Prefer wer O NIRVACHAN SADAN io Rratar erat eee anil e arate ae, ag feet - 1100001 "Election Commission of India Nabaad ich. tonrbenies mae INRE: APPLICATION FILED BY SHRI PREM SINGH TAMANG UNDER SECTION 11 OF THE REPRESENTATION OF THE PEOPLE ACT, 1951. ORDER Shri Prem Singh Tamang (hereinafter referred to as “the Applicant”) has made representation before this Commission under Section 11 of the Representation of the People Act, 1951 (hereinafter referred to as “RP Act, 1951”) vide his Application dated 06.07.2019, and Supplementary Application dated 11.07.2019 to remove the disqualification attracted on the applicant by virtue of Section 8 of the Representation of the People Act, 1951. 2. From the available facts, it reveals that, () the Applicant was convicted for an offence committed during 1996-1997. (i) the FIR in this matter was registered in the year 2003 (12.05.2003). (ii) in the Sessions Trial vide common judgment and Order of Sentence dated 28.12.2016 in Case No. 02 of 2009 (05 of 2013), the applicant was convicted. (iii) the conviction was upheld by the Hon’ble High Court of Sikkim on 28.06.2017 and subsequently by Hon’ble Supreme Court on 10.11.2017. 3. The Applicant served full sentence of imprisonment from 10.08.2017 to 10.08.2018. Tel: 011-23052205-18, Fax: 011-23052220-25 Website: wwwecinic in4. The Applicant has made certain factual submissions in his representations concerning the criminal case. However, as the said case has attained finality it is not appropriate for this Commission to look into the same. 5. The matter concerns the period of 1996-1997 and the FIR was registered on 12.03.2003. 6. It is a matter of fact that before the amendment of Section 8 of the RP Act, 1951 in 2003 the disqualification would have been attracted only if the period of conviction was of 2 years or more. The Applicant has submitted that when the alleged offence was committed under Prevention of Corruption Act, 1988, it did not amount to a disqualification under Section 8 and therefore the Applicant should not be made to suffer only because of the delay in completion of his trial 7. In addition to the above the Applicant has taken the following grounds: i, There is no reasonable classification under Section 8 for imposing disqualification on conviction for certain offences. Precedent of Election Commission of India with respect to quashing/ removal of disqualification. iii, Implied pardon by the Governor through administering the oath of office and invitation to form the Government. | iv. Presumption of justice and lawfulness of the action of the Chief Minister post swearing of the oath of office] _ v. _In view of the principle contained in Article 20(1) of the Constitution of India the Applicant should not be made to suffer with a disqualification that did not get attracted to the offence at the time of its committal. vi. Article 371 F (f), (g) of the Constitution of India recognize Sikkim as a Special State and his party, i.e. Sikkim Krantikari Morcha fought the General Elections of 2019 under his leadership and won the elections in his name.8. It is a matter of record that the Parliament has amended the provisions of the Prevention of Corruption Act, 1988 in 2018, wherein Section 13(1) has been amended and Section (1)(d) has been omitted. Also, the punishment in Section 13(2) of the Act specifies as under: “Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine”. 9. The alleged offence was of 1996-97, when the punishment of at least two years of imprisonment under the PC Act, 1988 would have attracted the disqualification under the RP Act, 1951. 10. In the present instance, the Applicant was given the imprisonment of one year on 26.12.2016, which is the minimum prescribed period of punishment under the said provision 11. Incidentally, in the year 2018, the Prevention of Corruption Act, 1988 was amended and Section 13(1)(4) was omitted under which the Applicant was convicted. 12. Article 20(1) of the Constitution of India, provides that no person shall be charged with an offence which was not an offence on the day it was alleged to have been committed. It further provides that a person cannot be visited with a punishment greater than what was provided in law at the time when the offence is said to have been committed. 13. In this background, Commission needs to tread its path carefully so that a person attracting minimum punishment under a particular Act should not face the same disqualification as is applied to those who are convicted for longer or maximum period under the statute. Also, it needs to exercise this power taking all material facts and circumstances into consideration. 14. In the instant case, the disqualification entails for 6 years without any distinction, however, the legislative intent under Section 11 of the RP Act, 1951is to enable this Commission to weigh the facts and circumstances in such cases and take a reasoned decision. The legislature has, in its wisdom, deemed it necessary to vest this Commission with this power with the understanding that socio-economic-political factors may, in certain peculiar circumstances, warrant that the general disqualification prescribed by statutory rule should be removed reduced by exercising this extraordinary power. 15. In addition to above the past precedents of the exercise of this power may also guide this Commission in disposing off an application under Section 11 of the RP Act, 1951. This Commission had earlier removed the disqualification arising from criminal convictions in the case of Shri Shyam Narain Tewari and Sh. Mitra Sen Yadav and it is pertinent to take a look into the relevant facts of these cases. 