President disqualifies AAP MLAs but should he have waited?

While President Ram Nath Kovind, contrary to speculation that he would sit over the EC’s recommendation and refer the issue to the Supreme Court, on Sunday disqualified 20 AAP MLAs for holding ‘offices of profit’ as held by the Election Commission, the notification has merely served to muddy the water further. And of course this is not the last word on the controversy.

Both the Election Commission and the President will have to answer several disconcerting questions in the weeks to come as AAP knocks on the Judiciary to get ‘justice’.

The two foremost questions the Election Commission will have to answer are the following :

Why did it take the Election Commission more than two years to give its opinion on a petition forwarded to it by the then President in November, 2015 ?

While section 146 of the Representation of People’s Act gives the option to the EC of taking decisions with or without ‘hearing’ parties and witnesses, can the EC do away with the ‘hearing’ that it had itself initiated ?

The EC will also have to explain why it took no heed of the Delhi High Court quashing the appointment of Parliamentary Secretaries by the Delhi Government in 2015 and the then President refusing to give his assent to the amendment brought in by the Delhi Government to exempt Parliamentary Secretaries from the ambit of ‘office of profit’.

The two developments, as argued by AAP, taken in conjunction could well mean that there were no Parliamentary Secretaries in Delhi since September, 2015. Several constitutional experts have also argued that in the event, the petition before the EC had become infructuous.

Writing in June, 2016 noted lawyer Mohan Parasaran had pointed out that the state legislatures were empowered by the Constitution to make laws exempting offices from the ‘office of profit’. Placing his reliance on a statement issued by the Delhi Government in March, 2015, Parasaran said that if no pecuniary benefits were given to the MLAs, they could not be accused of holding offices of profit.

Yet another expert on the Constitution P.D.T. Achary says that giving office space, vehicles for official work, TA or HRA etc. are not ‘profit’ but compensatory allowances. The Supreme Court , he pointed out, had also clarified that status and influence of a person should not be confused with ‘profit’.

The President had the option of consulting experts first or seek the opinion of the Supreme Court. But acting on the recommendation of the EC within 48 hours, he may claim to be Constitutionally correct as he is bound by the EC’s opinion. But a cloud will continue to hang over a decision that unfortunately appears clouded by political considerations.

The office of the President has been embarrassed in the past before the Supreme Court. It remains to be seen if this turns out to be one more instance.