Supreme Court Issues Plea Opinion Challenging ECI’s Waiver of Sikkim CM’s Disqualification Period
The Supreme Court on Monday issued an opinion in a written petition filed by the Deputy Chairman of the Democratic Front of Sikkim challenging the appointment of Mr. Prem Singh Tamang as Chief Minister of Sikkim and the reduction of his disqualification period from 6 years to 1 year.
The petition filed by Mr. J.B. Darnal challenged Section 11-B of the Representation of the People Act 1951, which provides for the removal of disqualifications for being ultra vires, unconstitutional, null and void in violation of Part III of the Constitution of India.
A bench consisting of Chief Justice of India NV Ramana and Justice Krishna Murari has issued an opinion stating that there is a legal issue involved in the case. However, the Court asked the petitioner to explain why several petitions were filed on the same subject before different courts.
“Why did you choose so many forums that you have to explain. There is a legal problem. This is only why we issue a notice. List after 6 weeks”, the bench said
This was after lead barrister Mukul Rohatgi appearing for the subject defendant informed the court that a similar petition had been filed by the same political party in the Delhi High Court.
During today’s hearing, lead counsel GV Rao appearing for the petitioner argued that the respondent was barred from serving as Chief Minister under the Prevention of Corruption Act and according to the Supreme Court judgment in the Jayalalitha case he was to be disqualified for 6 years after being convicted in a case of corruption.
Mr Rao said he challenged the election commission’s order allowing him to waive his disqualification period because once there is a court order of disqualification for 6 years, it cannot be neglected to make a waiver.
This petition has requested instructions canceling the decree of appointment of the Council of Ministers and the allocation of ministerial portfolios by ordinances of 16.01.2020 on the assistance and advice of the current CM.
The petition also sought instructions rescinding the contested order dated 29.09.2019 passed by the Election Commission of India reducing the disqualification of current CM Prem Singh Tamang (Golay) from 6 years to 1 year and 1 month in the exercise of the authority conferred by Section-11-B of the Representation of Peoples Act 1951.
Also, instructions were sought to rescind the election of current CM Prem Singh Tamang as a re-elected candidate in the 10-Poklok Kamrang by-election held on 21.10.2019.
The petition argued that the electoral commission has made a flagrant abuse of its powers, which has the effect of frustrating the spirit of the statutory provision and removing the deterrent value of the provision which is the need to ensure that elections are exempt from applicants with criminal offences. antecedents.
The petitioner argued that Section 11-B of the Representation of the People Act, 1951 is ultra vires Part III of the Constitution of India and deserves to be scratched.
The petitioner pointed out that his party, through its Secretary General, filed a written petition challenging the Governor of Sikkim’s invitation to the current CM to form a government and swear him in as Minister in leader, even before his election to the Assembly, which is pending before the Supreme Court.
According to the applicant, this challenge was based on the violation of judgments of the Supreme Court in cases such as BR Kapur v Tamil Nadu State, Manoj Narula v UOI, Lily Thomas v India Union ruling that a convicted person will be disqualified for 6 years from the date of his conviction and cannot be sworn in to public office or even participate in elections.
The petition stated that the power enumerated in Section 11-B of the Representation of the People Act 1951 is a quasi-judicial power and should be exercised in the rarest of cases, for the simple reason that it takes away from the deterrent value of status, when it comes to ensuring that elections are free of candidates with criminal backgrounds.
“In the present case, the Electoral Commission of the Order of India has the immediate effect of tolerating the disqualification from 6 years or 8 to only 1 year and 1 month. The tolerance granted just before the holding of the farewell elections, demonstrates not only arbitrariness, but also bad faith amounting to contempt of the Court according to the judgments of this Honorable Court.” the plea states
According to the petitioner, the only minus the tolerated period, i.e. 4 years and 11 months, appears to be aimed specifically at allowing the candidate to run for state office.
The ECI issued the order noting that Mr. Tamang was sentenced to one year in prison on December 26, 2016 and that the section of the Prevention of Corruption Act 1988, under which he was sentenced , had been omitted in a 2018 amendment. He served his one-year sentence on August 10, 2018.
Case Title: JB Darnal v Union of India & Ors |WP(C) No. 1183/2021