The Supreme Court today agreed to hear plea seeking directions to declare the Section 11-B of the Representation of the People Act 1951, as ultra-vires, unconstitutional, null and void being violative of Part III of the Constitution of India as it provides uncanalised/uncontrolled/arbitrary power to the ECI to remove or reduce the disqualification period under Chapter III of the RP Act, 1951 under the CJI.
Vice-President of Sikkim Democratic Front moved the Apex Court against the Election Commission order which had purportedly reduced the disqualification of Sikkim Chief Minister Prem Singh Tamang (Golay) from Six Years to One Year, arbitrarily on the basis of perverse findings and reasons, which are wholly contrary to the law.
Senior Advocate GV Rao appearing for the petitioner JB Darnal, who is a Vice President of Sikkim Democratic Front submitted that earlier he had challenged the invitation by the Governor of the Sikkim to Prem Singh to form Govt. and for swearing him in as a Chief Minister, even prior to his election to the Assembly, which is already pending before this Court after issuance of Notice vide Order dtd. 12th July 2019.
The Chief Justice NV Ramana said, we will consider the legal issue involved in the petition. The court has issued notice returnable in six weeks
Rao said, Once there is a judicial order for disqualification for six years, the EC cannot waive it or reduced it to one year. He said CM Tamang convicted and sentenced to one year in a milch cow scam when he was the Minister of Animal Husbandry and Ecclesiastical Departments.
Senior Advocate Mukul Rohatgi appearing for the respondent, submitted that the same petitioner has moved the DelhiHC seeking the same relief. They wanted the Delhi High Court Matter to be transferred to this court which was refused.
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CJI replied, the question is legal issue which has to be decided, you have to file your counter. We will hear. We are issuing notice to only hear the legal issue.
CJI asked petitioner’s counsel as to why they challenged the EC order before the Delhi High Court.
Rao replied, he is not aware of it.
The bench which also comprised of Justice Krishna Murari directed him to reply why he has chosen so many forums. The Court noted, “We are issuing notice only to consider the legal issue.”
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The plea stated that challenge was based upon the violation of the Judgements of the Top Court in (2001) 7 SCC231 – B.R. Kapur Vs State of Tamil Nadu, (2014) 9 SCC-1 Manoj Narula Vs U.O.I, (2013) 7 SCC-653 – Lily Thomas Vs U.O.I. holding that a convicted person, shall stand disqualified for 6 years from the date of conviction and can neither be sworn in to a public office or even contest elections. Hence, the impugned Election Commission’s order dtd.29-09- 2019 is in violation of this Hon’ble Court’s judgements and requires to be set aside as it would also amount to Contempt of Court. Therefore, It would tantamount to the said election of Respondent No.4 Sh.Prem Singh Tamang (Golay) as being null and void abintio.
The plea raised important questions of law as to whether powers granted to Election Commission of India under Section 11-B of the Representation of People’s Act, 1951 is arbitrary and uncontrolled, especially after the judgements of the Apex Court. As to whether Section 11-B of the Representation of People’s Act, 1951 is ultra vires and violative to Part III of the Constitution of India.
Further, as to whether the Election Commission can hold that since 13(1)(d) of the Prevention of Corruption Act, 1988 stood amended in the year 2018, therefore, it would have power to override judgment of the Top Court with respect to 6(six) years qualification.
The petition further stated, that the power enumerated under Section 11-B is a quasi-judicial power and must be exercised in the rarest of rarest case, for the simple reason that it takes away from the deterrent value of the statute, when the need is to ensure that elections are free from candidates with criminal antecedents. In the present case, the Election Commission of India’s Order has the immediate effect of condoning the 6 years’ disqualification u/s 8 to merely 1 year and 1 month. While this may seem to be an innocuous condonation; the fact that condonation was granted just before the fresh State elections were to be held, demonstrates arbitrariness. The only inference from the period condoned i.e., 4 years 11 months, seems to be for the specific purposes of allowing the candidate to contest the State elections.