Allahabad High Court
Case BriefsHigh Courts

 

Allahabad High Court: In an appeal filed by Bharatiya Janata party MLA Vikram Singh Saini against the judgment passed by the Special Judge MP/MLA Court convicting him for the offences under Sections 147 148, 336 read with 149, 353, 504, 506 of the Penal Code, 1860 (‘IPC’) and under Section 7 Criminal Law (Amendment) Act, Samit Gopal, J. said that there is a full-fledged trial conducted after which Vikram Saini has been convicted, and the ground that he by the conviction will stand disqualified as per the Act, 1951 and will not be able to fight the elections, is no ground to suspend the conviction.

The Court noted that the ground as taken for the prayer for suspension of conviction is that Vikram Saini is a politician and was involved in these cases because of the political rivalry between two political parties. Further, the Election Commission has declared the schedule for by-elections in his constituency and he is allowed by the public constituency to fight the elections.

The Court referred to Section 8 of the Representation of People Act, 1951 (‘Act, 1951’), and said that the disqualification of a person under sub-sections (1), (2) and (3) of Section 8 of the Act, 1951 is due to conviction for one of the offences as mentioned in the section. The maximum punishment awarded to Vikram Saini is two years imprisonment which results in his disqualification as per Section 8(3) of the Act, 1951.

The Court said that the law with regards to suspension of conviction is well settled and relied on Navjot Singh Sidhu v. State of Punjab, (2007) 2 SCC 574, and on Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673, wherein it was held that “an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases”

The Court noted that in the present case the ground as is taken for suspension of conviction is that if the same is not granted Vikram Saini will remain disqualified under the Act, 1951, and said that the law as is continuously being held, reiterated and referred too is that powers of suspension of conviction should be exercised in rare cases only.

Further, it was said that Vikram Saini was convicted for rioting, rioting armed with deadly weapon, endangering life or personal safety of others, assault or criminal force to deter public servant from discharging his duty, intentional insult with intent to provoke breach of peace and criminal intimidation which had caused a law-and-order problem and had thrown the peace of the citizens out of gear.

The Court also said that the offences under the Penal Code covered by the Act has the potential to destroy the core values of a healthy democracy, safety of the State, economic stability, national security, and prevalence and sustenance of peace and harmony amongst citizens and many others. Further, the criminal activities resulting in disqualification are related to various spheres pertaining to the interest of the nation, common citizenry interest, communal harmony, and prevalence of goods governance, and merely by pleading that Vikram Saini by the conviction will stand disqualified as per the Act, 1951 is no ground to suspend the conviction.

[Vikram Singh Saini v. State of U.P., – 2022 SCC OnLine All 773, decided on 22-11-2022]


Advocates who appeared in this case :

Aditya Upadhyay, Advocate, Counsel for the Appellant;

Government, Advocate, Counsel for the Respondent.


*Apoorva Goel, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: A Division Bench of Satish Chandra Sharma CJ and Subramonium Prasad, J. denied relief seeking Satyendra Jain (‘respondent 5') as a person of unsound mind and subsequently demanding his disqualification from being a member of the Legislative Assembly and apparently the Minister in Govt. of NCT of Delhi. The Court observed that the Criminal Procedure Code, being a code in itself, has remedy for all contingencies and thus, prosecution faced by Satyendra Jain shall be in accordance with law.

Respondent 5-Satyendra Jain is facing criminal prosecution pursuant to Registration of FIR registered on 24-08-2017 at Police Station: Central Bureau of Investigation, Anti-Corruption-1, New Delhi for offences under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 and Section 109 of the Penal Code. He was arrested on 30-05-2022 and he was sent to the custody of the Enforcement Directorate.

Respondent 5 further moved a bail application before the Special Judge, Rouse Avenue Court, New Delhi and during the arguments it was placed on record by the Additional Solicitor General that the Respondent 5 has stated before the Enforcement Directorate office that after the severe case of COVID, he does not remember many things like the signatures, and he also does not remember the name of the trust or organization he is a member of. The petitioner has gone to the extent of stating that respondent 5 has himself declared that he has lost his memory.

The petition through the instant petition has sought declaration of Respondent 5, a person of unsound mind and subsequently his disqualification from being a member of the Legislative Assembly and apparently the Minister in Govt. of NCT of Delhi. A direction was also sought regarding the constitution of a medical board to analyze the mental condition of Respondent 5.

The Court noted that the Code of Criminal Procedure, 1973 is a complete code in itself which provides a mechanism in respect of investigation, inquiry and trial. The Code of Criminal Procedure caters to all contingencies, and it is for the prosecution/ court to take appropriate steps in accordance with law.

Thus, in exercise of jurisdiction under Article 226, the Court held that it cannot declare the respondent 5 as a person of unsound mind and cannot disqualify him from being a member of the Legislative Assembly or the Minister in the Government of NCT of Delhi in the facts and circumstances of the case.

