EC's Decision to Allow Sikkim CM to Contest By-Polls Will Help the BJP. Here's How.
New Delhi: On Sunday, the Election Commission (EC) issued a seven-page order justifying the use of its discretionary powers to
Golay, leader of the Sikkim Krantikari Morcha (SKM), was sentenced to one-year imprisonment in December 2016 by a trial court under the Prevention of Corruption Act, 1988. In June 2017, the Sikkim high court upheld the order, followed by the Supreme Court doing the same.
On August 10, 2017, Golay, who was in hiding, surrendered himself before the district and sessions court at Sichey (Gangtok) to serve his sentence at Rongyek jail, situated just outside of Gangtok. He had then told waiting reporters that he couldn’t surrender immediately because he was undergoing medical treatment outside the state.
The case against Golay, a five-time MLA from the then ruling Sikkim Democratic Front (SDF), was filed in 2010 by the state vigilance department for the misappropriation of Rs 9.5 lakh during his ministership at the animal husbandry department. The allegation against him was that he siphoned off the sum meant to be distributed to the public for buying cows under a state government scheme.
Golay had termed the case as an instance of ‘political vendetta’ because he had fallen out with SDF supremo and then chief minister Pawan Kumar Chamling. By the time he was convicted, he had quit SDF to start his own party – SKM.
In the recent elections to the 32-member assembly held alongside the general elections, SKM dislodged SDF after 25 years by a slim majority. Since two seats to the house are by nomination, the contest was for 30 seats. SKM bagged 17 seats while SDF pocketed 13 seats. Golay, by then out of jail after completing his sentence in August 2018, had led the fight from the front.
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The BJP, which was in alliance with SDF as part of its North East Democratic Alliance (NEDA) initiative, had sensed the emergent anti-incumbency against the five-term-old Chamling government. It still tried to forge a pre-poll alliance with SDF but was turned away by the leadership, on the argument that the voters of the state have always backed a regional party and it would rather go alone to the polls.
Reading this as the SDF’s pretext to not cede any political space to it, BJP chose to provide Golay the required backing to battle the SDF and entered into a pre-poll alliance with it. However, SKM had to step out of the alliance just days before the elections – taking into consideration the vehement public opposition to the Modi government’s attempt to pass the Citizenship (Amendment) Bill in parliament, like in the rest of the Northeast.
Golay stayed away from contesting the polls, to avoid attracting Section 8 of the Act. Even so, post elections, he was chosen the leader of SKM’s legislative assembly by the elected members and was dutifully called by Governor Ganga Prasad to form the next government.
The governor’s decision attracted a petition in the Supreme Court, the verdict of which is awaited. One of its contentions was that the governor’s move was in violation of the apex court’s verdict in 2001 in the case of former Tamil Nadu chief minister J. Jayalalithaa.
As per that order, delivered by a five-judge constitutional bench, a non-elected member can’t just be elected a chief minister if his nomination for contesting a poll stood rejected. In such a scenario, the bench ordered that Article 164 of the constitution, which entails that the largest number of elected members can pose faith in someone to be their leader in the assembly, won’t be enough to swear in the person as the chief minister.
What gave the governor the handle, though, was the repeal of the Vajpayee-era amendment made to the Act in 2003 by the Narendra Modi government. The Modi government had removed the entire 2003 amendment. That move thus not just declared a crime committed under the Prevention of Corruption Act, 1988 ‘non-serious’, but also terror acts under the Terrorist and Disruptive Activities (Prevention) Act, 1987 and insulting the national flag or constitution of India. It rolled back the enhanced disqualification period of six years post release from jail for a candidate, brought in by the Vajpayee government.
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The EC has now endorsed that the governor’s decision in response to an application submitted by Golay to the Commission in July. Golay sought exemption from Section 8 of the Act under its discretionary powers so that he could get himself elected to the state assembly within the stipulated six months’ time to retain his chair.
