The Supreme Court on Wednesday (09.12.2020) dismissing the special leave petition filed by Saritha S. Nair against the rejection of election petition by the Kerala High Court, observed that a person stands disqualified from contesting polls under the election law if his conviction in a criminal case, in which a jail term of two or more years has been awarded, is not stayed.( Saritha S. Nair v. Hibi Eden)
The bench comprising of CJI SA Bobde, Justice AS Bopanna, and V. Ramasubramanian has held that though the High Court was right in not taking up the election petition, the ground on which it rejected the petition i.e. incurable defects, was wrong. The bench held that when the petitioner was disqualified from contesting the elections in terms of Section 8(3), she could not have maintained an election petition as “a candidate at such election” in terms of Section 81(1) of the Representation of the People Act, 1951.
In the 2019 Lok Sabha Elections, Saritha Nair filed her nomination on 04.04.2019 in the Ernakulam Constituency. She 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 case and was sentenced to imprisonment for 3 years in each of those cases by judgments dated 08.06.2015 and 16.02.2016. While she did not dispute the fact of her conviction, it was the case of the petitioner the suspension of her sentence by an appellate/revisional court was enough to save her from the applicability of Section 8(3).
She also 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.
She further argued 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.
The High Court dismissed the election petition on the ground that:
- that it contained incurable defects; and
- that in any case, the petitioner admittedly suffered from a disqualification.
On the 'conviction' issue, the Supreme Court noted that, Section 8(3) of the Representation of People Act deals with two aspects namely:
- the conditions for disqualification; and (ii) the period of disqualification.
The conditions for disqualification are:
- conviction for any offence other than an offence referred to in Subsections (1) and (2); and
- sentence of imprisonment for not less than two years.
“In so far as the period of disqualification is concerned, Section 8(3) says that the disqualification will commence from the date of conviction. This is made clear by the usage of the words “shall be disqualified from the date of such conviction”. It is needless to state that the words “the date” appearing in Section 8(3) refers to the event of conviction and it is post facto. The disqualification which commences from the date of conviction, continues till the expiry of a period of six years from the date of his release. In other words, the date of conviction is what determines the date of commencement of the period of disqualification. However, it is date of release which determines the date on which the disqualification will cease to have effect. When viewed in that context, it will be clear that the mere suspension of the execution of the sentence is not sufficient to take the rigour out of Section 8(3).”
The court observed that disqualification under Section 8(3) will continue so long as there is no stay on conviction.
The mere suspension of the execution of the sentence is not sufficient to take the rigour out of Section 8(3), the Court said to reject Saritha Nair's contention that her nomination ought to have been accepted as her sentence was suspended.
While dismissing the SLP, the court said:
“Therefore, in fine, we hold that the petitioner was disqualified from contesting the elections in terms of Section 8(3) of the Act. In such circumstances, she could not have maintained an election petition as “a candidate at such election” in terms of Section 81(1). Therefore, the High Court was right in not venturing into an exercise in futility, by taking up the election petition for trial, though the High Court was wrong in rejecting the election petition on the ground of existence of incurable of defects.”
The Court, however, observed that the defects in the verification and prayer made by the petitioner were curable and an opportunity ought to have been given to the petitioner to cure the defects. “The procedure adopted by the High Court of Kerala cannot be approved. The High Court was wrong in thinking that the defective verification of the election petition was a pointer to the game plan of the election petitioner to disown the pleadings at a later stage, especially after making serious allegations against the former Chief Minister. If only the High Court had given an opportunity to the petitioner to cure the defects in the verification and if, despite such an opportunity, the petitioner had failed to come up with a proper verification, the High Court could have then held the petitioner guilty of playing hide and seek. The failure of the High Court to give an opportunity to cure the defects is improper.”
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