It is ironic that a party which came to power on the back of a robust anti-corruption platform in its maiden electoral attempt should find itself challenging a decision of the Election Commission that suggests gross irregularities in its own practices. The Aam Aadmi Party’s (AAP’s) accusations that former chief election commissioner A K Joti chose to take the decision to disqualify 20 MLAs on his last day in office as a means of currying favour with the ruling regime sound disingenuous. The disqualification of 20 AAP legislators from the Delhi Assembly for accepting offices of profit between March 2015 and September 2016 was, at the very least, based on logic. It is a valid apprehension, as some have argued that one implication of this decision, which was accepted by President Ram Nath Kovind on January 21, is that the Election Commission has demonstrated the power to change the dynamics of elected legislators. Equally, however, the actions of Arvind Kejriwal and his party certainly do not pass scrutiny. Distilled to its essentials, the AAP had little excuse for making the move to appoint 21 legislators as parliamentary secretaries, a post that emphatically did not fall outside the definition of office of profit as defined from time to time by Parliament and, indeed, the Delhi Assembly in a 1997 law.
Indeed, the fact that the AAP retrospectively amended the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, to exempt the post of parliamentary secretary from the definition of office of profit suggests that the party was well aware of the anomalies inherent in its position. The facts that the then President Pranab Mukherjee declined to sign the Bill into law in June 2016 and the Delhi High Court scrapped the appointments in September 2016 were clear pointers to the impropriety of the move. The party’s argument that the office of parliamentary secretary did not attract any pecuniary gain is based on an incorrect interpretation of the facts as well. For one, a 1964 Supreme Court ruling says an administrative position without financial entitlements falls within the purview of the office of profit law if it involves the power to make appointments or terminate them. No payment of salary was involved, it is true but it is difficult to describe the government-provided office space and a car for official duties as “non-pecuniary” by any stretch of the description.
Given these facts, it would have been difficult for the Election Commission to have ruled any other way; to do so would have opened the floodgates to similar transgressions in other state Assemblies. Perhaps part of the AAP’s confidence that its move would be within acceptable bounds of governance stemmed from the celebrated case of Sonia Gandhi and her appointment as National Advisory Council (NAC) chairperson in 2004. Accused of holding an office of profit, she resigned her Lok Sabha seat and sought re-election. The NAC post became hers in 2006, however, when the law was amended to exempt the NAC from the purview of office of profit. To be sure, the disqualification is unlikely to impact the AAP tenure in the state government since it enjoys a comfortable majority of 66 MLAs in a 70-member House. But the controversy has damaged the reputation of Mr Kejriwal and the party he founded and, in public perception at least, made it difficult for the electorate to differentiate it from other political parties.