Proliferation Of Crime In Election Process Affects Democracy, Can't Let MPs To Continue In Office Despite Conviction: Kerala High Court

"Criminalisation of election process is of grave concern in our democratic polity. The tentacles of political crimes and criminalisation of election process have started grappling free and fair elections. Incidents of criminal acts being committed even during meeting of legislative bodies are surfacing. Proliferation of crime in election process could garner momentum to cripple Indian democracy, if men with criminal background are allowed to continue to be part of the democratic system. If persons with criminal antecedents are permitted to continue as Members of Parliament / Legislatures even after conviction by a competent court, that would only send wrong signals to public at large."

Faizal and three others were convicted and sentenced to imprisonment by the Kavaratti Sessions Court for attempting to kill Mohammed Salih, son-in-law of former Union Minister P M Sayeed, during the 2009 Lok Sabha polls. Faizal's conviction was earlier suspended by the High Court however, the matter was being reconsidered at the directions of Supreme Court vide order dated  August 22.

Senior Advocate Kapil Sibal assisted by Advocate Sasthamangalam S Ajithkumar for Faizal argued that an order of conviction can be suspended when the consequence of an order of conviction was irreversible. It was submitted that if Faizal's conviction is not suspended, he will be disqualified to continue as a Member of the Parliament and his electorate will also suffer the loss.

Additional Solicitor General of India, A.R.L Sundaresan appeared for the Union Territory of Lakshadweep and submitted that elected legislators cannot be treated differently from ordinary citizens. It was argued that if the Court suspends orders of conviction issued against the legislators, then the public will lose their trust in the judiciary and criminals will continue as Members of Parliament and Members of Legislative Assembly.

Senior Counsel Raman Pillai assisted by Advocate Ajit G. Anjarlekar argued that Mohammed Faizal was involved in four other criminal cases and that order of conviction cannot be suspended.

Justice Nagaresh examined Section 389 CrPC and held that an order of sentence being an executable order can be suspended. It held that an order of conviction, by itself was not an executable order u/s 389 of CrPC. The Court relying upon the Apex Court decisions, including the decision in Rahul Gandhi v. Purnesh Ishwarbhai Modi and another (2023) stated that conviction order cannot be suspended by only looking at the ramifications, but the Court has to consider all relevant aspects.

The Court summarized thus:

1. The Court can suspend an order of conviction u/s 389 CrPC if the Court was satisfied that the case was frivolous.
2. Court can suspend an order of conviction for ensuring that convicted person does not suffer from a certain disqualification or damage that cannot be undone. However, it noted that the Court has to look into all other aspects before conviction was suspended or stayed.
3. Court can suspend or stay an order of conviction only in rare cases and that too only under special circumstances.

The Court noted that three other criminal cases were also pending against Faizal. It found that there were eye-witnesses to the alleged incident and said the injuries inflicted by Mohammed Faizal were sufficient in the ordinary course of nature to cause death of a person.

Based on the above observations, the Court refused to suspend the order of conviction of Mohammed Faizal.

Counsel for the Petitioners: Senior Advocate P. Vijaya Bhanu, Advocates V.S.Thoshin, Satheesh Mohanan, P.A.Meera, Sreejith S. Nair, Colin Antony Dcruz, Sekhar G. Thampi, Girisankar Jyothikumar Sheena, Reshma M.S, Nikita J. Mendez, Sruthy N. Bhat and Sasthamangalam S. Ajithkumar.

Counsel for the Respondents: Additional Solicitor General of India, A.R.L Sundaresan, Deputy Solicitor General of India, S Manu, Advocate Sajithkumar, Senior Advocate B.Raman Pillai ,Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, Atul Mathews, Gayathri S.

Citation: 2023 LiveLaw (Ker) 535

Case Title: Sayed Mohammed Noorul Ameer and Ors. v. U.T. Administration of Lakshadweep

Case Number: CRL.A 49/ 2023

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