Supreme Court: In an interesting case where a Member of the Legislative Assembly cast his vote in an election to the Rajya Sabha in the morning and got convicted in the afternoon thereby becoming disqualified, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has held that the such vote would remain valid. If held otherwise, such situation will create endless confusion and needless chaos.
Background
- 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.
- Three candidates, two from the Bharitya Janata Party (BJP), and one from the Indian National Congress (INC) filed their nominations.
- 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;
- 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.. He was convicted by the Court of the Additional Judicial Commissioner XVIII, Ranchi, 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.
In such situation, the following issue arose before the Court:
“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?”
Since Amit Kumar Mahto had cast his vote in favour of Dhiraj Prasad Sahu, the Congress candidate, the validity of his vote assumed significance, especially in view of the margin of victory.
Analysis
What happens when a person gets disqualified?
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. If a person, being a member of the Assembly, suffers a disqualification, his 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”.
Date of conviction – Meaning
The appellant had relied on Pashupati Nath Singh vs. Harihar Prasad Singh, AIR 1968 SC 1064 to claim that the words “on the date” should be taken to mean “on the whole of the day” and that law disregards as far as possible, fractions of the day.
However, the bench noticed that, in the said judgment, the Court interpreted the words “on the date” 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.
Calling the argument of the appellant a double-edged weapon, the Court explained
“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.”
If in a hypothetical situation, the conviction and sentence had taken place in the forenoon and 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.
Further, 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. Though one contrasts the other, both interpretations are intended to benefit the individual.”
Innocent until proved guilty – Applicability of
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. 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.
“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.”
Accepting the appellant’s submission would mean construing 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.
The disqualification arising under Section 8(3) of the Act, is the consequence of the conviction and sentence imposed by the criminal Court. A consequence can never precede the cause.
“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.”
Conclusion
The vote cast by 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.”
[Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu, 2020 SCC OnLine SC 1039, decided on 18.12.2020]
*Justice SA Bobde, CJI, has penned this judgment.
For appellant: Senior Advocates Mukul Rohatgi and K.V. Vishwanathan
For respondent: Senior Advocate Dr. Abhishek Manu Singhvi
