Case: PRADEEP KUMAR SONTHALIA Vs. DHIRAJ PRASAD SAHU @ DHIRAJ SAHU &amp; ANR

for penalty under Article 193, the act done by the elected member is not liable to be invalidated, but only in certain circumstances. One of them may be a case like the one on hand apart from cases falling foul of Article 188. But the position would have been different if Shri Amit Kumar Mahto had been convicted and sentenced in the forenoon of 23.03.2018 and yet he voted in the election to the Rajya Sabha in the afternoon with full knowledge. 54. The fallacy of the argument of the appellant that wherever the word date is used in a Statute, it should be understood to relate back 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 and sentence had taken place in the forenoon and Shri Amit Kumar Mahto had cast his vote in the afternoon, the defeated candidate would not have argued that the voting should be deemed to have taken place at 00:01 a.m. 55. In any case the principle that the acts of the officers de facto performed within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally regarded as valid and binding as if they were the acts of the officers de jure, articulated in Pulin Behari Das & Ors. vs. King Emperor (1912) 15 Cal.LJ 517, was invoked by this Court in Gokaraju Rangaraju vs. State of Andhra Pradesh (1981) 3 SCC 132 when a question arose as to the validity of the judgments pronounced by an Additional Session Judge whose appointment was declared by the Court to be invalid subsequently. This Court pointed out that the de facto doctrine is founded on good sense, sound policy and practical expedience and that it is aimed at the prevention of public and private mischief and the protection of public and private interest. As stated by this Court this doctrine avoids endless confusion and needless chaos. 56. Again, in Pushpadevi M. Jatia vs. M.L. Wadhawan, Additional Secretary, Government of India & ors. (1987) 3 SCC 367 , this Court reiterated the de facto doctrine as one born of necessity and public policy to prevent needless confusion and endless mischief. This Court held that where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as validity of his acts are concerned. So long as he is clothed with the insignia of the office and exercises its powers and functions, the acts performed by him were held by this Court to be valid. 57. Even in B.R. Kapur (supra), this Court invoked the de facto doctrine to declare as valid, all acts performed by a Chief Minister whose appointment was held to be invalid from day one. Paragraph 57 of the said decision reads as follows: We are aware that the finding that the second respondent could not have been sworn in as Chief Minister and cannot continue to function as such will have serious consequences. Not only will it mean that the State has had no validly appointed Chief Minister since 14th May, 2001, when the second respondent was sworn in, but also that it has had no validly appointed Council of Ministers, for the Council of Ministers was appointed on the recommendation of the second respondent. It would also mean that all acts of the Government of Tamil Nadu since 14th May, 2001 would become questionable. To alleviate these consequences and in the interest of the administration of the State and its people, who would have acted on the premise that the appointments were legal and valid, we propose to invoke the de facto doctrine and declare that all acts, otherwise legal and valid, performed between 14th May, 2001 and today by the second respondent as Chief Minister, by the members of the Council of Ministers and by the Government of the State shall not be adversely affected by reason only of the order that we now propose to pass. 58. Therefore, it is not possible to hold that the vote cast by Shri Amit 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. This conclusion can be drawn through another process of reasoning also. Article 191 (1) of the Constitution deals with five different grounds of disqualification. They are (i) holding an office of profit as specified in the First Schedule; (ii) unsoundness of mind, which stands so declared by a competent Court; (iii) undischarged insolvency; (iv) absence of citizenship of India or acquisition of citizenship of a foreign State etc.; and (v) disqualification by or under any law made by Parliament. 59. The interpretation to be given to the expression the date appearing in Section 8(3) of the Representation of the People Act, 1951 will have a bearing upon the interpretation to be given to the date of happening of any one of the above events of disqualification. 60. While it may be convenient for the appellant in this case to interpret the expression the date appearing in Section 8(3) with reference to Article 191(1)(e), we may have to see whether the same would fit into the scheme of Article 191(1) in entirety. It may not. If tested against each one of Sub-clauses (a) to (d) of Clause (1) of Article 191 we would find that the interpretation offered by the appellant would not survive. Justice Oliver Wendell Holmes, Jr. in Henry R Towne vs. Mark Eisner 245 U.S. 418 while dealing with the construction of a word in the Constitution as well as a statute, observed:- A word is not a crystal, transparent and unchanged; it is the skin of a living though and may vary greatly in colour and content according to the circumstances and tie in which it is used

