2020 Supreme(SC) 715

SUPREME COURT OF INDIA
S.A. BOBDE, CJI., A.S. BOPANNA, V. RAMASUBRAMANIAN, JJ.
PRADEEP KUMAR SONTHALIA – APPELLANTS
VERSUS
DHIRAJ PRASAD SAHU @ DHIRAJ SAHU & ANR. – RESPONDENTS
CIVIL APPEAL NO. 611 OF 2020 WITH CIVIL APPEAL NO. 2159 OF 2020
Decided on : 18-12-2020

IMPORTANT POINTS
(1) A Member of 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) of Constitution.
(2) Legal fiction cannot prevail over facts where law does not intend it to so prevail.
(3) Legislative silences create spaces for creativity. Between interstices of legislative spaces and silences, law is shaped by robust application of common sense.
(4) Conviction is cause and disqualification is consequence. A consequence can never precede cause.
(5) To hold that a Member of Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty.

Headnote:

(A) Constitution of India – Article 191 – Representation of People Act, 1951 – Sections 8(3) and 100 (1) (d)(iii) – Election to Rajya Sabha – Invalidation of vote cast by MLA owing to disqualification arising out of conviction and sentence imposed by a Criminal Court – Event which causes disqualification under Article 191(1)(e) read with Section 8(3) is conviction of a person for any of specified offences – Consequence of such disqualification is that seat becomes vacant – A Member of 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 representatives of each State shall be elected by elected members – His name is liable to be deleted from list of members of State Legislative Assembly maintained under Section 152 of Representation of the People Act, 1951 – He ceases to be an elector in relation to election by assembly member and cannot cast his vote – Once period of disqualification starts running, seat hitherto held by person disqualified becomes vacant by virtue of Article 190(3) of Constitution – An election dispute lies in a special jurisdiction and it has to be exercised without importing concepts familiar to common law and equity, unless they are ingrained in statute itself. (Paras 13, 19 and 20)

(B) Representation of People Act, 1951 – Sections 8(3) and 100 (1) (d)(iii) – Constitution of India – Article 191 – Election to Rajya Sabha – Invalidation of vote cast by MLA owing to disqualification arising out of conviction and sentence imposed by a Criminal Court – Disqualification is not a penal provision and object of disqualification is to arrest criminalisation of politics – 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 use of merely general words – To hold that a Member of Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty – Well-known presumption that a man is innocent until he is found guilty, cannot be subverted because words can accommodate both competing circumstances – Inasmuch as a conviction for an offence is under a penal law, it cannot be deemed to have effect from a point of time anterior to conviction itself – Legal fiction cannot prevail over facts where law does not intend it to so prevail – Legislative silences create spaces for creativity – Between interstices of legislative spaces and silences, law is shaped by robust application of common sense – Conviction is cause and disqualification is consequence – A consequence can never precede cause – Once a person is disqualified, he ceases to be a member and his right to vote also ceases alongwith his membership – This is a natural consequence of a person ceasing to be a member and this consequence is automatic and not dependent upon Article 193 – De hors liability for penalty under Article 193, act done by elected member is not liable to be invalidated, but only in certain circumstances – Principle that acts of officers de facto performed within scope of their assumed official authority, in interest of public or third persons and not for their own benefit, are generally regarded as valid and binding as if they were acts of officers de jure – It is not possible to hold that vote cast by MLA at 9:15 a.m. on 23.03.2018 should be treated as invalid on account of conviction and sentence passed by criminal Court at 2:30 p.m. on same day – Vote cast by MLA was rightly treated as a valid vote – Appeals Partly allowed. (Paras 32, 34, 35, 37, 39, 43, 48, 53, 58, 61 and 62)

Facts of the case:

Whether 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, is the question arising for consideration in these appeals.

Findings of Court:

De hors the liability for penalty under Article 193, act done by elected member is not liable to be invalidated, but only in certain circumstances. One of them may be a case like the one on hand apart from cases falling foul of Article 188. But the position would have been different if Shri Amit Kumar Mahto had been convicted and sentenced in the forenoon of 23.03.2018 and yet he voted in the election to the Rajya Sabha in afternoon with full knowledge.

Result : Appeals Partly allowed.