ECI courts controversy

By Nagaland Post | Publish Date: 10/2/2019 11:48:28 AM IST

 By exercising its power under Section 11 of the Representation of People Act, the Election Commission of India(ECI) on September 29, issued a highly contentious order that  reduced the disqualification period of Sikkim chief minister Prem Singh Tamang from the statutory six years to only one year and one month. Tamang was convicted and  served a year in prison, between 2017 and 2018, after he was found guilty of misappropriating government funds in a cow distribution scheme while he was the minister of animal husbandry in the 1990s. He was released on August 10, 2018.  This attracted the provisions of the Representation of People Act, debarring him from being an electoral candidate for six years from the date he was released. This means is that when Tamang was sworn-in as chief minister on May 27 as leader of the SKM which had won 17 out of the 32 seats, his disqualification was very much in force. In July 2019, Tamang had requested the ECI  to waive his disqualification period under Section 11 of the Representation of People Act. Though the ECI’s order has not considered the legality of whether Tamang’s swearing-in on May 27 was sound, the consequence of the September 29  ECI order is that the Sikkim governor’s decision to invite Tamang to form the government and the subsequent administration of oath of office and secrecy is untenable. Tamang’s appointment as chief minister is currently under challenge in the Supreme Court by Bimal Dawari Sharma of SDF. A curious aspect of the ECI order is that it does not take the effort to delineate what it means for Tamang. That answer is available in an important precedent that the Supreme Court set in 2001 in a case involving then former Tamil Nadu Chief Minister late J. Jayalalithaa. In 2001, Jayalalithaa faced disqualification as she was convicted in a corruption case involving sale of government land in April 2000. She, however, was sworn-in as chief minister in June 2001 by the governor as the AIADMK legislative party elected her as the leader. In the September 2001 disqualification of Jayalalithaa, the Supreme Court ruled that the appointment of a person not qualified to be a member of the house or disqualified from being so, is contrary to Article 164  of the constitution and so, such appointment can be challenged in quo warranto proceedings. Further the Supreme Court ruled that even though the governor had made the appointment( of Jayalalithaa), it still did not give the governor any right to appoint a person who was disqualified from holding the position as a legislator and becoming a chief minister. The court also dismissed the contention that the Constitutional provision allowing a person to remain chief minister for six months without being elected could be applied in case of a disqualification. Thus, the ECI decision was morally, ethically and constitutionally wrong and has only set a wrong precedent that would reverse the trend towards decriminalisation of politics. The ECI’s citation of section 11 of the RPA is untenable since it involved conviction for corruption. The EC decision also goes against the grain of a series of legislative and judicial measures to strengthen the legal framework against corruption in recent years. By its order the ECI has only supplemented charges of being partisan in favour of the ruling party. 


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