PRADEEP KUMAR SONTHALIA versus DHIRAJ PRASAD SAHU @ DHIRAJ SAHU & ANR.
[2020] 14 S.C.R. 480, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Ratio
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PRADEEP KUMAR SONTHALIA
v.
DHIRAJ PRASAD SAHU @ DHIRAJ SAHU & ANR.
(Civil Appeal No. 611 of 2020)
DECEMBER 18, 2020
[S.A. BOBDE,CJI, A.S. BOPANNA AND
V. RAMASUBRAMANIAN, JJ.]
Constitution of India – Arts.191, 193, 190, 188 and 80(4) –
Biennial elections for two seats in the Council of States from the
State of Jharkhand – Appellant and two others filed nominations –
An elected member of the Assembly admittedly cast his vote at 9.15
a.m on 23.03.18 in favour of one of the winning candidate – He
was convicted and sentenced in a criminal case in the afternoon of
the same day – Suffered disqualification u/Art.191(1)(e) r/w s.8(3),
1951 Act – Appellant secured 2599 value of votes, and the other
two candidates secured 2601 value of votes and 2600 value of votes
– Objection lodged requesting the Returning Officer to declare the
vote cast by the aforesaid convicted elected member to be invalid –
Rejected – Appellant was declared defeated and the other two
candidates were declared duly elected – Appellant filed election
petition praying for a declaration that the Returning Officer has
caused improper reception of the void vote – Dismissed by High
Court – On appeal, held: 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 – Thus, vote cast by such member at 9:15 a.m on
23.03.18 was rightly
treated as a valid vote – Representation of the
People Act, 1951– ss.8 and 152 – Conduct of Election Rules, 1961
– r.2(d) – Principle of legality – De facto doctrine – Insurance.
Representation of the People Act, 1951 – s.8 – Interpretation
of.
Words & Expressions – “the date” in s.8(3), 1951 Act – Held:
Interpretation to be given to the expression “the date” appearing in
s.8(3) will have a bearing upon the interpretation to be given to the
date of happening of any one of the events of disqualification u/
[2020] 14 S.C.R. 480
480
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Art.191(1) – Representation of the People Act, 1951 – s.8(3) –
Constitution of India – Art.191.
Disposing of the appeals, the Court
HELD: 1.1 Article 191 of the Constitution speaks of the
circumstances under which a person will be treated as disqualified
(i) either for being chosen as (ii) or for being, a member of the State
Legislative Assembly. The language of Article 191 makes it clear
that it covers both a contest in an election and the continuance in
office after getting elected. If a person, being a member of the
Assembly, suffers a disqualification, his seat becomes vacant. This
situation is taken care of by Article 190. 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. [Paras 11-13][492-G-H; 493-A-H;
494-A-F]
1.2 The Representation of the People Act, 1951 was enacted
for the purpose of providing for the conduct of elections of both
houses of Parliament and to the House/Houses of State
Legislatures, the qualifications and disqualifications for
membership of those houses, the corrupt practices etc. Section 8
of the Act deals with disqualification on conviction for certain
offences. For the purpose of disqualification, the offences are
classified in section 8 into 3 categories. The present case is
concerned 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). The disqualification under
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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. [Paras 14, 16 and
17][494-F-H; 495-B-E]
1.3 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. 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”. This has to be kept in mind while interpreting the
words “the date of such conviction”. One fundamental principle
that has to be kept 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. [Paras
18-20][495-F-H; 496-A-F]
Saritha S. Nair vs. Hibi Eden Decision of Supreme
Court dated 08.12.2020 in SLP (C) No. 10678 of 2020;
Jyoti Basu vs. Devi Ghosal (1982) 1 SCC 691:[1982] 3
SCR 318 – relied on.
2.1 Even in criminal law, there is a vast difference between
(i) the interpretation to be given to the expression “date”, while
calculating the period of imprisonment suffered by a person and
(ii) the interpretation to be given to the very same expression
while computing the period limitation for filing an appeal/revision.
