AAP’s Winter of Worries : ‘Loss’ in an ‘Office of Profit’

by Sanjay Mishra

Introduction

After allegations of corruption and favouring two businessmen for the Rajya Sabha seats over a founder member and a popular leader of the party, Kumar Vishwas, the Aam Aadmi Party’s (AAP’s) winter of worries only got worsened in the ‘Office of Profit’ (OoP) case. The party, of course in keeping with its wont, has been seemingly caught on the wrong side of the law in the OoP case and, with about two years still to go for the end to the tenure of its rule in Delhi, it is facing one of the severest crises of its life.

Acting on the recommendations of the Election Commission of India (ECI), the President of India has disqualified 20 AAP members of the Legislative Assembly (MLAs) for holding OoP as parliamentary secrataries. Though this disqualification of 20 members will not have any impact on the stability of the government as the AAP’s strength in the Assembly, after the disqualification of 20 members, will still be 46, well above the half-way mark of 35, the AAP is hoping that the Delhi High Court (HC), which has been moved by the party, will provide relief to it. The honourable Court has asked the Election Commission not to hold elections for the 20 constituencies till it disposes of the case.

The Predicament is rooted in its Genesis

The predicament in which the AAP has landed itself is of its own making and is rooted in its genesis, which explains its behaviour, its modus operandi and its philosophy. The party itself was formed impulsively by Arvind Kejriwal and his associates without proper planning and a blueprint much against the dissuasion of his mentor, Anna Hazare, who presciently warned that given the nature of politics in India, the proposed political party would inevitably and inexorably be tainted by the cesspool of corruption. However, the fact that the AAP was born out of an anti-corruption movement—”India against Corruption”—it promised to be a trendsetter for an alternative, clean politics, neither indulging in corruption nor practising communalism.

Who could have assailed, and not welcomed, such a noble objective and philosophy in an ambience reeking with rampant, neck-deep corruption? Surely, such a noble objective, if followed in the true spirit, had the potential to force other political parties to take some steps to clean up their Augean stables. To begin with, and to be fair to the AAP, the party did try to mobilise funds for its electoral funding, by and large, in a clean and transparent manner. But the flip side of this was that the AAP came to look upon itself as a party chosen by divinity to be a crusader against corruption. This a priori ingrained in the party and its top leadership a ‘holier than thou’ attitude and mindset vis-à-vis other parties and politicians whom it sought to paint, across the spectrum, as corrupt.

It was but natural that the voters of Delhi, a big chunk of whom comprise of young, upwardly mobile, aspiring class, rooted for this unconventional, new kid on the block amidst the pervasive gloom springing from corrupt politics. In that context, for a party, which was founded in 2012, winning 28 seats in the Assembly of 70 seats in the National Capital of Delhi in 2013, though short of majority, was quite a feat. The past also shaped its methodology and modus operandi characterised by street agitation, name-calling and dharna.

These traits and the overarching ideology and objective of cleansing the system were at the root of the popularity of “India against corruption”. For instance, the 10-day dharna of Team Anna, which included Kejriwal, at the Ramlila Ground in Delhi for the enactment of the Jana Lok Pal, had created waves across the country in favour of the movement. It was thus but natural that the party, formed out of this movement, would be bestowed with the halo of a messiah and the party itself had no qualms in adopting not just the philosophy but even the modus operandi of the movement. In March 2013, after the formation of the AAP, Kejriwal undertook a dharna, fasting for seven days against the “inflated” power bill in Delhi.1 Initially, this did endear itself to the voters and won their support.

Dream Electoral Debut in Delhi only helped to Fortify the Ego of Self-righteousness

However, the dream electoral debut in Delhi only helped the APP to fortify its ego of self-righteousness; it came to believe that not only its ideology and philosophy, but even its strategy and modus operandi were faultless. Indeed, it came to argue that its methodology and modus operandi were a contribution to Indian politics even as critics dubbed it as the ‘grammar of anarchy’. By the same token, the party has also pedaled, and proceeded on, the premise that, in a democracy, electoral victory is a supreme, unassailable virtue and an elected government can, if it can justify its actions in the interest of the public, give short shrift to constitutional constraints and legal niceties. All in all, the adoption of this methodology and modus operandi in politics, coupled with the ‘holier than thou’ mindset, had engendered in the party and its top leadership a somewhat irreverent attitude towards accepted norms, laws and procedures. No wonder, therefore, the AAP and its leaders have often been caught on the wrong side of law.