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. It is needless to say that the second question as formulated above would arise only if the answer to the first question is in the affirmative and not otherwise.8. Before proceeding further, we may point out that two ancillary issues namely (i) the non-joinder of the Election Commission of India as a party to the election petition; and (ii) the absence of a specific prayer for recounting of votes, were also dealt with by the High Court. These issues may have gained importance, but for the appeal filed by Shri Dhiraj Prasad Sahu against the findings on Issue Nos. 1, 2, 3 & 5. Therefore, these ancillary issues need not deter us at this stage.13. It is clear as daylight that the event which causes the disqualification under Article 191(1)(e) read with Section 8(3) is a conviction of a person for any of the specified offences. The consequence of such disqualification is that the seat becomes vacant. Obviously therefore, 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 under Article 80(4) which provides that the representatives of each State shall be elected by the elected members. His name is liable to be deleted from the list of members of the State Legislative Assembly maintained under Section 152 of the Representation of the People Act, 1951. He ceases to be an elector in relation to election by assembly member and cannot cast his vote.16. We are concerned in this case with sub-section (3) of section 8, as Amit Kumar Mahto was convicted for offences which do not fall either under sub-section (1) or under sub-section (2).17. The disqualification under Section 8 of Act 43 of 1951 is relatable to Article 191(1)(e) of the Constitution. Therefore, any interpretation to Section 8 should be in sync with the Constitutional scheme.18. As this Court had an occasion to point out in Saritha S. Nair vs. Hibi Eden(SLP (C) No. 10678 of 2020 dated 08-12-2020), Section 8(3) of the Act deals both with the conditions of disqualification and with the period of disqualification. As regards the period of disqualification, Section 8(3) is comprehensive in that it indicates both the commencement of the period and its expiry. The date of conviction is prescribed to be the point of commencement of disqualification and the date of completion of a period of six years after release, is prescribed as the point of expiry of the period of disqualification.19. Once the period of disqualification starts running, the seat hitherto held by the person disqualified becomes vacant by virtue of Article 190(3) of the Constitution. While speaking about the seat of the disqualified person becoming vacant, Article 190(3) uses the expression thereupon. We may have to keep this in mind while interpreting the words the date of such conviction.20. One fundamental principle that we may have to keep in mind while interpreting the phrase appearing in Section 8(3) is that in cases of this nature, the Court is not dealing with a fundamental right or a common law right. As pithily stated by this Court in Jyoti Basu vs. Devi Ghosal (1982) 1 SCC 691 ,  an election dispute lies in a special jurisdiction and hence it has to be exercised without importing concepts familiar to common law and equity, unless they are ingrained in the statute itself. We may usefully extract the relevant portion of the decision in Jyoti Basu which reads as follows: -8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An Election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statutory creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied.22. But in our considered view Pasupati Nath Singh hardly supports the contention of the Appellant. In that case the election to the Bihar legislative Assembly from Dumro constituency was in issue. As per the schedule, the filing of nominations was to take place from 13.01.1967 to 20.01.1967. The date of scrutiny of nomination papers was fixed as 21.01.1967. The returning officer, upon scrutiny of nominations on 21.01.1967, rejected the nomination paper of the Appellant before this Court, on the ground that he had not made and subscribed the requisite oath or affirmation as enjoined by clause (a) of Article 173, either before the scrutiny or even subsequently on the date of scrutiny. The question that arose in that case was formulated in paragraph 4 as follows: -4. The short question which arises in this appeal is whether it is necessary for a candidate to make and subscribe the requisite oath or affirmation as enjoined by clause (a) of Art. 173 of the Constitution before the date fixed for scrutiny of nomination paper. In other words, is a candidate entitled to make and subscribe the requisite oath when objection is taken before the Returning Officer or must he have made and subscribed the requisite oath or affirmation before the scrutiny of nomination commenced?23. The answer to the above question turned on the interpretation to Section 36(2) of the Act, clause (a) of which used the wordson the date fixed for scrutiny. The contention of the appellant before this court in Pashupati Nath Singh was that he was entitled to take the oath or affirmation, before the Returning Officer, immediately after an objection is made but before the objection was considered by the Returning officer. Since Section 36(2)(a) uses the expression on the date fixed for scrutiny it was contended by the appellant in Pashupati Nath Singh that the whole of the day on which the scrutiny took place was available to him. However, this contention was rejected by this Court in the following manner: -16. In this connection it must also be borne in mind that law disregards, as far as possible, fractions of the day. It would lead to great confusion