REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 611 0F 2020
PRADEEP KUMAR SONTHALIA … APPELLANT(S)
VERSUS
DHIRAJ PRASAD SAHU @ DHIRAJ SAHU & ANR. …RESPONDENT(S)
WITH
CIVIL APPEAL NO. 2159 OF 2020
J U D G M E N T
S.A. Bobde, CJI
1. An interesting but important question of far-reaching
consequence arises for consideration in these appeals. It is this.
“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?”
2. We have heard learned counsel for the parties.
1
3. The brief facts sufficient for answering the issue arising for
consideration in these appeals are as follows: -
(i) By a notification dated 05.03.2018, the Election Commission of
India notified the biennial elections for two seats in the Council
of States from the State of Jharkhand;
(ii) Three candidates by name Pradeep Kumar Sonthalia, Samir
Uraon and Dhiraj Prasad Sahu, filed their nominations on
12.03.2018. It is stated that the first two candidates belonged
to the Bharitya Janata Party (BJP), and the third candidate
belonged to the Indian National Congress (INC);
(iii) On 23.03.2018, the election was 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;
(iv) One Shri Amit Kumar Mahto who was 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;
(v) As fate (not of the voter but of the contestant) would have it,
Shri Amit Kumar Mahto was convicted by the Court of the
Additional Judicial Commissioner XVIII, Ranchi, in Sessions Trial
No.481 of 2010, 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. He was sentenced to various periods of
imprisonment for those offences, but all of them were to run
concurrently. The maximum punishment was for the offence
2
under Section 506/149 and the Court awarded RI for a period
of two years;
(vi) Since the election to the Council of States is by a system of
proportional representation by means of single transferable
vote, 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 (at the rate of 100 points per
vote) and Pradeep Kumar Sonthalia was declared to have
secured 2599 value of votes, Samir Uraon was declared to
have secured 2601value of votes and Dhiraj Prasad Sahu was
declared to have secured 2600 value of votes. Thus, the
election petitioner was declared defeated and the other two,
declared duly elected;
(vii) It appears that an objection was lodged 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;
(viii) However, the Returning Officer went ahead and declared the
results at 12.15 A.M. on 24.03.2018. Shri Samir Uraon and
Shri Dhiraj Prasad Sahu were declared by the Returning Officer
to be duly elected and they were also issued with a certificate
in Form No. 24 in terms of Rule 85 of the Conduct of Election
Rules, 1961;
3
(ix) Therefore, Pradeep Kumar Sonthalia, the defeated candidate
filed an election petition in Election Petition No.01/2018,
praying for a declaration that the Returning Officer has caused
improper reception of the void vote of Shri Amit Kumar Mahto.
He also prayed 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;
(x) The High Court framed as many as 6 issues for consideration
in the Election Petition and they are as follows: -
1. Whether Shri Amit Kumar Mahto has cast his vote in
favour of respondent no. 1 in Biennial Election to the
Council of States, 2018 in connection with State of
Jharkhand?
2. Whether on conviction and sentence of two years in
Sessions Trial No. 481 of 2010 by the Additional Judicial
Commissioner-XVIII, Ranchi, Shri Amit Kumar Mahto
ceased to be a Member of Legislative Assembly and his
disqualification came into effect immediately from the
date of his conviction and sentence of two years and,
therefore, the vote of Shri Amit Kumar Mahto could not
have been taken into consideration at the time of
counting?
3. Whether the disqualification of Shri Amit Kumar Mahto
rendered his vote void/illegal that was cast to
respondent no.1 and, therefore, reception of his vote
was improper and, thus, in terms of Section 100 (1) (d)
4
(iii) of the Representation of People Act, 1951, the
election of respondent no. 1 is liable to be declared void?
4. Whether the communication from the Returning Officer
(e-mail dated 24.03.2018) rejecting the objection made
on behalf of the petitioner on the ground that the
Returning Officer had not received the judgment of
conviction of Shri Amit Kumar Mahto till the declaration
of the results, is absolutely illegal and unlawful?
5. Whether disqualification of Shri Amit Kumar Mahto in
terms of Section 8 (3) of the Representation of People
Act, 1951, takes effect from the date of his conviction
and sentence of two years i.e. 23.03.2018 which means
the day as per English calendar beginning at midnight
and covering a period of 24 hours i.e. with effect from
23.03.2018 at 00.00 hours?
