Explained: EC Recommendation To Disqualify Jharkhand CM Hemant Soren And Laws That Govern This

Hemant Soren disqualification as CM: A look at the constitutional and legal provisions that govern the disqualification of an MLA.

Jharkhand CM Hemant Soren has been accused of violating office of profit rules.

Source : Twitter/@HemantSorenJMM

Jharkhand Chief Minister Hemant Soren is currently in a constitutional conundrum, which may cost him his position, even if for a few months only. Since its creation on November 15, 2000, the state has remained mired in political instabilities. In the latest row, the Election Commission had to intervene in a matter pertaining to corruption and it recommended CM Soren’s disqualification as a member of the Jharkhand Legislative Assembly. 

Here is a detailed look at the entire issue, and find out the constitutional and legal provisions that govern the disqualification of an MLA. 

The Charges Against Hemant Soren

While it is being reported that the EC has recommended disqualification of Soren for holding an office of profit, it is not entirely right. Facts of the case are crucial to determining the cause of an elected representative’s disqualification from the Lower House.

According to the facts on record, a Letter of Intent for granting a stone mining lease in Ranchi’s Argora area was issued by Soren’s government on June 16, 2021, under Section 8 of the Mines and Mineral (Development and Regulation) Act, 1957, and under relevant provisions of the Mineral Concession Rules, 1960. Under these laws, it is the state government that grants such leases to applicants. 

In the present case, however, the applicant was CM Soren himself who was granted the mining lease by his own government. Though this may not strictly fall under the office of profit rule, opposition BJP took up the matter with Governor Ramesh Bais, seeking Soren’s disqualification under Section 9A of the Representation of People’s Act. Bais, in turn, asked the EC to look into it, and the poll panel last week recommended Soren’s disqualification after perusing the material before it and in the light of the governing laws. 

What Is The Law That Governs Disqualification Of MP Or MLA?

There are penal provisions in the Indian justice system that govern the disqualification of an elected representative such as a member of the legislative assembly (MLA) or a member of Parliament (MP).

Constitutional Provision: Articles 102 and 191 of the Constitution deal with the subject matter of disqualification of MP and MLA, respectively. Both the provisions are identical in nature and list down the grounds on which an MP or an MLA can be declared disqualified. These are:

If the member holds office of profit of government

If the member is of unsound mind 

If he/she is an undischarged insolvent

If the elected representative is not a citizen of India; or has given up Indian citizenship

If he/she is disqualified by or under any law made by Parliament

The President of India or the governor of that state would determine any question on the disqualification of an MP or MLA, respectively. And both are duty-bound to obtain the opinion of EC before making any decision. The EC opinion is binding for both the constitutional functionaries. 

The grounds of disqualification can be categorised as constitutional grounds (as mentioned in the relevant provisions of the Constitution itself) and statutory grounds, which is an extension of the constitutional requirement of “ground provided by a law made by Parliament” — the fifth ground of disqualification as seen above. 

Statutory provisions: As mentioned above, the President and the Governor are mandated to act on the advice or opinion rendered by the EC. The poll commission exercises its further power to determine if a member is disqualified or not from the Representation of the People Act, 1951. Chapter III of the Act provides for certain grounds on which a member could be disqualified. The Act is enacted by Parliament. 

Following are the grounds on which an MP or MLA can be disqualified under the Act:

• On convictions of certain offences (Section 8)
• On ground of corrupt practices (Section 8A)
• On ground of dismissal for corruption or disloyalty (Section 9A)
• On grounds for government contracts (Section 9A)
• On ground for office under government company (Section 10)
• For failure to lodge account of election expenses (Section 10A)
• Removal of reduction of period of disqualification (Section 11)

CM Soren’s case for disqualification should fall under Section 9A of the Act. It stipulates that an MP or an MLA attracts disqualification if there is a contract entered into by him in the course of trade or business with the appropriate government for the supply of goods or for the execution of any work undertaken by the government. The grant of licence would amount to doing a business or trade with the government.

Hemant Soren Case Status 

With Governor Bais yet to officially communicate his order on the EC recommendation,  suspense continues over whether Soren would be disqualified. According to reports, he has already surrendered the stone mining lease, and disqualification of an MLA under Section 9A of the Representation of the People Act will last only as long as the lease is in force. Hence, if Soren’s seat is declared vacant, he can simply resign as CM and be sworn in again since — on the condition that he gets re-elected to the assembly within six months. Quoting “sources close to the government”, a report in The Indian Express said the members of the ruling coalition in Jharkhand met late Sunday evening and discussed possibility of Soren being disqualified, besides all other eventualities. The leaders discussed if Soren should remain the CM after disqualification and fight a bypoll from Barhait, the seat from where he won the election in 2019, the report said. It was also reported that any adverse decision would be challenged in court.

The author holds a doctoral degree in law from AMBSL, University of Hamburg, Germany. He has written two books on financial laws.

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