Why in news?

The Election Commission has reduced the period of disqualification from electoral contest of Sikkim Chief Minister Prem Singh Tamang to one-year-and-a-month.

What was the charge?

• Mr. Tamang was convicted under the Prevention of Corruption Act.
• The charge was misappropriation of Rs.9.50 lakh in the purchase of milch cows for distribution, in 1996-97.
• His one-year prison term was upheld by the High Court and the Supreme Court.
• He went to jail and was released in August 2018.
• He was (controversially) appointed as the Chief Minister by the Sikkim Governor earlier in 2019.
• Mr. Tamang did not contest, but was elected legislature party leader by the Sikkim Krantikari Morcha (SKM), which won the election.
• This was in deep disregard of the Supreme Court’s 2001 ruling in the case of late Tamil Nadu CM Jayalalithaa.
• [SC nullified her appointment as the CM in 2001 due to her conviction in 2000 in TANSI (Tamil Nadu Small Industries Corporation) case]
• Tamang’s appointment as Chief Minister was challenged in the Supreme Court.

What was Tamang’s response?

• Tamang approached the Election Commission for removing his disqualification.
• Under an amendment in 2003, any conviction under the anti-corruption law would attract the six-year disqualification.
• Tamang argued that the law prevailing at the time of his offence entailed disqualification from contesting elections only if the sentence was for a term of 2 years or more.
• So, the amendment in 2003 should not be applied to him.

What is the EC’s decision?

• Under Section 11 of the Representation of the People Act, 1951, the EC has the power to remove or reduce the disqualification attached to a conviction.
• With the EC’s current order, Mr. Tamang is eligible to contest a byelection and retain his post.

Why is this a wrong precedent?

• EC’s power under the Representation of the People Act has been used only rarely, and seldom in a case involving a conviction for corruption.
• Disqualification from contest is a civil disability created by electoral law to keep those convicted by criminal courts from entering elected offices.
• It is not a second punishment in a criminal sense.
• So, Tamang cannot argue that disqualification for a one-year term amounts to being given a punishment not prevalent at the time of the offence.
• The EC’s decision also goes against a series of recent legislative and judicial measures to strengthen the legal framework against corruption.
• In all, the order is a morally wrong and a dangerous precedent that may end up reversing the trend towards decriminalising politics.
• Moreover, there is already a perception that the EC’s actions are being partisan.
• Now, its order in favour of Mr. Tamang comes just a day after the ruling BJP struck an alliance with the SKM for bypolls to be held in October 2019.
• This is bound to further strain the Election Commission’s credibility.

What is the way forward?

• The apex court has described corruption as a serious problem and one impinging on the economy.
• Legislators handle public funds, and there is good reason to keep out those guilty of misusing them.
• In 2013, the protection given to sitting legislators from immediate disqualification was removed.
• All these suggest that disqualification should be more strictly applied to those convicted for corruption.