The Division Bench of Justices Sanjiv Khanna and Chander Shekhar of Delhi High Court today concluded arguments and reserved its judgment in the petitions challenging the disqualification of 20 MLAs of Delhi assembly by the President, Ram Nath Kovind, on the Election Commission’s recommendation that they held offices of profit, by virtue of their appointment as Parliamentary Secretaries.

As the counsel for the Election Commission, Amit Sharma, and the senior counsel for the MLAs, K.V.Vishwanathan summed up their arguments, it became increasingly clear that the grounds for striking down their disqualification are fairly strong.

Although Sharma kept saying that the E.C.’s recommendation is non-existent once President Kovind took a decision on it, he addressed the bench on why the MLAs’ plea that they were not given an opportunity of oral hearing by the E.C. was not tenable. He took the bench through various dates, to convince that the MLAs did get ample opportunity to defend themselves. However, he also defended the E.C. saying hearing is not mandatory in such cases.

Sharma drew the attention of the bench to Section 146 of Representation of Peoples Act, 1951, dealing with the powers of the Election Commission, to make an inquiry, in connection with the tendering of any opinion to the President under Article 103 of the Constitution. Sharma contended that there is no mention of the word ‘hearing’ in this provision. Further, he suggested that ‘hearing’ will only mean representation and ‘oral hearing’ is not contemplated under this section. Non-grant of oral hearing, therefore, he suggested, is not an infirmity, as contended by the disqualified MLAs.

He also drew attention to Section 10A of Representation of Peoples Act, 1951, dealing with disqualification for failure to lodge account of election expenses. This provision also is silent on hearing, he said. He contended that disqualification of 20 Parliamentary secretaries will have grave civil consequences. According to him, Section 10A is graver than Section 149, of the RPA, as the latter deals with filling up of vacancies in the House of the People, arising out of different reasons. Section 10A provides for disqualification for three years from the date of the order. “Even in this, there is no provision for oral hearing”, he pointed out, and added, “The discretion is with the E.C. whether to grant oral hearing”.

Sharma argued: “Party cannot demand oral hearing when it is not contemplated in the section itself. Can the Court supplant a word in the statute to interpret? If the Court has to decide in which case oral hearing has to be granted, it will have huge ramifications, under Section 146 of the RPA. Every person will come before the Court, and demand an oral hearing.”

When Justice Sanjiv Khanna asked Sharma whether the E.C.’s recommendation to the President to disqualify the MLAs would become a nullity, if the Court were to conclude that there was violation of the principle of natural justice, and fair hearing of the MLAs, prelude to the making of the recommendation, Sharma quipped: “We are out, with the President issuing the order”.

Repeating his argument on merits, Sharma said Parliamentary Secretaries functioned as Executives under the Government; each MLA, functioning as Parliamentary Secretary, exercised executive powers akin to the Minister, he emphasised. To this, Justice Sanjiv Khanna referred to the argument of the opposite side, that office of profit means profit, and this must be proved. Sharma responded saying there was conflict of interests, and no checks and balances.

In his brief response, senior counsel, K.V.Vishwanathan, on behalf of the MLAs, observed that the words “it appears” has been used a few times in the President’s order disqualifying the 20 MLAs. Thus in Paragraph 27 of the President’s order disqualifying the MLAs, which reproduces the E.C.’s recommendation, it is mentioned as follows: “In such circumstances where the Respondents have clearly stated that they have already made the submissions that they wanted to make and have not made any further submissions on the details provided by the GNCTD despite multiple opportunities and the lapse of considerable period of time, it appears (emphasis ours) that they have nothing further to add. Therefore, this Commission has decided to conclude the proceedings in this matter and to render its Opinion in the present reference”.

Translating the word “it appears” in Hindi, Vishwanathan asked whether it would mean “perhaps”, and queried whether the E.C. was not sure about its conclusion while making its recommendation to the President.