Former President rejected complaints based on EC opinion

In a big relief to Delhi Chief Minister Sheila Dikshit and Bharatiya Janata Party MLA Karan Singh Tanwar, former President Pratibha Patil, based on the opinion of the Election Commission (EC), has rejected the complaints seeking their disqualification under the “office of profit” issue as they hold a membership in the New Delhi Municipal Council (NDMC).

A gazette notification issued in the name of the President stated: “…In exercise of the powers conferred on me under sub-section (3) of Section 15 of the Government of National Capital Territory of Delhi Act, 1991, do hereby decide that Ms. Dikshit and Mr. Tanwar, Members of the Legislative Assembly of NCT of Delhi, have not become subject to disqualification on account of their membership of the NDMC, as alleged in the present petitions.”

Earlier, the three-member EC — then headed by Chief Election Commissioner S.Y. Quraishi and comprising Election Commissioners V.S. Sampath and H.S. Brahma — went through the complaints against Ms. Dikshit and Mr. Tanwar, based on the opinion sought by the President, and forwarded its opinion dated June 5.

While Ms. Dikshit is a member of Delhi Assembly from the New Delhi Assembly constituency, Mr. Tanwar was elected from the Delhi Cantonment Assembly constituency. Both constituencies fall within the NDMC limits, and being the MLAs of the two segments they are automatically eligible for membership in the NDMC.

The Commission, in its order, stated: “A bare reading of the above provisions of the NDMC Act will show that whosoever is elected to the Delhi Legislative Assembly from an Assembly constituency, which falls wholly or partly in the NDMC area, will ipso facto become a member of the NDMC by virtue of the above statutory provisions. Thus, their appointment as members of the NDMC is automatic by virtue of law and the Government has no discretion in the matter of their appointment. In fact, they are not required to be appointed by any authority — their election to the Delhi Assembly from an Assembly constituency falling within the NDMC area makes them ex-officio members of the NDMC. The government merely notifies their names under Section 4, only for information of the general public and the NDMC administration that they are members of the NDMC”.

“….The respondents too have no discretion or power to refuse to serve as members of the NDMC, or to resign from that office at their discretion, which are the essential attributes of appointment to an office.”

Citing a Supreme Court verdict, the Commission said: “…An office held under a local authority or an authority subject to control of the government does not bring about a disqualification for membership of parliament or State legislature.”

Rejecting the complainants’ argument that both Ms. Dikshit and Mr. Tanwar, being the members of the NDMC, were public servants and hence should be disqualified, the Commission, citing the Supreme Court verdicts on P.V. Narasimha Rao and Rajiv Gandhi cases, said that “Members of Parliament are public servants; …but they are not holding any office under the government. Thus, by being a public servant, a person does not become disqualified to be a MP or MLA.”

The complaints were made during March 2010 and the Commission had been hearing the cases for quite some time and the final order was issued a few days before Mr. Quraishi demitted office on June 10.

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