In a reversal of fortune for 20 AAP
MLAs, the Delhi high court on Friday March 23,2018 restored their status as
legislators, setting aside Election Commission of India’s
disqualification decision for violating principles of natural justice.
The court ended any scope for bypolls in Delhi in the near future as it
remanded the original complaint of advocate Prashant Patel of breach of office-of-profit norms back to the ECI so that the MLAs get an oral hearing and a chance to address the arguments on merit.
This means the MLAs are not off the hook on the tricky issue of whether or not they held an office of profit as EC will now have to take a fresh call. But till then, they continue to remain legislators since the HC didn’t go into the merits of the case and limited itself to the EC’s lapses in procedure.
A bench of justices Sanjiv Khanna and Chander Shekhar also quashed the President’s order disqualifying the AAP MLAs on the ground that the EC opinion "is vitiated and bad in law for failure to comply with principles of natural justice"
In a detailed 79-page order, the bench set aside the EC’s opinion for "violation of principle of natural justice, namely failure to give an oral hearing and opportunity to address arguments on merits of the issue.” While remanding the matter back to EC, the court directed it to “to hear arguments and thereafter decide the all-important and seminal issue — what is meant by the expression “office of profit held under the Government”. It said the EC must then "re-examine” the facts to decide if the AAP MLAs “incurred disqualification on appointment as parliamentary secretaries.” It added the usual rider that EC must not be “influenced by the earlier order or observations on the said aspect in this order.”
Interestingly, the order didn’t come as a suprise to many MLAs since during the day-to-day hearings, the bench had specifically sought their stand on whether they had any objection to the court sending the matter back to EC for an oral hearing.
The MLAs, who were appointed parliamentary secretaries, had challenged their disqualification for holding an office of profit. In response to the HC poser, they had requested it to remand the case back to the poll panel with a direction to hear the matter afresh, a plea that was answered in their favour on Friday. In its judgment, HC noted that while EC was free to frame its rules and procedure on how to conduct hearings, these must be fair and not arbitrary.
This means the MLAs are not off the hook on the tricky issue of whether or not they held an office of profit as EC will now have to take a fresh call. But till then, they continue to remain legislators since the HC didn’t go into the merits of the case and limited itself to the EC’s lapses in procedure.
A bench of justices Sanjiv Khanna and Chander Shekhar also quashed the President’s order disqualifying the AAP MLAs on the ground that the EC opinion "is vitiated and bad in law for failure to comply with principles of natural justice"
In a detailed 79-page order, the bench set aside the EC’s opinion for "violation of principle of natural justice, namely failure to give an oral hearing and opportunity to address arguments on merits of the issue.” While remanding the matter back to EC, the court directed it to “to hear arguments and thereafter decide the all-important and seminal issue — what is meant by the expression “office of profit held under the Government”. It said the EC must then "re-examine” the facts to decide if the AAP MLAs “incurred disqualification on appointment as parliamentary secretaries.” It added the usual rider that EC must not be “influenced by the earlier order or observations on the said aspect in this order.”
Interestingly, the order didn’t come as a suprise to many MLAs since during the day-to-day hearings, the bench had specifically sought their stand on whether they had any objection to the court sending the matter back to EC for an oral hearing.
The MLAs, who were appointed parliamentary secretaries, had challenged their disqualification for holding an office of profit. In response to the HC poser, they had requested it to remand the case back to the poll panel with a direction to hear the matter afresh, a plea that was answered in their favour on Friday. In its judgment, HC noted that while EC was free to frame its rules and procedure on how to conduct hearings, these must be fair and not arbitrary.
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