 The above explains the context in which Somnath Bharti, the Law Minister during the first stint of the AAP Government in Delhi, had in January 2014 led his mob of supporters to raid the residences of African women in the Capital’s Khirki area to ostensibly bust an alleged drug and sex racket. The police personnel on duty, citing ‘procedure’ and ‘protocol’, had refused to raid the premises. Bharti’s actions attracted widespread opprobrium on the ground that it reflected the worst kind of vigilantism with scant regard for the due process of law and indeed smacked of racism, xenophobia, sexism and illegality.2 And the Chief Minister (CM), far from condemning the shenanigans of Bharti, sat on a 33-hour dharna in his support. A sitting CM sitting on a dharna, while having all the trappings of political theatre, did not sit quite well with constitutional norms.

Earlier, when the Law Secretary, citing protocol issues, had refused to obey Bharti’s order for arranging a meeting with district judges, Bharti had admonished the Law Secretary. Bharti had also allegedly forced a 24-hour convenience store in Saket to close down after midnight and warned the Delhi Police that people will pick each one of them and beat them up.

Even the resignation of the AAP Government, after its ephemeral 49-day stay at the helm of affairs, came about when it stubbornly wanted to table its pet Jana Lok Pal Bill and was prevented from doing so by the Opposition because of the statutory requirement that all bills having financial implications needed to be vetted by the Central Home Ministry.3 Critics of course alleged that the resignation, for which the party blamed the Opposition, was just a subterfuge; the party, buoyed by its perfor-mance in the Delhi Assembly elections, had started fancying itself as a close rival of the BJP and Congress at the national level. However, for a party, not even two years old, contesting the 16th Lok Sabha elections on 434 seats, which even the two established national parties—the Bharatiya Janata Party (BJP) and Congress— fought shy of, and that too on meagre resources and virtually without an organisation was an act of unprecedented and perhaps misplaced political ambition. But the Lok Sabha venture, being based on an exaggerated notion of its capacity and popularity and an erroneous reading of the ground reality where the ‘Modi wave’ was palpable and even corroborated by many pre-poll surveys, resulted in the ignominy of the party biting the dust with just four seats and two per cent of the national vote-share.

While this shocking defeat had a sobering effect on the AAP, forcing it to own up the mistake of resignation from the Delhi Government, it also realised that resorting to dharna politics could be counterproductive. It is plausible to argue that because of political expediency on the eve of the 2015 Assembly elections in Delhi, Kejriwal probably accepted the need to revisit his dharna politics. After the massive mandate and historic victory in the 2015 Delhi Assembly elections in which the party bagged 67 of the 70 seats, the AAP has once again been veering around the view that elected governments need not be strictly bound by constitutional constraints and legal procedures. It would appear that the AAP has not been able to come to terms with the fact that, notwithstanding a massive mandate, the AAP Government has had to kowtow on many areas of governance to the Lieutant Governer (LG) with whom it has had a running feud even though the HC ruled in 2016 that the LG was the administrative head of Delhi.

Four Charges against the ECI

Given its record of flouting norms, disregarding legal limits and constitutional constraints since its birth, it is not surprising that the AAP has landed itself in such a dire strait in the OoP case even as the party has been crying itself hoarse that it has been a victim of a political conspiracy. Specifically, the AAP has laid down four charges against the Election Commission of India (ECI). One, the aggrieved legislators have alleged and indeed argued before the Delhi HC that, since their appointments were quashed by a Division Bench of the HC on September 8, 2016 on the ground that they were appointed without the concurrence of the LG, they never held an OoP and therefore no case could be field against them.4 Two, it has alleged that the ECI, a constitutional body entrusted primarily with the responsibility of holding free and fair elections, did not have either the jurisdiction or competence in deciding the matter. Three, the 20 MLAs were not given hearing by the ECI, which goes against the principles of natural justice. Four, the recommendations of the ECI are biased; that the poll body has not just decided in haste but has acted at the behest of the Central Government; and that no action has been taken by the ECI against parliamentary secretaries in the BJP-ruled States of Haryana and Chhattis-garh. The AAP has argued that the 20 parliamentary secretaries5 did not enjoy any profit from their positions—they did not have office space, bungalow or official car and that there was no burden on the exchequer.

