New Delhi: Jharkhand plunged into turmoil on August 25 with the circulation of news quoting ‘sources’ in the Election Commission of India, who said that the poll body had informed state governor Ramesh Bais of its decision in favour of disqualifying current chief minister Hemant Soren as an MLA in an office-of-profit case.
Bais had forwarded to the ECI a memorandum submitted to him by the Jharkhand unit of the Bharatiya Janata Party in February. Through that memorandum, BJP had sought Soren’s disqualification under Article 9A of the Representation of the People Act, 1955. The demand hinged on the argument that while he was minister of mining, Soren had profited from the office by issuing to himself a stone quarry contract. By doing this, he had misused his position in public office, BJP said.
As per media reports, the ECI’s response to the governor’s communication in favour of Soren’s disqualification has come after a series of hearings were held on the matter. The ECI also issued a notice to the Jharkhand chief minister, say the reports. The hearings concluded on August 18.
With the August 25 news break on the ECI’s purported decision – coupled with the fact that governor Bais is currently on a personal visit to Delhi where he is expected to meet top BJP functionaries – Soren’s party, the Jharkhand Mukti Morcha is expecting the worse. JMM is stated to be considering moving the Supreme Court against the Commission’s decision in case Soren loses his assembly seat in coming days.
The ECI’s grounds for Soren’s disqualification in the case – when made officially public – will throw more light on the matter. Political observers of the world’s largest democracy, or what Prime Minister Narendra Modi recently called the ‘mother of democracy’, however, have cause for alarm.
The ECI’s decision in favour of BJP’s Jharkhand unit has come at a time when the national party with its government at the Union, is making all efforts to topple the Soren government. This includes Enforcement Directorate raids too.
Jharkhand’s developments stoke a growing fear in the Modi era – of the compromise in favour of BJP of the key institutions that make a democracy vibrant. While delving into the causes behind this significant fear, a number of questions arise:
- Have any of the ECI’s recent decisions on disqualifying a chief minister gone on to favour the ruling Modi-led BJP in a state?
- What precedence lies before the EC for its use of discretionary powers under Section 11 of the Representation of Peoples’ Act, 1951?
- Has the Supreme Court showed any sign of intervention when such a matter has risen and legal directive has been sought?
ECI’s recent decision on a chief minister’s disqualification
Prior to taking up Jharkhand CM Soren’s disqualification matter, the ECI had dealt with a plea by Sikkim chief minister Prem Singh Tamang ‘Golay’, asking that he be allowed to remain in the post by contesting the by-polls in October 2019.
The ECI, on September 29, 2019, had acted in Golay’s favour. The seven-page order, issued during the tenure of the then chief election commissioner Sunil Arora, who is seen close to the Modi government, is worth returning to.
One of the arguments given by Arora-led ECI in Golay’s favour hinged on the fact that the Sikkim chief minister, even while leading his party, the Sikkim Krantikari Morcha (SKM) – an alliance partner of the BJP’s North East Democratic Front (NEDA) – in the assembly polls in April 2019, didn’t contest the election himself.
In the run-up to those state elections, the party in power then, the Sikkim Democratic Front (SDF), had amplified the call about Golay not being qualified to contest elections for public office as he was found guilty in a corruption case in 2016 by a trial court under the Prevention of Corruption Act, 1988.
Golay had ended up serving a year-long jail term from August 2017 after the Sikkim high court, and thereafter the Supreme Court, upheld the trial court’s order. In other words, he was convicted in a corruption case. The ECI reasoned that since Golay only filed his nomination papers after seeking the Commission’s permission, his action was permissible. In other words, he was a good egg since he followed the norm.
Another argument made in favour of Golay by the ECI was that even if he was jailed in a corruption case, “his party under his leadership has been given the mandate of the people” in the 2019 elections. SKM had pocketed 17 of the 30 seats up for grabs then in the 32-member assembly of Sikkim (the remaining two are nominated seats). In other words, he has public approval to contest the polls himself, the ECI reasoned.
However, the mother of all arguments that seemed to have swung the matter in favour of Golay was a decision the Modi government took in 2018 – the amendment to the Prevention of Corruption Act, 1988.
The amendment was brought in by the Modi government by removing entirely an Atal Bihari Vajpayee-era amendment to the Act in 2003.
Thus, even if a person contested an election after committing a crime under the Prevention of Corruption Act, or terror acts under the Terrorist and Disruptive Activities (Prevention) Act, 1987, or the insult of the national flag or constitution of India, the Modi government considered it a non serious matter.
In effect, it rolled back the enhanced disqualification period of six years (from the earlier two years) brought in by the Vajpayee government after a candidate’s release from jail. Thus, the Modi era amendment to allow anyone to contest an election even though she is found to be guilty of corruption helped Golay to remain in the chief minister’s post in Sikkim. The EC had also made the contention in favour of Golay because he was called by the state governor to form the government by dint of the mandate.