if it were held that a candidate would be entitled to qualify for being chosen to fill a seat till the very end of the date fixed for scrutiny of nominations. If the learned counsel for the petitioner is right, the candidate could ask the Returning Officer to wait till 11.55 p.m. on the date fixed for the scrutiny to enable him to take the oath.24. In other words, this Court interpreted the words date in Pashupati Nath Singh, not necessarily to mean 00.01 A.M. to 24.00 P.M. This was despite the fact that in common parlance a date would mean 24 hours in time. But the running of time got arrested, the moment the nomination of the appellant in Pashupati Nath Singh was taken up for scrutiny. Thus, the benefit of the whole day of 24 hours was not made available by this court in Pashupati Nath Singh to the appellant therein and the act of the Returning officer in drawing the curtains down at the happening of the event namely scrutiny of nomination papers, was upheld by this court in Pashupati Nath Singh.25. 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. 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.26. In fact, the argument of the appellant in this case is a double edged weapon. If the event of conviction and sentencing that happened at 2.30 P.M. on 23.03.2018 can relate back to 00.01 A.M., the event of voting by Shri. Amit Kumar Mahto which happened at 9.15 A.M. can also relate back to 00.01 A.M. Once both of them are deemed to relate back to the time of commencement of the date, the resulting conundrum cannot be resolved. This why, the emphasis in Pashupati Nath Singh was to provide an interpretation that will avoid confusion.But Prabhu Dayal Sesma arose in the context of Rule 11B of the Rajasthan State and Subordinate Services Rules 1962 which prescribed the minimum and maximum age for participation in the selection for direct recruitment to Rajasthan Administrative Service. The appellant in that case was born on 02.01.1956 and Rule 11B prescribed that an applicant for participation in the selection, must not have attained the age of 28 years on the first day of January, next following the last date fixed for receipt of application. Therefore, when a notification was issued in the year 1983, the upper age limit was to be reckoned as on January 1, 1984. Since the appellant was born on 02.01.1956 and attained the age of 28 years on 01.01.1984, his candidature was rejected. It was in such circumstances that this Court took note of Section 4 of the Indian Majority Act 1875, which stipulated the method of computation of the age of any person. In view of the fact that Rule 11B used the words must not have attained the age of 28 years, this court concluded that the appellant therein attained the said age at 12 oclock midnight when January 1 was born. We should point out here that if Prabu Dayal Sesma concerned a case of retirement, he would be taken to have attained the age of superannuation on January 1 by the very same logic, but at 2400 hours on January 1. But Rule 11B mandated that the candidatemust not have attained. Therefore, Prabhu Dayal Sesma also does not go to the rescue of the appellant.28. Tarun Prasad Chatterjee vs. Dinanath Sharma (2000) 8 SCC 649 ,  relied upon by the learned senior counsel for the appellant concerned the question of computation of the period of limitation for filing an Election petition under section 81(1) of the R.P. Act 1951.Therefore, this Court referred to Section 9 of the General Clauses Act, 1897 that laid down the manner in which statutes prescribing the commencement and termination of time, can be worded by using expressions such as from and to. But this decision is also of no assistance to the appellant for the simple reason that Section 8(3) of the Act uses the wordfrom as well as the expressionthe date of conviction and Tarun Prasad Chatterjee concerned the interpretation to be given only to the word from.29. In any case, Tarun Prasad Chatterjee need not have gone as far as the General Clauses Act, since Section 12(1) the Limitation Act, 1963 itself provides for the exclusion of the date from which the period of limitation is to be reckoned, while computing the period of limitation.32. We have no doubt that disqualification is not a penal provision and that the object of disqualification is to arrest criminalisation of politics.33. But what triggered the disqualification in this case, under Section 8(3) was a conviction by a criminal Court, for various offences under the Penal Code. Therefore, the phrasethe date of conviction appearing in Section 8(3) should receive an interpretation with respect to the penal provisions under which a person was convicted.34. The rule that a person is deemed innocent until proved guilty is a long-standing principle of constitutional law and cannot be taken to be displaced by the use of merely general words. In law this is known as the principle of legality and clearly applies to the present case. In Pierson vs. Secretary of State for the Home Department (1997) 3 All ER 577, House of Lords held that unless there be clearest provision to the contrary, Parliament is presumed not to legislate contrary to rule of law which enforces minimum standard of fairness both substantive and procedural.35. In our view to hold that a Member of the Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty. In Australia this principle has been described as an aspect of the rule of law known both to Parliament and the Courts, upon which statutory language will be interpreted(K-Generation Pty. Ltd. vs. Liquor Licensing Court, (2009) 83 ALJR 327 para 47.).36. In the present case, it would be significant to add that it is not necessary to make a declaration incompatible in the use of the word date with the general rule of law since the word date is quite capable of meaning the point of time when the event took place rather than the whole day.37. The well-known presumption that a man is innocent until he is found guilty, cannot be subverted because the words can accommodate both competing circumstances. While it is known that an acquittal operates on nativity, no case has been cited before us for the proposition that a conviction takes effect even a minute prior to itself.38. 