The Election Commission of India on Sunday reduced the period during which Sikkim Chief Minister Prem Singh Tamang stood disqualified from standing for elections by almost five years. However, the consequence of the order is that his swearing-in earlier this year was illegal.

In August 2018, Tamang came out of jail after being convicted in a corruption case. 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.

Tamang belongs to the Sikkim Krantikari Morcha, which won 17 of the 32 seats in the Sikkim Assembly elections in May. The party is an ally of the Bharatiya Janata Party.

On Sunday, the election commission cut down his period of disqualification to one year and one month – a period that has already passed since he was disqualified.

Appointment illegal

Though the Election Commission’s order has not considered the legality of whether Tamang’s swearing-in on May 27 was sound, the consequence of the Sunday 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 now untenable.

The Election Commission said that in exercise of its powers under Section 11 of the Representation of People Act, Tamang’s period of electoral disqualification was being reduced from the statutory six years to one year and one month.

This means is that when Tamang was sworn in as chief minister in May, his disqualification was very much in force.

Prem Singh Tamang being sworn in.

A curious aspect of the Election Commission 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 former Tamil Nadu Chief Minister 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 All India Anna Dravida Munnetra Kazhagam legislative party elected her as the leader.

In September 2001, a Constitution bench of the Supreme Court held that the governor’s move was unconstitutional and that a person who was disqualified from holding the position of a legislator could not become chief minister. It 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.

If this precedent is applied to Tamang, it is clear that he has now lost grounds to remain chief minister as the governor’s invitation to him to form the Sikkim government during his disqualification period is unconstitutional.

In 2001, the Supreme Court said:

“If perchance, for whatever reason, the Governor does appoint as Chief Minister a person who is not qualified to be a member of the legislature or who is disqualified to be such, the appointment is contrary to the provisions of Article 164 of the Constitution, as we have interpreted it, and the authority of the appointee to hold the appointment can be challenged in quo warranto proceedings. That the Governor has made the appointment does not give the appointee any higher right to hold the appointment. If the appointment is contrary to constitutional provisions it will be struck down. The submission to the contrary unsupported by any authority must be rejected.” 

Perhaps one of the reasons for the Election Commission to avoid comment on the legality of Tamang holding the chief minister position is that a petition challenging his appointment is pending in the Supreme Court. However, the Election Commission order makes it legally and ethically impossible for Tamang to continue as chief minister of Sikkim.

The Election Commission said that Tamang did not approach it to remove the disqualification before the elections nor did he contest the Assembly polls. Despite this, the Sikkim Krantikari Morcha legislative party elected him as chief minister, following which the governor invited him to form the government.

Legally, the fact that Tamang did not contest the elections should serve no benefit to him. In fact, had he filed his nomination papers, the returning officer would have in all probability reject it citing the disqualification.

As the Supreme Court had declared in the Jayalalithaa’s case, mere election as leader of the legislative party does not obliterate electoral disqualification under the Representation of People Act.