Election Commission rejects MLAs’ plea to junk case of office-of-profit

In a major blow to the AAP government, the Election Commission has turned down the objections of 21 legislators against lawyer Prashant Patel’s second petition seeking disqualification of the MLAs for taking up the posts of office-of-profit by serving as parliamentary secretaries to the six ministers. The poll panel will now be deliberating on the issue whether the membership of the MLAs should be disqualified for holding office-of-profit in the Kejriwal government. Once the EC gives its opinion on the contentious issue, the final call will be taken by President Pranab Mukherjee. The city government order on the appointment of the legislator’s had already been set aside by the Delhi high court.

The EC ruling came after Mr Patel’s petition seeking disqualification of the MLAs was referred to the EC by the President, which in turn had issued him a notice to submit a duly signed plea along with all relevant documents supported by a duly sworn affidavit. Mr Patel had submitted his reply along with a `10 e-stamp paper. He had, however, not submitted his duly sworn affidavit.

The AAP legislators had objected to the second petition on the ground that it was not maintainable as the same had not been routed through the President’s Secretariat.

In its 16-page order, the EC said that the Supreme Court had held that where an authority has been entrusted with some duty or function to perform, all necessary and incidental powers to effectuate the performance of that duty are impliedly vested in such authority.

The order, duly signed by CEC Nasim Zaidi and election commissioners O.P. Rawat and A.K. Joti, said: “In a case of this kind, the Commission has to formulate and tender its opinion on the question referred to it, even if the original complaint fails or refuses to render assistance to the commission in its enquiry.”

The order said that a constitution bench of the apex court has categorically held that the EC has the undoubted power to conduct enquiry in a case of a reference received by it from the President or the Governor seeking its opinion on the question of disqualification of a sitting MP or State Legislature.

It said that once the President has made a reference to the Commission for its opinion, all further correspondences by the poll panel with the concerned parties or vice-versa has to be made directly and not through the President’s Secretariat.

The order said: “When the President makes a reference to the Supreme Court under Article 143 of the Constitution seeking the opinion of the apex court on any question of law, the court calls for the reply of the Attorney General of India and such other authorities as are considered relevant direct under the Supreme Court Rules and there is no requirement that any such correspondence with the concerned authorities should be made by the court through the President’s Secretariat.”