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.39. 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. As rightly pointed by Dr. A.M. Singhvi, this court held in Union of India vs. M/S G.S Chatha Rice Mills (2020) SCC Online SC 770 that legal fiction cannot prevail over facts where law does not intend it to so prevail. It was a case where a notification was issued by the Government of India under section 8A of the Customs Tariff Act 1975, introducing a tariff on all goods originating in or exported from Pakistan. The notification was uploaded on the e-gazette at 20:46:58 hours on 16.02.2019. The Government of India took a stand that the enhanced rate of duty was applicable even to those who had already presented bills of entry for home consumption before the enhanced rate was notified in the e-gazette. The importers successfully challenged the claim of the customs authorities before the High court and the Union of India came up on appeal to this Court. An extensive analysis was made in Section H of the decision in M/S G.S. Chatha Rice Mills, on the interpretation of the words day and date. After taking note of several decisions, some of which arose under the law of Limitation, some under the law of Insurance and some under the Election law, this Court pointed out that these expressions were construed in varying contexts and that a general position in law, divorced from subject, context and statute, has not been laid down. As succinctly put by this Court, Legislative silences create spaces for creativity and that between interstices of legislative spaces and silences, the law is shaped by the robust application of common sense.41. Cases arising under the law of insurance, have no relevance to cases of disqualification. Even under the law of insurance, different principles of interpretation have been carefully nurtured and developed. For instance, New India Assurance Company Limited vs. Ram Dayal & Ors. (1990) 2 SCC 680 ,  this Court was concerned with a case where a vehicle had insurance cover upto 31.08.1984, which was not renewed. However, a fresh policy was taken on 28.09.1984. It was on the very same day that the vehicle got involved in an accident. The Motor Accident Claims Tribunal upheld the repudiation of liability by the insurer, but the High Court held that the policy of insurance obtained on the date of the accident became operative from the commencement of the date of insurance, namely from the previous midnight. While upholding the view taken by the High Court, by a short order, this Court referred to In Re F.B. Warren (1938) 2 All ER 331, wherein it was held that a judicial act will be referred to the first moment of the day on which it is done. However, in a subsequent decision in National Insurance Company Limited vs. Jijubhai Nathuji Dabhi & Ors. (1997) 1 SCC 66 ,  this Court explained the decision in Ram Dayal (supra) by stating that the same would hold good only in the absence of any specific time mentioned in that behalf in the policy of insurance. In Jijubhai Nathuji Dabhi (supra), the Court found that the contract clearly stipulated that it would be operative from 4.00 p.m on 25.10.1983 and that therefore the insurance coverage was not available in respect of an accident that happened before 4.00 p.m. on the same day. The decision in Jijubhai Nathuji Dabhi (supra) was also followed in New India Assurance Company vs. Bhagwati Devi (1998) 6 SCC 534 . 42. It must be remembered that a policy of insurance lies in the realm of contract. Therefore, the interpretation to be given to the terms of such contract would largely depend upon the intent of the parties, with a certain degree of latitude in favour of a party whose bargaining power is not equal to that of other contracting party. Hence, it is not possible for us to adopt the interpretation given to the word the date appearing in a contract of Insurance.43. Accepting the appellants submission would require us 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 that a convicted person shall be disqualified from the date of his conviction. But we do not agree. 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 is the consequence. A consequence can never precede the cause. If we accept the contention of the appellant, the consequence will be deemed to have occurred even before the cause surfaced.46. But we do not think that the aforesaid decision can be applied to cases where consequences other than a penalty arise on account of an act or omission. While it is true that a penalty other than the one prescribed by the Statute cannot be imposed for a particular act or omission, the said principle has no place in so far as consequences other than penalty which flow automatically out of such act or omission, are concerned.52. In view of the mandate of Article 188, it was argued before this Court in Pashupati Nath Sukul (supra)that before taking his seat, an elected person is required to take an oath or affirmation and that if he had failed to do so, he could not be counted as a member entitled to vote. Overruling the said contention, this Court held as follows: -We are of the view that an elected member who has not taken oath but whose name appears in the notification published under Section 73 of the Act can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under Section 73 of the Act and in the electoral roll maintained under Section 152 of the Act, it should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under Section 73 of the Act cannot be held to be illegal. That is how even respondent No. 