 Rebutting the first charge, the hon’ble HC has said that just because their appointments were quashed does not mean that they did not hold the post for a period.6 As to the charge that the ECI does not have jurisdiction, it is pertinent to recall that the HC did not stop the ECI, as requested by the AAP, from hearing the matter. Indeed, in 2006, Jaya Bachchan was disqualified from the Rajya Sabha after she was found violating the OoP law in her capacity as the chairperson of the UP Film Development Council as the post carried perks and remuneration and the Supreme Court rejected the plea that the person was affluent and did not take any monetary benefit from the post. In a more high- profile case in the same year, when the United Progressive Alliance-I (UPA-I) was in power at the Centre, Sonia Gandhi resigned from Parliament when there was an imminent threat of her disqualification by the President on the recommendation of the ECI because she held office of profit as the chairperson of the National Advisory Council (NAC). She contested an election and got re-elected from Rae Bareilly. Later, the Office of Profit Act was amended to exempt the post of chairperson of the NAC paving the way for her reappointment.

 As the Congress President and the most powerful person in the UPA, she could have continued as chairperson of the NAC and got the OoP Act amended to retrospectively exempt the office of chairperson of the NAC. But that would have been a legal legerdemain a la the AAP’s amendment of the OoP Act of Delhi and she could have met the same ignominious fate as the 20 MLAs of the AAP. As to the charge that no hearing was given to the 20 legislators, the ECI has rebutted by saying that two notices were sent to them seeking their response but their response “was not in context of the notices”.7 As the HC has also pointed out, the aggrieved legislators took the untenable view that, since the HC was seized of the matter, the ECI should not proceed. As to the charge that the decision was taken in haste, the Chief Election Commissioner, O.P. Rawat, has said that had his predecessor, A.K. Joti, retired before finalising the report, the case would have required a rehearing and the matter, that had dragged on for two years, would have been further delayed.8

Constitutional Provisions

As far as the constitutional provisions are concerned, there are two provisions which come into play. That the judiciary should be as independent as possible irrespective of the nature of the polity—of the other two organs, legislature and executive, particularly the latter given the fact that the executive is often a disputant party in the courts—is a principle which is sacrosanct and uncontestable. The theory of separation of powers, which lays down the contours of relationship between the executive and the legislature, has found its application most prominently in the US presidential democracy. The President as the head of the executive is elected, in principle, directly by the people, and he has a free hand in the making of his Cabinet. However, a member of the American Congress (the American legislature) cannot become a member of the Cabinet until he resigns his membership of the Congress. This ensures almost complete independence of the legislature from the influence of the executive.

In contrast, the Indian parliamentary demo-cracy is based on the theory of fusion of powers and the executive wing is formed from the legislative wing. It means that no person other than a Member of Parliament can be inducted into the Union Council of Ministers. Similarly, in the States, no person other than a Member of the Legislative Assembly or Legislative Council can be appointed in the Council of Ministers of that State. However, if a person is appointed to the Council of Ministers at the Centre or in any of the States, then that person should acquire the membership of Parliament or of the Legislature of the concerned State where the person has become a Minister within six months. So the influence of the executive over the legislature is very much there. Moreover, the overarching influence of the party over the functioning of the government is quite obvious in a parliamentary system and ensures that the government and the legislative wing of the party function in tandem.

Beyond this, the framers of the Constitution had the sagacity to ensure some independence of the legislature from the executive lest the executive should become tyrannical untrammelled by any accountability to the legislature. Will a Member of the Legislature, corrupted by the office of profit, grill, let alone vote against, the government? That explains the rationale behind the provision of disqualification of an MP [Article 102(1) (A)] or a Member of the State Legislature [Article 191(1) (A)] if he or she holds an office of profit. The office of profit refers to posts under the Central or State governments which yield pecuniary benefit to the holder. Additionally, Section 9 (A) of the Representation of the People’s Act bars a representative from holding an OoP. However, these Articles also empower Parliament and the State Legislatures to exempt posts from the purview of the OoP so that the holders of these posts cannot be disqualified from the membership of the legislatures to which they belong.