6. The respondent no. 1 having been declared to be elected
in the Biennial Election to the Council of States – 2018 by
a margin of 0.01 vote and in the event, the vote of Shri
Amit Kumar Mahto which has been received improperly
is ignored, then whether the petitioner is entitled to be
declared successful and consequently for being elected
as a Member of Rajya Sabha?
(xi) By a judgment dated 17.01.2020, the High Court dismissed the
Election Petition, after recording a finding in favour of the
election petitioner on Issue Nos. 1, 2, 3 & 5. On Issue Nos. 4 &
6, the High Court did not record any finding.
5
(xii) 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, primarily 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 and that 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;
(xiii) Finding that the surgery was successful but the patient died,
the election petitioner has come up with one appeal in Civil
Appeal No.611 of 2020. Aggrieved by the findings on Issue
Nos. 1, 2, 3 & 5, one of the two returned candidates, namely
Shri Dhiraj Prasad Sahu, has come up with the other appeal
namely Civil Appeal No.2159 of 2020.For the purpose of
convenience, we refer to the appellant in Civil Appeal No. 611
of 2020, as the appellant throughout and the appellant in the
other appeal as the returned candidate.
4. Before proceeding further, it must be recorded that there is no
dispute either before us or before the High court, about the fact that
Shri Amit Kumar Mahto cast his vote at 9.15 A.M. on 23.03.2018 and
that the judgment of the criminal court was rendered at 2.30 p.m. on
the very same day.
5. Before the High court, a preliminary objection was raised
about the validity of the presumption on the part of the election
petitioner that Sri. Amit Kumar Mahto cast his vote in favour of Shri
6
Dhiraj Prasad Sahu. Unless Shri Amit Kumar Mahto had cast his vote
in favour of Shri Dhiraj Prasad Sahu, the entire edifice on which the
election petition was built could have crumbled. Therefore, the
Returning Officer, Mr. Binay Kumar Singh was examined as
PW-1 and through him the original ballot paper by which Shri Amit
Kumar Mahto cast his vote was marked as Exhibit-9. On the basis of
the same, the High Court came to the conclusion that Shri Amit
Kumar Mahto cast his vote in favour of Shri Dhiraj Prasad Sahu, the
Congress candidate. It was also clear from the evidence of PW-1 and
Exhibit-9 that Shri Amit Kumar Mahto did not cast his 2nd, 3rd and 4th
preference vote. Therefore, the validity of the vote cast by Amit
Kumar Mahto assumed significance, especially in view of the margin
of victory.
6. Since the factual position that Amit Kumar Mahto cast his vote
in favour of Dhiraj Prasad Sahu has now become unassailable, many
of the issues framed by the High Court have now paled into
insignificance. There are only 2 issues which now survive for
consideration and they are: -
(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
7
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.
7. It is needless to say that the second question as formulated
above would arise only if the answer to the first question is in the
affirmative and not otherwise.
8. Before proceeding further, we may point out that two ancillary
issues namely (i) the non-joinder of the Election Commission of India
as a party to the election petition; and (ii) the absence of a specific
prayer for recounting of votes, were also dealt with by the High Court.
These issues may have gained importance, but for the appeal filed by
Shri Dhiraj Prasad Sahu against the findings on Issue Nos. 1, 2, 3 & 5.
Therefore, these ancillary issues need not deter us at this stage.
9. The primary contention of Shri Mukul Rohatgi and Shri K.V.
Vishwanathan, learned senior counsel appearing for the defeated
candidate who is the appellant in the first civil appeal, is 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. This is firstly because it is at that time that the day begins and
secondly because law abhors fractions. Therefore, it is their
contention that though the Sessions Court delivered its judgment of
conviction and sentence at 2.30 P.M. on 23.03.2018, the date of such
8
conviction is deemed in law to have commenced at about 00.01 A.M.
when the date of March 22 lapsed and the date of March 23 began. It
is the further contention of the learned Senior Counsel that 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. As a corollary, the vote cast
at 9.15 A.M. on 23.03.2018 would be a vote by a disqualified member
and thus invalid.
10. In order to test the veracity of the above contention, it is
necessary first to take note of the relevant provisions of the
Constitution and the Representation of the People Act, 1951.
