Not consulted on AAP order & Gujarat polls, both hurt panel’s image, says EC’s legal veteran

The Election Commission’s veteran legal troubleshooter, S K Mendiratta, who has worked with the EC for over five decades, was not consulted on two of its most controversial decisions in the last one year — disqualification of 20 Aam Aadmi Party (AAP) MLAs for holding “office of profit” and delinking the announcement of Gujarat elections from Himachal Pradesh.

Both decisions were taken when A K Joti was Chief Election Commissioner (CEC) and invited strident criticism. In the AAP case, the Delhi High Court ruled that it was against natural justice and in the Gujarat election schedule case, the Opposition said that the Commission had favoured the BJP government by giving it a longer window to campaign.

Speaking to The Indian Express on Wednesday at Idea Exchange, an interaction with the newsroom, (detailed transcript will be published on Sunday) Mendiratta, who left EC last month, said, “I was (working) on contract with them (EC). I have given them my opinion whenever it was sought. In this case (office-of-profit complaint against AAP), they did not feel the necessity of seeking my opinion. So I (have) just kept away.”

Mendiratta added he was “disappointed” that his opinion was not sought and that the two decisions may have dented the Commission’s image. “Public perception is main strength of the Election Commission. We have to see that the public perception (of EC) does not go down. The way some people have come up to me and discussed things. (it seems) these two or three decisions may have created some dent in the fair name of the Election Commission. I would not like to mince words,” he added.

The EC was indicted by the Delhi High Court for not following due process before finding 20 AAP legislators guilty of holding “office of profit.” The court set aside their disqualification on the ground that EC’s opinion was “bad in law” and violated “principles of natural justice”.

Interestingly, Mendiratta confirmed he was associated with the AAP case until the poll panel’s order of June 23, 2017, which had promised further hearing on the matter. Nasim Zaidi was the CEC then. The EC, however, did not hold any oral hearings after that and, straightaway, tendered its opinion to the President on January 19 this year.

Asked if he was consulted by the Commission for the June 23 order, he said, “I was (consulted) in this case up to the last order, where it was decided that they have held an office. Thereafter, I have not been associated with that matter.”

The 79-year-old was the poll watchdog’s legal troubleshooter for 53 years and has advised the Commission on almost all matters of legal importance. Although he retired from service in 1997, Mendiratta was retained by the Commission, on contractual basis, for another two decades for his formidable knowledge in electoral law and his experience defending the same, on behalf of the EC, in courts.

He has worked with all CECs, except the first (Sukumar Sen), and has been associated with almost all high-profile decisions taken by the poll panel, including its decision on the first split in the Congress party in 1969, introduction of Electronic Voting Machines (EVMs) in elections and disqualification of actor and Samajwadi Party leader Jaya Bachchan from Rajya Sabha for hold an “office of profit.” He was the Commission’s go-to person for defending reforms introduced by T N Seshan in the ‘90s in the Supreme Court.

Asked why he thought the EC didn’t consult him before making a final decision in the “office of profit’ complaint against AAP, he said: “If they do not feel like asking for my opinion, it’s ultimately their decision. Whether they should consult somebody is up to them.”

Asked if he agreed with Delhi High Court’s observation that EC’s opinion in the matter violated principles of natural justice, he said, “It’s no longer for me to say. The High Court itself has said that they (AAP MLAs) should have been called and given an opportunity to explain. Why they (the Commission) did not (give them that opportunity), I don’t know…I cannot sit in judgment over the Commission’s judgment. They (EC) have accepted High Court’s order.”

Mendiratta has stopped going to EC from April 1 and attributed the decision to his age. “There is some limit up to which you can exert your body. I am already 79. I need some rest. This isn’t a sudden decision,” he said. The Commission, too, hasn’t extended his contract, which ended on March 31

When asked if there is anything that worries him about the EC as he leaves after 53 years, he said, “My (only) worry is that we have come to a stage where we are enjoying a (good) reputation and that reputation has to be maintained. We have to keep that flag flying high.”