AAP crisis to deepen if MLAs' case goes against it

New Delhi: After the electoral debacles in the civic and Assembly elections in Delhi, Punjab and Goa, the AAP seems to be in further trouble, which may spell a death knell to its political ambitions. If the three cases, which relate to 40 of its 65 members of legislative Assembly (MLAs) in Delhi, go against them, they will be automatically disqualified, and fresh elections will be held in these constituencies.

Given the momentum that the AAP’s main rival, the BJP, has witnessed over the past few months, especially in the recent Assembly and civic polls, political pundits think that the AAP may lose most or many of these seats during the re-polls. In the recent elections in 270 municipal wards in Delhi, the BJP was ahead of its rivals in as many as 63 Assembly constituencies. Clearly, the AAP leader and Delhi chief minister, Arvind Kejriwal is a worried person. His party’s future is at stake; more importantly, his own survival is in peril.

The complaints, by RTI activists and lawyers, hurled three main allegations against the AAP and its MLAs. First, that some of the appointments of 21 members (now 20 after the resignation of Rajouri Garden MLA Jarnail Singh, as parliamentary secretaries, 11 as co-chairpersons of District Disaster Management Agency, and 27 as chairpersons of Rogi Kalyan Samities were apparently illegal. The names of 18-odd legislators is common in the three petitions pending before the EC.

Second, these MLAs should be disqualified because all the three posts were allegedly “office of profits”, as defined by the Constitution and various laws. No elected representative, as was laid out by the Supreme Court precedents, can hold such offices. Finally, Mr Kejriwal, through such appointments, possibly blurred the constitutional distinctions between the Legislative and Executive.

After complaints on the appointments were sent to the President, as is laid out by the laws, the latter referred the matters to the EC. Now, the EC will send its recommendations to the President, who will act accordingly. The decisions may be finalised within a few weeks or a few months at the latest.

Lawyer Vibhor Anand, in his complaint dated June 23, 2016, contended that “it is crystal clear that the above guidelines (on composition of the RKS) that the post of chairperson can be held only by a MP (member of Parliament) zila panchayat president, district magistrate or the minister in-charge and the MLA can only be a normal member of the governing body.”

The RTI activist, Vivek Garg, charged in his complaint on DDMA’s appointments, “It is submitted that as per Section 25(b) of the (Disaster Managem-ent) Act (2005), only the elected representative of the local authority can be appointed as co-chairperson of a District Disaster Management Authority.”

In the case of the DDMAs, the co-chairperson post “carried with it a monthly honorarium of Rs 5,000, entertainment expenditure of Rs 10,000, staff car with a driver, telephones at office and residence, free accommodation and medical treatment facilities to self and family members, apart from other allowances, etc.”

However, “benefits other than monetary gain may also come within its (office of Profits) meaning….” As per the Patel’s complaint, it “is one to which some power or patronage is attached or in which the holder is entitled to exercise the executive functions, or which carries dignity, prestige or honor….” The parliamentary Secretary post fell in this category.

Since all these posts had a clear Executive function, it allowed the legislators to interfere in the second tier of the democratic foundations, and distorted its workings. Kejriwal’s government did try to make the Parliamentary Secretary’s post legal through changes in law, which was retrospective, it is charged that the appointments were still illegal and led to the disqualification of the MLAs.

On its part, the AAP has consistently maintained that none of its legislators were either allotted any office space or provided any vehicle or additional remuneration and as such they can not be punished under the “office of profit” clause. It is wait and watch situation till the EC given its opinion  and the President takes a final call on the contentious matter.