The Delhi High Court, in a special sitting on Sunday, refused to allow Narottam Mishra, the water resources minister in the Shivraj Singh Chouhan government, to vote in the Presidential election on Monday.

Considered the number two in the Madhya Pradesh Cabinet, Mishra was disqualified by the Election Commission on June 23 for not accounting for the money he spent on paid news during the 2008 Assembly election campaign.

The disqualification sparked a crisis in the state as Speaker Sitasharan Sharma did not declare the Assembly seat held by Mishra as vacant, as required by the Representation of the People Act, 1951.

The Election Commission was displeased with the speaker’s decision, which it felt was a way to allow Mishra time to approach the courts for remedy. The delay in declaring the seat vacancy is also being seen as a direct challenge to the commission’s authority.

The opposition Congress has warned the ruling Bharatiya Janata Party that it will not allow the Assembly to function – its monsoon session of which starts Monday – if Mishra is allowed to attend.

Not accounted for

The Election Commission disqualified the minister by invoking its powers under Section 10A of the Representation of the People Act. The provision allows the commission to disqualify an elected representative if he or she had failed to file proper accounts of electoral expenses in the form and manner prescribed.

In Mishra’s case, the commission concluded that the money spent on 42 paid news items, which appeared in various newspapers, was not included in the accounts he submitted to it. This attracted disqualification of three years from the date the orders were issued.

Mishra went to the Gwalior bench of the Madhya Pradesh High Court against the order. In the meantime, a Public Interest Litigation was filed before the Jabalpur bench of the High Court, seeking that his seat be immediately declared as vacant. The High Court clubbed the two matters. A petition was then filed in the Supreme Court by Congress leader Rajendra Bharti seeking the transfer of the case to the Delhi High Court. The apex court granted the plea.

On Friday, a single judge of the Delhi High Court refused to entertain Mishra’s petition seeking a stay on the Election Commission’s order of disqualification. He then moved a division bench of the court in appeal, also seeking the right to vote in the Presidential election. On Sunday, the division bench too refused to entertain his plea.

Questions of law

Now that the Delhi High Court has refused to allow Mishra to vote in the presidential election, another problem has come up: Can Mishra, who is no longer a member of the Assembly, continue to attend the proceedings as minister?

According to Article 164 (4) of the Constitution, a person can remain a minister for six months without membership in the Assembly. However, Mishra was administered the oath of office in 2013 by the governor when he was an MLA. Now that this membership has been rescinded, the assumption is that his position as minister, based on the 2013 oath, has also expired.

Therefore, if Mishra is to attend the Assembly, the chief minister has to recommend his inclusion in the Cabinet yet again and the governor has to administer him a fresh oath of office.

But here is the catch. Since Mishra is disqualified from contesting polls for three years, there is no way he can be elected to the Assembly in six months as mandated by the law. So, can the governor include someone who cannot attain membership to the Assembly in the Cabinet? The Supreme Court, in a 2001 case involving former Tamil Nadu Chief Minister Jayalalithaa, concluded that a person disqualified from contesting polls cannot be appointed to the Cabinet.

If Mishra still attends the Assembly, it could lead to a constitutional crisis.

Secondly, the role of the speaker has come under the cloud. Despite the Election Commission ordering his disqualification, the Speaker has not notified the vacancy to his Assembly seat.

The law mandates that election should be held to an Assembly seat within six months of it falling vacant. If the speaker takes his time notifying the vacancy, the Election Commission will have to decide whether to hold the polls without the Speaker’s approval. In matters of the Assembly, the speaker’s writ is final and the Election Commission does not have the power to order the speaker to issue the notification for the vacancy.

Former Chief Election Commissioner N Gopalaswami said the poll body will have to go ahead with the polls irrespective of the speaker’s decision as it has the obligation to fill the seat in six months.

He argued that the disqualification of the legislator and the notification for the seat’s vacancy are independent proceedings. “Just because the speaker fails to notify the vacancy, it will not give a disqualified MLA room to attend the Assembly,” he said.

Gopalaswami pointed out that although the disqualification pertained to the Assembly of 2008-13, which has long expired, the law clearly states that the disqualification comes into effect the day the commission issues its order. “There is no doubt that the person is now ineligible to be an MLA in the current Assembly,” he said.