Two petitions in apex court challenge Golay’s appointment as CM

June 26, 2019

Gangtok, 25 Jun:

Two Sikkim Democratic Front workers have filed two separate writ petitions in the Supreme Court challenging the appointment of Prem Singh Tamang [Golay] as Chief Minister of Sikkim.

Bimal Dawari, former Zilla Adhakshya and general secretary of Sikkim Democratic Front, and Prakash Kumar Rai of Rabikkola, Tangi Bikmat, South Sikkim, filed their petitions on 17 June and these were registered on 21 and 25 June respectively.

In the writ petitions, both have alleged that the appointment of Mr Tamang as Chief Minister is “nothing less than a fraud” played on the Constitution and democratic values/ ethos of the country and have prayed that this be set right forthwith.

Both the petitioners have prayed that the apex court issue writ of quo warrantors or such other writ or directions as may be appropriate setting aside the appointment of Mr Tamang as Chief Minister of Sikkim declaring his appointment as illegal and unconstitutional.

Sikkim Krantikari Morcha became victorious overthrowing Sikkim Democratic Front out of power after 25 years in the recently concluded assembly and parliamentary polls. Mr Tamang, who did not contest the elections, and is the SKM party president was sworn in as Chief Minister of Sikkim on 27 May, 2019.

In their writ petitions, the petitioners have explained that Mr Tamang is disqualified from holding the post of Chief Minister as per Article 191 (1)(e) of the Constitution read with Section 8 (1)(m) of the Representation of People’s Act, and Articles 164 (4) and 173 (c), of the Constitution of India.

The petitioners also mention Article 191 (1)(e) of the Constitution which states that a person is not deemed fit to hold an office of profit under the Government of India if he is disqualified by or under any law made by the Parliament.

They have also mentioned Section 8 (1)(m) of the Representation of People’s Act.

Section 8 (1) lists the offences that disqualify a person from “…being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.”  Clause (m) of Section 8 mentions the Prevention of Corruption Act, 1988 (49 of 1988).

Articles 164 (4) and 173 (c) of the Constitution disqualifies a person convicted of an offence under the provisions of the Prevention of Corruption Act from being chosen or being a member of State Legislative Assembly (consequently a chief minister) for the period of conviction and six years from his release

Section (4) and 173 (c) of the Constitution disqualifies a person convicted of an offence under the provisions of the Prevention of Corruption Act from being chosen or being a member of State Legislative Assembly (consequently a chief minister) for the period of conviction and six years from his release.

Both petitioners have made the State of Sikkim, Governor of Sikkim, Chief Minister Mr Tamang and Sikkim Krantikari Morcha party as respondents pointing out that since Mr Tamang was convicted in a corruption case and sentenced for one year simple imprisonment and fine of Rs 10,000 by Conviction and Sentencing Order of Trial Court in 2015.

The petitioners have also posed three pertinent questions for adjudication while seeking relief in the writ petitions.

They have asked if appointment of a non-elected person disqualified under Article 191 (1) (e) of the Constitution read with Section 8 (1) (m) and Section 7 (b) of the RP Act, as Chief Minister by the Governor is tantamount to violation of Article 14, 19(1) (a) and 21 of the Constitution.

Whether a non-elected person disqualified for being chosen or being a member a State Assembly by operation of Article 191 (1) (e) of the Constitution read with Section 8 (1) (m) and Section 7 (b) of the RP Act can be appointed as Chief Minister under Article 164 (1) of the Constitution.

Whether a non-elected disqualified person holding office of the Chief Minister can be permitted to remain in office and exercise all  constitutional powers in teeth of Articles 164 (4), 173 (c), and 191 (1) (e) of the Constitution read with Section 8 (1) (m) of the Representation of People’s Act.

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