Principle & procedure

Principle & procedure

Context

The Delhi High Court verdict setting aside the disqualification of 20 Aam Aadmi Party MLAs in Delhi is a searing indictment of the manner in which the Election Commission handled the complaint that they held offices of profit while serving as parliamentary secretaries. For a body vested with the crucial power to determine whether lawmakers have incurred disqualification in certain circumstances and advise the President or the Governor suitably, this is an embarrassing moment.

Violation of Principles of Natural Justice

The court has not reviewed its decision on merits but it has ruled that the EC violated the principles of natural justice, examples

• Commissioner O.P. Rawat, who had recused himself at an earlier point, rejoined the process without intimation to the legislators
• Election Commissioner Sunil Arora, who had not heard the matter and assumed office only in September 2017, had signed the order

Basic feature violated:It is a basic feature of judicial or quasi-judicial processes that someone who does not hear a matter does not decide on it.

EC should have tread lightly

• A pre-eminent constitutional body should be found wanting in ensuring natural justice while answering a reference from the President is a sad comment on its functioning
• It ought to have treated the matter with abundant caution, given the ease with which political parties tend to question the EC’s impartiality
• The high court has acknowledged the EC’s “latitude and liberty” in matters of procedure, but cautioned that any procedure should be sound, fair and just.

Conclusion

In proceedings that may result in unseating elected representatives, fairness of procedure is no less important than finding an answer to the question whether they have incurred disqualification