 Yet the fact is that, with no statutory limit on the size of the Council of Ministers, the need to enlarge the list of posts exempted from the purview of the OoP did not become such an alluring factor for the governments. The 1990s ushered in an era of coalition and unstable governments at the Centre and the governments had to, in order to placate the allies, accommodate their maximum members in the Council of Ministers resulting in bloated Cabinets. Also, with just one-to-three of the legislative party members required to merge with other parties, smaller parties were still very vulnerable to poaching, making a mockery of the Anti-Defection Law. This also had the indirect effect of unnecessarily increasing the size of the Council of Ministers. It was against this background that the 91st Amendment to the Constitution was brought about with effect from July 7, 2004, limiting the size of the Council of Ministers at the Centre and in the large States to 15 per cent of the numerical strength of the Lok Sabha and Legislative Assemblies respectively. In smaller States, because of the cap of 10 per cent of the Legislative Assembly, there is a greater tendency to exempt posts from the purview of the OoP and then appoint legislators to these posts.

The Case of Delhi

Accordingly, in the case of Delhi, as per Article 239AA of the Indian Constitution, with 70 Assembly seats, the Delhi Government cannot have more than seven Cabinet Ministers, including the CM. The unfortunate aspect of politics in India is that it is often looked upon as a means to power and pelf. And anyone who becomes an MP or an MLA thinks that he or she is good enough to be a Minister. The massive mandate of 67 seats that the AAP received in the 2015 elections, in a sense, rendered the task of Cabinet formation for CM Kejriwal a ticklish proposition from the word go. He must have reckoned that with just seven Ministers to be appointed, potential dissatisfaction and dissi-dence among the remaining 60 MLAs would be a distinct possibility for the government in its tenure. Moreover, fearing that the 60 MLAs could side with the other two founding members, Yogendra Yadav and Prashant Bhusan, who had just been thrown out of the party, Kejriwal hastily appointed 20 MLAs as parliamentary secretaries on March 13, 2015 without the concurrence of the LG. And when an advocate Prashant Patel petitioned the President for the disqualification of the 20 MLAs for holding OoP, the AAP Government’s clumsy and ill-thought endeavour to get the law amended to exempt parliamentary secretaries from the purview of the OoP got aborted by the President’s refusal to give assent to the Bill.

The HC is seized of the matter and ascertaining whether the 20 disqualified MLAs derived benefit from the posts. The extensive submission by the Delhi Chief Secretary before the EC detailing expenses incurred on discharge of duties by the 20 AAP MLAs as parliamentary secretaries, even though they did not draw any salary or use an official vehicle, helped the EC to recommend their disqualification.9 If the HC decides against the 20 MLAs, it is unlikely that the in the bypolls for the 20 seats the party would be able to repeat its past performance given the fact that the BJP won all the three Corporations and one Assembly out of the two where bypolls were held last year. Whatever the trajectory of its political fortune, its moral mettle has certainly taken a hit. “Right from hiking salaries of MLAs by a whopping 400 per cent to candidate selection for the Rajya Sabha to its stance on office of profit, the AAP’s moral high ground stands undermined. It would serve the AAP well to introspect how they have strayed from their lofty ideals of changing the fundamentals of doing politics in the country.”10

ENDNOTES

1. See my article,” Somnath Bharti as an embarrassment for the Aam Aadmi Party”, Mainstream, New Delhi, April 25-May 1, 2014.

2. Op. cit.

3. See my article, ”Owning mistake of Resignation: A Reality check by AAP”, Mainstream, New Delhi, November 28-December 4, 2014.

4. Abhinav Garg, “Office-of-profit issue not over, HC tells former MLAs”, The Times of India, New Delhi, February 9, 2018

5. Initially 21 parliamentary secretaries were appointed on March 13, 2015. On January 6, 2017, Jarnail Singh resigned from Rajouri Garden to contest elections in Punjab. As a result, charges as parliamentary secretary were dropped against him.

6. Abhinav Garg, op. cit.

7. Chief Election Commissioner’s statement in Bharti Jain’s report, ‘Had Joti retired before report, AAP case would have restarted’, The Times of India, New Delhi, January 24, 2018.

8. Op. cit.

9. Bharti Jain, “Fate of MLAs sealed last year: EC did not drop case”, The Times of India, New Delhi, January 20, 2018.

10. “Profit And Loss”, the editorial in The Times of India, New Delhi, January 22, 2018.

The author is an Associate Professor of Political Science, MMH (PG) College, Ghaziabad. He can be contacted at e-mail: sanjaymishrammh[at]gmail.com