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Disqualification u/s.8(3) RP Act,1951 will continue so long as there is no stay of conviction: SC

Disqualification u/s.8(3) RP Act,1951 will continue so long as there is no stay of conviction

Saritha S. Nair v. Hibi Eden

Special Leave Petition (Civil) No.10678 Of 2020

09 December, 2020

The Hon’ble Supreme Court comprising of Chief Justice of India S.A. Bobde, Justcie A.S. Bopanna and Justice V. Ramasubramanian held in a case that the date of conviction is what determines the date of commencement of the period of disqualification and it is date of release which determines the date on which the disqualification will cease to have effect.

The petitioner filed her nomination on 04.04.2019 in the Ernakulam Constituency for the Lok Sabha Elections in 2019. The nomination was rejected on the ground that she was convicted in 2 criminal cases wherein she was sentenced to 3 years imprisonment with fine (In both the cases). The criminal Appeals filed by the Petitioner were rejected by the respective sessions courts, however, the High Court in two separate revision petitions suspended and stayed the execution of sentence of the petitioner. The Petitioner filed writ petitions, which was dismissed, aggrieved by the order of rejection of her nomination.

Therefore, after the elections were over, the petitioner filed an election petition in Election Petition No.4 of 2019. The High Court holding against the petitioner cited two reasons for the same (i) that it contained incurable defects; and (ii) that in any case, the petitioner admittedly suffered from a disqualification (Criminal conviction). It is against this judgment the present appeal is preferred.

The main contention of the petitioner in her election petition was that (i) she had simultaneously filed a nomination in the Amethi Constituency of Uttar Pradesh and that despite disclosure of the very same information about her conviction and pendency of appeals, her nomination was accepted there. Therefore, she contended that 2 different yardsticks cannot be applied. (ii) So long as the sentence of imprisonment remained suspended, the disqualification under Section 8(3) of the Representation of the People Act, 1951, may not be attracted.

The issues discussed and answered by the Court are as follows:

Whether the election petitions were maintainable, when the conviction was not suspended in appeal or revision. The High Court decided to take up this preliminary issue also for consideration along with the question relating to curability of defects noticed in the election petitions. (Para 14)

The Court, after referring to Section 81, 83, 84, 87 of the Representation of People Act, Order VI Rule 14, 15 of the Code of Civil Procedure, referred, among other judgments, to its judgments in F.A. Sapa vs. Singora (1991) 3 SCC 375 K.K. Ramachandran Master vs. M.V. Sreyamakumar (2010) 7 SCC 428, P.A. Mohammed Riyas vs. M.K. Raghavan (2012) 5 SCC 511 , G.M.Siddeshwar vs. Prasanna Kumar (2013) 4 SCC 776, observed the following:

The upshot of the above discussion is that a defective verification is a curable defect. An election petition cannot be thrown out in limine, on the ground that the verification is defective. (Para 43)

Therefore, the High Court committed a grave error in holding the 3 defects mentioned in paragraph 18 hereinabove as incurable. The defects are curable and as rightly contended by the learned counsel for the petitioner; an opportunity to cure the defects ought to have been given. Instead, the election petition was posted before Court without numbering, in view of the defects noticed. The Court directed the petition to be numbered subject to arguments on the curability of defects. Thereafter notices were issued to the respondents in the election petition and finally the order impugned herein was passed after hearing both sides. The High Court did not even rely upon any rule framed by the High court to follow the said procedure. (Para 44)

With the above legality, the Court referred to Rule 210 of the Rules of the High Court of Kerala that deals with summons in election petitions and observed the following:

The procedure adopted by the High Court of Kerala cannot be approved. The High Court was wrong in thinking that the defective verification of the election petition was a pointer to the game plan of the election petitioner to disown the pleadings at a later stage, especially after making serious allegations against the former Chief Minister. If only the High Court had given an opportunity to the petitioner to cure the defects in the verification and if, despite such an opportunity, the petitioner had failed to come up with a proper verification, the High Court could have then held the petitioner guilty of playing hide and seek. The failure of the High Court to give an opportunity to cure the defects is improper. (Para 47)

Answering the contention of the petitioner that the suspension of the sentence was sufficient to save her from the applicability of Section 8(3), the Court referred to section 8(3) of the Representation of People Act and observed the legal matrix contained therein in the following words:

In so far as the period of disqualification is concerned, Section 8(3) says that the disqualification will commence from the date of conviction. This is made clear by the usage of the words “shall be disqualified from the date of such conviction”. It is needless to state that the words “the date” appearing in Section 8(3) refers to the event of conviction and it is post facto. The disqualification which commences from the date of conviction continues till the expiry of a period of six years from the date of his release. (Para 54)

In other words, the date of conviction is what determines the date of commencement of the period of disqualification. However, it is date of release which determines the date on which the disqualification will cease to have effect. (Para 55)

The Court, then referring to its decisions in B.R. Kapur v. State of Tamil Nadu (2001) 7 SCC 231 Lily Thomas v. Union of India (2013) 7 SCC 653, Lok Parhari v. Election Commissioner of India (2018) AIR 4675, enunciated the scope of

section 8(3) in the present case in the following words:

Therefore, in effect, the disqualification under Section 8(3) will continue so long as there is no stay of conviction. In the case on hand, the petitioner could not obtain a stay of conviction but obtained only a stay of execution of the sentence. Hence her nominations were validly rejected by the Returning Officer. Merely because the Returning Officer in Amethi Constituency committed an error in overlooking this fact, the petitioner cannot plead estoppel against statutory prescription. (Para 61)

Consequently, the Special Leave Petition was dismissed with no order as to costs.

View/Download Judgment: Saritha S. Nair v. Hibi Eden

Kalidharun K M



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