The EC’s opinion has been sent to the Gov., but the poll panel says it is privileged

The Electoral Commission (EC) denied the request by Jharkhand Chief Minister Hemant Soren to disclose its opinion in the disqualification case against him.

The attorney for Soren wrote to the EC on September 15 to say that the hearings were judicial in nature, so his client should be provided with the opinion that was written for Governor Ramesh Bais.

According to the EC, any communication between the EC and a Governor is “privileged” under Article 192 (2) of the Constitution, making it public before the Governor passes an order would be a violation of constitutional propriety.

There has also been a recent Supreme Court case (DD Thaisii Vs Election Commission of India) involving the EC’s opinion regarding the disqualification of 12 BJP MLAs from the Manipur Assembly. After the poll panel’s counsel informed the court that disclosure of privileged communications would be improper, the EC says the apex court didn’t order it to disclose its opinion.

According to the EC, any document related to a reference received from the Governor under Article 192(2) is also exempt from disclosure under the RTI Act unless the Governor passes a final order.

According to the poll panel’s opinion sent to Bais on August 25, Soren should be disqualified under Section 9A of the Representation of the People Act, 1951, for allegedly using his position to allot a stone-mining lease to himself last year. A contract for “supply of goods” or “execution of any works undertaken by the government” is prohibited by Section 9A.

As Bais has not officially informed the state government of the EC’s decision regarding Soren’s eligibility to continue as MLA, the state is in political turmoil. According to the JMM, the BJP has attempted to poach MLAs from the ruling alliance.

In its letter to the EC, the party asked the Governor to announce his decision based on the opinion of the Commission.

According to the JMM memorandum directed to the Governor, alleged selective leaks from your (the Governor’s) office have created a “state of chaos, confusion, and uncertainty, which vitiates the state’s administration and governance”.

A disqualification of the Chief Minister would have no impact on the government. Furthermore, this encourages political brinkmanship to destabilize the democratically elected government headed by CM Soren by illegal means.

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