Is PS Golay qualified to contest Assembly Poll? By Pramit Chhetri

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Living in a democratic country, the buzz of the election has always been intriguing to every one. This time too, the wheels of the election has got the grease. Among many questions that have to be pondered, the important one is “Whether the leader of Sikkim’s principal opposition party, SH. Prem Singh Golay can contest 2019, assembly election or not?


All that started on December 2016, when SH. Golay was convicted by the Sessions Court of Gangtok and subsequently, his conviction was affirmed by the Hon’ble High Court and finally attained its finality by the decision of Hon’ble Supreme Court.

Again, the question was fuelled after August, 2018 when he was released after serving one year imprisonment from the State’s central jail and the topic- whether or not he can contest the upcoming election has become the subject matter that needs serious deliberation.

The law that governs the conduct of elections and the qualifications, disqualifications for membership of the Legislature and Parliament is the Representation of the Peoples Act, 1951 and the operative and precise section and clause which was inserted by Act 9 of 2003 is Section 8 (1) (m) (ii), the same is reproduced below

8. disqualification on conviction for certain offences-
(1) A person convicted of an offence punishable under- (Clause (a) to (l), ((a) to (l) is omitted for the sake of brevity)

(m) the Prevention of Corruption Act, 1988
1shall be disqualified, where the convicted person is sentenced to-

(i) Only fine, for a period fo six years from the date of such conviction

(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

So, the reading of the above sub clause (ii) makes it amply clear that if any person is convicted for an offence punishable under the provision of the Prevention of Corruption Act, 1988, she/he will be disqualified to contest the election for the further period of six years from the date of his release.
Now, be that as it may, another legal developments to this aspect, that has come into picture is the Gazette Notification dated 13th of May, 2015, i.e “The Repealing and Amending Act, 2015” issued by the Ministry of Law and Justice, which says that Act 9 of 2003 i.e The Representation of the People (Amendment) Act, inserted in 2002 has been repealed and its extent of repeal is “The whole”


But perusal of Section 4 of the same Gazette Notification dated 13th of May, 2015 says
Section. 4. The repeal by this Act of any enactment shall not affect any Act in which such enactment has been applied, incorporated or referred to;

and this Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing;

nor shall this Act affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed, recognised or derived by, in or from any enactment hereby repealed;

nor shall the repeal by this Act of any enactment revive or restore any jurisdiction office, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force.”

Perusal of the above Section says that the Repealing and Amendment Act shall not affect any Act. It means the relevant clause of Section 8 of the Representation of Peoples Act, 1951 will not be affected by the repeal.
The main object of a Repealing and Amending Act is only to strike out the unnecessary act and to remove the confusion form the public mind. In other words, the Repealing and Amending Act is enacted not to bring in any change in law, but to remove enactments which have become unnecessary.
Several judicial pronouncements also say that an amending act is not regarded as an independent statute. The Statute in its old form is superseded by the statue in its amended form, the amended section of the statute shall take the place of the original section.


Therefore, by such amendment, the amending Act has become a part of the original Act.

To further substantiate this Section 6A of the General Clauses Act, is reproduced below,
Repeal of Act making textual amendment in Act or Regulation-
Where any [Central Act] or Regulation made after the commencement of this Act repeals any enactment by which the text of any [Central Act] or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.

So, the plain reading of Section 6A of the General Clauses Act makes it very clear that unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.

Now, let us travel back to the time when the relevant clause of Section 8, that disqualified a convicted person for a further period of six years since his release was substituted which thus, becomes clear that once convicted, a person will be disqualified from contesting the election for 6 years, Therefore as per the General Clause Act, it says the repeal shall not affect the continuance of any such amendment made and also as per section 4 of the Repealing and Amending Act, 2015, it become amply clear that the effect of Repeal has no affect and hence Section 8 (1) (m) (ii) will remain unaffected notwithstanding the Repealing and Amending Act, 2015.

Note- This article is an independent thought and understanding of a practicing Advocate who is not inclined to any of the political parties but believes in the principles of constitutional morality. However the author also believes and appreciates a different interepretation of the above provision, if any, is placed constructively.

By Pramit Chhetri ( pramitchhetri@gmail.com)
Advocate.

Pramit Chhetri is an Advocate practicing in Delhi High Court, District Court and  Tribunals like TDSAT, PMLA, Appellate Authority and Debt Recovery Tribunals in Delhi. He is also the founder of Legal talk show  “Lotal Talks” in Sikkim and  has a keen interest in Civil, Arbitration and Insolvency and Bankruptcy matters.

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