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. It reads as follows: -
“191. Disqualifications for membership
(1) A person shall be disqualified for being chosen as,
and for being, a member of the Legislative Assembly
or Legislative Council of a State
(a) if he holds any office of profit under the
Government of India or the Government of any State
specified in the First Schedule, other than an office
declared by the Legislature of the State by law not to
disqualify its holder;
(b) if he is of unsound mind and stands so declared
by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily
acquired the citizenship of a foreign State, or is under
any acknowledgement of allegiance or adherence to
a foreign State;
9
(e) if he is so disqualified by or under any law made
by Parliament
[Explanation.- For the purposes of this clause] a
person shall not be deemed to hold an office of profit
under the Government of India or the Government of
any State specified in the First Schedule by reason
only that he is a Minister either for the Union or for
such State.
[(2) A person shall be disqualified for being a
member of the Legislative Assembly or Legislative
Council of a State if he is so disqualified under the
Tenth Schedule]”
12. If a person, being a member of the Assembly, suffers a
disqualification, his seat becomes vacant. This situation is taken care
of by Article 190 which reads as follows:
“190. Vacation of seats-
(1)……
(2)…….
(3) If a member of a House of the Legislature of a
State-
(a) becomes subject to any of the disqualifications
mentioned in clause ( 1 ) or clause ( 2 ) of Article
191; or
(b) resigns his seat by writing under his hand
addressed to the Speaker or the Chairman, as the
case may be, and his resignation is accepted by the
Speaker or the Chairman, as the case may be,
his seat shall thereupon become vacant:
[Provided that in the case of any resignation referred
to in sub clause (b), if from information received or
otherwise and after making such inquiry as he thinks
fit, the Speaker or the Chairman, as the case may be,
is satisfied that such resignation is not voluntary or
genuine, he shall not accept such resignation]”
13. It is clear as daylight that the event which causes the
disqualification 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.
Obviously therefore, a Member of the Legislative Assembly who has
become disqualified and whose seat has become vacant is not
10
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.
14. The Representation of the People Act, 1951 was enacted for
the purpose of providing for the conduct of elections of both houses of
Parliament and to the House/Houses of State Legislatures, the
qualifications and disqualifications for membership of those houses,
the corrupt practices etc.,. Section 8 of the Act deals with
disqualification on conviction for certain offences. For the purpose of
disqualification, the offences are classified in section 8 into 3
categories, namely
(i) offences falling under sub-section (1)
(ii) offences falling under sub-section (1) and
(iii) offences not falling either under sub-section (1) or under subsection (2).
15. The disqualification results in the Member becoming liable to
be removed from the list of voters under Section 152 of the
Representation of the People Act, 1951, though the actual deletion
may take time. In any case, he ceases to be an elector vide Rule 2(d)
of the Conduct of Election Rules, 1961 which provides that an elector
11
in relation to an election by assembly members means any person
entitled to vote at that election.
16. We are concerned in this case with sub-section (3) of section 8,
as Amit Kumar Mahto was convicted for offences which do not fall
either under sub-section (1) or under sub-section (2). Therefore, Subsection (3) of section 8 alone is extracted as follows: -
“8. Disqualification on conviction for certain
offences.-(1)………
(2) ………….
(3) A person convicted of any offence and sentenced
to imprisonment for not less than two years [other
than any offence referred to in sub-section (1) or subsection (2)] shall be disqualified from the date of
such conviction and shall continue to be disqualified
for a further period of six years since his release.]”
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.
18. As this Court had an occasion to point out in Saritha S. Nair
vs. Hibi Eden
1
, 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) is comprehensive in that it
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.
1
SLP (C) No. 10678 of 2020 dated 08-12-2020
12
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”.
20. One fundamental principle that we may have to keep in mind
while interpreting the phrase appearing in Section 8(3) is that in cases
of this nature, the Court is not dealing with a fundamental right or a
common law right. As pithily stated by this Court in Jyoti Basu vs.
Devi Ghosal
2
, an election dispute lies in a special jurisdiction and
hence it has to be exercised without importing concepts familiar to
common law and equity, unless they are ingrained in the statute
itself. We may usefully extract the relevant portion of the decision in
Jyoti Basu which reads as follows: -
“8. A right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a
fundamental right nor a Common Law Right. It is pure
and simple, a statutory right. So is the right to be
elected. So is the right to dispute an election. Outside
of statute, there is no right to elect, no right to be
elected and no right to dispute an election. Statutory
creations they are, and therefore, subject to statutory
limitation. An Election petition is not an action at
Common Law, nor in equity. It is a statutory
proceeding to which neither the Common Law nor the
principles of Equity apply but only those rules which
the statute makes and applies. It is a special
jurisdiction, and a special jurisdiction has always to
be exercised in accordance with the statutory
creating it. Concepts familiar to Common Law and
Equity must remain strangers to Election Law unless
statutorily embodied”.
