Full disclosure: Akshay Marathe is National Joint Secretary of the Aam Aadmi Party. He was in-charge of Digital Media communications for the party’s Goa election campaign. He currently works with the Delhi Government on education policy.

In a display of uncharacteristic alacrity and a sense of urgency, the Election Commission on Friday recommended the disqualification of 20 Aam Aadmi Party MLAs for occupying offices of profit. So taken in was the EC by its urgency that it completely forgot to actually conduct a hearing for the case. The role of the Chief Election Commissioner Achal Joti, who is to retire on Monday, has been highly suspicious. Former principal secretary to the then Chief Minister of Gujarat Narendra Modi, Joti is known to be close to the BJP leadership. On the eve of his retirement, the CEC has allowed the Commission to be brazenly misused.

The case in question goes back to March 2015 when the AAP government appointed 21 MLAs as parliamentary secretaries to ministers in the Cabinet. The role was purely honorary and the MLAs were actually expected to take time off from their constituencies and monitor the working of government departments (one of the functions of a vigilant legislature). The Delhi Assembly’s appointment notification states, “The Parliamentary Secretaries will not be eligible for any remuneration or perks of any kind, from the government,” explicitly barring them from receiving any benefits, pecuniary or otherwise from the government, apart from what they were entitled to as MLAs.

Although the Constitution does not define what constitutes an office of profit, the Supreme Court did fill up the gap in its judgment against Jaya Bachchan in an office-of-profit case. The Court held: “An office of profit is an office which is capable of yielding a profit or pecuniary gain…What is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the ‘pecuniary gain’ is ‘receivable’… it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.” The law is clearly on AAP’s side.

Despite there being such clarity in the office-of-profit law, the Election Commission’s decision exposes the extent of the political vendetta that the AAP has been facing from the day it came to power in Delhi. The office-of-profit case also underlines the urgent need for constitutional clarity in the powers of the Delhi government.

Since the Constitution expressly forbids elected representatives to occupy offices of profit, each state has enacted laws to bypass this provision by exempting certain positions from inviting disqualification. In Delhi, the Sahib Singh Verma government enacted the Delhi Members of Legislative Assembly (Removal of Disqualification) Act in 1997 to exempt the Chairperson of the Khadi and Village Industries Board and the Chairperson of the Delhi Commission for Women. In 2006, the Sheila Dikshit government had appointed several Congress MLAs to certain government positions which were offices of profit. After the MLAs received notices from the Election Commission, the Congress government amended the 1997 Act to retrospectively exempt all those positions, in addition to that of the parliamentary secretary to the Chief Minister. President APJ Abdul Kalam gave his assent to the amendment, thereby protecting the memberships of Congress MLAs. In different states, the exempted positions are determined by the state legislatures as per their collective wisdom.

After appointing its 21 MLAs as parliamentary secretaries to ministers, despite not making any provisions for pecuniary benefit, the Arvind Kejriwal government sought to further safeguard the MLAs from disqualification. The Assembly passed an amendment exempting not just the parliamentary secretaries to the chief minister, but also those to other ministers in the Cabinet. Ordinarily, in any other state, the amendment would have provided sufficient protection to the MLAs in question. However, such is the treatment meted out to the elected government of Delhi that, unlike President Kalam, the then President Pranab Mukherjee, on the advice of the Central government refused to give his assent to the amendment. His refusal opened up the parliamentary secretaries to scrutiny. The Delhi High Court subsequently held the appointment of the parliamentary secretaries void ab initio because the then Lieutenant Governor Najeeb Jung had not approved the appointments. Ironically, the L-G’s refusal to approve the appointments and their voiding by the Court is a potential defence for the MLAs, because a position that did not exist, to begin with, cannot be an office of profit!

On the one hand, the Delhi government was held by the High Court to be powerless in appointing parliamentary secretaries without the approval of the L-G, but on the other, those non-appointments are being considered offices of profit for the sake of disqualification by the Election Commission? Sounds like double jeopardy to me. In the face of such a blatant attempt to scuttle the functioning of Delhi’s elected government, the judiciary needs to step in and safeguard the mandate of the people of Delhi. Not only should the Delhi High Court stay the disqualification of the 20 AAP MLAs, the Supreme Court must also clarify the constitutional position of the Delhi government at the earliest, instead of endlessly reserving its judgment in that matter.