“An opportunity for injustice to be done”
The rules of Natural Justice are procedural that aim is to ensure delivery of justice to the parties. They are intended to prevent such authority from doing injustice.
According to Article 14 of the Constitution of India, violation of natural justice is equal to violation of equality.
Basic Pillars of Principles of Natural Justice:
- No one should be made a judge in his own case, or the rule against bias.
- The Rule of fair hearing, or the rule that no one should be condemned unheard.
The underlying principle behind being that in a dispute, one of the parties is in a dominant position and the other at the receiving end. With a view to avoid exploitation of the latter and to prevent meting out injustice to him/her, the principles of natural justice is to be followed.
Two and a half years after a petition before the president seeking the disqualification of 21 Aam Aadmi Party (AAP) MLAs who had been made parliamentary secretaries in Delhi, the Election Commission recommended their disqualification to the president. The petition had said that the said appointment amounted to holding an office of profit.
Then two days later, on Sunday, President Ram Nath Kovind accepted the recommendation of the Election Commission to disqualify the 20 MLAs of the Aam Aadmi Party (AAP), the ruling party in the national capital, for holding offices of profit.
Remember, there are constitutional provisions for exemption laws. The only thing not mentioned in these provisions is the AAP action of retrospective legislation of drawing the list of exemption-from-disqualification.
To give the EC the benefit of its stature, on presumption that it was acting only at the behest of a combination of legal provisions, judicial precedents, and political propriety.
If the investigation was conducted anywhere in the world, the rules would have been spelt out first and those who were named as accused given a chance to explain, the EC, a Constitutional Body denying that chance, had not given the AAP MLAs an opportunity to present their view.
Despite adhering to the procedures, the EC has not heard its MLAs properly. The chief election commissioner, AK Jyoti(Retired) with his seemingly malafide intentions, deciding the case just one day before his retirement, compromised the dignity of the institution.
Delhi High Court (Decision dated: 24th March, 2018)
The Honorable Court set aside the disqualification of 20 of its MLAs. Transferring the matter to the Election Commission allowing the AAP MLAs a chance to present their side through an oral hearing.
The Opinion of the ECI dated 19th January, 2018 was vitiated and bad in law for failure to comply with the principles of natural justice.
The consequent order/notification dated 20th January, 2018 for violation of principles of natural justice, namely, failure to give oral hearing and opportunity to address arguments on merits of the issue. The same remains Quashed.
So, 20 MLAs stuck between a rock and hard place, otherwise called the ruling party and ECI, find themselves reinstated with their legislative duties again.
The timing being crucial as it is the NCT’s Budget Session. The plea for approval from LG for same needs every kind of help available.
It seems AAP is probably paying the price for being a “half-state” – more than a Union Territory, less than a state. Even with 66 seats, more than what it needs to form a government, but always less than the Centre.
Supplementary Material: —
OFFICE OF PROFIT
What is office of Profit?
In the case of Jaya Bacchan vs Union of India, Supreme Court of India defined the exact meaning of office of Profit as
“An office of profit is an office which is capable of yielding a profit or pecuniary gain. The court further held that, “for deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the “pecuniary gain” is “receivable” in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.”
The tenor of Article 102(1)(a) suggests that for this disqualification to operate, the concurrence of following three ingredients is essential:
- i) A person holds an office;
ii) The office is under the Central or the State Government; and,
iii) The office is one of profit
In Delhi itself both BJP & Congress passed bill to accommodate their leader as PS during their government
- In 1997, the BJP government in Delhi passed a bill exempting two offices from ‘office of profit’.
- Congress government in 2006 added a third office to this list by amending the bill.
- In the year 2006 an interesting development took place … The then BJP legislator Vijay Jolly filed a petition with President A.P.J. Abdul Kalam seeking disqualification of 18 Congress MLAs for holding ‘offices of profit’. Subsequently, the matter moved to the Election Commission and notice was issued to 18 MLAs. In the meanwhile, the Delhi legislative assembly passed the Delhi Members of Legislative Assembly (Removal of Disqualification) (Amendment) Bill, 2006 with retrospective effect from September 9, 1997 exempting 14 posts/offices from the purview of “office of profit” and the then president also readily accorded assent to the Bill.”
- Rajasthan chief minister Vasundhara Raje Scindia appointed eight parliamentary secretaries between 2002-2008. In her latest term, she has appointed five MLAs to the same office.
- The Ashok Gehlot government in Rajasthan had made similar appointment in 2012, following which the Rajasthan high court sent a notice to him questioning his decision. Gehlot had appointed 13 parliamentary secretaries.
- BJP Government in Haryana had appointed 4 BJP MLA as chief parliamentary secretaries in July 2015, and in July 2017 Punjab and Haryana high court set aside their appointment.
- All CPS hand over their resignation after HC order
- The state government was paying each CPS Rs 50,000 salary plus Rs 1.12 lakh allowances, Rs 2,000 per day daily allowance (15 days in a month); staff, Rs 3 lakh per year LTC, and government accommodation.
- Akali Dal + BJP government in Punjab had appointed 25 CPSes in 2016, 18 were already and in 2016 they added 7 more.
- In Aug 2016 Punjab & Haryana High Court quashed appointment of 18 CPSes, ruling that they are acting as junior ministers
- Punjab CPSes cost to Govt
- Salary – 1 Lakh PM
- Vehical – Toyota Fortuner or Camry
- Driver Salary – 10,000 pm
- LTC – 3 Lakh
- Daily Allowance – 1500
- House Rent – 50,000
- Water & Electricity Bill, Income Tax to be paid by govt. Govt staff, official accommodation in sector 39, Chandigarh.
Now the Judgment :