Can Chautala be CM? What law & SC say on convicts in polls, minister postshttps://indianexpress.com/article/explained/om-prakash-chautala-abhay-ajay-haryana-elections-inld-5458132/

Can Chautala be CM? What law & SC say on convicts in polls, minister posts

Despite the split in the party and the family, Chautala remains vital to its poll prospects. With his stature, he had helped consolidated its vote bank in rural areas, especially farmers.

Can Chautala be CM? What law & SC say on convicts in polls, minister posts
Om Prakash Chautala is serving a 10-year sentence. Archive

Even after a split in Haryana’s main Opposition party Indian National Lok Dal (INLD), the factions led by both Abhay Chautala and Ajay Chautala continue to project their father Om Prakash Chautala, 83, as their chief ministerial candidate for the 2019 Assembly polls. With O P Chautala serving a 10-year sentence for corruption, legal experts say he cannot become the Chief Minister or even contest elections under law. INLD leaders, on the other hand, cite a constitutional provision to claim that he is eligible to serve as Chief Minister for six months.

Barred from polls

Under Section 8(3) of the Representation of the People Act, 1951, “A person convicted of any offence and sentenced to imprisonment for not less than two years… shall continue to be disqualified for a further period of six years since his release.” The Election Commission website explains that “even if is a person is on bail, after the conviction and his appeal is pending for disposal, he is disqualified from contesting an election…”

Like Chautala, former Bihar Chief Minister Lalu Prasad is barred from contesting polls after his 2013 conviction and five-year sentence in the fodder scam.

O P and Ajay Chautala were convicted on January 16, 2013, in a corruption case involving recruitment of junior basic teachers. The 10-year sentence means O P Chautala is due for release in 2023. If the six-year window is added, it will be 2029 before he is eligible to contest an election. He would be 94 then.

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His party, however, expressed optimism that Chautala can become eligible before that. INLD spokesperson Ravinder Dhull says that generally, a sentence of 10 years gets completed in 7 or 7½ years with remissions granted by the government from time to time, besides remissions on the basis of good conduct in jail. “In normal course, we expect his release by the end of 2019, even without any relief from any quarter,” Dhull said.

Abhay Chautala was more cautious: “If any legal hurdle comes in way of Chaudhary Om Prakash Chautala becoming the CM, he (senior Chautala) will take a call regarding our party’s CM candidate.”

Can he be CM?

Dhull, who is also a lawyer in Punjab and Haryana High Court, said Chautala can be sworn in. “As per the Constitution, anybody can be made a minister or Chief Minister for six months. With this provision, Chaudhary Om Prakash Chautala can remain CM for six months. We agree that in the current circumstances, he can neither contest an election nor claim a term of another six months as CM until he is cleared by the Supreme Court.”

The Constitution allows an individual to be sworn in as a minister without being an elected member, but only for six months. “A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister,” Article 164(1) states.

Read: On divergent paths, Ajay & Abhay bank on Devi Lal, Chautala legacy

Legal experts, however, say that this does not hold for convicts. They refer to the Supreme Court judgment on B R Kapoor vs State of Tamil Nadu (2001), a case that had arisen out of a challenge to J Jayalalithaa being sworn in as that state’s Chief Minister. Serving a three-year sentence in a land grab case, Jayalalithaa had been barred from contesting but was appointed CM after her party won the elections. The Supreme Court struck it down.

Senior Supreme Court lawyer Krishnan Venugopal referred to this judgment, which stated: “We are of the view that a person who is convicted for a criminal offence and sentenced to imprisonment for a period of not less than two years cannot be appointed the Chief Minister of a State under Article 164(1) read with (4) and cannot continue to function as such.”

Former Haryana Assembly Speaker Kuldeep Sharma, a Congress MLA, pointed out that Chautala’s sentence is for more than two years. “If a person is not qualified to be an MLA, he cannot become the CM,” he said. Asked the question, Supreme Court lawyer Prashant Bhushan expressed the same view: “If he is disqualified to become an MLA, he is also disqualified to be a minister.”

What next for INLD

Chautala had filed a special leave petition and a review petition against the conviction, both dismissed by the Supreme Court. In May, he filed a curative petition. “This petition is likely to be heard in December. This is the last legal remedy. If the Supreme Court acquits Chautala, there won’t be any problem in his contesting the election,” Dhull said.

Despite the split in the party and the family, Chautala remains vital to its poll prospects. With his stature, he had helped consolidated its vote bank in rural areas, especially farmers.