'Legal Issue Is There' : Supreme Court Issues Notice On Plea Challenging ECI's Waiver Of Sikkim CM's Disqualification Period

The Supreme Court on Monday issued notice in a writ petition filed by Vice President of the Sikkim Democratic Front challenging the appointment of the Mr.Prem Singh Tamang as the Chief Minister of Sikkim, and reduction in his disqualification period from 6 years to 1 year. 

The petition filed by Mr JB Darnal has challenged Section 11-B of the Representation of the People Act, 1951 which provides for removal of disqualifications for being ultra vires, unconstitutional, null and void being violative of Part III of the Constitution of India.

A bench comprising the Chief Justice of India NV Ramana, and Justice Krishna Murari issued notice observing that there is a legal question involved in the case. The Court has however sought an explanation from the petitioner as to why multiple petitions have been filed on the same subject before different courts. 

"Why have you chosen so many forums you've to explain. Some legal issue is there. Only that is why we are issuing notice. List after 6 weeks", the Bench said 

This was after Senior Advocate Mukul Rohatgi appearing for the respondent on caveat informed the Court that a similar petition has been filed by the same political party before the Delhi High Court. 

During the hearing today, Senior Advocate GV Rao appearing for the petitioner submitted that the respondent  was prevented from being the Chief Minister under the Prevention of Corruption Act, and according to Supreme Court's judgement in Jayalalitha's case, he was to be disqualified for 6 years after conviction in a corruption cae. 

Mr Rao submitted that they have challenged the Election Commission's order allowing him a waiver of his disqualification period as once there's a judicial order for disqualification of 6 years, that can't be overlooked to make a waiver. 

The present petition has sought directions quashing the appointment order of Council of Ministers and allocation of minster portfolios vide orders dated 16.01.2020 on aid and advise of the present CM.

The petition has also sought directions quashing the Impugned Order dated 29.09.2019 passed by the Election Commission of India reducing disqualification of the present CM Prem Singh Tamang (Golay) from 6 years to 1 years and 1 month in exercise of power vested in Section-11-B of the Representation of Peoples Act, 1951.

Further, directions have been sought quashing the Election of the present CM Prem Singh Tamang as the Returned Candidate to the By-Election of 10-Poklok Kamrang held on 21.10.2019.

The petition has argued that the Election Commission has made gross misuse of their powers which has the effect of defeating the spirit of the statutory provision and takes away the deterrent value of the provision which is the need to ensure that elections are free from candidates with criminal antecedents.

The petitioner has argued that Section 11-B of the Representation of People Act, 1951 is ultra vires to the Part III of the Constitution of India and deserves to be struck off.

The Petitioner's has pointed out that his party through its General Secretary, filed a writ petition challenging the invitation by the Governor of the Sikkim to the present CM to form Government and for swearing him in as a Chief Minister, even prior to his election to the Assembly, which is pending before the Supreme Court.

According to the petitioner, that challenge was based upon the violation of the Supreme Court's Judgments in cases including B.R. Kapur Vs State of Tamil Nadu, Manoj Narula Vs U.O.I, Lily Thomas vs Union of India holding that a convicted person shall stand disqualified for 6 years from the date of conviction and can neither be sworn in to a public office or even contest elections.

The petition has stated that the power enumerated under Section-11-B, of the Representation of People's Act, 1951 is a quasi-judicial power and must be exercised in the rarest of rarest case, for the simple reason that it takes away from the deterrent value of the statute, when the need is to ensure that elections are free from candidates with criminal antecedents.

"In the present case, the Election Commission of India's Order has the immediate effect of condoning the 6 years disqualification u/s 8 to merely 1 year and 1 month. The condonation granted just before the bye elections were to be held, not only demonstrates arbitrariness, but also mala fide amounting to contempt of Court as per the Judgements of this Hon'ble Court." the plea states

According to the petitioner, the only inference from the period condoned i.e. 4 years 11 months, seems to be for the specific purposes of allowing the candidate to contest the State elections.

The  ECI passed the order noting that Mr. Tamang had been sentenced to one year imprisonment on December 26, 2016 and that the section of the Prevention of Corruption Act, 1988, under which he was convicted, had been omitted in an amendment in 2018. He completed the one-year sentence on August 10, 2018.

Case Title: JB Darnal vs Union of India & Ors |W.P.(C) No. 1183/2021

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