[Ashish Kumar Srivastava v. Govt of NCT of Delhi, WP (C) No. 11855 of 2022, decided on 16-08-2022]


Advocates who appeared in this case :

Mr. Rudra Vikram Singh & Mr.Manish Kumar, Advocates, for the Petitioner;

Mr. Chetan Sharma, Additional, Advocate, for the Respondent;

Solicitor General with Mr. Kirtiman Singh, Mr. Waize Ali Noor, Mr. Amit Gupta, Mr. Rishav Dubey, Mr. Sahaj Garg, Mr. Kunjala Bhardwaj, Mr. Madhav Bajaj & Mr. Saurabh Tripathi, Advocates, for the Respondent/ UOI.


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: Opining that the advancement of medical field over a period of time has been enormous, the Division Bench comprising of Sanjay Kishan Kaul and M.M. Sundresh, JJ., directed the Railways to constitute a committee to revisit its decision disqualifying persons with history of lasik surgery for the post of constables (RPF).

The appellants had appeared in a competitive examination of the Railways and had sought recruitment as constables in the Railway Protection Force (RPF), however, in view of a policy decision taken by the respondents, dated 11-11-2013 qua medical suitability, the appellants were held unfit for service in categories A and B of the Railway Medical Manual, 2000 for having gone through lasik surgery to the eye. The appellants contended that the decision had been brought into force almost 3 years after the date of advertisement; hence it could not be applied to the recruitment process of the appellants. The contention of the appellants had been rejected by the High Court on the reasoning that once the technical committee goes into an aspect, it may not be proper for the court to step into that domain.

Considering the report of the respondents on the requirement of prohibiting the candidates who have gone through lasik surgery, the Bench observed that the order was passed on 17-08-2011 constituting a committee of Ophthalmologists, all from the Railways, to make an in-depth study and formulate guidelines for medical fitness/unfitness qua candidates and employees of various medical categories who have undergone lasik surgery in the past or during the service period. The Bench noted that that at the time of publication of the report, the lasik procedure had been available in India only for a period of 10 years. Pointing the limitation of the report the Bench expressed,

“We may note that now we have the benefit of an extra decade of medical study and observation with respect to the effects of this procedure. In view of the same, it may be time to revisit the issue.”

Emphasizing on the principle of ‘reasonable accommodation’ which underlines the Rights of Persons with Disabilities Act, 2016 with an objective of recognizing the worth of every person as an equal member of the society, the Bench referred to Pranay Kumar Podder v. State of Tripura, (2017) 13 SCC 351, where a candidate suffering from partial colour blindness was declared ineligible to take admission to the MBBS course and by the intervention of the Court a committee of experts was constituted to review the situation which, ultimately opined in favour of the candidate.

Opining that employment is a very important aspect in the Country which deserves a broader conspectus, the Bench directed to constitute a fresh medical committee of three or more members, out of which not more than one Doctor should be from the Railways and an independent Ophthalmologist from a Government hospital and private field should also be included.

The Bench directed that the committee be constituted within a period of two weeks’ to revisit the aspects about the fitness of candidates who have undergone lasik surgery qua different aspects of Railway employment. Further, the committee was directed to opine on the issue and carry out the exercise on or before 30-04-2022. The Bench remarked,

“This is a larger issue. Appellants here are concerned only with a particular aspect of railway employment which does not require fine technical work or the operation of heavy machinery. A parallel with the position in the armed forces may also not be appropriate as constables in the RPF are not deployed at the frontlines.”

The matter was directed to be listed for directions pursuant to the report on 10-05-2022.

[Dalbir v. Union of India, Special Leave to Appeal (C) No(s). 28003-28004 of 2017, decided on 04-02-2022]


Appearance by:

For Appellants: Advocate Raj Kumar, AOR Karunakar Mahalik, Advocate Abhishek Sonkar, Advocate Sangeeta Chauhan, Advocate Sashi Gupta

For Respondent(s): ASG Madhvi Divan, Advocate Vanshaja Shukla, Advocate Piyush Beriwal, Advocate Vaishali Verma, Advocate Preeti Rani, AOR Amrish Kumar, Advocate Brajesh Pandey, AOR Sunil Prakash Sharma


Kamini Sharma, Editorial Assistant has put this report together

Case BriefsHigh Courts

Gujarat High Court: Biren Vaishnav J. while deciding on a petition under Art 226 of the Constitution pertaining to prayer of the petitioner to quash his unfit certificate dated 25-01-2022, gave an order dismissing the petition.

The petitioner was declared colour blind and hence unfit for the post of Electrical Assistant by Jamnagar Civil Hospital & Civil Hospital, Ahmedabad. The Court placed reliance on the decision by its decision in Special Civil Applications No. 6217 of 2021 with 8611 of 2020 on 08-02-2022 where it was observed that colour blindness is not a disqualification included in the standards of physical fitness but after examining the nature of duties of Electrical Assistant, he has to deal with live wires, especially during the installation where the colour of the wires is of prime importance. The relied decision justified the denial of appointment to the post of Electrical Assistant.

Therefore, the Court found no fault with the Corporation’s decision of issuing the unfit certificate and the petition was subsequently dismissed.[Bhavesh Khimabhai Pandit v. State of Gujarat, R/Special Civil Appl. No. 2916 of 2022 decided on 11-02-2022.]