16. The Legislative Assembly of the State of Sikkim has a total strength of 32 Members. It is a matter of record that the party Sikkim Krantikari Morcha won 17 seats out of a total of 32 in this election. The elected representatives of the majority political party, ie. Sikkim Krantikari Morcha, nominated the Applicant as the Chief Minister of the State, who was sworn by the Governor of Sikkim as the Chief Minister of Sikkim. 17. In the case of Shri Shyam Narain Tiwari (decision dated 26.07.1977) it was a case of conviction and sentence to death for murder under Section 302 IPC read with Section 149 IPC (unlawful assembly with the common objective of committing an offence) and the said sentence was confirmed by the Hon’ble High Court of Judicature at Allahabad and appeal against the same was dismissed by the Hon’ble Supreme Court, however, in view of the long pendency of the death sentence, the apex Court was pleased to commute the death sentence into life imprisonment. Thereafter, the State Government remitted the sentence of life imprisonment and Shri Tiwari was released from jail on 31.10.1974 after serving rigorous imprisonment for 4 years, Shri Tiwari contested the General Election to the Legislative Assembly of Uttar Pradeshheld in May-June 1977. In the order dated 26.07.1977, this Commission noted as under: “12. The examination of the Judgments of the trial Court, High Court and the Supreme Court concerning the criminal cases would show that the Commission of the offence by the petitioner was as a result of the rivalry between two groups. The petitioner was the leader of the Communist Party of India in his village and the deceased was an ex-Zamindar and a landlord. For socio-economic reason, there was a class conflict between the two groups in the village. Though I would not like to lose sight of the serious nature of the offence of murder, I would not also like to totally ignore the above circumstances leading to the commission of the offence. [...] 13. The petitioner fought the election on the ticket of the Communist Party of India. He was elected with a wide margin of more than 7000 votes over his nearest Janata Party rival. The electorate of Pharenda assembly constituency has returned the candidate to the Legislative Assembly. Unless there are some compelling reasons, the verdict of the electorate should not be lightly interfered with. Time and again, the various decisions of the High Courts and the Supreme Court have recognised this cardinal principle". 18. In the case of Shri Mitrasen Yadav, he was convicted in a case of double murder and sentenced to life imprisonment. His sentence was, however, remitted subsequently by the State Government and he was consequently released. He had already suffered disqualification for 4 years and 7 months since his release from prison when approached the Commission and only 5 months of his disqualification remained. Shri Yadav approached the Commission before the elections and the Commission removed his disqualification for the remaining period of 5 months.19. It is pertinent to note that the present Applicant neither approached this Commission to seek removal of his disqualification nor filed his nomination paper at the time of the General Elections to Legislative Assembly of Sikkim, 2019. He has, in fact, approached this Commission only when the elected representatives of his Party, commanding a clear majority in the Assembly of Sikkim, posed their faith in his leadership and when the Governor, in recognition of the same, invited him to form Government. In the case of Shri Shyam Narain Tewari, a person who wrongly contested the election, this Commission gave due weightage to the mandate of the people and in respect of the same it removed the disqualification of a man who was originally sentenced to death, 20. Moreover, in the case of Shri Mitrasen Yadav, also a murder convict, the Commission was pleased to remove his disqualification in order to allow him to contest in the election. In the present case, the conduct of the Applicant, that he did not even attempt to seek removal of disqualification for contesting the General Elections, shows his acceptance of the statutory disqualification and this fact that the Applicant did not approach this Commission earlier should not hold a significant value in the present case. It is also pertinent to note that the fact that the Applicant did not contest in the General Elections of Sikkim 2019 makes the case of Applicant one where a prospective candidate is seeking removal of his disqualification which was the scenario in the case of Shri Mitrasen Yadav. ae 21. In view of the above it seems to be an appropriate case for this Commission to exercise the power under Section 11 of the RP Act, 1951 as: the year in which the offence was committed, a punishment of minimum two years was warranted under the Prevention of Corruption Act, 1988 for attracting the disqualification; the particular Section [Section 13(1)(d)] of the said Act, under which he was convicted, has already been omitted by an amendment in the year2018; the Applicant was given the minimum prescribed punishment for the said offence where the maximum punishment could have run upto 7 years; he has already undergone that punishment; and his party under his leadership 6has been given the mandate of the people in the recently concluded General Elections to the Legislative Assembly of Sikkim, 2019. 22. Thus, this Commission, in exercise of the powers vested upon it under Section 11 of the RP Act, 1951 hereby reduces the disqualification attracted on the Applicant by virtue of Section 8 of the RP Act, 1951 to 1 year and 1 month, “Qenoo Gay Se iia set (eunil arora) (Sushil c! Electibn Commissioner Chief Election Commissioner Election Commissioner Place: New Delhi Date: 24/04/2014