Say for instance, a person is convicted and sentenced to
imprisonment and also taken into custody pursuant thereto, on
23.03.2018, the whole of the day of March 23 will be included in
the total period of incarceration. But in contrast, the day of March
23 will be excluded for computing the period of limitation for filing
an appeal. Though one contrasts the other, both interpretations
are intended to benefit the individual. Disqualification is not a
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penal provision and that the object of disqualification is to arrest
criminalisation of politics. 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
phrase “the date of conviction” appearing in Section 8(3) should
receive an interpretation with respect to the penal provisions
under which a person was convicted. [Paras 30, 32, 33][499-G-H;
500-C-D]
2.2 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. 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 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. While it is known
that an acquittal operates on nativity, no case has been cited for
the proposition that a conviction takes effect even a minute prior
to itself. Moreover, the word “date” can be used to denote
occasion, time, year etc. It is also
used for denoting the time up
to the present when it is used in the phrase “the two dates”.
Significantly, the word “date” can also be used to denote a point
of time etc. 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. 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.
[Paras 34-39][500-D-H; 501-A-H; 502-A-B]
Roget’s International Thesaurus third edition Note 114.4
– referred to.
3. Cases arising under the law of insurance, have no
relevance to cases of disqualification. A policy of insurance lies in
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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. It is not possible to adopt the interpretation given to the
word “the date” appearing in a contract of Insurance. [Paras 41,
42][502-D-H; 503-A-D]
4. 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. [Para 43][503-C-E]
5. Article 193 deals with the penalty to be imposed upon an
erring member who sits or votes as a member of the Legislative
Assembly or the Legislative Council (i) either before he has
complied with the requirements of Article 188; (ii) or when he
knows that he is not qualified for membership; (iii) or when he
knows that he is disqualified from being a Member; (iv) or when
he knows that he is prevented by any law from sitting or voting. A
disqualification for which penalty is prescribed under Article 193,
also invites civil consequences such as the denial of privileges
that go with the membership, other than the penalty stipulated in
Article 193. Once a person is disqualified, he ceases to be a
member and his right to vote
also ceases alongwith his
membership. This is a natural consequence of a person ceasing
to be a member and this consequence is automatic and not
dependent upon Article 193. Therefore, Article 193 cannot be
stretched to such an extent that even the natural consequences
of disqualification of a member will not get attracted because of
the prescription of a penalty. 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. [Paras 47, 48 and 53][504-C-G; 506-D-E]
6. The acts of the officers de facto performed within the
scope of their assumed official authority, in the interest of the
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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. 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. [Para 55][506-G; 507-A-B]
6. 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. 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. 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), it may have to be
seen 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 it is found that the
interpretation offered by the appellant would not survive. The
vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018
was rightly treated as a valid vote. Therefore, the Civil Appeal
No.611 of 2020 is dismissed. Civil Appeal No.2159 of 2020 is
allowed, setting aside the findings of the High Court on issue
Nos. 2, 3 and 5 framed by the High Court. [Paras 58-62]
[508-B-H; 509-A-B]
Pashupati Nath Singh vs. Harihar Prasad Singh AIR
1968 SC 1064:[1968] SCR 812; Prabhu Dayal Sesma
vs. State of Rajasthan (1986) 4 SCC 59 : [1986] 3 SCR
665; Tarun Prasad Chatterjee vs. Dinanath Sharma
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(2000) 8 SCC 649 : [2000] 3 Suppl. SCR 634; B.R Kapur
vs. State of T.N. & Anr. (2001) 7 SCC 231 : [2001] 3
Suppl. SCR 191; New India Assurance Company Limited
vs. Ram Dayal & Ors (1990) 2 SCC 680 : [1990] 2
SCR 570; National Insurance Company Limited vs.
Jijubhai Nathuji Dabhi & Ors. (1997) 1 SCC 66 : [1996]
8 Suppl. SCR 929; State of Madhya Pradesh vs. Centre
for Environment Protection Research and Development
& Ors. (2020) SCC Online SC 687  – held inapplicable.