Interestingly, the EC, responding favourably to some of Golay’s arguments in the application, also seemed to have given weightage to the governor conducting his swearing-in, and thus implying “pardon” to him.
An editorial in The Hindu, published on October 1, called the EC’s move “morally wrong” and “a dangerous precedent”. It noted that such an action by the ECI “may end up reversing the trend towards decriminalising politics.”
On being asked about it, former chief election commissioner T.K. Krishnamurthi told The Wire, “I have not seen the exact order of the EC in this case. So I can’t comment on it in detail, but what I can say at this point is that EC has always considered any case related to corruption very seriously. I didn’t come across any such case during my tenure but we were always vigilant about not allowing a person convicted of corruption to contest an election.”
Meanwhile, buoyed by the EC’s decision, Golay filed his nomination papers a day later for the October 21 polls. The EC’s decision came just two days after the BJP entered into a pre-poll alliance with Golay’s party to contest the by-elections to three assembly seats in the state, thus posing a question mark on the timing of the constitutional body’s decision.
From August onwards, the BJP – having ‘stolen’ from the SDF a majority of its MLAs – has become the main opposition through the backdoor. While 10 SDF MLAs shifted allegiance to the BJP, two of them moved to SKM, leaving the former chief minister Chamling alone in the opposition benches.
This also means that now, by entering into a pre-poll alliance with the ruling party, the BJP is not quite the opposition. So the Sikkim assembly is virtually back to where it was in 2009 – minus any real opposition.
In the 2014 assembly polls, SKM had managed to wrest 10 seats from the SDF, thus becoming an opposition which was non-existent in the previous assembly.
However, the vital aspect of this pre-poll alliance between the BJP and SKM – as pointed out by some political observers in the state – is that the BJP has succeeded in negotiating with Golay to contest two of the three by-poll seats – Gangtok and Martam-Rumtek – in lieu of the Centre’s backing to bail him out of a sticky situation.
“It basically means in lieu of the EC order in favour of Golay, SKM will lend its voter base to the BJP to win two seats in Sikkim. BJP, otherwise, had got only 1.62 per cent vote share in the last assembly polls. This is because people here have traditionally preferred regional parties over national parties. SKM that way can be called facilitating a national party to enter Sikkim politics,” commented an editor of a well-known Gangtok-based daily.
The editor, who spoke to this correspondent on the condition of anonymity, pointed out that the Congress, like the BJP, “had tried it too”.
“Congress tried it too. A popular leader like Nar Bahadur Bhandari, who many consider in our state to be the main force behind recognition of Nepali as a regional language and is respected widely, however, couldn’t give results to the national party. So BJP is looking at only tying up with a regional party to first have a foothold in the assembly. My hunch is, it has not only brought the SDF MLAs, it will soon try to bring in to its fold some SKM MLAs too in order to form a state government and dislodge Golay. All it needs is six more MLAs. It already has a friendly governor. It did the same in Arunachal Pradesh. That way, Golay is operating in a dangerous territory.”
Speaking to The Wire, P.D. Rai, senior SDF leader and former Lok Sabha member from Sikkim, put the blame squarely on the EC. “Personally speaking, I have read the EC order and there is no doubt that it is politically motivated. I had held the EC on a pedestal and had considered it to be the best institution that this country has, but it was sad to see that it too has gone down like so many other central institutions.”
Sources in the SDF later told this correspondent, “Golay is contesting from Poklong-Kamrang in south Sikkim. It is not an easy seat, the reason why BJP possibly left it to him. He also didn’t have much choice in the matter. In the last assembly polls, Chamling won that seat by over 40% margin. Unless the BJP helps him out by rigging some EVMs etc, we still have a fighting chance.” Chamling had resigned from the seat and chose to retain Namchi.
On October 21, even if the SDF manages to pull off a win over Golay, the BJP would have already benefitted from the Centre bailing him out of Section 8 of the Act, albeit temporarily.
It would – by then – have made use of the SKM voter base to enter the Sikkim assembly for the first time.
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