New Delhi: The Supreme Court is set to hear a plea Wednesday that challenges the appointment of Sikkim Chief Minister Prem Singh Tamang on the grounds of his disqualification from contesting polls.
Tamang, president of Sikkim Krantikari Morcha (SKM), took oath as CM on 27 May after SKM defeated the Sikkim Democratic Front in the state’s assembly elections held alongside the 2019 Lok Sabha polls.
However, his appointment has since been challenged as illegal, owing to his conviction in a corruption case in 2016.
ThePrint now examines the Constitutional and legal provisions, as well as precedents involved in the case.
Prem Singh Tamang was convicted in December 2016 under the Prevention of Corruption Act (PCA). He was found guilty of misappropriating funds in the Sikkim government’s cow distribution scheme while he was the animal husbandry minister between 1994 and 1999. The court had sentenced him to one-year imprisonment.
The verdict was upheld by the Sikkim High Court in June 2017, after which he served his jail term until August 2018.
Constitutional challenge to Tamang appointment as CM
Article 164(1) of the Constitution of India allows appointment of a chief minister by the governor. Article 164(4) states that a minister, who for any period of six consecutive months, is not a member of the state legislature, shall cease to be a minister at the expiration of this period.
Prem Singh Tamang did not contest the recent assembly elections. However, his appointment for the six-month period might also be legally untenable, in view of the Supreme Court’s judgment in BR Kapoor v State of Tamil Nadu.
In the 2001 case, the Supreme Court had held that a non-elected member, whose nomination for contesting election to the Legislative Assembly stood rejected on grounds of his conviction, could not be appointed as chief minister under Article 164, merely because the largest number of elected members to the assembly elect such a person to be their leader.
While Article 164 itself does not provide for any qualification or disqualification, the Supreme Court had held in the B.R. Kapoor case that “qualification or disqualification provided in Articles 173 and 191 of the Constitution for being chosen as a member will have to be read into Article 164”.
Article 173 lays down the qualification for membership of state legislature, stating that any person chosen to fill a seat in the state legislature should not hold any disqualifications under any law.
Article 191, which provides disqualifications for membership of the Legislative Assembly or Legislative Council of a state, contains a similar provision.
Representations of People Act 1951 (RP Act) is the disqualifying law in the Tamang case.
Disqualification under the Representation of People Act
Section 8(1)(m) of the RP Act provides for barring of a person for a period of six years from the date of conviction, if the convict is penalised with a fine. If the convict is punished with imprisonment, the provision prescribes disqualification from the date of conviction, until six years after release.
This provision was inserted in 2003 during prime minister Atal Bihari Vajpayee’s term, through the Representation of the People (Amendment) Act, 2002.
However, it had been settled by the Supreme Court way back in 1959 that the general object of a repealing and amending Act is to strike out certain enactments which become “unnecessary”.
In another 2002 verdict, the apex court had further explained, “Since the Amending Act (of 2001) has already been enacted and implemented by making necessary amendment and insertion in the original Act, the Amending Act has lost its utility as its purpose has already been served. Hence, the Amending Act was repealed ‘as a whole’.”
Therefore, the Representation of the People (Amendment) Act 2002 was repealed, because the provisions introduced by the amendments had already been inserted in the original Act, i.e. the Representation of People’s Act 1951. Consequently, the amendments still stand.
The Jayalalithaa case
The challenges to Prem Singh Tamang’s appointment are squarely covered by the five-judge Supreme Court judgment in the B.R. Kapoor case. Through this judgment, the court had struck down Jayalalithaa’s appointment as chief minister in 2001, because of her conviction under the Prevention of Corruption Act.
The bench comprised then Chief Justice of India G.B. Pattanaik, along with Justice S.P. Bharucha, Justice Y.K. Sabharwal, Justice Ruma Pal and Justice Brijesh Kumar.
The judgment had specifically examined the interplay between Articles 164, 173 and 191, and had rejected the argument that the Governor, exercising powers under Article 164, was obliged to appoint the person nominated by the majority party as the chief minister, regardless of such person being disqualified according to Articles 173 or 191. To accept this submission “is to invite disaster”, it had ruled.
The court had, therefore, held that Jayalalithaa could not have been appointed as the chief minister at all, in view of her disqualification under Article 191 (1)(e) read with provisions of the RP Act.
When requested to wait for the period of six months allowed under Article 164(4) to expire before pronouncing the judgment, the court had taken the view that “appointment of a person to the office of Chief Minister who is not qualified to hold it should be struck down at the earliest”.
Election Commission waiver
As a last-ditch effort, Tamang has requested the Election Commission to waive his disqualification from contesting polls.
He has cited Section 11 of the Act, which allows the Commission to remove any disqualifications under Chapter 3 of the Act (which includes Section 8) or to reduce the period of such disqualification.
Tamang argues that he needs to be elected to the assembly within six months of his appointment.