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 BriefsForeign Courts

Supreme Court of Canada: The appeal was before Wagner C.J. and Moldaver, Karakatsanis, Gascon, Côté, Brown and Rowe JJ.

The combined effect of Sections 11(d), 222 and other related provisions of the Canada Elections Act is to deny Canadian citizens who have resided abroad for five years or more, the right to vote in a federal election unless and until they resume residence in Canada.

The constitutionality of these provisions was challenged by two non-resident Canadian citizens, who applied for a declaration that their right to vote entrenched in Section 3 of the Canadian Charter of Rights and Freedoms was infringed and that the impugned provisions were unconstitutional.

The application judge agreed, found that the impugned provisions could not be saved under Section 1 of the Charter, and made an immediate declaration of invalidity. A majority of the Court of Appeal allowed the Attorney General of Canada’s appeal.

However, the Supreme Court allowed the instant appeal and Sections 222(1)(b) and (c), 223(1)(f) and 226(f) of the Canada Elections Act were declared to be invalid. [Gillian Frank v. Canada (Attorney General), 2019 SCC OnLine Can SC 1, decided on 11-01-2019]

Case BriefsHigh Courts

Kerala High Court: Shaji P. Chaly, J. heard a petition that sought relief due to the infringement of the right to vote as the petitioner’s name was named was removed from the voter’s list. The Court stated that the relief sought by the petitioner had become infructuous. However, the Court stated that deletion of name from voter’s list is a serious matter and it must be dealt with proper care.

The petitioner, a resident of Thiruvananthapuram, had an electoral identity card issued by the Election Commission of India. Despite having voting rights, in the Lok Sabha elections 2019, his name was omitted from the voter’s list. The petitioner always had voting rights but his name was removed from the list on the grounds that he had ceased to be an ordinary resident of the said constituency. However, his family members continued to have their names in the voter list. He requested the respondent authority to restore his voting rights so that he could exercise his voting rights. But when no action was initiated by the respondent, he approached this Court for relief by way of filing the present petition.

Petitioner appeared in person and contended that he was residing in the same building ever since he had voting rights. He submitted that although he and his family had shifted to a temporary residence till the time repair was carried out in his original residence, his family members still had their name in the voter’s list while his name was omitted from the list.

Counsel for the respondent, Murali Purushothaman, contended that according to Sections 22 and 23 of Representation of the People Act, 1951 (hereinafter referred to as “the Act”) any new name could not be included in the electoral list after nominations had been filed in the respective constituencies. He contended that petitioner’s name was deleted on the ground that he shifted to a different residence. Moreover, the Election Commission had also published a draft electoral roll and asked for objections if any, but the petitioner did not submit his objection for deletion of his name.

The Court held that voting rights of a person are valuable rights and it cannot be taken away by any means. Section 22 of the Act stated that before removing any name from the voter’s list, it was the duty of Electoral Registration Officer to hear that person in respect of any action being taken. Court stated these provisions are based on principles of natural justice and must be strictly followed.

The Court directed the respondent to conduct a detailed enquiry in the matter and if necessary, take appropriate actions against the officers who removed the name of the petitioner from voters list. It was also directed that in the event of petitioner making an application, his name be restored in the voter’s list.

The writ petition was disposed of in the above terms.[A. Subair v. Chief Election Commissioner of Kerala, 2019 SCC OnLine Ker 1914, decided on 10-06-2019]

Case BriefsSupreme Court

Supreme Court: Taking note of the very disturbing fact of encroachments on defence land, the Court said that the legislative policy and the provisions of the relating to encroachments should be strictly implemented. Prompt action has to be taken by the concerned authorities for removal of the illegally constructed buildings in the Cantonment area and the Cantonment Boards should be vigilant and ensure that no further encroachments are made on defence land.

Section 34 (1) (e) of the the Cantonments Act, 2006, enacted the existing Act of 1924 after taking into consideration the recommendations made by the Standing Committee of Parliament on Defence which called for tackling the encroachments on defence lands situated all over the country, provides for removal of a member of the Board who aids or abets encroachment and the illegal constructions on the defence land.

The bench of Anil R. Dave and L. Nageswara Rao, JJ was dealing with the question regarding the right to vote of persons living in illegally constructed buildings in a Cantonment area. The Court held that the Cantonment Board is not authorized to include the encroachers in the voters list.

It was contended that the Rule 10 (3) of the Cantonment Electoral Rules, 2007 was in conflict with Section 28 of the Cantonments Act, 2006 Section 28 which states that a person who is not less than 18 years of age and who has resided in a Cantonment area for a period of not less than six months immediately preceding the qualifying date shall be entitled to be enrolled as an elector.

Explaining the meaning of the word ‘resident’ as used in Section 28 of the Act, the Court held that the scope of word ‘resident’ as defined in the Cantonment Act, 2006 is completely different from that of ‘ordinarily resident’ as defined in the Representation of the People Act, 1950. The restrictive definition of a ‘resident’ in the Act is peculiar to the Cantonments whereas the definition of ‘ordinarily resident’ is very wide. Even if a person is residing in an unauthorised structure he will be entitled to be included in the electoral rolls under the Representation of the People Act which is not the case with the Cantonment Act.

The Court, hence, rejected the contention and said that Rule 10 (3) of the 2007 Rules is not in conflict with Section 28 of the Act. On the other hand, Rule 10 (3) is strictly in conformity with Section 28 making only persons living in houses with numbers eligible to vote as it is clearly from the language of Rule 10(3) that the persons who are living in illegally constructed houses which are not assigned any number will not be entitled for inclusion in the electoral roll to be prepared in accordance with Rule 10 (3) of the 2007 Rules.  [Sunil Kumar Kori v. Gopal Das Kabra, 2016 SCC OnLine SC 993, decided on 27.09.2016]