The Delhi HC’s verdict on the disqualification of the AAP MLAs embarrasses the Election Commission. However, the triumphant mood in the AAP camp is unwarranted.

The Delhi High Court’s verdict on the disqualification of the AAP MLAs is a clear embarrassment to the Election Commission, which is a high constitutional office. Setting aside the disqualification of the MLAs, the court has now transferred the matter back to the Election Commission, allowing the legislators a chance to present their side through an oral hearing.

The court verdict further indicates that the President should have at least warned the poll panel against the remarkable alacrity with which it acted on the issue. The norms regarding giving an oral hearing to the MLAs were violated. This goes against the principle that it is not enough just to deliver justice, but justice should also be seen to have been delivered. Seen in the perspective of how the L-G acted with the elected government of Delhi, the manner in which the AAP MLAs were disqualified is a cause for worry.

However, Kejriwal should have avoided all this. The appointment of such a large number of parliamentary secretaries militates against the principles of law and political probity, which is unbecoming of the party and the government that swears in the name of the aam aadmi (common man).

The court seems to have objected to the manner in which the EC has acted. The remarkable alacrity with which such an august constitutional body acted certainly raises many questions. As AAP spokesperson Saurabh Bharadwaj said, "The principles of natural justice hold that a person against whom an accusation is made should have a chance to explain his or her stand."

The AAP is therefore, right on the question of principles of natural justice. However, the triumphant mood in the AAP camp is unwarranted as the case has more to it. It is difficult for the AAP to justify its actions that clearly violate the office of profit law. This law has a clear bearing on the constitutional scheme of things. The legislature is supposed to scrutinise the executive. Any legislator receiving a pecuniary benefit or any other benefit from the executive beyond what is permissible under law is a clear conflict of interest. Arvind Kejriwal being a civil servant-turned politician must be aware of this.

The Delhi High Court, by allowing a fresh hearing of the case by the EC, therefore has not vindicated the AAP government's action of appointing legislators as parliamentary secretaries, that too in such a large number. Such an action by the Delhi government is a clear attempt to subvert the constitutional provisions that enforce a limit on the strength of the ministry in proportion to the strength of the legislature. Such provisions are aimed at establishing some propriety and probity in public life. The government headed by Kejriwal that assumed office on the promise of alternate politics and governance should not have resorted to such an act. Besides, he should have been aware that the Delhi government does not enjoy the constitutional luxury which other states enjoy, which had enabled them to bypass the office of profit law.

More than the law, it is political optics and the perception battle which Kejriwal lost.

It is true, as AAP leader Ashutosh has observed, that the BJP-led Central government has done everything at its disposal to hijack the people's mandate in Delhi. However, this does not justify Kejriwal's brazen actions on this issue.

The AAP may be right in alleging political motives behind the disqualification. However, the question is whether such an accusation will stand in the court of law. Can Kejriwal defend his motives in distributing sops to his MLAs, subverting the provisions of the law? The Election Commission will hear the matter afresh, and may well arrive at the same recommendation. Thus, the issue can come before the court again.

The key question is, as The Hindu observes in its editorial, whether the post was an office of profit even after the Delhi government made it clear that parliamentary secretaries would not be eligible for any remuneration. The AAP’s stand is that they were only allowed the use of government transport for official uses and office space in the respective ministries.

As per the Indian jurisprudence, the test to decide whether a post is an office of profit is the role of the government in appointing and paying the person concerned. In the case of Jaya Bachchan (2006), the Supreme Court said that it was an office of profit even if one did not actually receive payment; it was enough if some pay was ‘receivable’. An office of profit is an office which is capable of yielding a profit or pecuniary gain. The fact that these MLAs, in their capacity as parliamentary secretaries, would be functioning in an executive position would incur disqualification.

The writer is a former MLC in Telangana, former editor, The Hans India and Professor, Journalism, Osmania University.