2
(1982) 1 SCC 691
13
21. Placing heavy reliance upon the decision of this Court in
Pashupati Nath Singh vs. Harihar Prasad Singh
3
, it is 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.
22. But in our considered view Pasupati Nath Singh hardly
supports the contention of the Appellant. In that case the election to
the Bihar legislative Assembly from Dumro constituency was in issue.
As per the schedule, the filing of nominations was to take place from
13.01.1967 to 20.01.1967. The date of scrutiny of nomination papers
was fixed as 21.01.1967. The returning officer, upon scrutiny of
nominations on 21.01.1967, rejected the nomination paper of the
Appellant before this Court, on the ground that he had not made and
subscribed the requisite oath or affirmation as enjoined by clause (a)
of Article 173, either before the scrutiny or even subsequently on the
date of scrutiny. The question that arose in that case was formulated
in paragraph 4 as follows: -
“4. The short question which arises in this appeal is
whether it is necessary for a candidate to make and
subscribe the requisite oath or affirmation as
enjoined by clause (a) of Art. 173 of the Constitution
before the date fixed for scrutiny of nomination
paper. In other words, is a candidate entitled to make
and subscribe the requisite oath when objection is
taken before the Returning Officer or must he have
made and subscribed the requisite oath or
affirmation before the scrutiny of nomination
commenced?”
23. The answer to the above question turned on the interpretation
to Section 36(2) of the Act, clause (a) of which used the words “on
3 AIR 1968 SC 1064
14
the date fixed for scrutiny”. The contention of the appellant before
this court in Pashupati Nath Singh was that he was entitled to take
the oath or affirmation, before the Returning Officer, immediately
after an objection is made but before the objection was considered by
the Returning officer. Since Section 36(2)(a) uses the expression “on
the date fixed for scrutiny” it was contended by the appellant in
Pashupati Nath Singh that the whole of the day on which the
scrutiny took place was available to him. However, this contention
was rejected by this Court in the following manner: -
“16. In this connection it must also be borne in
mind that law disregards, as far as possible,
fractions of the day. It would lead to great
confusion if it were held that a candidate would
be entitled to qualify for being chosen to fill a
seat till the very end of the date fixed for
scrutiny of nominations. If the learned counsel
for the petitioner is right, the candidate could
ask the Returning Officer to wait till 11.55 p.m.
on the date fixed for the scrutiny to enable him
to take the oath”.
24. In other words, this Court interpreted the words “date” in
Pashupati Nath Singh, not necessarily to mean 00.01 A.M. to 24.00
P.M. This was despite the fact that in common parlance a date would
mean 24 hours in time. But the running of time got arrested, the
moment the nomination of the appellant in Pashupati Nath Singh
was taken up for scrutiny. Thus, the benefit of the whole day of 24
hours was not made available by this court in Pashupati Nath
Singh to the appellant therein and the act of the Returning officer in
drawing the curtains down at the happening of the event namely
scrutiny of nomination papers, was upheld by this court in Pashupati
Nath Singh.
15
25. 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.
26. In fact, the argument of the appellant in this case is a double
edged weapon. If the event of conviction and sentencing that
happened at 2.30 P.M. on 23.03.2018 can relate back to 00.01 A.M.,
the event of voting by Shri. Amit Kumar Mahto which happened at
9.15 A.M. can also relate back to 00.01 A.M. Once both of them are
deemed to relate back to the time of commencement of the date, the
resulting conundrum cannot be resolved. This why, the emphasis in
Pashupati Nath Singh was to provide an interpretation that will
avoid confusion.