Appearance:

For Petitioner: Ms Shubha B. Tripathi

For Respondent: Mr Kurven Desai, Asstt. Govt. Pleader/PP


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

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

Case BriefsSupreme Court

Supreme Court: In a case where the Kerala High Court had refused to entertain the plea of Saritha Nair who was disqualified from contesting the elections on the ground that she was convicted in 2 criminal cases, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian*, JJ has held that though the High Court was right in not taking up the election petition but the ground on which it rejected the petition i.e. incurable defects, was wrong.

The Court held that when the petitioner was disqualified from contesting the elections in terms of Section 8(3), she could not have maintained an election petition as “a candidate at such election” in terms of Section 81(1) of the Representation of the People Act, 1951.

Background

In the 2019 Lok Sabha Elections, Saritha Nair filed her nomination on 04.04.2019 in the Ernakulam Constituency. She was to contest as an independent candidate. On 06.04.2019 the nomination of the petitioner was rejected on the ground that she was convicted in 2 criminal case and was sentenced to imprisonment for 3 years in each of those cases by judgments dated 08.06.2015 and 16.02.2016. While she did not dispute the fact of her conviction, it was the case of the petitioner the suspension of her sentence by an appellate/revisional court was enough to save her from the applicability of Section 8(3).

She also filed her nomination from one more constituency, namely Wayanad Constituency and her nomination was rejected even in the said Constituency, for the very same reasons.

She further argued that 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.

Grounds for rejection of the Election Petition by the High Court

(i) Lack of proper verification;

(ii) An incomplete prayer; and

(iii) Allegations of serious nature made against the former Chief Minister with a possible leverage not to own up the pleadings.

Analysis

Were the defects incurable?

“A defective verification is a curable defect. An election petition cannot be thrown out in limine, on the ground that the verification is defective.”

The Court held that the High Court committed a grave error in holding the aforementioned 3 defects as incurable. The defects are curable and an opportunity to cure the defects ought to have been given to the petitioner.

Further, 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.”

The Court, hence, held that though the election petitioner should have been more careful and diligent in incorporating an appropriate relief and making a proper verification but no motives could have been attributed to the petitioner, only because she made serious allegations against someone.

Is suspension of sentence enough to save the petitioner from disqualification under Section 8(3) of the RP Act?

The appellate Court in one case and the revisional Court in another case had suspended only the execution of the sentence of imprisonment and not the conviction. The contention of the petitioner was that the suspension of the sentence was sufficient to save her from the applicability of Section 8(3).

Section 8(3) deals with two aspects:

(i) the conditions for disqualification; and

(ii) the period of disqualification.

The conditions for disqualification are

(i) conviction for any offence other than an offence referred to in Subsections (1) and (2); and

(ii) sentence of imprisonment for not less than two years.

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. Hence,

“… 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.”

Hence, it is clear that the mere suspension of the execution of the sentence is not sufficient to take the rigour out of Section 8(3).

Further, in Lily Thomas it was held that a Member of Parliament or the State Legislature who suffers a frivolous conviction, will not be remediless. The appellate Court has ample powers under Section 389(1) of the Code, to stay the conviction as well as the sentence and that wherever a stay of conviction itself has been granted, the disqualification will not operate.

Hence, the disqualification under Section 8(3) will continue so long as there is no stay of conviction. Since, the petitioner could not obtain a stay of conviction but obtained only a stay of execution of the sentence, 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.”

[Saritha S. Nair v. Hibi Eden,  2020 SCC OnLine SC 1006, decided on 09.12.2020]


*Justice V. Ramasubramanian has penned this judgment

For petitioner: Advocate D. Geetha 
Case BriefsSupreme Court

Supreme Court: The Court has allowed Rajasthan Assembly Speaker CP Joshi to withdraw his plea against Rajasthan High Court’s order asking him to defer disqualification proceedings till July 24, 2020. 

Senior Advocate Kapil Sibal, appearing for CP Joshi, told the Court that the High Court has passed a detailed order and the ad interim order passed has merged into the final interim order that has been passed by the High Court. Thus, he want to withdraw this petition with liberty to avail appropriate remedy as against the subsequent order. The Court, hence, dismissed the special leave petition as withdrawn, with the aforesaid liberty.

 The Court had, on July 23, 2020, decided to hear the appeal of Rajasthan Assembly speaker CP Joshi against the stay order of Rajasthan High Court that asked the Speaker to not take action against Sachin Pilot and 18 other MLAs till July 24, at length and has said that the Order passed by Rajasthan High Court will be subject to the outcome of the said hearing.

“The case requires prolonged hearing so as to decide the question of jurisdiction. “

The Court had observed that Rajasthan Speaker’s petition against Rajasthan High Court’s order asking him to defer disqualification process till July 24 requires detailed hearing. It, however, refused to restrain the High Court from passing order on pleas of dissident 19 Cong MLAs challenging Speaker’s disqualification notice. The Court made clear that the Order passed by Rajasthan High Court will be subject to outcome of Speakers’ petition pending in the Supreme Court.

