Monday, October 22, 2018 04:28 AM

'office of profit' case: AAP MLAs' plea 'misdirected', 'not maintainable', EC tells HC

The Election Commission has told the Delhi High Court that the various writ petitions submitted by the Aam Aadmi Party (AAP) legislators against their disqualification in the 'office of profit' case are "misdirected" and "not maintainable", and has sought their dismissal "with cost".

In its reply to the High Court,it also tried to clarify as to how not granting oral hearing to the disqualified MLAs does not violate principles of natural justice, which the MLAs have alleged.

The EC said that the pleas by the MLAs are not maintainable as the petitioners have not challenged the Presidential Order dated January 20, 2018 disqualifying them on grounds of holding office of profit as Parliamentary Secretaries.

"It is relevant to point out herein that Section 15(3) of the Government of National Capital Territory of Delhi Act, 1991 provides that if any question arises as to whether a member of the legislative assembly has become subject to any of the disqualifications mentioned in Section 15(1), the question shall be referred for the decision of the President and his decision shall be final.

"Sub-section 4 of Section 15 further provides that before giving any decision to any such question, the President shall obtain the opinion of the EC and shall act according to such opinion. Section 15 of the Act clearly envisages that the opinion of the EC would culminate into an order/decision of the President of India. It would then be followed by a necessary notification in the Official Gazette," the EC said.

Pointing out that the petitioners have "not chosen to assail the President's Order", it said that the opinion of the Commission "does not survive today" as the same has "culminated into a decision of the President".

"The aforesaid failure to challenge the Presidential order has made the present petitions non-maintainable in the eyes of law," it contended.

The poll panel also pointed out that the judicial review of Presidential orders based on the opinion of the EC has a "very narrow compass" as the Supreme Court has discussed and decided the scope of judicial review in various earlier cases.

Further, it said, that even if the higher courts exercise their jurisdiction under Articles 226 and 32 of the Constitution in respect of such matters, the courts would "ordinarily not enter into the merits of the matter".

On the petitioners' complaint of no oral hearing, the EC said there was nothing in the Constitution or the Representation of People Act mandating that it "must give oral hearing to the concerned members of the legislature who have become subject to any of the disqualifications" and it has earlier too given its opinion to the President without giving any oral hearing to any party during its inquiry.

It also underlined that such opinions of EC were "neither challenged before any court nor stayed by any court for this reason".

The poll panel said that that it afforded the petitioners "ample opportunity to come and participate in several hearings", which "demonstrates and proves that the principles of natural justice have been duly complied with and adhered to", adding that the MLAs gave only "illusory responses" through their replies dated October 16 and November 20, 2017 and "threatened the respondent through their responses not to proceed with hearings".

It said that in view of all this, "it is humbly submitted that the prayers sought in the present writ petitions are not only misguided and misconceived, but also misdirected and not maintainable. And therefore the said prayers ought to be rejected with costs".


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