2005 Supreme(SC) 61

2005(1) Supreme 220
Supreme Court of India
(From Kerala High Court)
R.C. Lahoti, CJI, Shivaraj V. Patil, K.G. Balakrishnan, B.N. Srikrishna & G.P. Mathur, JJ.
P. Prabhakaran —Appellant
versus
P. Jayarajan —Respondent
Civil Appeal No. 8213 of 2001
With
Civil Appeal No. 6691 of 2002
Decided on 11-1-2005
Counsel for the Parties :
For the Appearing Parties : L. Nageswara Rao, K.K. Venugopal, Sr. Advocates, Roy Abraham, Ms. Seema Jain, Himinder Lal, Ajay Verma, Nikhil Majithia, Sudanshu Srivastava, Appellant-In-person in C.A.No. 6691/2002 and M.C. Dhingra, Advocate (NP), G. Prakash and Ms. Beena Prakash, Ranbir Singh Kundoo and Sanjay Sharawat, Advocates.

Important point
The question of qualification or disqualification of a returned candidate within the meaning of Section 100(1)(a) of the Representation of the People Act has to be determined by reference to the date of his election.  ­

Headnote:(i) Representation of the People Act, 1951—Sections 8(3), 83 and 100—Constitution of India—Article 191—Disqualification for membership on conviction in a criminal case—Effective Date for determination—Effect of appellate judgment of a date subsequent to the date of nomination or election—Factum of pendency of an appeal against conviction irrelevant—Decisive dates are the date of election and the date of scrutiny of nomination and not the date of judgment in an election petition or in appeal thereagainst—In connection with an incident dated 9.12.1991, respondent was facing trial charged with several offences—On 9.4.1997, Judicial Magistrate held the respondent guilty of offences—For Assembly Constituency respondent contested the election—Nominations were filed on 24.4.2001—Poll was held on 10.5.2001—Result of the election was declared on 13.5.2001—Respondent was declared elected—Nomination paper filed by respondent was objected to by appellant on ground that respondent was disqualified from contesting the election—Objection was overruled by Returning Officer holding that disqualification within the meaning of Section 8(3) of the Act was not attracted—Subsequently, Court of Sessions partly allowed the appeal—Conviction of respondent was maintained—Substances sentences of imprisonment for several offences made to run concurrently—Whether High Court was justified in holding that the sentence, as modified by the appellate Court, operated retrospectively from the date of judgment of the trial Court—(No)—Whether disqualification of respondent ceased to exist—(No).

       Held : The correct position of law is that nomination of a person disqualified within the meaning of sub-section (3) of Section 8 of the RPA on the date of scrutiny of nominations under Section 36(2)(a) shall be liable to be rejected as invalid and such decision of the returning officer cannot be held to be illegal or ignored merely because the conviction is set aside or so altered as to go out of the ambit of Section 8(3) of the RPA consequent upon a decision of a subsequent date in a criminal appeal or revision. What is relevant for the purpose of Section 8(3) is the actual period of imprisonment which any person convicted shall have to undergo or would have undergone consequent upon the sentence of imprisonment pronounced by the Court and that has to be seen by reference to the date of scrutiny of nominations or date of election. All other factors are irrelevant. A person convicted may have filed an appeal. He may also have secured an order suspending execution of the sentence or the order appealed against under Section 389 of the Code of Criminal Procedure 1973. But that again would be of no consequence. A Court of appeal is empowered under Section 389 to order that pending an appeal by a convicted person the execution of the sentence or order appealed against be suspended and also, if he is in confinement, that he be ­released on bail or bond. What is suspended is not the conviction or sentence; it is only the execution of the sentence or order which is suspended. It is suspended and not obliterated. (Paras 41 and 42)

       We are, therefore, of the opinion that an appellate judgment of a date subsequent to the date of nomination or election (as the case may be) and having a bearing on conviction of a candidate or sentence of impri­sonment passed on him would not have the effect of wiping out disqualification from a back date if a person consequent upon his conviction for any offence and sentenced to imprisonment for not less than two years was actually and as a fact disqualified from filing nomination and contesting the election on the date of nomination or election (as the case may be). (Para 44)