27. The learned Senior Counsel for the appellant relied upon the
decision of this Court in Prabhu Dayal Sesma vs. State of
Rajasthan
4
in support of their contention that a legal date
commences after 12 o’ clock midnight and continue until the same
hour of the following night. But Prabhu Dayal Sesma arose in the
context of Rule 11B of the Rajasthan State and Subordinate Services
4
(1986) 4 SCC 59
16
Rules 1962 which prescribed the minimum and maximum age for
participation in the selection for direct recruitment to Rajasthan
Administrative Service. The appellant in that case was born on
02.01.1956 and Rule 11B prescribed that an applicant for
participation in the selection, must not have attained the age of 28
years on the first day of January, next following the last date fixed for
receipt of application. Therefore, when a notification was issued in the
year 1983, the upper age limit was to be reckoned as on
January 1, 1984. Since the appellant was born on 02.01.1956 and
attained the age of 28 years on 01.01.1984, his candidature was
rejected. It was in such circumstances that this Court took note of
Section 4 of the Indian Majority Act 1875, which stipulated the
method of computation of the age of any person. In view of the fact
that Rule 11B used the words “must not have attained the age of
28 years”, this court concluded that the appellant therein attained
the said age at 12 o’clock midnight when January 1 was born. We
should point out here that if Prabu Dayal Sesma concerned a case
of retirement, he would be taken to have attained the age of
superannuation on January 1 by the very same logic, but at 2400
hours on January 1. But Rule 11B mandated that the candidate “must
not have attained”. Therefore, Prabhu Dayal Sesma also does not
go to the rescue of the appellant.
28. Tarun Prasad Chatterjee vs. Dinanath Sharma
5
, relied
upon by the learned senior counsel for the appellant concerned the
question of computation of the period of limitation for filing an
5
(2000) 8 SCC 649
17
Election petition under section 81(1) of the R.P. Act 1951. Therefore,
this Court referred to Section 9 of the General Clauses Act, 1897 that
laid down the manner in which statutes prescribing the
commencement and termination of time, can be worded by using
expressions such as “from” and “to”. But this decision is also of no
assistance to the appellant for the simple reason that Section 8(3) of
the Act uses the word “from” as well as the expression “the date of
conviction” and Tarun Prasad Chatterjee concerned the
interpretation to be given only to the word “from”.
29. In any case, Tarun Prasad Chatterjee need not have gone
as far as the General Clauses Act, since Section 12(1) the Limitation
Act, 1963 itself provides for the exclusion of the date from which the
period of limitation is to be reckoned, while computing the period of
limitation.
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. Say for instance, a person is convicted and sentenced
to imprisonment and also taken into custody pursuant thereto, on
23.03.2018, the whole of the day of March 23 will be included in the
total period of incarceration. But in contrast, the day of March 23 will
be excluded for computing the period of limitation for filing an appeal.
18
Though one contrasts the other, both interpretations are intended to
benefit the individual.
31. Placing reliance upon the decision of the Constitution bench in
B.R Kapur vs. State of T.N. & Anr.
6
it was contended by the learned
senior counsel for the appellant that the disqualification under Article
191 of the Constitution and Section 8 of the R.P. Act is not a penal
provision and that therefore the question of beneficial construction
would not arise, especially when the object of such disqualification is
to cleanse politics.
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. In law this is
known as the principle of legality and clearly applies to the present
case. In Pierson vs. Secretary of State for the Home
Department
7
, House of Lords held that unless there be clearest
6
(2001) 7 SCC 231
7
(1997) 3 All ER 577
19
provision to the contrary, Parliament is presumed not to legislate
contrary to rule of law which enforces ‘minimum standard of fairness
both substantive and procedural’.
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”8
.
36. In the present case, it would be significant to add 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.
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. (See Roget’s
International Thesaurus third edition Note 114.4).
8 K-Generation Pty. Ltd. vs. Liquor Licensing Court, (2009) 83 ALJR 327 para 47.
20
38. To say that this presumption of innocence would evaporate
from 00.01 A.M., though the conviction was handed over at 14.30 P.M.
would strike at the very root of the most fundamental principle of
Criminal Jurisprudence.
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. As rightly pointed by Dr. A.M. Singhvi, this court held
in Union of India vs. M/S G.S Chatha Rice Mills
9
that legal fiction
cannot prevail over facts where law does not intend it to so prevail. It
was a case where a notification was issued by the Government of
India under section 8A of the Customs Tariff Act 1975, introducing a
tariff on all goods originating in or exported from Pakistan. The
notification was uploaded on the e-gazette at 20:46:58 hours on
16.02.2019. The Government of India took a stand that the enhanced
rate of duty was applicable even to those who had already presented
bills of entry for home consumption before the enhanced rate was
notified in the e-gazette. The importers successfully challenged the
claim of the customs authorities before the High court and the Union
of India came up on appeal to this Court. An extensive analysis was
made in Section H of the decision in M/S G.S. Chatha Rice Mills, on
the interpretation of the words “day” and “date”. After taking note of
several decisions, some of which arose under the law of Limitation,
some under the law of Insurance and some under the Election law,
this Court pointed out that these expressions were construed in
varying contexts and that a general position in law, divorced from
9
(2020) SCC Online SC 770
21
subject, context and statute, has not been laid down. As succinctly
put by this Court, “Legislative silences create spaces for
creativity” and that “between interstices of legislative spaces
and silences, the law is shaped by the robust application of
common sense”.
