Modi Government and Election Commission’s Total Recall: Providing a Safety Net for a Convicted Ally.

The swift disqualification of Congress leader Rahul Gandhi after his conviction in a criminal defamation case stands in stark contrast to the case of Prem Singh Tamang Golay, a regional politician who became a state chief minister with the help of the Narendra Modi government and the Election Commission of India (ECI). Under Section 8 of the Representation of the People Act, 1951, a sitting MLA, MLC or MP, if convicted for certain offences that warrant imprisonment for at least two years, shall be disqualified from holding office and cannot contest an election for a further period of six years. Golay was convicted in 2016 and imprisoned for one year and, had the Modi government not repealed the 2003 Amendment Act, his disqualification would have lasted until 2024. However, in July 2019, he filed an application with the ECI, seeking pardon from Section 8 of the Representation of the People Act under its discretionary powers, and was cleared to contest a by-election in October of that year. The ECI gave weight to the fact that the governor had invited him to become chief minister and carried out his swearing-in, which therefore would imply Golay was ‘pardoned’. An editorial by The Hindu at the time called the move “morally wrong” and warned that it sets a “dangerous precedent”. The legal decision of whether Golay’s one-year conviction also attracts Section 8 of the Act remains. In March 2022, a bench issued a notice to Golay and the ECI, but there has been no progress since.

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