Jharkhand governor Ramesh Bais’s silence on the Election Commission’s opinion submitted to him five days ago on pleas for chief minister Hemant Soren’s disqualification as MLA has prompted former poll panel bosses to suggest that although there was no deadline, governors are expected to act with reasonable urgency.

The BJP has sought Soren’s disqualification as MLA for obtaining a mining lease. Bais is yet to reveal the EC’s opinion, triggering an uncertainty that has prompted the air evacuation of around 40 MLAs and leaders of the ruling Jharkhand Mukti Morcha-Congress combine to Raipur in Congress-ruled Chhattisgarh against the backdrop of fears of poaching by the BJP.

Bais had for long been associated with the BJP and was a minister in the Atal Bihari Vajpayee government. Three Congress MLAs are already restricted by a court from leaving Calcutta after they were caught with unaccounted-for cash in July. The party alleges this was an inducement to them to defect.

Former chief election commissioners (CECs) said that although there was no time limit on how long a governor can take to act on the EC’s opinion on disqualification pleas, he or she is expected to be reasonable and is constitutionally bound to follow the poll panel’s opinion.Former CEC S.Y. Quraishi told The Telegraph: “The petition to the governor to disqualify an MLA is a public petition, and not the private property of the governor. Hence, the governor has to make public whatever action he takes regarding this. Political uncertainty anywhere is undesirable.”

After several hearings, the EC on August 26 sent governor Bais its opinion on whether Soren has violated Section 9A of The Representation of the People Act, 1951. The section says: “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.”

Soren’s defence was that the Supreme Court had exempted mining leases in several judgments, and in any case he had surrendered the lease to quarry stones.Former CEC O.P. Rawat told this newspaper: “The EC has no role (to play after giving its opinion to the governor).

There is no time limit on a governor as he can always plead that he was short of time. He can also seek clarification from the EC on its opinion. I would say that a gap of four to five days (between receiving the opinion and acting on it) is usual.”A senior EC source said no clarification had been sought by Bais on the panel’s opinion.In 2018, then President Ram Nath Kovind had taken two days to act on the EC’s opinion to disqualify 20 AAP MLAs for previously holding offices of profit as parliamentary secretaries.

The President’s decision was overturned by Delhi High Court.Asked whether reforms were required in law to prevent the trend of MLAs being sequestered in resorts to insulate them from poaching attempts, Rawat said: “The government will not fall if the chief minister is disqualified.

Existing provisions allow a person to be a minister for six months without being a member of the legislature, during which time the person is expected to get elected. “Also, he (Soren) has surrendered the mining lease for which disqualification was sought. So there is no bar on him to continue as chief minister even if he is disqualified as an MLA.”

Article 192 (2) of the Constitution states: “Before giving any decision on any such question (of the disqualification of MLAs), the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.” This makes the EC’s decision binding on the governor.Another former CEC said on condition of anonymity: “Whatever the opinion of the EC — to disqualify or not to disqualify — the governor has to issue a speaking order which is the opinion of the EC attested by him. Article 192 does not impose a deadline on the governor but it is upon his conscience to only take a reasonable amount of time to act according to the EC’s opinion.”He added: “Reasonable time cannot be defined legally as it is a matter of justice.

The EC functions as a quasi-judicial body in this regard, and since its reference is from the governor it can only communicate its opinion to the governor and no one else. The governor informs the EC of whatever action he takes. For years on end, Speakers often sit on petitions to disqualify MLAs for defecting even after directions from courts, because reasonable time is not defined in law.”