40. The decision in K Prabhakaran vs. P Jayarajan
10
relied upon
by the learned Senior Counsel for the appellant did not deal with the
question that we are now confronted with. It was a case where (i) the
effect of several sentences of imprisonment, each for a period of less
than 2 years ordered to run consecutively and not concurrently,
thereby totalling to more than the period prescribed under section
8(3) of the Act and (ii) the effect of the decision of the Appellate Court
rendered in a criminal case after the election was over, were in
question. It is in that context that the Constitution Bench held in K
Prabhakaran that Section 8 of the R.P Act has to be construed in
harmony with the provisions of Cr.P.C so as to give effect to the
provisions contained in both.
41. Cases arising under the law of insurance, have no relevance to
cases of disqualification. Even under the law of insurance, different
principles of interpretation have been carefully nurtured and
developed. For instance, New India Assurance Company Limited
vs. Ram Dayal & Ors.
11
, this Court was concerned with a case where
a vehicle had insurance cover upto 31.08.1984, which was not
renewed. However, a fresh policy was taken on 28.09.1984. It was on
10 (2005) 1 SCC 754
11 (1990) 2 SCC 680
22
the very same day that the vehicle got involved in an accident. The
Motor Accident Claims Tribunal upheld the repudiation of liability by
the insurer, but the High Court held that the policy of insurance
obtained on the date of the accident became operative from the
commencement of the date of insurance, namely from the previous
midnight. While upholding the view taken by the High Court, by a
short order, this Court referred to In Re F.B. Warren12, wherein it
was held that a judicial act will be referred to the first moment of the
day on which it is done. However, in a subsequent decision in
National Insurance Company Limited vs. Jijubhai Nathuji Dabhi
& Ors.
13
, this Court explained the decision in Ram Dayal (supra) by
stating that the same would hold good only in the absence of any
specific time mentioned in that behalf in the policy of insurance. In
Jijubhai Nathuji Dabhi (supra), the Court found that the contract
clearly stipulated that it would be operative from 4.00 p.m on
25.10.1983 and that therefore the insurance coverage was not
available in respect of an accident that happened before 4.00 p.m. on
the same day. The decision in Jijubhai Nathuji Dabhi (supra) was
also followed in New India Assurance Company vs. Bhagwati
Devi
14
.
42. It must be remembered that a policy of insurance lies in the
realm of contract. Therefore, the interpretation to be given to the
terms of such contract would largely depend upon the intent of the
parties, with a certain degree of latitude in favour of a party whose
12 (1938) 2 All ER 331
13 (1997) 1 SCC 66
14 (1998) 6 SCC 534
23
bargaining power is not equal to that of other contracting party.
Hence, it is not possible for us to adopt the interpretation given to the
word “the date” appearing in a contract of Insurance.
43. 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.
44. It is contended by the learned Senior Counsel for the Returned
candidate, that the Constitution also takes care of the contingency of
disqualified persons sitting and voting despite suffering a
disqualification and that a court cannot travel beyond what is so
prescribed. Article 193 which takes care of this contingency reads as
follows: -
“193. Penalty for sitting and voting before
making oath or affirmation under Article 188 or
when not qualified or when disqualified. - If a
person sits or votes as a member of the Legislative
24
Assembly or the Legislative Council of a State before
he has complied with the requirements of Article 188,
or when he knows that he is not qualified or that he
is disqualified for membership thereof, or that he is
prohibited from so doing by the provisions of any law
made by Parliament or the Legislature of the State,
he shall be liable in respect of each day on which he
so sits or votes to a penalty of five hundred rupees to
be recovered as a debt due to the State.”
45. On the basis of Article 193, it is contended that when law
prescribes certain consequences for an act of commission, the Court
cannot impose additional consequences. Reliance is placed in this
regard on the decision of this Court in State of Madhya Pradesh vs.
Centre for Environment Protection Research and Development
& Ors.