“As the High Court has already heard the matter after prolonged arguments and reserved the order, we are not staying the passing of the order, however, whatever order is passed, shall be ultimately subject to the outcome of this petition.”

When the matter was taken up today for hearing, Joshi requested withdrawal of his plea which the Court allowed.

CP Joshi had filed the petition in Supreme Court to avoid contradiction between decisions of Speaker and court. He approached the Supreme Court against the interim order passed by the Rajasthan High Court on the petition filed by Sachin Pilot and 18 MLAs from his camp against the disqualification notices issued against them. Joshi, in his SLP, said that the impugned interim order has interdicted and restrained the Speaker from calling of replies and conducting hearing of the disqualification proceedings pending against the respondents till July 24.

Pilot had also filed a caveat in the Supreme Court to ensure that no orders are passed on Joshi’s petition against High Court interim orders without hearing him and his supporting MLAs. A caveat is a notice seeking that certain actions may not be taken without informing the person who gave the notice.

[Speaker, Rajasthan Legislative Assembly v. Prithviraj Meena, 2020 SCC OnLine SC 599 , order dated 27.07.2020]


Also read: 

Rajasthan Political Crisis | HC reserves order on petition by Sachin Pilot along with 18 other Congress MLAs, challenging disqualification notice issued by Assembly Speaker; To be pronounced on 24th July, 2020


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Case BriefsSupreme Court

Supreme Court:  The Court has decided to hear the appeal of Rajasthan Assembly speaker CP Joshi against the stay order of Rajasthan High Court that asked the Speaker to not take action against Sachin Pilot and 18 other MLAs till July 24, at length and has said that the Order passed by Rajasthan High Court will be subject to the outcome of the said hearing.

“The case requires prolonged hearing so as to decide the question of jurisdiction. “

CP Joshi has filed the petition in Supreme Court to avoid contradiction between decisions of Speaker and court. He approached the Supreme Court against the interim order passed by the Rajasthan High Court on the petition filed by Sachin Pilot and 18 MLAs from his camp against the disqualification notices issued against them. Joshi, in his SLP, said that the impugned interim order has interdicted and restrained the Speaker from calling of replies and conducting hearing of the disqualification proceedings pending against the respondents till July 24.

Pilot has also filed a caveat in the Supreme Court to ensure that no orders are passed on Joshi’s petition against High Court interim orders without hearing him and his supporting MLAs. A caveat is a notice seeking that certain actions may not be taken without informing the person who gave the notice.

According to PTI, during the hearing today, Senior Advocate Kapil Sibal argued before the Court that Rajasthan High Court cannot direct Speaker to defer disqualification proceedings against MLAs.

“No writ can lie to challenge proceedings before Speaker prior to decision on disqualification or suspension of MLA.”

He further said that the Speaker can be asked to decide disqualification within time frame but the process can’t be interfered with.

Speaker Joshi submitted that the issue whether disqualification process against MLAs is permissible or not cannot be taken note of at this stage.

After hearing the submissions, the Court observed that Rajasthan Speaker’s petition against Rajasthan High Court’s order asking him to defer disqualification process till July 24 requires detailed hearing. It, however, refused to restrain the High Court from passing order on pleas of dissident 19 Cong MLAs challenging Speaker’s disqualification notice. The Court made clear that the Order passed by Rajasthan High Court will be subject to outcome of Speakers’ petition pending in the Supreme Court.

“As the High Court has already heard the matter after prolonged arguments and reserved the order, we are not staying the passing of the order, however, whatever order is passed, shall be ultimately subject to the outcome of this petition.”

Supreme Court has listed the matter for further hearing on July 27, 2020.

[Speaker, Rajasthan Legislative Assembly v. Prithviraj Meena, 2020 SCC OnLine SC 593, order dated 23.07.2020]


Also read: 

Rajasthan Political Crisis | HC reserves order on petition by Sachin Pilot along with 18 other Congress MLAs, challenging disqualification notice issued by Assembly Speaker; To be pronounced on 24th July, 2020


SCC Online is now on Telegram and Instagram. Join our channel @scconline on Telegram and @scconline_ on Instagram and stay updated with the latest legal news from within and outside India

Patna High Court
Case BriefsHigh Courts

Patna High Court: Madhuresh Prasad, J. disposed of the writ petition on the ground that the petitioner was not incarcerated when joining was offered.

The petitioner was a Peon in the respondent bank. An FIR was lodged against the petitioner, his son and other family members alleging offences under Sections 304-B read with Section 34 of the Penal Code, 1860. The allegations led to the conviction of the petitioner. Later, the petitioner was granted bail and released from custody. He then submitted for his joining in the bank but was subsequently served with a notice of proposed punishment of dismissal by the respondent bank. The petitioner thus filed the instant proceedings.

During the pendency of the instant writ proceeding, the petitioner was dismissed on account of his conviction in the criminal case by the bank in view of the provisions contained in the Regulations 39 and 40. The petitioner had preferred a criminal appeal against the conviction order and the impugned order was set aside but he had already crossed the age of retirement by then.

