The disqualification under Section 8(3) of the Representation of the People Act, 1951 will continue so long as there is no stay of conviction: Supreme Court
The bench in the present case consisting of Hon’ble Chief Justice Mr. S.A. Bobde, Hon’ble Justice Mr. A.S. Bopanna and Hon’ble Mr. Justice V. Ramasubramanian, upheld the decision of the Honorable HC of Kerala, thereby dismissing the SLP along with no further order as to cost, this remarkable stand was forwarded by the Honorable SC in the SLP case of Saritha S. Nair V. Hibi Eden, [SLP (Civil) No.10678 OF 2020]. In the Lok Sabha elections of 2019, the petitioner filed her nomination on 04.04.2019 in the Ernakulam Constituency. The petitioner 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 cases. In the first case the petitioner was imposed with a punishment of imprisonment for 3 years, with a fine of Rs.45 lakhs, by a judgment dated 08.06.2015. In the second case she was imposed with a punishment of imprisonment for 3 years, with a fine of Rs.10 lakhs, by a judgment dated 16.02.2016. The Returning Officer, noted in his order dated 06.04.2019 that the petitioner stood disqualified in terms of Section 8(3) of the Representation of the People Act, 1951, as the period of disqualification had not lapsed. Aggrieved by the order of rejection of the nomination, the petitioner filed an appeal to the Chief Electoral Officer. Thereafter, the petitioner moved a writ petition in W.P.(C)No.11282 of 2019. But the Writ Petition was dismissed on 09.04.2019. The petitioner filed a writ appeal but the same was also dismissed on 12.04.2019. Therefore, after the elections were over, the petitioner filed an election petition in Election Petition No.4 of 2019, primarily contending that the rejection of her nomination was illegal and unjustified and that such rejection materially altered the outcome of the election in which the Respondent herein was declared elected. The main contention of the petitioner in her election petition was 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 and that in any case, so long as the sentence of imprisonment remained suspended, the disqualification under Section 8(3) of the Representation of the People Act, 1951, may not be attracted. It appears that lot of defects was noticed by the Registry of the High Court in both the election petitions. The defects noticed in both the election petitions were more or less the same. But in so far as Election Petition No.4 of 2019 is concerned, out of which the present SLP arises, the Registry noted one additional defect namely that the prayer of the petitioner was incomplete. As against a common order passed by the High Court of Kerala throwing out 2 election petitions filed by the petitioner herein, on the ground of incurable defects, the election petitioner has come up with the above Special Lseave Petition. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble SC observed that, “In the case on hand, the petitioner could not obtain a stay of conviction but obtained only a stay of execution of the sentence. Hence her nominations were validly rejected by the Returning Officer. Merely because the Returning Officer in Amethi Constituency committed an error in overlooking this fact, the petitioner cannot plead estoppel against statutory prescription”
with the above Special Leave Petition. This SLP arises out of very same petitioner against the very same common order but Court on 02.11.2020 for non­prosecution. Therefore this order In the elections held to the Lok Sabha in April­May 2019 the petitioner filed her nomination on 04.04.2019 in the Ernakulam Constituency. The petitioner was to contest as an independent No.1300 of 2013 on the file of the JFMC­I Pathanamthitta and another in CC No.102 of 2014 on the file of the JFMC­I punishment of imprisonment for 3 years with a fine of Rs.45 lakhs by a judgment dated 08.06.2015. In the second case she was Sessions Court Pathanamthitta against her conviction in CC the sentence and enlarged the petitioner on bail subject to her Similarly the petitioner filed Criminal Appeal No.217 No.102 of 2014. The Appellate Court stayed the execution of the The Returning Officer noted in his order dated 06.04.2019 Representation of the People Act 1951 as the period of Aggrieved by the order of rejection of the nomination the the petitioner moved a writ petition in W.P.(C)No.11282 of 2019 Therefore after the elections were over the petitioner filed an election petition in Election Petition No.4 of 2019 primarily contending that the rejection of her nomination was illegal and 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 any case so long as the sentence of imprisonment remained suspended the disqualification under Section 8(3) of the Representation of the People Act 1951 may not be attracted It is to be noted at this stage that the petitioner 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. Therefore she filed another election petition in Election Petition No.3 of 2019 as as Election Petition No.4 of 2019 is concerned out of which the 12. Therefore both the election petitions were posted before the Court without being numbered. However the Court by order dated the question of curability of the defects. Thereafter notices were issued to the Election Commission the respective Returning petitioner was convicted in 2 independent criminal cases and in both the cases the conviction was not suspended were all admitted by the petitioner herself. The case of the petitioner was framed a preliminary issue on 