15
,wherein it was held that when a Statute or the Statutory
Rules prescribes a penalty for any act or omission, no other penalty
not contemplated in the Statute or the Rules can be imposed.
46. But we do not think that the aforesaid decision can be applied
to cases where consequences other than a penalty arise on account
of an act or omission. While it is true that a penalty other than the
one prescribed by the Statute cannot be imposed for a particular act
or omission, the said principle has no place in so far as consequences
other than penalty which flow automatically out of such act or
omission, are concerned.
47. Article 193 deals with the penalty to be imposed upon an
erring member who sits or votes as a member of the Legislative
Assembly or the Legislative Council (i) either before he has complied
with the requirements of Article 188; (ii) or when he knows that he is
15 (2020) SCC Online SC 687
25
not qualified for membership; (iii) or when he knows that he is
disqualified from being a Member; (iv) or when he knows that he is
prevented by any law from sitting or voting.
48. A disqualification for which penalty is prescribed under Article
193, also invites civil consequences such as the denial of privileges
that go with the membership, other than the penalty stipulated in
Article 193. Once a person is disqualified, he ceases to be a member
and his right to vote also ceases alongwith his membership. This is a
natural consequence of a person ceasing to be a member and this
consequence is automatic and not dependent upon Article 193.
Therefore, we cannot stretch Article 193 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.
49. However, Article 193 and the interpretation given to the same
by this Court may be of significance for finding out whether an act or
omission done by a person disqualified would also perish and if so in
what circumstances.
50. In Pashupati Nath Sukul vs. Nem Chandra Jain
16
, one of
the questions that arose for consideration was whether a person
elected as a member of the Assembly but who has not made and
subscribed the prescribed oath or affirmation as required by Article
188 can validly propose a person as a candidate at an election for
filling a seat in the Rajya Sabha. This question arose under peculiar
circumstances. The elections to the Legislative Assembly of the State
16 (1984) 2 SCC 404
26
of Uttar Pradesh were held in May, 1980 and the notification
containing the names of elected members was issued on 09.06.1980
under Section 73 of the Representation of the People Act, 1951. The
elected members were notified that they could take oath as required
by Article 188 at the Session of the Assembly summoned to meet on
27.06.1980. But in the meantime, election for filling up a vacancy in
the Rajya Sabha was notified on 17.06.1980. Therefore, the proposal
of the name of a candidate for election to the Rajya Sabha, made by
an elected member who was yet to take oath under Article 188, was
objected to. The objection was overruled and the nominated
candidate won the election. Therefore, the question as stated above
arose, before this Court in an Election Petition.
51. Article 188 reads as follows: -
“188. Oath or affirmation by members. - Every
member of the Legislative Assembly or the
Legislative Council of a State shall, before taking his
seat, make and subscribe before the Governor, or
some person appointed in that behalf by him, an oath
or affirmation according to the form set out for the
purpose in the Third Schedule.”
52. In view of the mandate of Article 188, it was argued before this
Court in Pashupati Nath Sukul (supra)that before taking his seat,
an elected person is required to take an oath or affirmation and that if
he had failed to do so, he could not be counted as a member entitled
to vote. Overruling the said contention, this Court held as follows: -
“We are of the view that an elected member who has
not taken oath but whose name appears in the
notification published under Section 73 of the Act can
take part in all non-legislative activities of an elected
member. The right of voting at an election to the
Rajya Sabha can also be exercised by him. In this
27
case since it is not disputed that the name of the
proposer had been included before the date on which
he proposed the name of the appellant as a
candidate in the notification published under Section
73 of the Act and in the electoral roll maintained
under Section 152 of the Act, it should be held that
there was no infirmity in the nomination. For the
same reason even the electoral roll which contained
the names of elected members appearing in the
notification issued under Section 73 of the Act cannot
be held to be illegal. That is how even respondent No.
1 appears to have understood the true legal position
as he was also proposed as a candidate by an elector
who had not yet made the oath or affirmation.”
53. Therefore, it is clear that dehors the liability for penalty under
Article 193, the act done by the elected member is not liable to be
invalidated, but only in certain circumstances. One of them may be a
case like the one on hand apart from cases falling foul of Article
188.But the position would have been different if Shri Amit Kumar
Mahto had been convicted and sentenced in the forenoon of
23.03.2018 and yet he voted in the election to the Rajya Sabha in the
afternoon with full knowledge.
