sure the AAP will not leave any stone unturned to raise these disputes before the Media, which seems to have become bigger than any political force, whatsoever.
Section 15 of the GNCTD Act is quoted below:
15. Disqualifications for membership:
(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly :-
(a) if he holds any office of profit under the Government of India or the Government of any State or the Government of Union Territory other than an office declared by law made by Parliament or by the Legislature of any State or by the Legislative Assembly of the Capital or of any other Union territory not to disqualify its holder ; or
(b) if he is for the time being disqualified for being chosen, as, and for being, a member of either House of Parliament under the Provisions of sub-clause (b), Sub-clause (c) or Sub-clause (d) of clause (1) of article 102 or of any law made in pursuance of that article.
(2) For the purposes of this section, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State or the Government of any Union territory by reason only that his is a Minister either for the Union or for such State or Union Territory.
(3) If any question arises as to whether a member of the Legislative Assembly has become disqualified for being such a member under the provisions of sub-section(1), the question shall be referred for the decision of the President and his decision shall be final.
(4) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.
Comment dt. 16.06.2016:
India Today is today reporting that EC in its internal report has come to the view that the appointment of the parliamentary secretaries was illegal, for they had no such powers to appoint parliamentary secretaries; therefore, the disqualification of MLAs is inevitable. Without knowledge of the detailed facts, I am willing to believe that the appointment was illegal, for the executive powers run parallel to the legislative powers, and the fact they brought an amendment to disqualification of MLAs law with retrospective effect means they never had power to appoint the parliamentary secretaries. But the ramification of this illegal appointment would be quashing of the appointment by the High Court under its writ jurisdiction, not by the EC. I don’t know why should the EC even be looking into this aspect, and then report gets leaked in the media!
Anyways, the disqualification of the MLA can happen only if the post of parliamentary secretaries in Delhi was an office of profit irrespective of the illegality of the appointment (though I agree a view can also be taken that since the appointment itself was illegal, no office, of profit or charity, existed, but I doubt the AAP has lawyers smart enough to convince courts on this).
Nevertheless, India Today’s reporting is faulty: A bad appointment should lead to quashing of the appointment, not of the electoral process of the election of the MLAs per se; for that, it will have to be proved that the office of profit existed.
Copyright 2016 Ankur Mutreja
Feature Image Credit: Ramesh Lalwani (https://www.flickr.com/photos/ramesh_lalwani/10978693223)