New Delhi: More than a week after the Election Commission of India (ECI) sent its opinion on the mining lease controversy involving Jharkhand Chief Minister Hemant Soren to state Governor Ramesh Bais, the latter is yet to act on it.
Soren’s disqualification as a member of the legislative assembly (MLA) had seemed imminent last week after, according to sources in the commission, the ECI found ample evidence to sustain a case of ‘office of profit’ against the Jharkhand CM.
It was also speculated that such a disqualification would mean Soren’s resignation as chief minister, which would likely throw the Jharkhand government — a coalition comprising the Jharkhand Mukti Morcha (JMM), the Congress and the Rashtriya Janata Dal (RJD) — into disarray. Speculation had already started about whether Soren would try to get his wife, Kalpana, into the CM’s chair.
But a week on, there’s been no word from Bais on the issue.
Sources in the Bharatiya Janata Party told ThePrint that the “main reason behind the delay was the nature of the ECI recommendation” and that the governor was in consultation with a number of legal experts to find a precedent that would allow him not only to disqualify Soren as an MLA, but also to bar him from seeking re-election for a stipulated period.
And it must be ensured that this bar on contesting elections is legally solid, they added, so that there’s no loss of face.
Since he returned from Delhi on 25 August — the same day the ECI’s opinion was sent to him — Bais has held many consultations with legal experts, including Solicitor General Tushar Mehta, to form a clear understanding of the opinion and what it entails, said sources in the Jharkhand Raj Bhawan.
On Friday, Bais was again in Delhi, to discuss the Jharkhand crisis with Union home minister Amit Shah, said BJP sources.
While sources pointed out that the Constitution does not set any time limit for the governor to act on the matter, the delay appears to be a result of the BJP’s plan to use the issue to destabilise the government, in order to form its own government in Jharkhand.
However, with uncertainty over whether Soren can be barred from contesting elections for the time being, and with the party yet to win over coalition MLAs to break the government — as in Maharashtra — the BJP in Jharkhand is not yet ready to make a move, said sources.
Jharkhand BJP president Deepak Prakash maintained that the current situation is a crisis for the JMM and not the BJP.
“We are the opposition party that is working for public. Have you heard that ruling party MLAs fled the state (a reference to the flight of JMM MLAs to Chhattisgarh) and opposition MLAs are staying without any threat of poaching. It is an internal crisis of the JMM; we will only act when the governor decides on the ECI’s recommendation,” he said.
Trouble for the Jharkhand CM started in February, when former CM and senior BJP leader Raghubar Das accused Soren of allotting the mining lease for a stone quarry — spread over 0.88 acres in Ranchi’s Angara block — to a company held by himself in May last year, and getting it cleared by the Gram Sabha in June 2021. Soren’s company received an environmental clearance for the project in September.
Soren himself holds the two relevant ministerial portfolios — forest, environment and climate change, as well as mines and geology.
Section 9A of The Representation of the People Act states that a person shall be disqualified (from membership of Parliament or a state legislature) “if, and for so long as, there is a contract entered into by him in the course of his trade or business with the appropriate government, for the supply of goods to, or for the execution of any works undertaken by, that government”.
A day after Das’s allegations, on 11 February, Soren surrendered the lease. In April, however, Das brought fresh allegations against the Jharkhand CM, claiming Soren had allotted 11 acres of land to his wife in Ranchi’s industrial cluster. Soren also holds the charge of the state’s industries department.
On 8 April, Bais referred the matter to the ECI.
Also read: Ministers stuck in Ranchi, files piling up, how Jharkhand political drama is hurting governance
Not disqualification, bar on contesting polls reason for delay
Sources in the BJP claimed that while “EC had found Soren guilty in an ‘office of profit’ case”, a recommendation of disqualification from Bais wouldn’t serve the BJP’s purpose, as he would only seek re-election in the resulting bypoll and return to the assembly.
“The BJP’s mission in Jharkhand will get momentum only when the chief minister is barred from contesting elections for a stipulated period after the disqualification, which will likely create great uncertainty in the state, resulting in the break-up of the ruling alliance, and either President’s Rule or a new government being formed,” said a source in the party.
Domain experts, however, told ThePrint, that Section 9A of The Representation of the People Act only allows for Soren’s disqualification as an MLA if found guilty in an ‘office of profit’ case, but doesn’t provide for his being barred from fighting elections.
“If he is found guilty in an ‘office of profit case’ in the mining lease scandal, he can only be disqualified from his present (assembly) membership. There is no provision which says he can’t fight elections and he will be barred from contesting elections for a certain period,” former chief election commissioner S.Y Kureshi told ThePrint.
