Delhi is experiencing chilling cold as the mercury continues to drop every day. However, temperature in the political corridors is boiling up day by day. On one hand, Congress’s new President Rahul Gandhi is getting all prepared to take on the Narendra Modi-led BJP Government, while on the other hand, Delhi’s firebrand Chief Minister and Aam Aadmi Party (AAP) leader has been left nursing his wounds by the Supreme Court. Even as the issue is now been seized by the Judiciary, there are indications that Kejriwal is up for a long-drawn battle in near future once again.
Political watchers believe that the Delhi Assembly is heading for another round of political instability and thus, fresh elections, if the recent developments involving the Election Commissioner and the President’s office are any indication. Though the disqualification of 20 MLAs of Delhi from the Aam Aadmi Party (AAP) by the President of India on Sunday on a binding recommendation of the Election Commission (EC) is a constitutional fate accompli unless the Supreme Court takes another view, the order itself raises disturbing questions. The AAP, and some former election commissioners, have challenged the manner in which the disqualification has taken place and the alleged disregard of due process in the action. The issues they have flagged call for wider discussion. However, such healthy discussions are a near impossibility at least in India’s present context.
Issue of Parliamentary Secretary
The 20 legislators of AAP who have been disqualified for holding an “office of profit” were appointed as legislative secretaries by the Delhi government in 2015. In 2016, the Delhi High Court set aside the appointments, and the AAP pleaded before the EC that the matter was now void. On 23rd June 2017, however, the EC said because the MLAs held the post at the time of appointment, the case will continue. Since June last year, there has been no hearing of the matter. Many states, such as Rajasthan and Karnataka, allow legislators to be appointed as parliamentary secretaries. There is, however, a precedent to back the EC’s decision: Jaya Bachchan was disqualified from the Rajya Sabha for her holding the post of the chairman of UP Film Development Council and the disqualification was upheld by the Supreme Court in 2006. But in the case of Sonia Gandhi, her chairmanship of the National Advisory Council was exempted by an amendment to the Parliament Prevention of Disqualification Act, 1956. The Delhi Assembly too tried to amend the Delhi Members of Legislative Assembly (Removal of Disqualification) Act in 2015 to expand the exemption to parliamentary secretaries. However, the amendment was not approved by the President — bills passed by the Delhi legislature do not have the force of “law” unless approved by the Lieutenant Governor and the Centre. This seems to be a mere technical snag on part of the Delhi Government. However, the BJP Government sitting in the Centre took political advantage of the situation. However, whether or not the EC’s decision is in accordance with the spirit of the law is a matter for the courts to decide.
Political pundits and watchers sincerely believe that beyond the immediate debate, there is a larger question at hand over two conflicting constitutional principles that have played out at regular intervals in Delhi’s politics since 2015: In most other states, an act by the legislature would have resolved the “office of profit” issue. Article 239AA, which deals with the distribution of powers between the Centre and the Delhi government, remains contentious, though the high court had ruled in the LG’s favour. The disqualified MLAs were elected to office for a full term and the “office of profit” they held ceased to exist in 2016. In this context, the action of EC, an institution admired for its impartial conduct, appears far too disproportionate as it has taken a view that does not suit the principles of natural justice. The Judiciary has gone by the ‘letter of the law’ than by the ‘spirit’ of the provision.
The reputation of the Election Commission is that this institution remains over political games and philosophies. The EC has proven this admiration time and again. However, in this case, there is a room for suspicion. The issue if disqualification was pending with the EC for many months. However, the out-gone Chief Election Commissioner decided the action on the last day before he retired. The timing of the action has caused rising of many eye-brows. What was the mighty hurry? The next CEC could have decided the matter. This doubt assumes significance mainly because he comes from Gujarat cadre of civil service.
Meanwhile, the AAP has decided to move the Court against the Presidential order of disqualification. Hopefully, the issue would be solved sooner than later. Failing which the Delhites would be suffering the rule of ‘fractured Assembly’. The President has disqualified as many as 20 legislators by a stroke of pen. Delhi Assembly has 70 members. Now if 20 of them sit home. The strength of the elected house comes down to 50. It means, more than 25 per cent seats would remain vacant till the new members are elected after facing by-elections. It’s true, even if, the AAP loses all 20 seats in by-elections, the situation would not affect the stability of Chief Minister Arvind Kejriwal. in 2016 Delhi Assembly elections, Kejriwal had registered a mopping win by returning 67 out of 70, leaving only three for the BJP and Congress had drawn blank. Last year the BJP won one by-election taking its strength to four. In case, the Judiciary does not favour AAP and if AAP suffers defeats in all 20 constituencies, the AAP would be reduced to 46, far ahead of the half-way mark of 36. However, in this situation Kejriwal loses his moral right to run the government.
Kejriwal Takes on Modi
On one hand, he is taking on Prime Minister Narendra Modi and his Delhi Government almost every day, and on the other hand, if he has to preside the government of ‘fractured mandate’, it would become difficult for him to run the show. Thus, I feel Delhi is heading for yet another round of mid-term elections soon. Kejriwal, who is facing intra-party revolts very regularly, will have to take a call now whether to go out and seek people’s mandate once again or to keep cool and continue to rule. This thought is important for all Indians also.
In any case, is this situation good for ‘good governance’? That is the moot question. The state saw elections in 2015, when Kejriwal assumed power with the ‘outside support’ of the Congress. As expected, this experiment did not last long and Kejriwal quit leaving the Capital State to President’s rule. In 2016, Kejriwal surprised all including his own party-mates by registering the historic mammoth victory. Now, if he decides to go for poll again, it would not only the morale of the AAP workers and sympathizers but would also affect the state administration and economy.
The author is a political analyst and former, Member of Parliament (RS).
