Explained: Is P.S. Golay eligible to hold office as Chief Minister of Sikkim?

Updated - September 28, 2023 02:26 pm IST

Published - August 18, 2019 12:02 am IST

The story so far: The Supreme Court is hearing a writ petition challenging the appointment of P.S. Golay alias Prem Singh Tamang as Chief Minister of Sikkim. The matter last came up on July 30 and was adjourned for three weeks. The crux of the issue is that the 51-year-old leader of the Sikkim Krantikari Morcha (SKM) could not have been appointed Chief Minister, as he is under a subsisting disqualification. Mr. Golay did not contest the Assembly election held this year, as he is barred from electoral contests after being convicted for corruption in 2016. He completed his prison term only in August 2018. The petitioner, Bimal Dawari Sharma of the Sikkim Democratic Front party, argues that in view of his disqualification from elections for six years from the date of release, Mr. Golay could not have been appointed Chief Minister.

What was the case against Mr. Golay?

It goes back to his tenure as Minister for Animal Husbandry in 1996. He was held guilty under the Prevention of Corruption Act of misappropriating ₹9.50 lakh, in the purchase of milch cows for distribution. He was sentenced to a one-year prison term. After his conviction was upheld by the Sikkim High Court, he served out a one-year sentence in prison. He was released on August 10, 2018.

What does his conviction for corruption entail?

A person convicted under the Prevention of Corruption Act is not eligible to contest an election for six years from the date of release. This is under Section 8(1)(m) of the Representation of the People Act, 1951. As Mr. Golay’s sentence came to an end in August 2018, he is barred from contesting polls until 2024.

Was he eligible to be appointed Chief Minister?

Going by the law laid down by the Supreme Court in B.R. Kapoor vs State Of Tamil Nadu (2001), Mr. Golay could not have been appointed Chief Minister. This was the judgment that unseated Jayalalithaa after she was controversially appointed to the office by the Governor. Jayalalithaa’s nomination papers in four constituencies had been rejected then, with three returning officers citing her disqualification arising from conviction for corruption. In Mr. Golay’s case, he chose not to contest the election. Both of them were elected leaders of their respective legislature parties, which won the elections.

What was the principle behind the court’s ruling?

Jayalalithaa’s lawyers had argued that qualification to be a legislator was not a prescribed eligibility norm for appointment as Chief Minister. The Governor was bound to appoint the person elected by the party that enjoyed majority in the House, and that for at least six months, a non-member could continue until the question of being eligible to contest an election arises. The Supreme Court had rejected this argument. “That non-legislator must be one who, when he is appointed, is not debarred from obtaining membership of the legislature : he must be one who is qualified to stand for the legislature and is not disqualified to do so.”

How does the party, the SKM, view this legal bar?

Mr. Golay’s party, the SKM, has come up with an unusual argument in support of his appointment as Chief Minister. It has claimed that the RP (Amendment) Act, 2002, under which the clause related to disqualification for conviction under the Prevention of Corruption Act was introduced, had been ‘repealed’ by the Repealing and Amending Act, 2015.

It seems unlikely that this argument will be accepted. Even though the Repealing and Amending Act mentions the 2002 Amendment Act as one of the laws that are being repealed, it is quite obvious that it was only being done to get rid of redundant laws from the statute book. The relevant clause in the repealing Act is clear that provisions that were incorporated through the amendment and have become part of the parent law will continue to be in force.

The ‘savings’ clause says: “The repeal by this Act of any enactment shall not affect any Act in which such enactment has been applied, incorporated or referred to.” In other words, the clause relating to disqualification for a corruption conviction is now part of the RPA,1951, and the 2002 amending law was repealed only because it was no more needed.

Does Mr. Golay have any other option?

The Sikkim Chief Minister has approached the Election Commission of India (ECI) for a waiver of the remaining period of his disqualification. Section 11 of the RPA says the ECI is empowered to remove any disqualification or reduce its duration for “reasons to be recorded”.

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