Petitioners not given oral hearing: HC

NEWDELHI: The high court on Saturday, while granting relief to 20 AAP MLAS disqualified for holding Office of Profit, noted that the legislators should have been informed about the re-joining of election commissioner OP Rawat in the proceedings after he had recused himself.

A bench of Justice Sanjiv Khanna and Justice Chander Shekhar held that the “petitioners (AAP MLAS) should have been informed and told that OP Rawat had agreed to rejoin and participate in the case.”

“On the said aspect, the petitioners rightly submit that they were kept in dark and not informed,” the bench said.

“We without any reservation hold that the rejoining or withdrawal of recusal by OP Rawat should have been communicated and informed to the petitioners. This would have materially affected the response and reply of the petitioners dated October 16, 2017 and November 20, 2017, to the notices dated September 28, 2017, and November 2, 2017,” it added.

The court also raised questions on the role of election commissioner Sunil Arora, who had not attended even one hearing in the case and still signed the order of recommendation for disqualification being sent to the President of India.

NO ORAL HEARING

The court also admitted that there were errors and lapses by the Election Commission of India (ECI) since the notices sent by them did not state clearly that they did not intend to give any oral or personal hearing.

“Opinion given by the ECI, dated January 19, 2018, was pronounced more than six months after the last order dated June 23, 2017, which had stated that next date of hearing would be intimated. In between two notices dated September 28, 2017 and November 2, 2017 were issued by the Election Commission, calling upon replies from the petitioners on the documents and papers submitted by the government of NCT of Delhi, but no date of hearing was fixed or indicated in these notices.

“These notices did not state that the ECI did not intend to give any oral or personal hearing. These notices were duly replied to by the petitioners, who had raised objections, submitting that there was lack of quorum as OP Rawat had recused himself and the ECI did not later inform them that he had agreed to rejoin and participate in the case. Thus, there have been errors and lapses, which would vitiate the opinion,” the court said.

POWERS OF THE ELECTION COMMISSION

The court held that even if the discretion is given to the election commission on the matter of procedure, it should be fair and just.

This discretion should not be based on hard and fast rules.