[Rajya Sabha elections] Vote cast in the morning by MLA valid despite his conviction in the afternoon the same day: Supreme Court

The Court ruled against the defeated BJP candidate Pradeep Kumar Sonthalia who had challenged the election of a Congress candidate, Dhiraj Prasad Sahu to Rajya Sabha in 2018.
[Rajya Sabha elections] Vote cast in the morning by MLA valid despite his conviction in the afternoon the same day: Supreme Court

A vote cast by a Member of Legislative Assembly (MLA) at 9.15 AM to elect Rajya Sabha members will not be invalid because of disqualification arising out conviction of that MLA in a criminal case the very same day at 2.30 PM, the Supreme Court ruled.

A three-judge Bench comprising Chief Justice of India, SA Bobde and Justices AS Bopanna and V Ramasubramanian held on December 18 that disqualification arising under Section 8(3) of the Representation of People Act, 1951 is the consequence of the conviction and sentence imposed by the criminal court and the consequence can never precede the cause.

“In other words, conviction is the cause and disqualification the consequence. A consequence can never precede the cause. Accepting the appellant’s submission would require us to construe the statutory scheme as intending something startling i.e., positing that the consequence precedes the cause,” the Court held.

The Court, therefore, ruled against the defeated BJP candidate Pradeep Kumar Sonthalia who had challenged the election of a Congress candidate, Dhiraj Prasad Sahu to Rajya Sabha in 2018.

Senior Advocates Abhishek Manu Singhvi and Devadatt Kamat and advocate Nishant Patil represented Congress candidate Sahu. Senior Advocates Mukul Rohatgi and KV Viswanathan appeared for Sonthalia.

"The Court has agreed with out submission that interpretation of a penal law to grant it retrospective application is not permissible. The Court also relied on de facto doctrine to hold that acts of the officers de facto performed within the scope of their assumed authority cannot be invalidated because of a subsequent disqualification," Devadatt Kamat told Bar & Bench.

The case has its genesis in the biennial elections held for two seats to the Rajya Sabha from the State of Jharkhand. Three candidates by name Pradeep Kumar Sonthalia, Samir Uraon and Dhiraj Prasad Sahu, filed their nominations. The first two candidates belonged to the Bharatiya Janata Party (BJP), and the third candidate belonged to the Indian National Congress.

The voting took place on March 23, 2018 between 9 am and 4 pm. One Amit Kumar Mahto who was an elected member of the Assembly belonging to Jharkhand Mukti Morcha Party (JMM) cast his vote at 9.15 AM Hours after casting his vote Mahto was convicted by a Sessions Court at Ranchi, for offences punishable under Sections 147, 323/149, 341/149, 353/149, 427/149 and 506/149 IPC. The conviction and sentence were handed over at 2.30 PM.

The court awarded Mahto rigorous imprisonment for a period of two years.

The counting of votes began at 7.30 pm and Samir Uraon of BJP and Dhiraj Prasad Sahu of Congress were declared elected while Sonthalia of BJP lost.

An objection was lodged at 11.20 PM requesting the Returning Officer to declare the vote cast by Amit Kumar Mahto invalid, on the basis of the conviction and sentence imposed in the afternoon on the same day by the criminal court.

However, the Returning Officer went ahead and declared the results at 12.15 AM on March 24, 2018 holding Samir Uraon and Dhiraj Prasad Sahu as having been duly elected. Certificates were also issued to that effect.

Sonthalia filed an election petition before the Jharkhand High Court to set aside the election of Dheeraj Prasad Sahu on the ground that the vote cast by Amit Kumar Mahto was void on account of his conviction.

The question before the High Court was whether the disqualification of Mahto came into effect from the date of his conviction consequently rendering his vote invalid.

The High Court ruled this question in favour of the petitioner holding that disqualification came into effect immediately from the date of his conviction and sentence of two years and, therefore, the vote of Shri Amit Kumar Mahto could not have been taken into consideration.

Despite answering the question in favour of Sonthalia, the High Court dismissed the election petition, primarily on the ground that the election to the Council of States by a system of proportional representation by means of single transferable vote, is a highly complex, technical issue and that it is not possible for the Court to find out whether the election petitioner could have won the election, if that one vote had been rejected.

Aggrieved, Sonthalia approached the Supreme Court in appeal. Sahu, one of the wining candidates also filed an appeal before the Supreme Court challenging the findings on law by the High Court.

The question before the Supreme Court was whether the vote cast by Amit Kumar Mahto in favour of Dhiraj Prasad Sahu at 9.15 AM on March 23, 2018 should be treated as an invalid vote on account of the disqualification suffered by Mahto under Article 191(1)(e) of the Constitution of India read with Section 8(3) of the Representation of the People Act, 1951, by virtue of his conviction and sentence by the Sessions Court in a criminal case at 2.30 PM on the very same date.

The apex court held that treating the vote as invalid would effectively mean that the consequence of conviction would precede the conviction itself reducing the provision to absurdity.

It is not possible to hold that the vote cast by Amit Kumar Mahto at 9:15 AM on March 23, 2018 should be treated as invalid on account of the conviction and sentence passed by the criminal Court at 2:30 PM on the same day, the court stated.

“Holding so would result either in an expectation that the Returning Officer should have had foresight at 9:15 AM 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,” the Court held.

The Court also said that such an interpretation would go against the fundamental principle of criminal jurisprudence - innocent until proven guilty.

"To say that this presumption of innocence would evaporate from 00.01 AM, 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," the Court ruled.

The Court further placed reliance on the de facto doctrine stating that acts of the officers de facto performed within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally regarded as valid and binding as if they were the acts of the officers de jure.

"In Gokaraju Rangaraju vs. State of Andhra Pradesh, this Court pointed out that the de facto doctrine is founded on good sense, sound policy and practical expedience and that it is aimed at the prevention of public and private mischief and the protection of public and private interest. As stated by this Court this doctrine avoids endless confusion and needless chaos," the judgment said.

Therefore, the Court concluded that the vote cast by Amit Kumar Mahto at 9:15 AM on March 23, 2018 was rightly treated as a valid vote.

[Read Judgment]

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