Election Petition Not Maintainable If Petitioner Faces Disqualification Due To Conviction: Supreme Court Dismisses Saritha Nair's Challenge Against Hibi Eden's Election

Dismissing the special leave petition filed by Saritha S. Nair against the rejection of election petition by the Kerala High Court, the Supreme Court observed that the election petition filed by her was not maintainable as she faced disqualification due to conviction.

The bench comprising CJI SA Bobde, Justice AS Bopanna and V. Ramasubramanian held that mere suspension of the execution of the sentence is not sufficient to take the rigour out of Section 8(3) of Representation of the People Act, 1951. The court, however, observed that the High Court was wrong in rejecting the election petition on the ground of existence of incurable of defects.

The nomination filed by Saritha S. Nair, a prme accused in the Kerala's solar scam scandal, was rejected on the ground that she was convicted in 2 criminal cases. MP Hibi Eden was elected from Ernakulam constituency. After the elections, she filed an election petition contending that the rejection of her nomination was illegal and unjustified. She contended 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 and therefore 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.

The High Court dismissed the election petition on the ground that:

  (i) that it contained incurable defects; and

(ii) that in any case, the petitioner admittedly suffered from a disqualification. 

On the 'conviction' issue, the Court noted that, Section 8(3) of the Representation of People Act deals with two aspects namely:

(i) the conditions for disqualification; and (ii) the period of disqualification.

The conditions for disqualification are:

(i) conviction for any offence other than an offence referred to in Subsections (1) and (2); and

(ii) 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 of 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:

"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 32 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.", the court said.

In November, the Supreme Court had dismissed for non-appearance Saritha Nair's challenge against the election of Rahul Gandhi from Wayanad

Case: SARITHA S. NAIR vs. HIBI EDEN [SPECIAL LEAVE PETITION (CIVIL) NO.10678 OF 2020]

Coram:  CJI SA Bobde, Justice AS Bopanna and V. Ramasubramanian

Counsel: Adv D. Geetha

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