The petitioner in view of the developments during pendency had sought for quashing of the order dismissing him from service and also prayed that he may be granted benefits of payment of salary from the date on which he offered joining. The counsel    Shashi Bhushan Kumar-Manglam representing the petitioner relied on the Judgment of the Apex Court in the case of Ranchhodji Chaturji Thakore v. Superintending Engineer, Gujarat Electricity Body, Himmat Narayan, (1996) 11 SCC 603, according to which the petitioner was entitled to grant of salary from the date on which he offered to join in the bank after his release on bail as thereafter he had been prevented from working by the authorities on account of their non acceptance of petitioner’s joining.

Advocates Prabhakar Jha and Mukund Mohan Jha, representing the bank submitted that the scheme of the Regulations which governed terms and conditions of the petitioner’s services make it abundantly clear that conviction by itself was a disqualification to continue in service. The mere fact of conviction was sufficient to dismiss an employee dispensing with the requirement of compliance with the principles of natural justice. He even referred to the same judgment relied on by petitioner’s Counsel to submit that it was only upon his acquittal in the criminal charges that the disqualification was removed.

The Court held that such an offer of joining, post acquittal which if not acceded to by the respondent authority, may ensue to the petitioner to claim salary. The petitioner’s status was of a convict at the time of submitting for joining and as such his claim for payment of salary for the period subsequent to such joining was not sustainable in the eyes of law.

It was further held that there was no disqualification against the grant of post-retirement benefits as was available under the service regulation.

In view of the above-noted facts, the instant petition was disposed of accordingly with the observation that the respondent Bank was to consider and dispose of the claim and pay the admissible dues within three months with regard to the retrial benefits of the petitioner. [Tarkeshwa Pandey v. Uttar Bihar Gramin Bank, 2019 SCC OnLine Pat 1924, decided on 16-10-2019]

Case BriefsSupreme Court

Supreme Court: The bench of Abhay Manohar Sapre and Indu Malhotra, JJ  has held that there cannot be a uniform qualification or/and disqualification for the Board of Directors under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970.

Background of the case:

The case at hand related to the nomination of a Director from the workman/employee category falling in clause (e) of Section 9(3) of the Act and as well as to his/her disqualification for being nominated as a Director in that category Section 9(3) of the Act provides for composition of Board of Directors and also provides as to who can be nominated as Directors in the Board of Directors. Clauses (a) to (i) of sub­section (3) of Section 9 of the Act sets out various categories from which   one Director from each of such categories is nominated in the Board of Directors. Clause(e) deals with a category of workman/employee Director whereas clause(f) deals with a category of officer/employee Director for their nomination in the Board of Directors.

On Distinction between Clauses (e) and (f) of Section 9(3) of the Act:

Both the categories of employees are different as per the perusal of the clauses (e) and (f) of Section 9(3) of the Act that:

  1. One is worker/employee category as defined under Section 9(3)(e) and the other is officer/employee category as defined under Section 9(3)(f) of the Act.
  2. It is for the legislature to decide as to what qualifications and disqualifications should be prescribed for various categories of the employees for their nomination on the post of Director.
  3. There lies a distinction between the worker and the officer. The former, i.e., worker is defined under Section 2(s) of the Industrial Disputes Act, 1947 and is governed by that Act whereas the latter, i.e., officer is not governed by the Industrial Disputes Act but is governed by separate service rules. Both these categories of employees, therefore, cannot be equated with each other and nor can be placed at par for providing equal qualification or/and disqualification for their nomination as a Director in the Board of Directors.
  4. Article 14 of the Constitution applies inter se two equals and not inter se unequals.
  5. The nominee worker/employee has only a right under the Act to be appointed as Director from the category of worker/employee in terms of Section 9 (3)(e) of the Act provided the concerned nominee whose name is recommended by the Union fulfils the qualifications laid down in Clause 3(2)(iii) of the Scheme but not beyond it.

On Uniform Qualification/Disqualification for Board of Directors under Section 9(3) clause (a) to (i):

The Board of Directors consists of persons coming from different fields. There cannot, therefore, be a uniform qualification or/and disqualification for such persons. Indeed, the qualifications and disqualifications are bound to vary from category to category and would depend on the post, experience and the stream from where a person is being nominated as a Director. Moreover, the qualification and disqualification has to be seen prior to his/her becoming a Director and not after his/her appointment as a Director.

[Federation of Bank of India Staff Unions v. Union of India, 2019 SCC OnLine SC 302, decided on 01.03.2019]

Case BriefsSupreme Court

Though criminalization in politics is a bitter manifest truth, which is a termite to the citadel of democracy, be that as it may, the Court cannot make the law.

Supreme Court: CJ Dipak Misra delivered the Judgment for the 5-Judge Constitution Bench comprising of himself and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. wherein the Court issued certain directions while disposing the petition concerning the question whether disqualification from the membership of the legislature could be laid down by the Court beyond Article 102 (a) to (d) and the law made by the Parliament under Article 102 (e) of the Constitution.

