Yesterday, I spoke with Rodney Ralte, Secretary to the Governor of Mizoram, to follow up on the email complaint I sent to the Governor on August 25.
The Secretary told me that the issue at hand is of serious concern to the Governor and that he was planning to meet with the Advocate-General. If there is no change of plan, the Governor will hold discussions with the Advocate-General today. After careful consideration of the law, the Governor will make a decision on whether Sections 10A and 9A of the Representation of the People Act, 1951 apply to the Chief Minister and the former Health Minister respectively. According to the Constitution, the Governor's decision is "final" when it comes to the question of disqualification for membership of the Legislature.
Governor Nirbhay Sharma will deliberate with Advocate-General Biswajit Deb on the issue of whether Chief Minister Lal Thanhawla and his brother Lal Thanzara should be disqualified under the RP Act or not.
Although Article 165 (2) of the Indian Constitution does not specifically state that the Advocate-General's duty is to give advice to the Governor of the State, the military hero and thinker is understood to hold the opinion that a comprehensive consultation with the "Supreme law officer of the State" i.e. the Advocate-General, is beneficial in the discharge of his Constitutional duty.
I also spoke with Anuj Jaipuriar, Secretary, Election Commission of India shortly after I spoke with the Governor's Secretary and confirmed with him that the Election Commission of India has also received the email. According to him, the Governor is the appropriate authority to receive the complaint and the Election Commission of India will act on the behest of the Governor.
According to advocate C.Lalrinchhunga, Asst Secretary, Mizoram Bar Association, if Lal Thanzara is given the Sec 9A penalty, then Article 191 (1) (e) of the Constitution kicks in.
"A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State...if he is so disqualified by or under any law made by Parliament"
One understanding of this Article of the Constitution is that if the Governor disqualifies the former Health Minister and MLA for Aizawl North 3 constituency based on his asset declaration on 7th Nov 2013 and the Assembly papers revealing his factory's involvement in the supply of biscuits to the government which is a breach of Sec 9A of the RP Act, then Article 191 permanently disqualifies him from contesting elections.
However, another understanding of the law is that Sec 9A ceases to apply to the former MLA the moment he voluntarily resigned. It now appears that the night before Lal Thanzara tendered his resignation, he along with his brother and other close confidants, decided to take the option of him resigning not only from his ministerial post but also from the Legislature so as to avoid the penalty like the one meted out to Bahujan Samaj Party MLA Uma Shankar Singh and Bharatiya Janata Party MLA Bajrang Bahadur Singh who were disqualified by Uttar Pradesh Governor Ram Naik in January this year.
As for the Chief Minister, his public admission of an expenditure during the last election which does not seem to be recorded in his election expenditure declaration might very well put him under the strict scrutiny of Sec 10A of the RP Act which carries a penalty of disqualification for 3 years. Aam Aadmi Party candidate for the Mizoram Lok Sabha seat M.Lalmanzuala was disqualified under this law not because of corrupt practices but due to his failure "to lodge accounts of election expenses." The disqualification order was issued on 8th September 2014 by Anuj Jaipuriar, Secretary ECI. According to M.Lalmanzuala, whose reputation as one of the leading voices against corruption has inspired a generation, his newly joined party - Aam Aadmi Party - was understaffed to comply with the strenuous requirement of election account keeping.
The Governor is sworn to “preserve, protect and defend the Constitution and the law” and
has made a pledge to “devote [himself] to the service and well-being of the people of Mizoram.” The Advocate-General also has a Constitutional duty to "give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force."
According to www.elections.in, "The Election Commission of India (ECI) is a constitutional body responsible for administering elections in India according to the rules and regulations mentioned in the Constitution of India."
The highest Constitutional office holder in the State - the Governor - will consult the chief law enforcement officer of the State - the Advocate-General. Based on their fidelity to the Constitution that they are morally and legally obliged to uphold, they will decide whether the law applies to the State's longest serving premier and his apparent successor - his younger brother. And the nation's independent Constitutional body responsible for managing according to law the biggest show on earth - the Indian elections - will work with the Constitutionally-literate Governor of Mizoram.
If these two Constitutional offices --- the office of the Governor and the Advocate-General --- and the Constitutional body --- The Election Commission of India --- fail to correctly interpret and apply the law, they will have failed the people of Mizoram and the law the swore to uphold. If they, on the other hand, put the law above all else there will be joy in the hearts of all justice-loving citizens and non-citizens alike.
If things donot go accordingly, Supreme Court lawyer Prashant Bushan's suggestion - “Someone will have to move the courts seeking an investigation into all this" - may very well have to be taken up by the daring and those that hunger for justice.
May the Governor’s pledge to “devote [himself] to the service and well-being of the people of Mizoram” be evident at a time such as this.
