I covered the Election Commission as a reporter for many years. It was the time of T N Seshan, the original radical reformist who changed the nature of the electoral process in India and strengthened Indian democracy. Seshan was considered a Congress man. He was a close and trusted aide to Rajiv Gandhi when he was the Prime Minister. On his appointment as Chief Election Commissioner, everyone assumed that he was being rewarded for his services in his earlier avatar. But Seshan was a different man. He proved to be a nemesis for the Congress, then the ruling party in the early and mid- 90s. He refused to be pliable. Then Prime Minister Narasimha Rao was so annoyed with him that he turned the one-member Election Commission into a three-member team through a constitutional amendment. M S Gill and G V G Krishnamurthy were specially brought in to tame Seshan, but the Election Commission by then had attained the most exalted position in Indian democracy.
Seshan left a great legacy. His set the bar so high that successive Election Commissioners have had to tread the same path. Many tried to wriggle out but did not dare to walk in the wrong lane. Unfortunately, the same words can't be repeated about the incumbent Chief Election Commissioner and his colleagues. The disqualification of AAP MLAs will go down in history as a black chapter. It creates serious doubts in our mind and one is left wondering if the Chief Election Commissioner, Mr. Joti, wanted to oblige his former boss before demitting office. Has the Election Commission turned into a letterbox of the Prime Minister's Office whose only job is to send letters to the right addresses without attesting to the correctness of the contents?
Three things have to be noted. One, the Delhi High court has already stuck down the government notification appointing these 20 MLAs as parliamentary secretaries. When the appointment itself has been declared null and void, how can the MLAs be disqualified on the pretext of holding an office of profit?
Second, the office of profit case can be applied only when MLAs are availing some pecuniary benefit. The appointment letter very clearly states that they will not get any salary, and will not avail any perks. Neither did these MLAs demand any facilities and nor did they avail of any. They have no office per se as no office space was allotted to them. It is in this context that the Election Commission's logic is beyond comprehension. It defies logic.
Third, after the Delhi High Court order, the MLAs had challenged the Election Commission's jurisdiction to hear the case itself. The Election Commission later decided that it had the power to adjudicate. After this decision, the formal hearing of the case was to begin and each MLA was to present his/her case individually. But the Election Commission jumped to the conclusion without giving these MLAs any chance to argue their case; they were not heard. It is not only a violation of the law of natural justice but it also violates the basic tenants of the jurisprudence.
It is said that the President is bound by the recommendation of the Election Commission. But the President is not only the head of the state, he is also the guardian of the constitution. And if the Election Commission has violated the basics of jurisprudence, then the President is not duty-bound to accept illegal advice. He should exercise his discretion and should send back the Election Commission's recommendation for further consideration or he can also exercise his right to judicial reference. Let the court decide the maintainability of the Election Commission desecration.
(Ashutosh joined the Aam Aadmi Party in January 2014.)
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