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The Delhi High Court bench of Justices Sanjiv Khanna and Chander Shekhar on Wednesday (February 20) resumed hearing of the case of the disqualification of 20 AAP MLAs following the Election Commission’s (EC) recommendation in the ‘office of profit’ case. The MLAs have sought to quash the notification signed by President Ram Nath Kovind.

On Wednesday the counsel for EC started his submission. He said that the reference “they had given” were false. For the purpose of dealing with section 59, he said what is curable must be within the peril of curability. The second argument is on point of Judicial review in these matters.

Signing was the indication that the opinion was given by him said the bench. This has to be read with Section 146 of the RP Act

Article 102 &103 speaks about post election stage and its situation. There are two stages of disqualification in Representation of People Act: Pre Election stage and Post Election stage.

In the post election stage is Sec 10 A where one has to submit accounts etc. then the counsel points to Section 8 of the RP Act: Disqualification on  conviction for certain offences.

The first part was tendering any opinion to President in 103. The EC does not consider it necessary to conduct an inquiry. And in such a state the EC sends its opinion directly to the President. In Section 146 of the RP Act it is said where the occasion will arise to  give them opportunity of hearing, do so.

In the third part it is clear that a decisive opinion cannot be reached without hearing them (the disqualified MLAs).

The counsel referred to several cases in this regard to bolster his point.

He also said that Articles 273 and article 102 and 103 all have scope for judicial review. Then he gave more case references.

The critical point in all this was that the court has only set aside the appointment, but this does not preclude the court’s power to inquire into the matter

The counsel will talk about the principle of natural Justice on Thursday.

–         India Legal Bureau

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