The 3-Judge Bench which originally heard the petition was of the view that the question needs to be addressed by a Constitution Bench. Thus, the present proceedings before the 5-Judge Bench. The petitioners led by Public Interest Foundation submitted that the lawbreakers should not become law makers and there cannot be a paradise for people with criminal antecedents in the Parliament or the State Legislatures. The petitioners were attuned to the principle of presumption of innocence. But they contended that the said principle is confined to criminal law and that any proceeding prior to conviction, such as framing of charge, for instance, can become the basis to entail civil liability or penalty. The petitioners, therefore, took the stand that debarring a person facing charges of serious nature from contesting an election does not lead to creation of an offence and it is merely a restriction which is distinctively civil in nature. Attorney General K.K. Venugopal refuted the submissions and urged that the Parliament to pass a legislation and can only recommend. Further, when there are specific constitutional provisions and the statutory law, the Court should leave it to the Parliament.

The Court was of the clear opinion that it cannot legislate. The Supreme Court, at the outset, perused Articles 102 and 191 of the Constitution and observed it to be clear as crystal that as regards the disqualification for being chosen as a member of either House of Parliament and similarly for a legislative assembly or legislative council of a State, the law has to be made by the Parliament. Reference was made to Lily Thomas v. Union of India, (2013) 7 SCC 653 and the Court was of the opinion that the view expressed therein was correct, for the Parliament has the exclusive jurisdiction to lay down disqualification for membership. It was noted that apart from the grounds of disqualification as mentioned in the said Articles, Parliament has provided certain other grounds under Sections 8, 8-A, 9, 9-A, 10 and 10-A of the Representation of the People Act, 1951. Apart from these, there are no other disqualifications and, as noticeable, there can be no other ground. Thus, disqualifications are provided on certain and specific grounds by the legislature. In such a state, the legislature is absolutely specific. In the words of the Court, It is clear as moon day and there is no ambiguity. The language of the said provision leaves no room for any new ground to be added or introduced.

On the issue of criminalisation of politics, the Court referred to earlier judgments. Rajya Sabha Reports, Law Commission reports, etc. and further discussed the role of Election Commission with respect to superintendence, direction, and control of elections. It was observed that Election Commission has the plenary power and its view has to be given weightage. That apart, it has power to supervise the conduct of free and fair election. However, the said power has its limitations. The Election Commission has to act in conformity with the law made by the Parliament and it cannot transgress the same. Analysis was also made of the Election Symbols (Reservation and Allotment) Order, 1968 which deals with allotment classification, choice of symbols by candidates and restriction on the allotment of symbols. Observation of the Court in the matter was that when a candidate has been set up in an election by a particular political party, then such a candidate has a right under sub-clause (3) of Clause 8 to choose the symbol reserved for the respective political party by which he/she has been set up. An analogous duty has also been placed upon the Election Commission to allot to such a candidate the symbol reserved for the political party by which he/she has been set up and to no other candidate.

The Court finally referring to, inter alia, Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294; Resurgence India v. Election Commission of India, (2014) 14 SCC 189; etc. was inclined to say that best available people, as is expected by the democratic system, should not have criminal antecedents and the voters have a right to know about their antecedents, assets and other aspects. In a constitutional democracy, criminalization of politics is an extremely disastrous and lamentable situation. The citizens in a democracy cannot be compelled to stand as silent, deaf and mute spectators to corruption by projecting themselves as helpless. The voters cannot be allowed to resign to their fate. Disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. It has to be remembered that such a right is paramount for a democracy. A voter is entitled to have an informed choice.

Keeping the aforesaid in view, the Court issued the following directions:

  • Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.
  • It shall state, in bold letters, with regards to the criminal cases pending against the candidate.
  • If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.
  • The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.
  • The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers.

Furthermore, the Court recommended to the Parliament to bring out a strong law whereby it is mandatory for the political parties to revoke membership of persons against whom charges are framed in heinous and grievous offences and not to set up such persons in elections, both for the Parliament and the State Assemblies. This, in our attentive and plausible view, would go a long way in achieving decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous constitutional democracy. As stated by the Court, the above directions were issued with immense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. A time has come that the Parliament must make a law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The writ petition was disposed of accordingly. [Public Interest Foundation v. Union of India, (2019) 3 SCC 224, decided on 25-09-2018]

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Supreme Court: The 5-judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., stated that the Supreme Court is not in a position to add a disqualification provision in regard to contesting of elections on the basis of charges framed against the candidates.

The Bench stated that “A time has come that Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream.”

The Court also added that “the law making wing of the democracy of this country will take it upon itself to cure the malignancy, as such a malignancy is not incurable.”

Further, several directions have been issued regarding the disclosure of criminal antecedents of the candidates.

Will further update with the detailed judgment.

[Source: https://twitter.com/TheLeaflet_in]

 

 

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Supreme Court: A 5-Judge Constitution Bench  comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. is likely to pronounce judgment on the petition filed by Public Interest Foundation (a non-governmental organization) seeking disqualification of politicians, including Members of Parliament (MPs) and Members of legislative assemblies (MLAs) from contesting elections, once charges are framed against them.

