As a war of words between Jharkhand’s ruling JMM and opposition BJP continues over Chief Minister Hemant Soren’s alleged office of profit case, legal experts claimed that in the light of earlier Supreme Court verdicts, it is unlikely that he will be disqualified as an MLA.
The chief minister, who was accused of violating a provision of the Representation of the People Act, is currently not in Jharkhand and speculations are rife that he is consulting lawyers.
Governor Ramesh Bais also called on Prime Minister Narendra Modi and Union Home Minister Amit Shah in New Delhi earlier this week but what transpired in those meetings is not known.
Following the BJP’s allegation that Soren, while heading the mining department, allotted a stone chips mining lease to himself in 2021 flouting office of profit norms, Bais sent the party’s representation to the Election Commission under Article 192 of the Constitution.
The Article authorises the governor to decide on disqualifying an elected member of the state Assembly on the poll panel’s opinion.
While the EC has sought from the government documents related to the mining lease allocation, the ruling Jharkhand Mukti Morcha (JMM) threw its weight behind the CM saying no rule was broken as the allocation was cancelled.
Retired Supreme Court Justice Ashok Ganguly told PTI that it is unlikely that the CM will be disqualified under Section 9A of the Representation of Peoples’ Act, 1951 in view of three judgments of the apex court.
Under that section, a contract has to be made for the supply of goods or the execution of any work undertaken by the government. A constitution bench of the Supreme Court in 1964 in the case of CVK Rao vs Dentu Bhaskara Rao has held that a mining lease does not amount to a contract of supply of goods,” he said.
In 2001, a three-judge bench of the apex court in the case of Kartar Singh Bhadana vs Hari Singh Nalwa & others also made it clear that a mining lease does not amount to execution of a work undertaken by the government, Justice (retd) Ganguly said.
“Kartar Singh’s case has been relied upon in a subsequent Supreme Court judgment also,? he said.
Even if the CM is disqualified by any authority, he can challenge it in the high court and in that case, as per a Supreme Court order, the adjudication has to be completed within four months, the former judge said.
Under Article 164 (4), one person can be a minister for six months without being a member, he said.
Senior Supreme Court advocate Ajit Sinha said it has to be proved that the chief minister held an office of profit.
The governor’s report is being examined by the Election Commission under the office of profit norms. If the decision goes against him (CM), he has a right to challenge it,” Saha told PTI.
BJP national vice-president and former chief minister Raghubar Das had on Monday demanded the resignation of Soren, his successor, accusing him of misusing power.
Das had made the office of profit allegation against the CM in February. The BJP called on the governor earlier this month and Bais sent its representation to the EC.
A JMM delegation also met Bais, submitted a memorandum on the saffron party’s ?misdeeds? and urged him to send it too to the EC.
Senior JMM legislator Sudivya Kumar, who was a member of the delegation, said the CM in his election affidavit in 2014 and 2019 had mentioned the lease.
He did not conceal anything. The lease has been surrendered too,” Kumar said.
A PIL is pending in the High Court of Jharkhand in the office of profit issue against Soren.
If legislators hold an ?office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly. The rules were framed so that there is no conflict between the duties and interests of an elected member.
