Arvind Kejriwal’s generosity in letting 21 MLAs of his party enjoy the perks of power by occupying the posts of parliamentary secretaries has cost him heavily.

Delhi chief minister and Aam Aadmi Party chief Arvind Kejriwal’s generosity in letting 21 MLAs of his party enjoy the perks of power by occupying the posts of parliamentary secretaries has cost him heavily.

For more than the past two years, the disqualification of these 21 MLAs for holding this 'office of profit' has been haunting Kejriwal and the AAP. Out of the 21, Jarnail Singh resigned, after which he again contested an election and lost. Kejriwal had suffered a big setback in September 2016 when the Delhi High Court had quashed the appointment of all parliamentary secretaries. Now, the Election Commission has delivered a body blow to the AAP by recommending to the President Ram Nath Kovind the disqualification of 20 AAP MLAs on account of holding an office of profit. Chief Election Commissioner AK Joti is due to retire on 22 January.

As per the norms, the President is bound to accept the recommendation and give his assent to disqualify these MLAs. The remedial measures for the AAP in court are limited. This is firstly because the Delhi High Court has already heard the matter and quashed the appointments. Secondly, the issue was dealt with at length by the Election Commission, which is mandated by the Constitution to deal with such matters. Article 120(1) of Indian Constitution has laid out norms on `office of profit’ issue.

It is important to note what the Supreme Court had said on the issue of offices of profit in the Jaya Bachchan vs Union of India case: "An office of profit is an office which is capable of yielding a profit or pecuniary gain….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. If the “pecuniary gain” is “receivable” in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.”

After the presidential sign and seal is placed on the EC’s recommendation, the 20 MLAs will stand disqualified. This would mean the AAP’s worst nightmare — holding a mid-term mini election in 20 assembly constituencies — coming true. Since Kejriwal has such a brute majority in the Assembly, despite disqualification of 20 MLAs, his government will still survive.

Kejriwal’s problem is not the survival of his government. His problem lies elsewhere. The EC’s move would mean that Delhi would soon see 20 out of 70 assembly seats going to elections. Elections in these constituencies will be taken as a referendum on the Kejriwal government as a whole. Even in the best possible scenario, the AAP can’t hope to repeat its February 2015 performance (when Assembly elections were held) and have all its 20 candidates re-elected to the Assembly.

The Kejriwal government non-performance, the chief minister's vitriol against Prime Minister Narendra Modi, the hurry to expand outside of Delhi and virtually abandoning governance in the city to become the sole national challenger to Modi has diminished his stock in the last three years. The results of the Delhi municipal election, the Rajouri Garden by-election, and the Assembly elections in Punjab and Goa were a reflection of the popular rejection of Kejriwal’s unbridled ambitions, whether at the national or state level.

Kejriwal has so far not responded to the EC’s move. He simply re-tweeted a tweet by one Krishan Pratap Singh, which said:

You may oppose AAP all you want, but this is the first time in India's democratic history that assembly seats representing the verdict of nearly one-fourth of a state's electorate have been wiped out with the stroke of a pen & without a hearing. Even Indira Gandhi never did that. — Krishan Partap Singh (@RaisinaSeries) January 19, 2018

Kejriwal found a friend and ally in West Bengal chief minister and TMC chief Mamata Banerjee whose tweet he re-tweeted: “A Constitutional body cannot be used for political vendetta. The 20 AAP MLAs were not even given a hearing by the Hon EC. Most unfortunate. This goes against the principles of natural justice. At this hour we are strongly with @arvindkejriwal and his team”.

The question is why Kejriwal himself is not saying anything other than re-tweeting favorable tweets, even on an issue which matters to him most.

The response given by his party spokesperson Saurabh Bhardwaj on an issue which was strictly in the domain of legality and constitutionality was interesting: He said, "Go and ask the people in the MLAs' constituencies if they benefited from an office of profit. The people in the MLAs' constituencies should have been asked to give their opinion before taking a decision on the issue." Indeed, the opinion of the people with respect to the legislators who represented them will probably become known in the near future.

Arvind Kejriwal has a tough challenge ahead of himself. He will be able salvage his pride and prestige if he is able to ensure a win for most of his candidates. However, if he and his party perform poorly, then his government will become a lame duck government for the next two years.

The 20 AAP MLAs who face disqualification can draw some solace from the fact that they now stand in same league as Sonia Gandhi and Jaya Bachchan (the two were MPs of the Lok Sabha and Rajya Sabha respectively). Their case will always be cited by students of politics, politicians and so on. However, the bad news for them is two fold. Firstly, not all of them may be named by Kejriwal to contest the elections. Secondly, even if that happens, not all of them can expect to win.