The Court had earlier, on August 28, reserved the judgment in the matter. The Court had indicated that voters have a right to know the antecedents of candidates and the Election Commission could be asked to direct political parties to ensure that persons, facing criminal charges, do not contest on their tickets using their poll symbols.

The Court started hearing of the matter on August 9. The issues for consideration before the Court were:

  • Whether the court can lay down additional disqualifications beyond Article 102(e) and Section 8 of the Representation of the People Act, 1951?
  • Whether the disqualification should be triggered upon conviction as it exists presently or upon framing of charges by the court?
  • Whether filing of false affidavits under Section 125-A of the RP Act should be a ground of disqualification?

Attorney General K.K. Venugopal, appearing for the Centre, had stated that the Parliament has made a distinction between an accused and a convict and there has been a provision for disqualification in the RP Act upon conviction of a lawmaker. The Centre, deriving strength in its argument from the principle that every man is innocent until proven guilty, had also contended that such course would create a  pre-condition that would adversely affect the right of the candidates to participate in polls; the judiciary should not venture into this legislative arena.

Case BriefsHigh Courts

Bombay High Court: A writ petition filed against the decision of the Collector was allowed holding that the Collector ought to have exercised power of discretion before mechanically disqualifying the petitioner from contesting elections.

The petitioner was elected from Ward No. 3 for the Gram Panchayat at Aurad. She also contested from Ward No. 4 from where she lost the elections. The petitioner was not able to file statement of election expenses pertaining to Ward No. 4 in term of Maharashtra Village Panchayat Act, 1958. The petitioner made an application before the Collector for extension of 5 days time for filing such statement. However, the Collector, without responding to the said application, passed an order disqualifying the petitioner for 5 years from contesting the elections. Appeal preferred by the petitioner against that order was also dismissed by the Divisional Commissioner. Thus, the instant petition.

The Court, after hearing the parties and considering the facts and circumstances of the case, held that the Collector was not right in passing the order disqualifying the petitioner without first considering the application of the petitioner. Section 14B of the Act provides that the Election Commission may remove the disqualifications as provided under sub-section (1) after recording of reasons. The Court held that the Collector ought to have first considered the application of the petitioner and in view of the Court, the extension of 5 days time for filing of expenses statement should have been provided to the petitioner. Therefore, the order of the Collector was set aside and he was directed to first consider the application of the petitioner and appropriately exercise discretion as granted to him under Section 14B. [Tamjodevi Madarsha Bhandari v. Tahsildar, 2018 SCC OnLine Bom 936, order dated 04-05-2018]

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Supreme Court: The bench of Ranjan Gogoi and Navin Sinha, JJ asked the Central Government to constitute Special Courts to deal with cases involving MPs and MLAs and speedy disposal of these matters after the Election Commission of India recommended life ban on politicians convicted in criminal cases. The bench asked Centre to apprise it with the details of the criminal cases lodges against politicians from 2014 till date.

The Court asked Centre to place before it details regarding 1,581 cases involving MPs and MLAs, as declared by politicians at the time of filing their nominations during the 2014 general elections and that how many of these 1,581 cases have been disposed of within one year and how many have ended either in conviction or acquittal of the accused.

Centre told the bench that decriminalisation of politics has to be done and it was not averse to the setting up of special courts to deal with cases involving politicians and that the recommendations of the Election Commission of India and the Law Commission favouring life-time disqualification of politicians convicted in criminal cases was under the active consideration of the government.
The Court, hence, asked Centre to place before it the scheme for setting up of such special courts and also indicate the amount of funds that could be earmarked for the purpose. The matter has been listed on December 13, 2017 and Centre has to do the needful within 6 weeks.
Source: ET

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Supreme Court: The 3-judge bench of Dipak Misra, Amitava Roy and A M Khanwilkar, JJ allowed the petition seeking cancellation of Bihar Chief Minister Nitish Kumar’s membership of the state Legislative Council for allegedly concealing a pending criminal case against him. Stating that it will consider the matter, the bench said it will fix a date for hearing the matter.

The petition, which was filed yesterday, alleged that there was a criminal case against the JD(U) leader wherein he was accused of killing a local Congress leader Sitaram Singh, and injuring four others ahead of Lok Sabha by-election to the Barh constituency in 1991. The petitioner has also sought a direction to the CBI to register an FIR against Kumar in the case. He sought cancellation of Kumar’s membership as per the Election Commission’s 2002 order stating it is mandatory for candidates to disclose criminal cases against them in their affidavits annexed to nomination papers. He claimed that the Bihar Chief Minister did not disclose the criminal case that was pending against him in affidavits since 2004, except for 2012.

Source: PTI

Case BriefsForeign Courts

Pakistan Supreme Court: The 5-judge bench of Asif Saeed Khan Khosa, Ejaz Afzal Khan, Gulzar Ahmed, Sh. Azmat Seed and Ijaz Ul Ahsan, JJ declared Pakistan Prime Minister Nawaz Sharif unfit to be a member of the Majlis-e-Shoora (Parliament) after he failed to prove himself innocent in the Panama Papers case against him and his children.

