Vote Cast By Lawmaker Prior To His Conviction On Same Day Cannot Be Termed Invalid : Supreme Court

The Supreme Court on Friday held that a vote cast by a lawmaker prior to his conviction in a criminal case on the same day cannot be termed as invalid.

A bench led by the Chief Justice of India observed that holding a legislator disqualified even before he was convicted "would grossly violate his substantive right to be treated as innocent until proven guilty".

The bench said that it was deciding an "interesting but important question of far-reaching consequence", which was :

"Whether the 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?"

The issue related to the the vote cast by then Jharkhand Mukti Morcha (JMM) MLA Amit Kumar Mahto in 2018 Rajya Sabha election at 9.15am prior to his conviction and sentence at 2.30pm on March 23 in a case relating to unlawful assembly, mischief etc.

Pradeep Kumar Sonthalia, the BJP candidate who lost the Rajya Sabha election by a single vote, challenged the election result arguing that Mahto's vote should not have been counted as he incurred disqualification on the same day due to the conviction in the criminal case.

The Jharkhand High Court agreed with Sonthalia to hold that Mahto's vote should not have been counted on account of the disqualification. However, the High Court refrained from declaring Sonthalia as the winner observing 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 hence it was not possible for the Court to find out whether the he could have won the election, if that one vote had been rejected.

Challenging this verdict, Sonthalia approached the Supreme Court. Another returned candidate,Dhiraj Prasad Sahu, also moved the top court aggrieved with the High Court findings that the vote of Mahto was invalid.

The top court disagreed with the High Court finding that the vote was invalid.

"To say that this presumption of innocence would evaporate from 00.01 A.M., 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", stated the judgment penned by CJI SA Bobde.

"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 the conviction itself", the judgment added.

The bench observed that the disqualification under Section 8(3) of the Representation of Peoples Act was a consequence of the conviction and that a consequence can never precede the cause.

"The disqualification arising under Section 8(3) of the Act, is the consequence of the conviction and sentence imposed by the criminal Court. In other words, conviction is the cause and disqualification isthe consequence. A consequence can never precede the cause", the judgment said.

The bench, also comprising Justices V Ramasubramanian and AS Bopanna, observed that accepting the appellant's submission would require the court to construe the statutory scheme as intending something startling i.e.positing that the consequence precedes the cause.

"This would be reducing this provision to absurdity and require Courts to hold that a consequence can precede its cause, but according to the learned counsel this is the intended effect of the provision since it states thata convicted person shall be disqualified from the date of his conviction. But we do not agree", the judgment said.

Referring to the legal provisions, the bench said that the consequence of such disqualification is that the seat becomes vacant and a Member of the 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.

Rejecting the submission of Sonthalia that on the date means on the whole of the day as was held in 1968 verdict of the top court in Pashupati Nath Singh versus Harihar Prasad Singh on the issue of rejection of nomination papers during scrutiny by the returning officer, the bench said that the said verdict hardly supports his contention.

In fact, Pashupati Nath Singh can be said to be a mirror image or the converse of the case on hand. In the case on hand the period of commencement of an event is in question, while in Pashupati Nath Singh the period of conclusion was in issue .

"The fallacy of the argument of the appellant that wherever theword "date" is used in a Statute, it should be understood to relateback to 00:01 a.m. can be best understood if we apply the same to a reverse situation. If in a hypothetical situation, the conviction andsentence had taken place in the forenoon and Shri Amit Kumar Mahtohad cast his vote in the afternoon, the defeated candidate would nothave argued that the voting should be deemed to have taken place at 00:01 a.m", the bench observed.

"If the date on which scrutiny was taken up can be held to have ended at the time when the event of scrutiny was taken up, we should, by the very same logic, hold that the date of commencement of an event such as conviction and the consequent disqualification should also begin only from the time when the event happened" , the bench said.

"Therefore, it is not possible to hold that the vote cast by ShriAmit Kumar Mahto at 9:15 a.m. on 23.03.2018 should be treated as invalid on account of the conviction and sentence passed by the criminal Court at 2:30 p.m. on the same day", the bench concluded.

Case Details

Title : Pradeep Kumar Sonthalia v Dhiraj Prasad Sahu and another

Coram : CJI SA Bobde, Justices V Ramasubramanian and AS Bopanna

Appearances : Senior Advocates Mukul Rohatgi and K V Vishwanathan for the appellant; Senior Advocate Dr AM Singhvi for the respondnet.

Click here to read/download the order