Jharkhand: BJP, JMM locked in legal battle over holding by-poll in Gandey
Ranchi, January 5: Amidst political turmoil in Jharkhand following Chief Minister Hemant Soren’s defiance of seven summons issued by the Enforcement…
A JMM delegation handing over a memorandum to Chief Electoral Officer K Ravi Kumar.
Ranchi, January 5: Amidst political turmoil in Jharkhand following Chief Minister Hemant Soren’s defiance of seven summons issued by the Enforcement Directorate (ED) in the Ranchi land scam, the ruling JMM and the BJP have locked horns over holding byelections in the Gandey Assembly constituency.
Why this legal battle?
Political experts believed that Kalpna Soren will replace Hemant Soren as chief minister if the latter is forced to resign in case of the office of profit case or any punitive action initiated by the ED in the Ranchi land scam case.
JMM MLA Sarfaraz Ahmad’s sudden resignation and a quick notification by the Assembly secretariat declaring the seat vacant from December 31, 2023, gave credence to the speculation.
Ahmad also told The Jharkhand Story that he vacated the seat either for Hemant Soren or Kalpana Soren to contest from there.
It was widely believed that Hemant Soren would declare a change of guard and call an emergency MLAs’ meeting on January 3 ahead of the ED’s January 5 deadline for recording his statement in the land scam case.
However, he put his plan on hold after the BJP went on the offensive, saying a non-MLA (read Kalpana Soren) should not be administered oath as she/he can’t be elected from Gandey, given the remaining tenure of the AssemblyAssembly being less than one year.
BJP stand
In a letter to Governor CP Radhakrishnan, the BJP said that the byelections cannot be held in Gandey as the remaining tenure of the House is less than one year.
It said that the result of the 5th Jharkhand Vidhan Sabha was declared on 23.12.2019, and Sarfaraz Ahmad resigned from his office and was accepted w.e.f. 31.12.2023.
“The election at Gandey Constituency for the remaining period cannot happen since less than one year is left of the whole tenure of the 5th Jharkhand Vidhan Sabha,” it said, counting the tenure of the House from December 27 2019.
The BJP has also cited a Bombay High Court judgement on calculating the remaining tenure.
The BJP said that the court made it amply clear that the remaining term has to be calculated not from the date of occurrence of the vacancy but from the date on which the incoming member is declared to be elected. “As such, there is no lota of doubt that the bye-election cannot be held,” it added.
JMM stand
The JMM, on the other hand, said that the first session of the fifth Jharkhand Legislative Assembly was convened on January 6 2020. So, the remaining tenure of the AssemblyAssembly is more than a year, it added.
“According to Article 172 of the Constitution of India, the tenure of the fifth Jharkhand Legislative Assembly is till January 5 2025,” the JMM said in a memorandum to the Chief Electoral Officer, seeking the Election Commission to hold the election in Gandey at the earliest.
The JMM also cited a Supreme Court judgment (Pramod Laxman Gudadhe vs. Election Commission of India), which said that the Representation of the People Act was binding on the Commission.
How to calculate term of the 19th Assembly
Article 172
Article 172 of the Constitution: Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting…
The Assembly’sAssembly’s first meeting was held on January 6, 2020, and continued till January 8. So, the tenure of the 19th Assembly Assembly will be counted from January 6 2020, rather than from December 27, as pointed out by the BJP.
EC on Assembly tenure
The Election Commission website also mentions the House tenure from 06.01.2020 to 05.01.2025. The Election Commission completed the elections on December 26 2019 and informed the governor on December 27 2019.
Click the link: https://www.eci.gov.in/elections/term-of-houses/
Section 151A
Section 151A of the Representation of the People Act, 1951 mandates the Election Commission to fill the casual vacancies in the Houses of Parliament and State Legislatures through bye-elections within six months from the date of occurrence of the vacancy, provided that the remainder of the term of a member about a vacancy is one year or more.