01.10.2019 as to whether the 15. Thereafter the High Court heard the learned counsel for the petitioner and learned counsel for the returned candidates and passed an order dated 31.10.2019 rejecting both the election that there were incurable defects in the election of the People Act 1951 and that the petitioner was disqualified in view of the 16. Aggrieved by the common order passed on 31.10.2019 in Petition No.3 of 2019 was dismissed for non­prosecution on 17. As pointed out above the election petition of the petitioner was dismissed on 2 grounds namely that it contained incurable defects andthat in any case the petitioner admittedly suffered 18. On the first issue the High court noted that some of the and that there was no semblance of any verification in terms of court held that there were 3 defects which were incurable. They ii) In verification portion in respect of Annexures affidavits and petitions it is stated that the index has been verified instead of Annexures affidavits and iii) Annexures are not verified by the petitioner as In addition to the above 3 defects which the High Court considered as incurable in both the election petitions the High sought was incomplete and meaningless. Prayer made in the election petition was “To declare that the election of the 5th respondent from Ernakulam Lok Sabha Constituency”. It actually meant nothing unless the word “void” had been added in a casual manner. Coupled with this was the fact that the against the former Chief Minister of Kerala. Therefore the High for the petitioner to escape at a later stage from owning up the iii) Allegations of serious nature made against the relied upon Sections 81 82 and 83 read with Section 86 of the Representation of the People Act 1951. Let us now test the 21. Chapter­II Part­VI of the Representation of the People Act petitions”. Section 86(1) with which Chapter­III begins obliges the 98(a). Section 98 speaks about 3 types of orders that could be A declaration that the election of the returned iii) A declaration not only that the election of the It is important to note that the above 3 different types of 86(1) to Section 98(a) makes it clear that the power of the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or 23. As stated earlier the procedure for presentation of election petitions to the High Court are dealt with in Sections 80 to 84 81(3) 83(1) 83(2) and 84 are relevant many copies thereof as there are respondents The signature and verification of the election iii) The signature and verification of any schedule or a) shall contain a concise statement of the material b) shall set forth full particulars of any corrupt statement as possible of the names of the parties the date and place of the commission of each such affidavit in the prescribed form in support of the be signed by the petitioner and verified in the same that the election of all or any of the returned follow the procedure as applicable to the trial of suits under the Code of Civil Procedure 1908 as nearly as may be. This is by virtue “87. Procedure before the High Court.—(1) Subject to the provisions of this Act and of any rules made High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure 1908 to the trial of suits to refuse for reasons to be recorded in writing to material for the decision of the petition or that the on frivolous grounds or with a view to delay the of 1872) shall subject to the provisions of this Act be deemed to apply in all respects to the trial of an It is relevant to note that the Act keeps in two separate 29. This compartmentalization may be of significance as seen question except by an election petition presented in the Code of Civil Procedure 1908 in Chapter­II only in In so far as presentation of election petitions is concerned Chapter­II is a complete code. This is because the various iii) The types of different reliefs that can be sought iv) The grounds on which such reliefs could be sought vi) The court where the petition could be filed vii) Contents of such petition and viii) Format of the election petition and the manner in Code of Civil Procedure for verification of pleadings. Signing a petition and verifying the petition are 2 different aspects. While Order VI Rule 14 deals with the signing of the petition Order VI that every pleading shall be signed by the party as well as the pleader if any. But the proviso carves out an exception by “14. Pleading to be signed.­Every pleading shall be absence or for other good cause unable to sign the pleading it may be signed by any person duly 33. Order VI R.15 which speaks about verification of pleadings one of the parties pleading or by some other person the numbered paragraphs of the pleading what he verifies of his own knowledge and what he verifies 3) The verification shall be signed by the person permits the verification of pleading to be done by a person other than the party pleading provided it is proved to the satisfaction of the Court that such other person was acquainted its ambit. Therefore the question whether or not an election this case particularly with the requirement of Clause of Sub­ In Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore1 a preliminary objection to the maintainability of the the petitioner and the averments in some other paragraphs were other sources. There was no statement that the advice and Tribunal. The Tribunal held the defect in the verification to be a Murarka Radhey Shyam Ram Kumar ordinarily it In F.A. Sapa this Court framed two questions in question was as to what is the