Jharkhand High Court refuses permission to former CM Hemant Soren to take part in State Budget session

The Jharkhand High Court on Wednesday refused to grant permission for former Jharkhand Chief Minister Hemant Soren, who is presently in jail after his recent arrest in a money laundering case, to participate in the ongoing Budget Session of the State legislature [Hemant Soren v. Directorate of Enforcement]..Justice Sujit Narayan Prasad reasoned that a person who is in custody on the basis of a valid order will have to forgo his right to participate in the business of the legislature..The Court also rejected the argument that the Jharkhand Mukti Morcha-led government in the State would collapse if Soren, a member of the legislative assembly, was prevented from participating in the Session..The Court pointed out that such irreparable loss would only be there if the voting strength of the ruling and opposing party are neck-to-neck.“Then in such cases probability is there of non-passing of the budget leading to loss of confidence in government which will have adverse impact across the State,” Justice Prasad noted.In the present case, however, the Court was told that these numbers are not neck-to-neck. Rather, it was submitted that the number of legislative assembly members in Jharkhand on the ruling side is 47 and in opposition, it is 29..Soren had stepped down as Chief Minister of Jharkhand on January 31 in the wake of his arrest by the Enforcement Directorate (ED) in a money laundering case related to the “illegal change of ownership of land by the mafia” in Jharkhand.He had moved the High Court challenging the trial court's refusal to permit him to participate in the Budget Session which began on February 23 and will culminate on March 2..After hearing the arguments made by Soren and ED, the Court considered the question of whether participation in the Budget Session can be said to be a fundamental right in light of Article 19(1)(a) and Article 194 of the Constitution.It noted the fundamental right to freedom of speech under Article 19 is distinct from Article 194 which grants “absolute” freedom of speech to legislators within the legislative chamber.It proceeded to conclude that there is no violation of a fundamental right in not permitting Soren to participate in the Budget Session. “Since the ‘right to speech’ as guaranteed under Article 19(1)(a) of the Constitution of India has been held to be distinct over Article 105 and 194 of the Constitution of India, therefore, merely because one or the other Member of Parliament or Member of State Legislative Assembly is not being allowed to participate in the proceeding due to the valid detention after valid order of remand the same cannot be construed to be in violation of Article 19(1)(a) of the Constitution of India,” the Court explained..The Court also considered whether it would be just to allow Soren to participate in the Budget Session under a ‘vested right’, when serious allegations of money laundering have been levelled against him.It opined that if no legal proceedings were pending against Soren, then certainly in the capacity of being a people’s representative, his right to participate in the Budget Session would have been a vested legal right.However, since the order of remand has not been challenged by Soren, Justice Prasad concluded that “it cannot be said that any legal vested right has accrued to the petitioner to participate in the proceeding of the floor.”.The Court also said that the ‘right to vote’ and ‘right to contest’ in elections are on the same level as a ‘right to participate in the session.'In former cases (where the right to vote or contest is affected) appropriate orders could have been passed to allow lawmakers to participate in the Session for the purpose of voting or taking an oath, it added.In conclusion, the Court said that in wake of Soren's valid custody, it would be totally inappropriate to exercise its discretion under Article 226 of the Constitution of India to grant him the permission to attend the assembly session solely on grounds that he has the freedom of speech or that he enjoys privilege in the assembly or on the ground that he has to participate in the proceedings to meet Constitutional obligations..Senior Advocates Kapil Sibal and Rajiv Ranjan with advocates Piyush Chitresh and Shray Mishra represented Hemant Soren..Additional Solicitor General SV Raju and advocates Zoheb Hossain, Amit Kumar Das, Saurav Kumar and Risabh Dubey represented the ED..[Read judgment]