Total Recall: How Modi Government and Election Commission Provided Safety Net for Convicted Ally

Prem Singh Tamang Golay was convicted of corruption and should have been disqualified from contesting an election for six years. But the Narendra Modi-led Union government repealed a key clause in the Representation of the People Act, allowing the BJP ally to become Sikkim’s chief minister.

New Delhi: The swiftness with which Congress’s top leader Rahul Gandhi was disqualified after his conviction in a criminal defamation case and the possibility of being disqualified from contesting an election for six years after his sentence ends is in stark contrast to how the law was recently circumvented by a regional politician to become a state chief minister – with the help of the Narendra Modi government, and also the Election Commission of India (ECI).

As per Section 8 of the Representation of the People Act, 1951, a sitting MLA, MLC or MP, if convicted for certain offences that warrant imprisonment for at least two years, shall be disqualified from the date of such a verdict from a state assembly/ parliament and shall continue to be disqualified for a further period of six years since release from jail. Therefore, he/she cannot contest an election in that period.

So, if the two-year sentence pronounced by the Surat sessions court on Rahul Gandhi comes into effect, and he fails to get a stay on it from a higher court, the Congress top dog, in all likelihood, would be barred from fighting an election for roughly eight years.

The status of the leading opposition leader was handled with unprecedented urgency by the Lok Sabha Secretariat, which announced his expulsion from parliament just a day after the sessions court’s judgment. At this point, it’s important to remember an equally unprecedented move made by the ECI as recently as October 2019 to provide a safety net to the Sikkim chief minister and an ally of the Bharatiya Janata Party (BJP), Prem Singh Tamang Golay.

Another unprecedented move, with a different outcome

In 2010, Golay, who was then a minister in the Sikkim Democratic Front (SDF) government, found himself at odds with his own government when the state vigilance department filed a case for misappropriation of Rs 9.5 lakh from the animal husbandry department. The allegation against him was that he siphoned off the sum meant to be distributed to the public for buying cows under a state government scheme. He soon left the SDF.

In December 2016, Golay was sentenced to one-year imprisonment by a trial court under the Prevention of Corruption Act, 1988. In June 2017, the Sikkim high court upheld the lower court’s judgment, thus mounting pressure on Golay to surrender himself to the law.

However, Golay went into hiding after the sessions court’s judgment. Only in August 2017 did he surrender to the district and sessions court at Sichey in Gangtok and began his one-year imprisonment at Rongyek Jail, located on the outskirts of the capital city of Gangtok.

Golay termed the case against him as ‘political vendetta’ by the SDF supremo and then chief minister Pawan Kumar Chamling. He completed his jail term in August 2018 and went on to form his own regional party, Sikkim Krantikari Morcha (SKM).

In the run-up to the 2018 state elections, Golay led the fight against 25 years of SDF rule but stayed away from contesting the polls because it was assumed Section 8 of the Representation of the People Act would disqualify him on the ground of corrupt practices.

Interestingly, by then, the BJP had dropped the SDF to cosy up to Golay’s party – simply because Chamling would not relent in giving space to the national party in the northeastern state in the form of a pre-poll alliance. Golay was willing to do the BJP’s bidding – provided he got a safety net to become chief minister if his party managed to win a majority in the 32-member assembly.

So, in a bizarre move, the SKM became a part of BJP’s North East Democratic Alliance (NEDA) while its sworn enemy, the SDF, also remained a part of it. The BJP soon entered into a pre-poll alliance with SKM. However, with the public mood against the Narendra Modi-led government’s decision to amend the Citizenship Bill, the SKM had to step out of a formal alliance.

After the counting of votes in 2018, the SKM pocketeted 17 seats in a stiff fight against Chamling’s party which grabbed 13 seats. It then asked, who would be the state chief minister, if not Golay?

SKM insiders revealed then that after receiving assurance of help from New Delhi, the SKM elected Golay as the leader of the legislative party. Soon, the governor invited him to form the government.

An angry SDF approached the Supreme Court. One of the contentions in the petition was that governor Ganga Prasad’s invitation was in violation of the Supreme Court’s 2001 verdict in the case of former Tamil Nadu chief minister J. Jayalalithaa.

What is interesting here is the role played by the Modi government in allowing Golay, and also the governor, to go against that five-judge bench order.

Pawan Kumar Chamling. Photo: PTI

ECI’s role

The Modi government, despite claims of zero tolerance towards corruption, repealed an amendment brought in by the Atal Bihari Vajpayee government in 2003 to the Representation of the People Act.

Under Section 8(1) (m) of the Representation of People’s Act (RPA), 1951, as amended by the Vajpayee government, a person convicted of an offence punishable under the PCA shall be disqualified for differing amounts depending on the sentence. If the sentence is a fine, the person is disqualified for a period of six years from the date of conviction. If the sentence is imprisonment, like in Tamang’s case, the person is to be disqualified from the date of conviction and until six years after release.

The removal of this amendment by Modi meant a crime committed under the Prevention of Corruption Act was no longer considered ‘serious’.

The Modi government, thereby, rolled back the six-year disqualification from contesting an election by a person convicted for such crimes, and the additional six years of disqualification after release.

But Golay’s crime was committed in 2010, when the Vajpayee-era amendment was in force, and his sentence was pronounced in December 2016. Had the Modi government not repealed the 2003 Amendment Act, his disqualification would have started from December 28, 2016 and ended on August 10, 2024, six years after his release from jail.

As chief minister, Golay knew he had to contest the mandatory bypoll within six months of being sworn. In other words,  he would have to get elected to the Sikkim assembly by October 27, 2019 in order to retain the post. But how could be get elected if he was barred from contesting till 2024?

In July 2019, Golay filed an application with the ECI, seeking pardon from Section 8 of the Representation of the People Act under its discretionary powers. Acting on that application, the ECI gave a favourable order to Golay in October – thus clearing the decks for him to contest the election.

Interestingly, the ECI, in its seven-page order, also gave weightage to the fact that the governor, a constitutional authority, had invited him to become the chief minister, and carried out his swearing-in, which, therefore, would also imply Golay was ‘pardoned’.

Significantly, the ECI’s use of discretionary powers to let off Golay came just two days after the BJP announced a pre-poll alliance with the SKM to contest the bypolls to three assembly seats. Enthused by the ECI’s order, Golay filed his nomination papers to fight the October 21, 2019 by-elections while two other seats were left to the BJP to contest which, in turn, helped the national party increase its tally in the house.

By then, though, the BJP oversaw the defection of as many as 10 SDF MLAS, thereby not attracting action under the 10th schedule of the constitution. While the remaining SDF MLAs flipped over to Golay’s party, former chief minister Chamling remained the only presence in the opposition benches – even though just months ago, his party was just three short of the majority.

Meanwhile, the petition in the Supreme Court continues. The legal decision of whether Golay’s one-year conviction also attracts Section 8 of the Act remains.

In March 2022, a bench headed by then Chief Justice of India N.V. Ramana issued  notice to Golay, and to the ECI, but there has been no progress since.

In 2019, reacting to the ECI’s decision, The Hindu had in an editorial called the move “morally wrong” and warned that it sets a “dangerous precedent”. It underlined that such a decision by a constitutional authority “may end up reversing the trend towards decriminalising politics”.

Now, the question at hand is, will the ECI also use its discretionary powers to offer Rahul Gandhi a safety net from attracting disqualification under Section 8 of the Representation of the People Act, or was Golay’s case a one-off?