What is ‘office of profit’ case against Jharkhand CM Hemant Soren, in which Governor Ramesh Bais refused to act?

It is widely believed that the EC had recommended Soren’s disqualification which, if acted upon by the Governor, would have led to immediate political instability in Jharkhand. The EC’s communication to the Governor is confidential.

It is now up to the new Governor of Jharkhand, C P Radhakrishnan, to act on the EC’s opinion.

What are the allegations against the Chief Minister?

At a press conference held in February 2022, Soren’s predecessor, Raghubar Das of the BJP, released documents based on which he accused the Chief Minister of “misusing his post” to get “in-principle approval” for a stone quarrying lease in his name.

Das alleged that Mining Department records showed that Soren, who held the mining portfolio at the time, approved the lease to himself in 2021 in violation of the provisions of The Representation of the People Act, 1951 and the Prevention of Corruption Act, 1988.

As the opposition BJP mounted pressure on the Chief Minister, a PIL was filed in the Jharkhand High Court seeking his prosecution. After the court described the allegations as serious and asked for a response, the government admitted on April 8 that it had committed “a mistake”, and that the Chief Minister had “disassociated himself from it subsequently on 11.02.2022 by surrendering the lease”.

Under what law was the matter referred to the EC?

Articles 191 and 192 of the Constitution deal with “Disqualifications for membership” of a state Legislative Assembly or Council, and “Decision on questions as to disqualifications of members” respectively.

Article 191(1) says that “a person shall be disqualified for being chosen as, and for being, a member” of a state House “if he holds any office of profit under the Government of India or the Government of any State…, other than an office declared by the Legislature…not to disqualify its holder”.

Article 192(1) states that if “any question arises as to whether a member…has become subject to…disqualification…, the question shall be referred for the decision of the Governor and his decision shall be final”.

Under Article 192(2), “Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.”

Also, Section 9A (“Disqualification for Government contracts, etc.”) of The Representation of the People Act, 1951, states: “A person shall be disqualified if, and for so long as, there subsists 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.”

Acting on petitions by BJP leaders, the Governor referred the matter to the EC on April 8. On May 2, the EC issued notice to Soren seeking his response to the complaint that he had prima facie violated Section 9A of the RP Act.

What did the EC say in its opinion?

The EC sent its opinion to the Governor in a sealed envelope on August 25. Its opinion is not in the public domain; the EC has said its communication with the Governor is “privileged”.

Sources have claimed that the EC “disqualified” Soren from membership of the Jharkhand House. However, despite repeated demands by the CM and his party, as well as by other parties in the state, the Governor declined to make the EC’s opinion public or to act on it.

Meanwhile, the Jharkhand High Court had ruled that the PIL seeking a probe against Soren for alleged money laundering through shell companies and obtaining the mining lease, was maintainable. Soren appealed — and on November 7, the SC set aside the order of the High Court, saying that “for a High Court to take cognizance of the matter on…generalized submissions which do not even make prima facie satisfaction of the Court, [was] nothing but an abuse of the process of the Court”.

Mukul Rohatgi, the former Attorney General for India who represented Soren had submitted before the HC that “even the son of the CM, or CM himself”, was “not debarred” from owning a mine.

Is the Governor bound to act in accordance with the EC’s opinion?

Article 192(2) says that the Governor “shall act” according to the EC’s opinion. However, it does not lay down a time frame for the Governor to act.

Governor Bais had told a news channel in Raipur in late October that he had sought a “second opinion” in the matter. Thereafter, Soren had written to the EC asking if this was true and, if so, to make the Governor’s request public. In response, the EC had clarified that it had received no such request.

Former CEC O P Rawat told The Indian Express on Sunday that “This (the delay in action by the Governor) does not have any precedent… The Governors have to sign off on the EC’s opinion, they cannot disagree.”

After the EC’s opinion reached Raj Bhavan, various delegations met with the Governor and urged him to “clear the air” and disclose the EC’s view on the CM’s eligibility to continue as MLA. One of the memorandums accused the Governor’s office of selectively leaking information to the media, which it said had created “a state of chaos, confusion and uncertainty, which vitiates the administration and the governance of the State”.

What has the CM been doing in this period?

After the EC gave its opinion, the CM and MLAs of the ruling JMM-Congress-RJD coalition boarded three buses and left for a day trip to Khunti. On August 30, 32 MLAs were flown to Congress-ruled Chhattisgarh amid fears that the BJP might try to poach lawmakers and topple the government.

On September 5, at a special session of the Assembly, the Chief Minister won a trust vote with 48 MLAs in the 82-member House, with the BJP and AJSU boycotting proceedings. Soren gave a speech accusing the BJP of trying to bring down his government, and attacked the Governor for not coming clean on the EC’s recommendation.