       It is clear from a bare reading of sub-section (3) of Section 8 of the RPA that the actual period of imprisonment is relevant. The provisions of Section 8 of the Representation of People Act, 1951 have to be construed in harmony with the provisions of the Code of Criminal Procedure, 1973 and in such manner as to give effect to the provisions contained in both the legislations. In the case of consecutive sentences the aggregate period of imprisonment awarded as punishment for the several offences and in the case of punishments consisting of several terms of imprisonment made to run concurrently, the longest of the several terms of imprisonment would be relevant to be taken into consideration for the purpose of deciding whether the sentence of imprisonment is for less than 2 years or not. (Para 47)

       The purpose of enacting disqualification under Section 8(3) of the RPA is to prevent criminalization of politics. Those who break the law should not make the law. Generally speaking, the purpose sought to be achieved by enacting disqualification on conviction for certain offences is to prevent persons with criminal background from entering into politics, and the House - a powerful wing of governance. Persons with criminal background do pollute the process of election as they do not have many a holds barred and have no reservation from indulging into criminality to win success at an election. Thus, Section 8 seeks to promote freedom and fairness at elections, as also law and order being maintained while the elections are being held. The provision has to be so meaningfully construed as to effectively prevent the mischief sought to be prevented. The expression “a person convicted of any offence” has to be construed as all offences of which a person has been charged and held guilty at one trial. The applicability of the expression “sentenced to imprisonment for not less than 2 years” would be decided by calculating the total term of imprisonment for which the person has been sentenced. (Para 54)

       To sum up, our findings on the questions arising for decision in these appeals are as ­under:—

       1. The question of qualification or disqualification of a returned candidate within the meaning of Section 100(1)(a) of the Representation of the People Act, 1951 (RPA, for short) has to be determined by reference to the date of his election which date, as defined in Section 67A of the Act, shall be the date on which the candidate is declared by the returning officer to be elected. Whether a nomination was improperly accepted shall have to be determined for the purpose of Section 100(1)(d)(i) by reference to the date fixed for the scrutiny of nomination, the expression, as occurring in Section 36(2)(a) of the Act. Such dates are the focal point for the purpose of determining whether the candidate is not qualified or is disqualified for being chosen to fill the seat in a House. It is by reference to such focal point dates that the question of disqualification under sub-Sections (1), (2) and (3) of Section 8 shall have to be determined. The factum of pendency of an appeal against conviction is irrelevant and inconsequential. So also a subsequent decision in appeal or revision setting aside the conviction or sentence or reduction in sentence would not have the effect of wiping out the disqualification which did exist on the focal point dates referred to hereinabove. The decisive dates are the date of election and the date of scrutiny of nomination and not the date of judgment in an election petition or in appeal thereagainst. (Para 61)

       (ii) Representation of the People Act, 1951—Section 8(3)—Expression ‘a person convicted of any offence and sentenced to imprisonment for not less than two years’—Meaning.

       Held : For the purpose of attracting applicability of disqualification within the meaning of “a person convicted of any offence and sentenced to imprisonment for not less than two years”, - the expression as occurring in Section 8(3) of the RPA, what has to be seen is the total length of time for which a person has been ordered to remain in prison consequent upon the conviction and sentence pronounced at a trial. The word `any’ qualifying the word `offence’ should be understood as meaning the nature of offence and not the number of offence/offences. (Para 61(2)).

       (iii) Representation of the People Act, 1951—Section 8(4)—Disqualification—Sub-section (4) operates as an exception carved out from sub-sections (1), (2) and (3) of Section 8 of the Act—Saving from disqualification is preconditioned by the person convicted being a Member of a House on the date of the conviction—Benefit of such saving is available only so long as the House continues to exist and the person continues to be a Member of a House—Saving ceases to apply if the House is dissolved or the person ceases to be a Member of the House.

       Held : Sub-section (4) operates as an exception carved out from sub-sections (1), (2) and (3) of Section 8 of the RPA. Clearly the saving from the operation of sub-sections (1), (2) and (3) is founded on the factum of membership of a House. The purpose of carving out such an exception is not to confer an advantage on any person; the purpose is to protect the House. Therefore, sub-Section (4) would cease to apply no sooner the House is dissolved or the person has ceased to be a member of that House. Any other interpretation would render sub-section (4) liable to be annulled as unconstitutional. Once a House has been dissolved and the person has ceased to be a member, on the date of filing the nomination there is no difference between him and any other candidate who was not such a member. Treating such two persons differently would be arbitrary and discriminatory and incur the wrath of Article 14. A departure from the view so taken by us would also result in anomalous consequences not intended by the Parliament. (Para 60)