The Court said that PM Nawaz Sharif was not honest in terms of Section 99(f) of the Representation of the People Act, 1976 and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 and therefore he was disqualified to be a Member of the Majlis-e-Shoora (Parliament) as he not only furnished a false declaration under solemn but also failed to disclose his un-withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976.

The Court had, by an earlier order, constituted a Joint Investigation Team to look into the alleged money laundering by Nawaz Sharif & his family members. The Court said that the questions as to how did Gulf Steel Mill come into being; what led to its sale; what happened to its liabilities; where did its sale proceeds end up; how did they reach Jeddah, Qatar and the U.K. And how Nawaz Sharif’s children were in possession of properties in their tender ages were important questions to be looked into. It was said that in normal circumstances, such exercise could be conducted by the NAB but when its Chairman appears to be indifferent and even unwilling to perform his part, it was important that an impartial Joint Investigation Team investigated the matter.

The Court asked the Election Commission of Pakistan to issue a notification disqualifying PM Nawaz Sharif with immediate effect. Nawaz Sharif resigned from his office soon after the decision. [Imran Ahmed Khan v. Mian Muhammad Nawaz Sharif, 2017 SCC OnLine Pak SC 2, decided on 28.07.2017]

 

Case BriefsHigh Courts

Kerala High Court: In a writ filed by the petitioner against an order of the Kerala State Election Commission, according to which the petitioner had defected and was disqualified to be a member of the Ramamangalam Gama Panchayat and also from contesting as candidate in an election to any local authority for a period of six years as per Kerala Local Authorities (Prohibition of Defection) Act, 1999, a Single Judge Bench comprising of K. Vinod Chandran, J. upheld the Commission’s order and dismissed the petition.

The petitioner contended that her disqualification was invalid since by the time the Election Commission was approached the term of council had expired. It was pointed out that “the disqualification is only with reference to the membership of the Committee in office for a valid term of five years and cannot be extended to a subsequent period for which a fresh election is conducted.”

The respondent on the other hand argued that there was a difference between disqualifications which are co-terminus with the term of office of a committee and those that extend beyond the term of office, this case falling in the latter category because the Act specifically provided for disqualification beyond a period of 6 years even beyond the term of the elected committee.

The Court held that if it was to sustain the petitioner’s contention, then towards the expiry of the term of office the Committee members would indulge in defection against which there would lay no action. Moreover, it would require the Court to add words to the provision: “for the term then in office” which is not permissible. “The intention clearly was to disqualify a member who has defected from continuing in that committee and in the subsequent committee too, since the disqualification runs for six years, while the term of the committee is 5 years.” [Jessie Raju v. Communist Party of India, 2017 SCC OnLine Ker 7860, decided on June 28, 2017]

Case BriefsSupreme Court

Supreme Court: Considering the fact that there is a test match which is going to be played between India and Australia tomorrow i.e. 25th March, 2017, at Dharamsala Cricket Stadium, the Court directed that the B.C.C.I. shall honour the terms and conditions postulated in the contracts with the State Associations in letter and spirit so that there is no impediment in holding the test matches and ODIs

With regard to the IPL matches that are going to commence from 05.04.2017 on 10 venues in India, the Court said that there have to be tripartite contracts and some have been entered into while some shall be entered into in due course. After the contracts are executed, following the principle of parity, the B.C.C.I. shall also honour the contractual terms

Clearing the air over the disqualification as modified on 20.01.2017 where it was said that a person will be disqualified if he or she has been an Office Bearer of the BCCI or any State Cricket Association for a cumulative period of 18 years i.e. if he/she has served separate 9 years terms at BCCI and State Cricket Association, the Court said that what has been meant by the clarificatory order is that, if an office bearer has completed nine years in any post in the B.C.C.I., he shall stand disqualified to become an office bearer of the B.C.C.I. Similarly, if a person holds the post of office bearer in any capacity for any State Association for nine years, he shall stand disqualified for contesting or holding any post or office of the State Association. The bench of Dipak Misra, A.M. Khanwilkar and Dr. D.Y. Chandachud said that if a person has held the post of office bearer in respect of a State Association for a period of nine years, he will not be disqualified to contest for the post of office bearer of the B.C.C.I. [BCCI v. Cricket Association of Bihar, 2017 SCC OnLine SC 277, order dated 24.03.2017]

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Supreme Court: Modifying the earlier order, the Court said that a person will now be disqualified if he or she has been an Office Bearer of the BCCI or any State Cricket Association for a cumulative period of 18 years i.e. if he/she has served separate 9 years terms at BCCI and State Cricket Association.

Earlier on 02.01.2017, the Court had laid down various grounds for disqualification which included serving a cumulative period of 9 years as an Office Bearer of the BCCI. On 03.01.2017, the Court modified this disqualification and said that serving a cumulative period of 9 years as an Office Bearer of the BCCI or any State Cricket Association would lead to disqualification.

The names of the members of the Committee of Administrators are likely to be announced on 24.01.2017.