Pradeep Kumar Sonthalia vs Dhiraj Prasad Sahu @ Dhiraj Sahu and another. Civil Appeal 611/2020 decided on 18 December 2020.
Judgment Link: https://main.sci.gov.in/supremecourt/2020/2897/2897_2020_31_1501_25082_Judgement_18-Dec-2020.pdf
Constitution of India. Vote cast by a MLA in Rajya Sabha election in the forenoon is valid though he is disqualified due to conviction and sentence by a Criminal Court in the afternoon. Supreme Court.
Relevant paragraphs: 11. Article 191 of the Constitution speaks of the circumstances under which a person will be treated as disqualified (i) either for being chosen as (ii) or for being, a member of the State Legislative Assembly. The language of Article 191 makes it clear that
it covers both a contest in an election and the continuance in office after getting elected.
12. If a person, being a member of the Assembly, suffers a disqualification, his seat becomes vacant.(Article 190).
13. It is clear as daylight that the event which causes the disqualification under Article 191(1)(e) read with Section 8(3) of the Representation of People Act is a conviction of a person for any of the specified offences. The consequence of such disqualification is that the seat becomes vacant. Obviously therefore, a Member of the Legislative Assembly who has become disqualified and whose seat has become vacant is not entitled to cast his vote for electing a representative from his State under Article 80(4) which provides that the representatives of each State “shall be elected by the elected members”. His name is liable to be deleted from the list of members of the State Legislative Assembly maintained under Section 152 of the Representation of the People Act, 1951. He ceases to be an elector in relation to election by assembly member and cannot cast his vote.
17. The disqualification under Section 8 of Act 43 of 1951 is relatable to Article 191(1)(e) of the Constitution. Therefore, any interpretation to Section 8 should be in sync with the Constitutional scheme.
19. Once the period of disqualification starts running, the seat hitherto held by the person disqualified becomes vacant by virtue of Article 190(3) of the Constitution. While speaking about the seat of the disqualified person becoming vacant, Article 190(3) uses the expression “thereupon”. We may have to keep this in mind while interpreting the words “the date of such conviction”.
30. We must point out at this juncture that even in criminal law, there is a vast difference between (i) the interpretation to be given to the expression “date”, while calculating the period of imprisonment suffered by a person and (ii) the interpretation to be given to the very same expression while computing the period limitation for filing an appeal/revision.
32. We have no doubt that disqualification is not a penal provision and that the object of disqualification is to arrest criminalisation of politics.
33. But what triggered the disqualification in this case, under Section 8(3) was a conviction by a criminal Court, for various offences under the Penal Code. Therefore, the phrase “the date of conviction” appearing in Section 8(3) should receive an interpretation with respect to the penal provisions under which a person was convicted.
34. The rule that a person is deemed innocent until proved guilty is a long-standing principle of constitutional law and cannot be taken to be displaced by the use of merely general words.
35. In our view 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. In Australia this principle has been described as an aspect of the rule of law “known both to Parliament and the Courts, upon which statutory language will be interpreted”
37. The well-known presumption that a man is innocent until he is found guilty, cannot be subverted because the words can accommodate both competing circumstances. While it is known that an acquittal operates on nativity, no case has been cited before us for the proposition that a conviction takes effect even a minute prior to itself. Moreover, the word “date” can be used to denote occasion, time, year etc. It is also used for denoting the time up to the present when it is used in the phrase “the two dates”. Significantly, the word “date” can also be used to denote a point of time etc.
39. Inasmuch as a conviction for an offence is under a penal law, it cannot be deemed to have effect from a point of time anterior to the conviction itself.
61. Therefore, on the first issue we hold that the vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 was rightly treated as a valid vote. To hold otherwise would result either in an expectation that the Returning Officer should have had foresight at 9:15 a.m. about the outcome of the criminal case in the afternoon or in vesting with the Election Commission, a power to do an act that will create endless confusion and needless chaos.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 