54. The fallacy of the argument of the appellant that wherever the
word “date” is used in a Statute, it should be understood to relate
back to 00:01 a.m. can be best understood if we apply the same to a
reverse situation. If in a hypothetical situation, the conviction and
sentence had taken place in the forenoon and Shri Amit Kumar Mahto
had cast his vote in the afternoon, the defeated candidate would not
have argued that the voting should be deemed to have taken place at
00:01 a.m.
55. In any case the principle that the acts of the officers de facto
performed within the scope of their assumed official authority, in the
28
interest of the public or third persons and not for their own benefit,
are generally regarded as valid and binding as if they were the acts of
the officers de jure, articulated in Pulin Behari Das & Ors. vs. King
Emperor
17
, was invoked by this Court in Gokaraju Rangaraju vs.
State of Andhra Pradesh
18 when a question arose as to the validity
of the judgments pronounced by an Additional Session Judge whose
appointment was declared by the Court to be invalid subsequently.
This Court pointed out that the de facto doctrine is founded on good
sense, sound policy and practical expedience and that it is aimed at
the prevention of public and private mischief and the protection of
public and private interest. As stated by this Court this doctrine
avoids endless confusion and needless chaos.
56. Again, in Pushpadevi M. Jatia vs. M.L. Wadhawan,
Additional Secretary, Government of India & ors.
19, this Court
reiterated the de facto doctrine as one born of necessity and public
policy to prevent needless confusion and endless mischief. This Court
held that “where an office exists under the law, it matters not how the
appointment of the incumbent is made, so far as validity of his acts
are concerned.” So long as he is clothed with the insignia of the office
and exercises its powers and functions, the acts performed by him
were held by this Court to be valid.
57. Even in B.R. Kapur (supra), this Court invoked the de facto
doctrine to declare as valid, all acts performed by a Chief Minister
17 (1912) 15 Cal.LJ 517
18 (1981) 3 SCC 132
19 (1987) 3 SCC 367
29
whose appointment was held to be invalid from day one. Paragraph
57 of the said decision reads as follows:
“We are aware that the finding that the second
respondent could not have been sworn in as Chief
Minister and cannot continue to function as such will
have serious consequences. Not only will it mean
that the State has had no validly appointed Chief
Minister since 14th May, 2001, when the second
respondent was sworn in, but also that it has had no
validly appointed Council of Ministers, for the Council
of Ministers was appointed on the recommendation
of the second respondent. It would also mean that all
acts of the Government of Tamil Nadu since 14th
May, 2001 would become questionable. To alleviate
these consequences and in the interest of the
administration of the State and its people, who would
have acted on the premise that the appointments
were legal and valid, we propose to invoke the de
facto doctrine and declare that all acts, otherwise
legal and valid, performed between 14th May, 2001
and today by the second respondent as Chief
Minister, by the members of the Council of Ministers
and by the Government of the State shall not be
adversely affected by reason only of the order that
we now propose to pass.”
58. Therefore, it is not possible to hold that the vote cast by Shri
Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 should be treated as
invalid on account of the conviction and sentence passed by the
criminal Court at 2:30 p.m. on the same day. This conclusion can be
drawn through another process of reasoning also. Article 191 (1) of
the Constitution deals with five different grounds of disqualification.
They 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.
30
59. 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.
60. While it may be convenient for the appellant in this case to
interpret the expression “the date” appearing in Section 8(3) with
reference to Article 191(1)(e), we may have to see whether the same
would fit into the scheme of Article 191(1) in entirety. It may not. If
tested against each one of Sub-clauses (a) to (d) of Clause (1) of
Article 191 we would find that the interpretation offered by the
appellant would not survive. Justice Oliver Wendell Holmes, Jr. in
Henry R Towne vs. Mark Eisner
20 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 though and may vary greatly
in colour and content according to the circumstances
and tie in which it is used”
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.
20 245 U.S. 418
31
62. In view of our above answer to the first issue, the second issue
does not arise for consideration. Therefore, the Civil Appeal No.611 of
2020 is dismissed. Civil Appeal No.2159 of 2020 is allowed, setting
aside the findings of the High Court on issue Nos. 2, 3 and 5 framed
by the High Court. There will be no order as to costs.
……………………………..CJI
[S.A. BOBDE]
……………………………….J.
[A.S. BOPANNA]
………………………………..J.
[V. RAMASUBRAMANIAN]
New Delhi
December 18, 2020
32
