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In response to the petition filed by the AAP MLAs challenging their disqualification by the EC, the Delhi HC refused to stay their disqualification. However, it has asked the EC to not precipitate the situation by conducting fresh by-polls till the next hearing. The case has been listed for 29 January 2018. The court also called for the response of ECI and centre to the petition filed by the MLAs. The HC also summoned the entire records with respect to the EC’s recommendation of disqualification of the MLAs which received the president’s assent on January 20.
The controversy arose when the AAP government was accused of appointing its MLAs as parliamentary secretaries, alleged to be offices of profit. The matter was brought to the notice of the election commission which recommended the disqualification of the MLAs after examination of the matter. The president then approved the recommendation.
While some argue that there is a direct conflict of interest in the appointment of the MLAs in executive posts, others claim that the Indian parliamentary system has always seen cases of the same persons dominating the legislature and the executive and that there is no strict separation of powers. To address such a situation, the Parliament (prevention of disqualification) Act, 1950 was enacted exempting an office of Minister of State or a Deputy Minister or a Parliamentary Secretary or a Parliamentary Under-Secretary. This list was further expanded after the Jaya Bachan case to include chairperson of the National Advisory Council, the office of chairman, deputy chairman, secretary or member in any statutory or non-statutory body, trustee specified in the schedule.
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