He added: “In the past, too, many leaders have been disqualified and they fought elections to become members again. In this case, too, he will resign and seek reelection. He can only be barred from contesting if the ECI finds proof of abuse of power and corruption involved. The governor may recommend that he be barred from contesting elections, but it has to hold ground in court.”
In Soren’s case, the mining lease doesn’t amount to corruption as no business transaction was carried out based on the lease, said experts.
Meanwhile, P.D.T. Achary, former secretary general of the Lok Sabha, told ThePrint that the Jharkhand Governor couldn’t “sit indefinitely” on the ECI’s opinion.
“The CM will lose his MLA membership if the ECI has found a case of ‘office of profit’, but the ECI doesn’t have the jurisdiction to bar anyone from fighting elections unless they have been convicted in a criminal case and been awarded, or served, a jail term,” claimed Achary.
Even in such cases, a bar on fighting elections is not universally followed.
A senior constitutional expert, speaking on condition of anonymity, pointed to the case of Sikkim Chief Minister Prem Singh Tamang, who was allowed by the ECI in 2019 to contest elections despite being convicted in a corruption case. The BJP had been a coalition partner in the government.
A 2018 amendment brought in by the BJP-led central government in the Prevention of Corruption Act, 1988, had allowed for Tamang to contest.
“How can you disallow one person when you allowed one person who was convicted in a corruption case to fight an election,” asked the expert.
S.K. Mendiratta, former legal advisor to the ECI and one of Soren’s counsel, told ThePrint that he was “amused” by the governor’s delay in acting on the ECI’s opinion in the case.
“In my view, even Section 9A of The Representation of the People Act does not apply in this case, as according to past Supreme Court rulings, a mining lease is not business and is not a contract for the supply of goods. But we have to wait and see what legal framework the ECI has sent and how the governor acts,” Mendiratta said.
BJP’s ‘mission Jharkhand’ stuck
Sources in the BJP also told ThePrint that the governor’s delay in acting on the ECI opinion is partly because the party is yet to meet with any success in getting MLAs from the ruling side to switch over, to allow it to stake a claim as in Maharashtra earlier this year.
In Maharashtra, a section of Shiv Sena members led by Eknath Shinde broke away from the party led by then CM Uddhav Thackeray — which had been in power in alliance with the Nationalist Congress Party and the Congress — to side with the BJP and form a government.
But party sources claimed that the BJP in Jharkhand was yet to win over MLAs from the ruling coalition of the JMM, the Congress and the Rashtriya Janata Dal (RJD) in Jharkhand.
“The governor’s legal consultations have given us more time,” said a Jharkhand BJP leader.
A second BJP leader in Jharkhand claimed that “due to infighting, someone from our side leaked information, leading to West Bengal CM Mamata Banerjee alerting the police. Now, the JMM and the Congress have been alerted.”
The Congress in July had suspended three Jharkhand MLAs, who were caught allegedly with a huge amount of cash in West Bengal’s Howrah. The party accused the BJP of trying to topple its coalition government in Jharkhand. Sources in the Bengal CID probe had also alleged a “clear horse-trading motive” in the case.
The JMM has 30, the Congress 16, and the RJD one seat in the 81-member Jharkhand Assembly. If the BJP, which has 25 MLAs, is able to secure the support of the 14 opposition MLAs who voted for National Democratic Alliance (NDA) candidate Droupadi Murmu in the presidential elections in July, it could put the Soren government in a minority.
The BJP with these 14 MLAs would then reach the tally of 40, just one short of the majority mark in the Jharkhand assembly. It could also seek support from independents, and already has the support of ally All Jharkhand Students Union.
However, sources in the party said many senior BJP leaders in the state are disinterested in this plan, since they themselves are unlikely to gain from it.
Former CM Raghubar Das had lost the last election and is unlikely to become CM unless he is able to win another poll. Another senior leader from the state, Arjun Munda, is currently an Union minister, while Babulal Marandi — a possible CM face — is facing defection charges. Earlier this week, Jharkhand assembly Speaker Rabindra Nath Mahato completed hearing in the case, but reserved the judgment.
Nishikant Dubey, a BJP MP from the state, has been pushing for mid-term polls, instead of staking claim to form a government by destabilising the ruling coalition.
(Edited by Poulomi Banerjee)
Also read: After picnic in Khunti, Jharkhand CM Hemant Soren moves ministers & MLAs to Chhattisgarh