'Right To Represent' Not Unlimited: Delhi HC In Former Jharkhand CM Madhu Koda's Plea To Stay Conviction In Coal Block Case For Contesting Elections

Quoting Dr. BR Ambedkar, a single judge bench of Justice Neena Bansal Krishna in its October 18 order said, "These pleas of the Applicant must not be construed without a backdrop. The backdrop is again at two distinct levels – Right to represent in a constitutional democracy, and a greater democratic ideal of decriminalisation of Politics. The second ideal has come to be viewed in an alternative light and as a result its effect has been watered down in the recent judgment of Afjal Ansari (Supra) wherein the Majority weighed about the "depoliticization of criminality‟...As noted by Dr. B.R. Ambedkar the “right to represent,” as opposed to the “right to representation,” is not an unlimited right but is dependent upon 'a certain social attitude of a candidate as a condition precedent to the recognition to the right to represent'". 

The high court noted that Koda had presented his application citing a change in circumstances and in the law. However, the court said, that the consistent position of law has been of "decriminalization of politics" adding that this principle continues to hold the ground till date. It noted that Koda had relied on the Supreme Court case of Afjal Ansari vs. State of Uttar Pradesh (2023), where conviction of a MP was suspended which paved the way for the restoration of his membership in the Lok Sabha.

The High Court however said that in Afjal Ansari the facts in which the conviction was stayed, was on its own merits. It said that in Afzal Ansari an important consideration was that the applicant was a sitting MP at the time of his conviction and his consequent disqualification, created a situation of vacuum wherein a large number of people were left unrepresented in the Parliament; thus the facts are distinguishable from the present case.

It said, “The Applicant in this case is not an elected representative, who incurred disqualification during the tenure of holding Public Office. The consequence of a sitting member may have irreversible consequences on a Constituency by being left unrepresented, and in such rare occurrence the Court would be right in exercising its power to stay the conviction in view of larger social ramifications for the people of the constituency”.

The court further said that there had been no change in law as had been asserted by the applicant. 

The high court was considering Koda's (applicant) application seeking suspension of operation of a 2017 conviction order. The special court had convicted Koda for offences under IPC Section 120B (criminal conspiracy) read with Section 13(1)(d)(ii)/13(1)(d)(iii) read with Section 13(2) of the Prevention of Corruption Act for criminal misconduct and was sentenced to undergo rigorous imprisonment for a period of three years. 

Koda had sought stay of Conviction to be able to contest elections in Jharkhand scheduled to be held in November-December 2024 and claimed that irreparable loss would be caused not only to him but also to his electorate if his conviction was not stayed.

Koda had previously filed an application for stay of conviction, which was dismissed by the High Court. He filed the present application after four years on the ground that there has been change in the facts and circumstances of the case. He stated that the appeal against his conviction has been pending for over seven years and that on account of voluminous nature of the case, the appeal could not be heard.

The high court referred to the Supreme Court's decision in Navjot Singh Sidhu vs. State of Punjab (2007), where it was observed that unless the person seeking stay on conviction has indicated to the court specific consequences that would follow on account of the conviction, the stay cannot be obtained.

It further said, "This Court while rejecting earlier Application for stay of conviction, observed that if the wider opinion is that persons charged with crimes ought to be disqualified from contesting elections to public offices, it would not be apposite for this Court to stay the appellant‟s conviction to overcome the disqualification incurred by him". 

The court further said that Koda may seek expeditious disposal of his Appeal, which does not have the uniqueness of being voluminous, as claimed. It said that no new have been created in Koda's favour, nor there has been change in circumstances or in law, entitling a fresh look on his second application for suspension of Conviction. It further added that the ground of participation in the upcoming state elections at that time was duly considered by the court while denying the earlier plea for suspension of Conviction.

In view of the same, the high court disposed of the application.

Case title: Madhu Koda vs. State Thru CBI

Citation: 2024 LiveLaw (Del) 1166

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