One of the most important reasons behind Indian democracy's remarkable strength is the impeccable and impartial conduct of the Election Commission (EC). Be it in the general elections or state polls, whenever the electoral process or the level playing field provided under electoral laws was sought to be undermined by politicians, however powerful, using their musclemen, money and power to their advantage, the Commission seldom failed to step in to uphold the sanctity of the process and stood up to the pressures exerted by the powers that be. It is for this reason that the occasional criticism of the EC by political parties on the losing side of an electoral battle has cut little ice with the people.
But on March 23, the image of the election watchdog took a knock when the Delhi High Court set aside the Commission's decision to disqualify 20 legislators of Delhi belonging to Aam Aadmi Party, led by chief minister Arvind Kejriwal, for holding “office of profit.”
As per Indian law, a lawmaker cannot hold another office that entitles him or her to wages and other perks. After AAP's huge victory in elections to the Delhi legislative assembly, the 20 legislators of the party were appointed parliamentary secretaries to ministers in March 2015. Some state legislative assemblies have passed laws to get an exemption from this bar. But a similar effort by the AAP government in Delhi was rejected by the Lt Governor.
In September 2016, the Delhi High Court had set aside their appointment as parliamentary secretaries and on January 20 this year, President Ram Nath Kovind accepted a recommendation by the EC to disqualify the assembly membership of the 20 legislators. As per the EC, the 20 legislators were liable to be disqualified because the post of parliamentary secretary can be deemed as an “office of profit.” The legislators had moved the High Court challenging their disqualification.
While the Delhi High Court bench did not go into the merit of the plea for disqualification of the legislators, the crux of its ruling setting aside the EC's recommendation is that the election watchdog failed to adhere to the due process and violated the principle of natural justice by not giving an opportunity of hearing in person to the 20 legislators before arriving at a decision. The High Court also pointed to some other procedural “lapses” by the EC, and asked the EC to hear the issue afresh.
The High Court bench concurred with the EC's view that the latter has “wide discretion, latitude and flexibility on the matter of procedure to be followed when examining whether an elected member has incurred disqualification,” but at the same time told the EC that “the procedure adopted and followed must be just, fair and equitable.” In fact, soon after the EC recommendation was made public, some of India's former Chief Election Commissioners, who were senior bureaucrats, had slammed the EC's disqualification of the 20 legislators without giving them a personal hearing.
In a functional electoral democracy, the EC must be even-handed before giving its decision because the issue at stake is the sanctity of not only the election process but also the reputation of a high constitutional body that oversees that process. Similarly, the yardstick for disqualifying the membership of a legislator directly elected by the people should be high so that it is perceived as much to be upholding the inviolability of the electoral process and as not negating the electoral mandate. The EC could have easily avoided the rap from the High Court.
Pallab Bhattacharya is a special correspondent of The Daily Star.