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation.53. Therefore, it is clear that dehors the liability for penalty under Article 193, the act done by the elected member is not liable to be invalidated, but only in certain circumstances. One of them may be a case like the one on hand apart from cases falling foul of Article 188. But the position would have been different if Shri Amit Kumar Mahto had been convicted and sentenced in the forenoon of 23.03.2018 and yet he voted in the election to the Rajya Sabha in the afternoon with full knowledge.54. The fallacy of the argument of the appellant that wherever the word date is used in a Statute, it should be understood to relate back 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 and sentence had taken place in the forenoon and Shri Amit Kumar Mahto had cast his vote in the afternoon, the defeated candidate would not have argued that the voting should be deemed to have taken place at 00:01 a.m.55. In any case the principle that the acts of the officers de facto performed within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally regarded as valid and binding as if they were the acts of the officers de jure, articulated in Pulin Behari Das & Ors. vs. King Emperor (1912) 15 Cal.LJ 517, was invoked by this Court in Gokaraju Rangaraju vs. State of Andhra Pradesh (1981) 3 SCC 132 when a question arose as to the validity of the judgments pronounced by an Additional Session Judge whose appointment was declared by the Court to be invalid subsequently. This Court pointed out that the de facto doctrine is founded on good sense, sound policy and practical expedience and that it is aimed at the prevention of public and private mischief and the protection of public and private interest. As stated by this Court this doctrine avoids endless confusion and needless chaos.57. Even in B.R. Kapur (supra), this Court invoked the de facto doctrine to declare as valid, all acts performed by a Chief Minister whose appointment was held to be invalid from day one. Paragraph 57 of the said decision reads as follows:We are aware that the finding that the second respondent could not have been sworn in as Chief Minister and cannot continue to function as such will have serious consequences. Not only will it mean that the State has had no validly appointed Chief Minister since 14th May, 2001, when the second respondent was sworn in, but also that it has had no validly appointed Council of Ministers, for the Council of Ministers was appointed on the recommendation of the second respondent. It would also mean that all acts of the Government of Tamil Nadu since 14th May, 2001 would become questionable. To alleviate these consequences and in the interest of the administration of the State and its people, who would have acted on the premise that the appointments were legal and valid, we propose to invoke the de facto doctrine and declare that all acts, otherwise legal and valid, performed between 14th May, 2001 and today by the second respondent as Chief Minister, by the members of the Council of Ministers and by the Government of the State shall not be adversely affected by reason only of the order that we now propose to pass.58. Therefore, it is not possible to hold that the vote cast by Shri Amit 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. This conclusion can be drawn through another process of reasoning also. Article 191 (1) of the Constitution deals with five different grounds of disqualification. They are (i) holding an office of profit as specified in the First Schedule; (ii) unsoundness of mind, which stands so declared by a competent Court; (iii) undischarged insolvency; (iv) absence of citizenship of India or acquisition of citizenship of a foreign State etc.; and (v) disqualification by or under any law made by Parliament.59. The interpretation to be given to the expression the date appearing in Section 8(3) of the Representation of the People Act, 1951 will have a bearing upon the interpretation to be given to the date of happening of any one of the above events of disqualification.60. While it may be convenient for the appellant in this case to interpret the expression the date appearing in Section 8(3) with reference to Article 191(1)(e), we may have to see whether the same would fit into the scheme of Article 191(1) in entirety. It may not. If tested against each one of Sub-clauses (a) to (d) of Clause (1) of Article 191 we would find that the interpretation offered by the appellant would not survive. Justice Oliver Wendell Holmes, Jr. in Henry R Towne vs. Mark Eisner 245 U.S. 418 while dealing with the construction of a word in the Constitution as well as a statute, observed:-A word is not a crystal, transparent and unchanged; it is the skin of a living though and may vary greatly in colour and content according to the circumstances and tie in which it is used