18 Dec 2020

The date of disqualification of a Member of the Legislative Assembly has to be construed from the point of commencement of disqualification on that date - Supreme Court of India

Case : Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu @ Dhiraj Sahu & Anr Civil Appeal No. 611 of 2020

Court : Supreme Court of India

Bench : Justice S. A. Bobde, Justice A.S. Bopanna and Justice V. Ramasubramanian

Decided on : 18 Dec 2020

Relevant Statutes

Article 190, 191(1)(e) of the Constitution of India

Conduct of Election Rules, 1961

Section 8(3) of the Representation of the People Act, 1951

Brief Facts and Procedural History

1. On 23.03.2018, the biennial elections for two seats in the Council of States from the State of Jharkhand were held between 9.00 A.M. and 4.00 P.M. at the Vidhan Sabha. A total of 80 members of the Legislative Assembly of the State of Jharkhand cast their votes.

2. The counting of votes began at 7.30 P.M on 23.03.2018. Out of the 80 votes cast, two were declared invalid by the Returning Officer. The remaining 78 votes, which were validly cast, were converted into points and election petitioner Pradeep Kumar Sonthalia, Samir Uraon, and Dhiraj Prasad Sahu were declared to have secured 2599, 2601, and 2600 value of votes respectively. Thus, the election petitioner was declared defeated and the other two declared duly elected.

3. Shri Amit Kumar Mahto, an elected member of the Assembly belonging to Jharkhand Mukti Morcha Party (JMM) admittedly cast his vote at 9.15 A.M. on 23.03.2018. He was convicted for certain criminal offences on the same day, but the conviction and sentence were handed over at 2.30 P.M. The maximum punishment was for the offence under Section 506/149 of the Indian Penal Code, 1860 and the Court awarded rigorous imprisonment for two years.

4. An objection was lodged at 11.20 P.M. requesting the Returning Officer to declare the vote cast by Shri Amit Kumar Mahto invalid, based on the conviction and sentence imposed in the afternoon on the same day by the Criminal Court. However, the Returning Officer went ahead and declared the results at 12.15 A.M. on 24.03.2018.

5. Therefore, Pradeep Kumar Sonthalia, the defeated candidate filed an election petition in Election Petition, praying for a declaration that the Returning Officer has caused improper reception of the void vote of Shri Amit Kumar Mahto and for setting aside the election of Shri Dheeraj Prasad Sahu with a consequential declaration that the petitioner was duly elected as a member of Rajya Sabha.

6. The High Court dismissed the election petition despite recording findings in favour of the election petitioner on the ground that the election to the Council of States by a system of proportional representation using a single transferable vote, is a highly complex, technical issue and it is not possible for the Court to find out whether the election petitioner could have won the election if that one vote had been rejected.

7. The aggrieved petitioner challenged the aforementioned dismissal through appeal.

Issues of the Case

Whether the vote cast by a Member of the Legislative Assembly in an election to the Rajya Sabha, in the forenoon on the date of the election would become invalid, consequent upon his disqualification, arising out of a conviction and sentence imposed by a Criminal Court, in the afternoon on the very same day?

Whether the election petitioner is entitled to be declared as duly elected automatically in view of Shri Amit Kumar Mahto’s vote being cast in former’s favour if the latter is not disqualified?

The Observations of the Court

1. The fact that Shri Amit Kumar Mahto cast his vote in favour of the election petitioner has been proved and is undisputable. He was convicted for offences under Section 8(3) of the Representation of the People Act, 1951.

2. In Saritha S. Nair vs. Hibi Eden, SLP (C) No. 10678 of 2020 dated 08-12-2020 it was pointed out that Section 8(3) of the Act deals both with the conditions of disqualification and with the period of disqualification. As regards the period of disqualification, Section 8(3) indicates both the commencement of the period and its expiry. The date of conviction is prescribed to be the point of commencement of disqualification and the date of completion of a period of six years after release is prescribed as the point of expiry of the period of disqualification.

3. The disqualification triggered in this case, under Section 8(3) was a conviction by a criminal Court, for various offences under the Indian Penal Code, 1860. The rule that a person is deemed innocent until proved guilty is a long-standing principle of constitutional law and cannot be displaced by the use of merely general words. In law, this is known as the principle of legality and applies to the present case. To hold that a Member of the Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty.

4. It is not necessary to make a declaration incompatible in the use of the word “date” with the general rule of law since the word “date” is quite capable of meaning the point of time when the event took place rather than the whole day.

5. To say that the presumption of innocence would evaporate from 00.01 A.M., though the conviction was handed over at 02.30 P.M. would strike at the very root of the most fundamental principle of Criminal Jurisprudence.

6. Since as a conviction for an offence is under penal law, it cannot be deemed to have effect from a point of time prior to the conviction itself. As rightly pointed by Dr. A.M. Singhvi in Union of India vs. M/S G.S Chatha Rice Mills, (2020) SCC Online SC 770 that legal fiction cannot prevail over facts where the law does not intend it to so prevail. Application of common sense to fill in legislative silences with creativity was called for. Conviction is the cause and disqualification is the consequence under Section 8(3). A consequence can never precede the cause.

7. As per Article 193 (Penalty for sitting and voting before making oath or affirmation under Article 188 or when not qualified or when disqualified) and State of Madhya Pradesh vs. Centre for Environment Protection Research and Development & Ors, (2020) SCC Online SC 687 it is clear that when law prescribes certain consequences for an act of commission, the Court cannot impose additional consequences. Article 193cannot be stretched to such an extent that even the natural consequences of disqualification of a member will not get attracted because of the prescription of a penalty.

8. Justice Oliver Wendell Holmes, Jr. in Henry R Towne vs. Mark Eisner, 245 U.S. 418 while dealing with the construction of a word in the Constitution as well as a statute, observed, “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and tie in which it is used”.

9. The de facto doctrine invoked in B.R. Kapur vs. State of T.N. & Anr, (2001) 7 SCC 231 was relied on to justify the act of the returning officer de facto (in fact) performed within the scope of their assumed official authority, in the interest of the public or third persons and not for their benefit, as valid and binding as if they were the acts of the officers de jure (as per law). Besides, Returning Officer obviously could not have had the foresight at 9:15 a.m. about the outcome of the criminal case in the afternoon.

The Decision Held by the Court

The Supreme Court dismissed the appeal and held that:

1. The vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 was rightly treated as a valid vote.

2. The findings of the High Court in favour of the election petitioner were set aside.

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