The EC’s decision helped the BJP remain a part of a state government that is led by its alliance partner. Compelled by the possibility of the Golay government’s stability, several opposition SDF MLAs have since moved to the BJP – helping it make further inroads in the state assembly through the back door.
Precedence cited by ECI in Golay decision
In October 2019, when this correspondent had asked former chief election commissioner T.K. Krishnamurthi about the Arora-era decision made in favour of Golay, he had categorically stated that the ECI had always taken the matter of corruption very seriously. “I didn’t come across any such case during my tenure but we were always vigilant about not allowing a person convicted of corruption to contest an election.”
The Arora-headed ECI’s seven-page decision on Golay had also made it clear that such a matter had come rarely before the Commission. That order particularly cited two instances, both murder convicts, whose disqualification was lifted by ECI under Section 11 of the Representation of People’s Act, 1955.
While one case was related to Communist Party of India (CPI) leader from Uttar Pradesh, Shyam Narain Tiwari, in 1977, the other also from UP, concerned Mitrasen Yadav, who also started with the CPI and later moved to Samajwadi Party.
Unlike in Golay’s case, in both these instances, the UP government had remitted their jail terms – thus facilitating their release from jail. In Tiwari’s case, while the High Court of Judicature in Allahabad had upheld the trial court’s order of death sentence to him for committing murder, the Supreme Court, hearing a plea by Tiwari, had commuted it to life imprisonment.
The UP government’s remission decision allowed him to walk free and also contest the 1977 assembly elections successfully. Citing the verdict of the electorate in his favour, and that the murder was a case of ‘class conflict’ in Tiwari’s village, the ECI lifted his disqualification in 1977, thereby allowing him to remain in office.
In Yadav’s case, of double murder and life imprisonment, the candidate had undergone disqualification for four years and seven months after the UP government remitted his conviction. While Tiwari contested elections without approaching the Commission, Yadav did, which the ECI counted in his favour as there were only five more months left for his disqualification tenure to forfeit.
Citing these two cases, the ECI, in 2019, had justified its order in favour of Golay thus:
“It is pertinent to note that the present applicant (Golay) neither approached this Commission to seek removal of his disqualification nor filed his nomination paper at the time of the general elections and the legislative assembly of Sikkim, 2019. He has, in fact, approached this Commission only when the elected representatives of his party, commanding a clear majority in the assembly of Sikkim, posed their faith in his leadership and when the governor, in recognition of the same, invited him to form government.”
To further back it up, the ECI stated that Tiwari was allowed to remain an MLA even though he had contested the elections without seeking permission from the ECI because of a public mandate in his favour and in this case, Golay didn’t even contest the polls.
Through this interpretation, the ECI seemed to have held that corruption while in public office is not such a heinous crime if a candidate can win in the election or lead a party that gets majority seats.
In an editorial on October 1, 2019, The Hindu had called the ECI’s move “morally wrong” and said it set a “dangerous precedent”.
Now, if the ECI has agreed to disqualify Soren at BJP’s behest on the ground that a legislator was misusing public office for profit (in other words, corruption), it will be interesting to note what its arguments are since the Golay episode. Golay was convicted for siphoning off Rs. 9.5 lakh, also as a minister, of animal husbandry. The funds were meant for public distribution to buy cows as part of a state government scheme.
SC’s intervention in a CM disqualification case
Soon after the ECI’s order in favour of Golay, SDF leader J.D. Dharnal filed a petition in the Supreme Court challenging the ECI’s stand. His contention was a 2014 Supreme Court order disqualifying former Tamil Nadu chief minister, late J. Jayalalithaa, from contesting polls for 10 years due to her conviction in a series of corruption cases. The order was in tandem with the Prevention of Corruption Act as amended by the Vajpayee government in 2003.
Jayalalithaa thus became the first state chief minister to be disqualified for conviction in a corruption case by the Supreme Court. Upholding the moral code of society, the top court, in 2013, had declared unconstitutional the three-month immunity granted to MPs and MLAs to file an appeal for a stay in a higher court while remaining in office.
In Golay’s case, the two-judge apex court bench led by Chief Justice N.V. Ramana had issued notice on March 22 to Golay as the candidate in question, the Union government, the ECI and the government of Sikkim. The parties were to submit their replies in an affidavit to the bench within six weeks. In other words, by May 3, 2022.
On being contacted, Dharnal, the petitioner, told The Wire from Gangtok, “The SC is yet to hear the matter since then. Even though the court had asked for replies within six weeks, only the ECI and the state of Sikkim replied. The Central government and Golay are yet to submit their affidavits.”
Dharnal added, “I have been contacting my lawyers in Delhi almost on a daily basis since May, asking them when the Supreme Court will have the next hearing.”