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Mains Article

Controversy over Sikkim CM’s disqualification [Mains Article]

The EC’s order on Sikkim CM’s disqualification goes against the anti-graft current in law.
By IT's Mains Articles Team
October 11, 2019

Contents

  • Why it is in News?
  • What is the issue?
  • Power of EC to reduce the disqualification term
  • Why EC reduced his disqualification tenure?
  • Arguments in favour of EC decision
  • Criticism of EC decision
  • Disqualification criteria for contesting in election
  • Conclusion

Controversy over Sikkim CM’s disqualification

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Why it is in News?

  • The Election Commission (EC) reduced Sikkim Chief Minister’s disqualification period by almost five years under a provision of the electoral law, paving the way for him to contest the state assembly elections.

What is the issue?

Sikkim CM's disqualification

  • Current Sikkim Chief Minister Prem Singh Tamang was found guilty of misappropriation of government funds in a cow distribution scheme while he was the minister of animal husbandry in the 1990s.
  • A case was registered in 2003 under the Prevention of Corruption Act that was subsequently repealed. The court order to that he cannot contesting in any election for 6 years starting from August 10, 2018 until August 10, 2024 and had to serve a one-year prison term sentence (which he served and released on August 10, 2018).
  • However, the recent EC order reduced his disqualification to one year and one month. In other words, his disqualification period ended on September 10, 2019 and he can contest polls to continue as chief minister.

Power of EC to reduce the disqualification term

Election-Commission

  • Under the provisions of the law, the EC can reduce or remove a person’s disqualification.
  • Section 11 of the Representation of the People Act, 1951 states, “The Election Commission may, for reasons to be recorded, remove any disqualification under this Chapter 1 (except under section 8A) or reduce the period of any such disqualification.”

Why EC reduced his disqualification tenure?

Prem Singh Tamang took over as chief minister in May 2019. However, he could not contest the elections due to his disqualification. He was appointed as Chief Minister by the Sikkim Governor in May 2019. However, he did not contest, but was elected legislature his party leader which won the election. While his appointment as Chief Minister was challenged in the Supreme Court, he approached the EC for removing his disqualification.

His main argument was that the law prevailing at the time of his offence entailed disqualification only if the sentence was for a term of two years or more. (while he was sentenced only one-year jail). He also argued that the amendment of Representation of the People Act in 2003, under which any conviction under the anti-corruption law would attract the six-year disqualification norm, should not be applied to him as the he did the offence before the amendment.

Arguments in favour of EC decision

  • The EC had allowed similar requests to for removing disqualification in previous cases. In the case of Shyam Narain Tewari, a person who wrongly contested the election, the EC gave due weightage to the mandate of the people and removed the disqualification of a man who was originally sentenced to death.
  • In the case of Mitrasen Yadav, also a murder convict, EC removed his disqualification in order to allow him to contest elections.

Criticism of EC decision

  • The EC order was not conducive to reducing criminalisation of politics.
  • Despite the power EC to remove or reduce the disqualification attached to a conviction, this has been used rarely, and seldom in a case involving a conviction for corruption.
  • The EC decision also goes against the legislative and judicial measures to strengthen the legal framework against corruption in recent years. The supreme court has described corruption as a serious malady and one impinging on the economy.

Disqualification criteria for contesting in election

  • As per Section 8 (3) of RP Act, 1951, if a person is convicted of any offence and sentenced to an imprisonment of 2 years or more, he will be disqualified to contest elections.
  • Even if is a person is on bail, after the conviction and his appeal is pending for disposal, he is disqualified from contesting an election.
  • Under section 10A of the RP Act, 1951, if the Election Commission is satisfied that a person has failed to lodge an account of election expenses with the time and he has no good justification for the failure, it has the power to disqualify him for a period of 3 years for being chosen as, and for being, a member of either House of Parliament or the Legislative Assembly or Legislative Council of a State.

Conclusion

  • Morally, it is wrong of politically parties to give ticket to those convicted of crimes or to appoint someone convicted. Today, 43% of the Lok Sabha members have pending criminal cases.
  • Hence, the Election Commission (EC)’s order reducing the period of Sikkim Chief Minister disqualification from electoral contest may end up reversing the trend towards decriminalising politics.

 

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