consequence of a defective or incomplete verification. While answering the said question this i) A defect in the verification if any can be cured of the petition or the affidavit accompanying the same such averments or allegations he may call for the same facts will have to be dealt with subject to limitation involving corrupt practice must be viewed very seriously and the High Court should ensure compliance with the requirements of In Sardar Harcharan Singh Brar vs. Sukh Darshan corrupt practice to be accompanied by an affidavit the The Court reiterated that non­compliance with the provisions of a curable defect. The following portion of the decision is of Therefore an election petition is not liable to be dismissed in limine under Section 86 of the Act for alleged non­compliance with provisions of Section the verification and the affidavit is a curable defect. What other consequences if any may follow In K.K. Ramachandran Master vs. M.V. Sreyamakumar5 this Court followed F.A. Sapa and Sardar Harcharan The Court again reiterated that the consequences that may flow election petition and that such election petition cannot be lead to the conclusion that the provisions of Section 81 had not would remain incomplete. Such a view does not appear to be in paragraphs and hence P.A. Mohammed Riyas cannot be taken to lay down the law correctly. It appears from the penultimate paragraph of the decision in P.A. Mohammed Riyas that cure the defect but he failed to do so. Therefore P.A. Mohammed where resort to corrupt practices have been alleged against the matter of fact even the filing of a defective affidavit which is not in to be a curable defect and the petitioner was held entitled to an 43. The upshot of the above discussion is that a defective verification is a curable defect. An election petition cannot be 44. Therefore the High Court committed a grave error in holding The defects are curable and as rightly contended by the learned curability of defects. Thereafter notices were issued to the “210.Summons.­Immediately after registering the petition shall be placed before the Judge for such Section 86(1) of the Act a summons on the direction of the Judge shall be issued to the respondents to appear before the High Court on a fixed date and date shall not be earlier than three weeks from the 46. The manner in which Rule 210 has been worded gives an the Judge immediately after it is registered for passing Orders 86(1) summons should be issued to the respondents on the Judge before whom the election petition was listed as defective the petition. There is nothing to indicate in the Rules that the the election petitioner to disown the pleadings at a later stage Minister. If only the High Court had given an opportunity to the verification the High Court could have then held the petitioner 48. The defect in the prayer made by the petitioner was also a curable defect as the words “as void” were omitted to be included making the prayer as it existed meaningless. It is true that the election petitioner should have been more careful and diligent in 49. That takes us to the next issue regarding the punishments imposed upon the petitioner in two criminal cases and the suspension of execution of sentence alone granted by the imprisonment for a period not less than two years in two independent criminal cases. Therefore her case is covered by any offence referred to in sub­section or sub­ aspects namely the conditions for disqualification and the sectionsandand sentence of imprisonment for not less that the words “the date” appearing in Section 8(3) refers to the In other words the date of conviction is what determines 56. When viewed in that context it will be clear that the mere that under the said provision what is suspended is only the execution of the sentence and not the sentence itself. The Constitution Bench made it clear that the suspension of the Section 8(3). In fact in B.R. Kapur a person whose nomination was rejected on the ground of disqualification got elected as the leader of the party which secured majority in the of the Act with a protection against removal from office during the disadvantageous position than the class of persons who are convicted after getting elected to the Parliament or the State vires the Constitution. While declaring the said provision to be unconstitutional this Court held in Lily Thomas that a Member of Parliament or the State Legislature who suffers a frivolous conviction will not be remediless. Taking note of the decisions in Rama Narang vs. Ramesh Narang10 and Ravikant S. Patil vs. Sarvabhouma S. Bagali11 this Court held in Lily 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 challenge to Section 8(4) of the Act in Lily Thomas the led to another bout of litigation. In Lok Parhari vs. Election Commissioner of India12 the petitioner sought a declaration that effect of wiping out the disqualification. The contention of the But this Court rejected the challenge on the ground that the decisions in Rama Narang and Lily Thomas will hand the petitioner could not obtain a stay of conviction but obtained only a stay of execution of the sentence. Hence her because the Returning Officer in Amethi Constituency committed an error in overlooking this fact the petitioner cannot plead 62. Therefore in fine we hold that the petitioner was disqualified such circumstances she could not have maintained an election petition as “a candidate at such election” in terms of Section exercise in futility by taking up the election petition for trial 