“Corruption is not only a punishable offence but also undermines human rights, indirectly violating them, and systematic corruption is a human rights violation in itself as it leads to systematic economic crimes.”
—The Supreme Court in State of Maharashtra Through CBI, Anti Corruption Branch, Mumbai vs Balakrishna Dattatrya Kumbhar (2012).
ON September 29, the Election Commission ignored this significant ruling of the Supreme Court by invoking its powers under Section 11 of the Representation of the People Act (RPA), 1951, to reduce the disqualification of Sikkim Chief Minister Prem Singh Tamang (also known as P.S. Golay) under Section 8(1)(m) of the same Act to one year and one month.
Tamang, in view of his conviction and one-year imprisonment under the Prevention of Corruption Act (PCA), was ineligible to contest elections to the Assembly until 2024. By permitting Tamang to contest a byelection to the Assembly by erasing his disqualification prematurely, the Election Commission has made a mockery of its commitment to Parliament’s objective to introduce stringent laws to prevent those convicted and sentenced under the PCA from entering electoral politics.
Background to a stringent law
Section 8(1)(m) of the RPA seeks to disqualify a person convicted under the PCA proportionate to the degree of the sentence. Thus, if the conviction is followed by fine alone, the convict is disqualified from contesting elections to Parliament and State Assemblies for six years from the date of conviction. If, however, the sentence is imprisonment, the convict undergoes a longer duration of disqualification, starting from the date of conviction to the completion of six years after release from imprisonment. The decision to amend the RPA to provide such an extended period of disqualification for those convicted under the PCA was taken by the Atal Bihari Vajpayee government in 2003.
Tamang heads the Sikkim Krantikari Morcha (SKM), which is an ally of the Bharatiya Janata Party (BJP) at the Centre. He took oath as the Chief Minister on May 27 although he did not contest the Assembly election held along with the recent Lok Sabha election. Tamang assumed office as the Chief Minister under Article 164(4) of the Constitution, which permits a non-member of the Assembly to take oath as Minister and continue in office provided he or she gets elected to the Assembly in a byelection within six months.
But Tamang faced a serious hurdle in the form of Section 8(1)(m) of the RPA which prevented him from contesting a byelection to the Assembly within six months of assuming office. Tamang was Animal Husbandry Minister between 1994 and 1999 in the Cabinet of Pawan Kumar Chamling, leader of the Sikkim Democratic Front who served five consecutive terms as Chief Minister from 1993.
Allegations of misappropriation of funds in the milch cow distribution scheme led to his conviction and sentencing to one-year imprisonment under the PCA by a trial court on December 28, 2016. On June 28, 2017, the Sikkim High Court upheld the trial court’s verdict and dismissed his appeal. On November 10, 2017, the Supreme Court, too, upheld Tamang’s conviction and sentence. Eventually, Tamang served his sentence for one year, and was released on August 10, 2018. Under Section 8(1)(m) of the RPA, his disqualification from contesting elections to the Assembly would have remained in force until August 10, 2024.
The question whether a person who is disqualified under the RPA can be sworn in as a Minister or a Chief Minister under Article 164(4) of the Constitution has been answered by the Supreme Court’s Constitution Bench in the Jayalalithaa case in 2001. In B.R. Kapur vs State of Tamil Nadu , the Supreme Court noted that she had been disqualified under Section 8(3) of the RPA as she had been convicted and sentenced to three years’ imprisonment under the PCA. Although her sentence was suspended in view of the pendency of her appeal in the High Court, the Supreme Court took the view that her disqualification under Article 191(1)(e) of the Constitution, read with Section 8(3) of the RPA, would remain, and, therefore, she ceased to be the Chief Minister. The Supreme Court made it clear in her case that the Governor would be bound by the constitutional mandate not to appoint her, irrespective of the support she enjoyed of the majority of the members of the Legislative Assembly.
Despite such a clear ruling by the apex court, Sikkim Governor Ganga Prasad turned a blind eye to Tamang’s disqualification while swearing him in as the Chief Minister.
Election Commission’s reasoning
The Election Commission reasoned in its order that before the amendment of Section 8 of the RPA in 2003, the disqualification resulted only if the period of conviction was two years or more. The Election Commission found merit in Tamang’s submission that when the offence was committed under the PCA (during 1994-99), it did not amount to a disqualification under Section 8 of the RPA and, therefore, he should not be made to suffer because of the delay in the completion of his trial. Besides, Tamang submitted that the Governor had, by implication, pardoned him through the administration of the oath of office and the invitation to form the government.
Tamang also relied on Article 20(1) of the Constitution, which says that no person shall be subjected to a penalty greater than that which might have been awarded under the law in force at the time of the commission of the offence.
Although Section 8(1)(m) of the RPA was inserted through an amendment only in 2003, long after the offence under the PCA was committed by Tamang, it is not clear whether disqualification from contesting elections to Parliament and the State Assembly could be considered as an additional penalty for the offence, apart from what is provided under the PCA. If it were so, Parliament would not have provided for Section 8 in the RPA to deal with disqualification for offences committed under other Acts. Therefore, the question whether the offence committed by Tamang would have invited disqualification at the time it was committed did not arise. If the Election Commission agreed with Tamang’s contention, it could not have disqualified him even for one year and one month, as at the time of commission of the offence, only two years’ imprisonment under the PCA could result in disqualification.
But the Election Commission not only ignored this inconsistency in its reasoning, but considered another fact in favour of Tamang. In 2018, the PCA was amended and Section 13(1)(d), under which Tamang was convicted before the amendment, was omitted. But Section 13(1)(d) would cease to be a valid provision under the PCA only after the passage of the 2018 amendment and not before that. In any case, it could not have undone Tamang’s conviction under the same provision in 2016.
The Election Commission cited two precedents when it reduced the disqualification under Section 11 of the RPA: Shyam Narain Tiwari (July 26, 1977) and Mitrasen Yadav. In the case of Tiwari, who wrongly contested the election despite his conviction and death sentence for murder, the Election Commission gave due weightage to the mandate of the people who elected him and removed his disqualification. The Supreme Court had commuted Tiwari’s death sentence to life imprisonment. The State government remitted even his life imprisonment and released him from prison after he completed rigorous imprisonment for four years. Tiwari, a Communist Party of India (CPI) leader in his village, was found eligible for commutation of his sentence because his offence was committed for socioeconomic reasons and as a result of class conflict.
Mitrasen Yadav was convicted in a case of double murder and sentenced to life imprisonment. His sentence, too, was remitted by the State government and he was released after facing disqualification for four years and seven months. The Election Commission reduced his disqualification for the remaining period of five months and allowed him to contest elections. Obviously, the facts of these two precedents are not similar to that of Tamang.
The Election Commission pointed out that Tamang, by not approaching the commission before the general election to seek reduction of disqualification under Section 11, had accepted that he stood disqualified in terms of the statute. If so, why did he stake his claim to be sworn-in as the Chief Minister after the election results? The E.C. has no answers. By opting to become the Chief Minister despite his disqualification earlier, Tamang had lost a right to be considered by the E.C. as a prospective candidate seeking the removal of his disqualification by following the precedent of Mitrasen Yadav.
After suggesting that Tamang’s refusal to approach the Election Commission earlier, seeking the removal of his disqualification to contest the general election, should not hold a significant value in the present case, the Commission’s order appears to have done precisely that by considering it in his favour. The Election Commission’s order, coming a day after the BJP forged an alliance with the SKM for byelections scheduled for October 21, is likely to erode its credibility further.