Consequent Disqualification cannot question the validity of the vote casted by an elected member -SC

"The disqualification arising under Section 8(3) of the Act, is the consequence of the conviction and sentence imposed by the criminal Court. In other words, conviction is the cause and disqualification is the consequence. A consequence can never precede the cause. If we accept the contention of the appellant, the consequence will be deemed to have occurred even before the cause surfaced." (Para.43)

Kumar Sonthalia v. Dhiraj Prasad Sahu @ Dhiraj Sahu & Anr.

Civil Appeal No. 2159 Of 2020

December 18, 2020

The Hon’ble Chief Justice of India S.A. Bobde and Hon’ble Justices A.S. Bopanna, V. Ramasubramanian dismissed the appeal by setting aside the findings of the High Court. The Hon’ble Supreme Court in deciding the issue, “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 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?” has upheld the validity of such voting.

The Election Commission of India has notified the biennial elections for two seats in the Council of States from the State of Jharkhand. Three candidates by name Pradeep Kumar Sonthalia, Samir Uraon and Dhiraj Prasad Sahu, filed their nominations. A total of 80 members of the Legislative Assembly have casted their votes. Shri Amit Kumar Mahto who was an elected member of the Assembly has casted his vote at 9.15 A.M. He was convicted by the Court for the offences punishable under Sections 147, 323/149, 341/149, 353/149, 427/149 and 506/149 IPC, on the same day, but the conviction and sentence were handed over at 2.30 P.M. Court awarded him RI for a period of two years. Shri Samir Uraon and Shri Dhiraj Prasad Sahu who got 2601 and 2600 value of votes were declared elected by the Returning Officer, they were also issued with a certificate. The election petitioner, who got 2599 value of votes was declared defeated. He lodged an objection at 11.20 P.M, requesting the Returning Officer to declare the vote cast by Shri Amit Kumar Mahto invalid, on the basis of the conviction and sentence imposed in the afternoon on the same day by the Criminal Court. But they were already declared duly elected. The election defeated candidate filed an election petition praying for declaring the vote of Shri Amit Kumar Mahto void. Despite deciding Issue Nos. 1, 2, 3 & 5 in favour of the election petitioner, the High Court refused to grant any relief to the election petitioner, on the ground that the election to the Council of States by a system of proportional representation by means of single transferable vote, is a highly complex, technical issue. High Court has also come to the conclusion that Shri Amit Kumar Mahto has casted his vote in favour of Shri Dhiraj Prasad Sahu. Therefore, the validity of the vote cast by Amit Kumar Mahto assumed significance, especially in view of the margin of victory.

The two issues which the Hon’ble Supreme Court considered were: -

(i) Whether the vote admittedly cast by Shri Amit Kumar Mahto in favour of Shri Dhiraj Prasad Sahu at 9.15 A.M. on 23.03.2018 should be treated as an invalid vote on account of the disqualification suffered by the voter under Article 191(1)(e) of the Constitution of India read with Section 8(3) of the Representation of the People Act, 1951, by virtue of his conviction and sentence by the Sessions Court in a criminal case, rendered at 2.30 P.M. on the very same date 23.03.2018; and

(ii) Whether, in the event of the first issue being answered in the affirmative, the election petitioner is entitled to be declared as duly elected automatically.

Learned senior counsel for the appellant submitted that wherever a statute uses the word “date” with reference to an event, courts have always interpreted the same to have happened at the intersection of the previous day and the present day, namely 00.01 a.m. He further contented that even if the time at which the judgment was delivered is irrelevant and the focus is actually on the date of conviction, then the disqualification would also commence at 00.01 A.M. on 23.03.2018. Thus he stated that the vote cast at 9.15 A.M. on 23.03.2018 would be a vote by a disqualified member and thus invalid.

Article 191 of the Constitution speaks of the circumstances under which a person will be treated as disqualified. Article 190 states that, If a person, being a member of the Assembly, suffers a disqualification, his seat becomes vacant disqualification. Therefore the further contention of the Counsel for the appellant was that, under Article 191(1)(e) read with Section 8(3) is a conviction of a person for any of the specified offences. The consequence of such disqualification is that the seat becomes vacant. 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”. Thus, his name is liable to be deleted from the list of members of the State Legislative Assembly and he ceases to be an elector in relation to election by assembly member and cannot cast his vote.

The Court interpreted the words “date” in Pashupati Nath Singh vs. Harihar Prasad Singh, in which it was contended that wherever the statute uses the words “on the date”, it should be taken to mean “on the whole of the day” and that law disregards as far as possible, fractions of the day.

In fact, Pashupati Nath Singh can be said to be a mirror image or the converse of the case on hand. In the case on hand the period of commencement of an event is in question, while in Pashupati Nath Singh the period of conclusion was in issue. If the date on which scrutiny was taken up can be held to have ended at the time when the event of scrutiny was taken up, we should, by the very same logic, hold that the date of commencement of an event such as conviction and the consequent disqualification should also begin only from the time when the event happened.(Para.25)

The Court observed that, 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.

Accepting the appellant’s submission would require us to construe the statutory scheme as intending something startling i.e. positing that the consequence precedes the cause. This would be reducing this provision to absurdity and require Courts to hold that a consequence can precede its cause, but according to the learned counsel this is the intended effect of the provision since it states that a convicted person shall be disqualified from the date of his conviction. But we do not agree. The disqualification arising under Section 8(3) of the Act, is the consequence of the conviction and sentence imposed by the criminal Court. In other words, conviction is the cause and disqualification is the consequence. A consequence can never precede the cause. If we accept the contention of the appellant, the consequence will be deemed to have occurred even before the cause surfaced (Para.43).

Therefore it was held that, it would not be possible to hold that the vote cast by Shri Amit Kumar Mahto as invalid on account of the conviction and sentence passed by the criminal Court on the same day. Court also stated that this conclusion can be drawn through another process of reasoning also. The five different grounds of disqualification dealt by Article 191 (1) of the Constitution are (i) holding an office of profit as specified in the First Schedule; (ii) unsoundness of mind, which stands so declared by a competent Court; (iii) undischarged insolvency; (iv) absence of citizenship of India or acquisition of citizenship of a foreign State etc.; and (v) disqualification by or under any law made by Parliament.

The interpretation to be given to the expression “the date” appearing in Section 8(3) of the Representation of the People Act, 1951 will have a bearing upon the interpretation to be given to the date of happening of any one of the above events of disqualification.(Para.59)

Based on the observations made and the reasonings mentioned, it was held that the vote cast by Shri Amit Kumar Mahto 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. In view of the answer to the first issue, the second issue does not arise for consideration.

Thus, the appeal was dismissed.

View/Download Judgment: KUMAR SONTHALIA Vs DHIRAJ PRASAD SAHU @ DHIRAJ SAHU & ANR

M. Nandhitha