Supreme Court Asks ECI To Defer Rampur Bye-Election Notification, Directs Sessions Court To Decide Azam Khan's Plea To Stay Conviction Tomorrow

The Supreme Court, on Monday, asked the Election Commission of India to defer the notification for bye-election for Rampur Assembly so that Samajwadi Party leader Azam Khan can seek a stay of his conviction in the 2019 hate speech case before the appellate court tomorrow.

Following Khan's conviction in the criminal case on October 27, he incurred disqualification under the Representation of Peoples Act 1951 and the Rampur Assembly Constituency, which he was representing, was declared vacant. Following that, the ECI issued a press release on November 6, declaring the schedule for bye-elections for Rampur. As per the schedule, the official gazette notification for bye-elections will be notified tomorrow (November 10).

In this background, Khan approached the Supreme Court challenging the bye-election of Rampur seat when his appeal against conviction is pending. The Court disposed of his application by directing the Additional Sessions Court Rampur to decide Khan's application for stay of conviction tomorrow (November 10) itself. Depending on the decision of the Sessions Court in the application for stay of conviction, ECI can issue the notification regarding bye-polls on or after November 11.

"The issuance of gazette notification for declaring the election schedule shall be issued on or after 11.11.2022 depending upon the outcome of the application of stay on conviction", the bench comprising Chief Justice of India DY Chandrachud, Justice Hima Kohli and Justice JB Pardiwala noted in the order.

Senior Advocate P Chidambaram (instructed by Advocate Nizam Pasha), appearing for Khan, told the bench that the very next day of his conviction in a hate speech case on October 27, the UP Legislative Assembly declared the Rampur seat vacant. He said that such a swift action was "unprecedented". To allege that the move was politically motivated, Chidambaram stated that although a BJP MLA from Khatauli constituency was convicted for two years by an order passed on October 11, no such action was taken. The senior lawyer pointed out that the Election Commission of India issued a press release notifying the schedule for bye-elections for the Rampur seat and that the official gazette notification is scheduled to be published tomorrow.

Chidambaram informed the bench that Khan has filed appeal against the conviction in which he has been granted interim bail and that the Sessions Court has posted the application for stay of conviction for hearing on November 15. However, in the meantime, the ECI will notify the bye-elections.

Senior Advocate Arvind Datar, appearing for the Election Commission of India, submitted that the disqualification under the Representation of Peoples Act 1951 is automatic upon conviction. He further pointed that the provision in the RP Act which allowed for freezing of disqualification during the pendency of appeal filed against conviction was struck down in the Lily Thomas case.

However, the bench pointed out that if the conviction is stayed, it will mean that the disqualification is also stayed. 

The bench urged the ECI to defer the issuance of the notification for bye-elections (which is scheduled for tomorrow) for 3 days so that Khan can avail the opportunity to seek stay of his conviction in appeal.

"Allow him reasonable time. Defer it for three days. Otherwise you're doing this selectively depending on what political affiliation the convict has", CJI Chandrachud told Datar.

CJI Chandrachud pointed out that the ECI is yet to act upon the Khatauli seat.

"You didn't do it in other cases- like Khatauli. Give him time. If he doesn't get the stay, don't. But give him one chance. Once you get a stay, disqualification follows as a consequence of conviction, so that disqualification is obliterated. You cannot pick and choose people", CJI observed.

The bench at this point urged Datar to seek instructions from the ECI on whether the bye-elections for Rampur could be deferred and adjourned the hearing till 3 PM.

At 3 PM, when the bench re-assembled, Datar expressed difficulties in deferring the bye-elections. "We cannot defer, not just for practical but also constitutional reasons", Datar said.

He argued that even if the conviction is stayed, the effect of disqualification already incurred will not vanish. However, Khan can file fresh nomination for the bye-elections if his conviction is stayed, Datar contended. Accepting Khan's argument will amount to reviving Section 8(4) of the RPA, which was struck down in the Lily Thomas case.

However, the bench referred to the judgment in Lok Prahari versus Election Commission of India which held that the disqualification under the RP Act will not operate if the conviction is stayed by an appellate court. In response, Datar submitted that the stay of disqualification will only enable Khan to contest bye-election and will not reverse the vacation of seat which has already taken place. Because, as per Lily Thomas judgment, the disqualification under Article 191(1)(e) of the Constitution is automatic.

But the bench expressed difficulty in accepting this proposition. "This sounds far fetched. What is the purpose of stay of conviction? It is to ensure that consequences of order of conviction get obliterated. If the conviction itself is stayed, there is no disqualification within the meaning of 191(e). That is the point canvassed in Lok Prahari", CJI Chandrachud observed.

"It is untenable that despite the stay by an appellate court, the operation of disqualification will continue", CJI added.

Justice JB Pardiwala cited the example of a public servant whose conviction under the Prevention of Corruption Act is stayed. "If there is a stay on his conviction, the public servant cannot be dismissed from the service. Applying the same analogy, when the conviction is stayed then you cannot go ahead with disqualification", Justice Pardiwala observed.

"We will request the sessions judge to take up the matter. He will decide tomorrow itself. If he fails to stay, gazette notification will be day after tomorrow", CJI said before proceeding to dictate the order.

 Case Title : Mohammad Azam Khan versus Election Commission of India

Click here to read/download the order