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NEW DELHI: Election Commission, in its opinion that led the President to disqualify 20 AAP MLAs, rejected AAP’s contention that the order was issued without offering them a chance to be heard . The poll panel put it on record that the respondent MLAs had, in their final reply sought by the poll panel on Delhi government’s contentions detailing the benefits derived and duties discharged by them as parliamentary secretaries, clearly stated that they had already made the submissions they wanted to make.

“The respondents have... not made any submissions on the details provided by the GNCTD (Delhi government) despite multiple opportunities and the lapse of considerable period of time... it appears that they have nothing further to add. Therefore, this commission has decided to conclude the proceedings in the matter and to render its opinion,” the EC said in its opinion favouring their disqualification.

Detailing the ground for adjudicating the post of parliamentary secretaries as an ‘office of profit’, the EC cited the three criteria used by the Joint Parliamentary Committee on Offices of Profit in the 16th Lok Sabha . The JPC criteria included whether the holder drew any remuneration; whether the body in which an office was held exercised executive, legislative or judicial powers; or whether such a body enabled the holder to wield influence by way of patronage.

“The third test... is of great significance in the present case,” the EC said, adding that the office of parliamentary secretary allowed the incumbents to participate in government meetings. Also, they were allotted office space and official transportation. “These parliamentary secretaries had full time access to the ministers and ministerial files... and this access enabled them to wield influence and power by way of patronage,” the commission said.

The EC recalled that Jaya Bachchan was disqualified as Rajya Sabha MP in 2004 for having used a chauffeur-driven vehicle at the state’s expense as chairman of UP Film Development Council.

The poll watchdog said an MLA became liable to be disqualified from the date of his appointment to the office of profit and such disqualification could only be undone by an Act of legislature, not resignation or removal by a court order.

“Whether or not the individual parliamentary secretaries had actually derived benefits or participated in executive functions of the government is of no relevance since it is established that the office of parliamentary secretary suffered from the infirmities which would necessitate disqualification for holding office of profit,” the EC said.

Though the Delhi government’s reply — detailing the expenditure incurred on allotting office space to the parliamentary secretaries as well as meetings attended and files perused by them — was shared with the MLAs on September 29, 2016, they refrained from responding and instead raised preliminary objections — in replies dated October 17 and 24, 2016 — as to maintainability of the petition in view of the Delhi high court quashing their appointment on September 8, 2016.

After the EC on June 23, 2017, said the AAP MLAs had de facto held office of profit between March 13, 2015 and September 8, 2016, the EC again wrote to the respondents on September 23, 2017 seeking their replies to the Delhi government’s contentions. AAP MLAs reverted on October 16, 2017, raising the issue of quorum in the EC as election commissioner O P Rawat had recused himself from the case as well as pendency in the Delhi HC of their petition challenging the EC’s order on maintainability of OoP case.

Rawat had later rejoined the proceedings. As the MLAs did not make any substantive submissions on merits of the case, the EC gave them one “last opportunity” on November 2 to respond. The respondents furnished a reply on November 20 but did not make any further submissions on the details provided by Delhi government.