Union of India vs. M/S G.S Chatha Rice Mills (2020)
SCC Online SC 770; Gokaraju Rangaraju vs. State of
Andhra Pradesh (1981) 3 SCC 132 : [1981] 3 SCR
474; Pushpadevi M. Jatia vs. M.L. Wadhawan, Additional
Secretary, Government of India & ors. (1987) 3 SCC
367 : [1987] 3 SCR 46 – relied on.
K Prabhakaran vs. P Jayaraja, (2005) 1 SCC 754 :
[2005] 1 SCR 296; Pashupati Nath Sukul vs. Nem
Chandra Jain (1984) 2 SCC 404 : [1984] 1 SCR 939 –
distinguished.
New India Assurance Company vs. Bhagwati Devi
(1998) 6 SCC 534 – referred to.
Pierson vs. Secretary of State for the Home Department
(1997) 3 All ER 577; K-Generation Pty. Ltd. vs. Liquor
Licensing Court, (2009) 83 ALJR 327; In re F.B. Warren
(1938) 2 All ER 331; Pulin Behari Das & Ors. vs. King
Emperor (1912) 15 Cal.LJ 517 – referred to.
Case Law Reference
[1982] 3 SCR 318
relied on
Para 20
[1968] SCR 812
held inapplicable Para 21
[1986] 3 SCR 665
held inapplicable Para 27
[2000] 3 Suppl. SCR 634
held
inapplicable Para 28
[2001] 3 Suppl. SCR 191
held inapplicable Para 31
[2005] 1 SCR 296
distinguished
Para 40
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[1990] 2 SCR 570
held inapplicable Para 41
[1996]  8 Suppl. SCR 929 held inapplicable Para 41
(1998) 6 SCC 534
referred to
Para 41
[1984] 1 SCR 939
distinguished
Para 50
[1981] 3 SCR 474
relied on
Para 55
[1987] 3 SCR 46
relied on
Para 56
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 611 of
2020
From the Judgment and Order dated 17.01.2020 of the High Court
of Jharkhand at Ranchi in E.P. No. 01 of 2018.
With
Civil Appeal No. 2159 of 2020
Mukul Rohatgi, K.V. VIshwanathan, Dr. Abhishek Manu Singhvi,
Devadatt Kamat, Sr. Advs., Indrajit Sinha, Nikhil Rohatgi, Ms. Misha
Rohatgi, Shashank Khurana, Bibhash Sinha, Bharat Monga, Nishanth
Patil, Azeem, Ms. Sneha Ravi Iyer, Javedur Rahman, Aditya Bhat, Manoj
C. Mishra, Advs. for the appearing parties.
The Judgment of the Court was delivered by
S. A. BOBDE, CJI
1. An interesting but important question of far-reaching
consequence arises for consideration in these appeals. It is this. “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?”
2. We have heard learned counsel for the parties.
3. The brief facts sufficient for answering the issue arising for
consideration in these appeals are as follows: -
(i)
By a notification dated 05.03.2018, the Election Commission
of
India notified the biennial elections for two seats in the
Council of States from the State of Jharkhand;
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(ii)
Three candidates by name Pradeep Kumar Sonthalia, Samir
Uraon and Dhiraj Prasad Sahu, filed their nominations on
12.03.2018. It is stated that the first two candidates belonged
to the Bharitya Janata Party (BJP), and the third candidate
belonged to the Indian National Congress (INC);
(iii)
On 23.03.2018, the election was held between 9.00 A.M.
and 4.00 P.M. at the Vidhan Sabha. A total of 80 members of
the Legislative Assembly of the State of Jharkhand cast their
votes;
(iv)
One Shri Amit Kumar Mahto who was an elected member
of the Assembly belonging to Jharkhand Mukti Morcha Party
(JMM) admittedly cast his vote at 9.15 A.M. on 23.03.2018;
(v)
As fate (not of the voter but of the contestant) would have it,
Shri Amit Kumar Mahto was convicted by the Court of the
Additional Judicial Commissioner XVIII, Ranchi, in Sessions
Trial No.481 of 2010, for the offences punishable under
Sections 147, 323/149, 341/149, 353/149, 427/149 and 506/
149 IPC, on the same day, but the conviction and sentence
were handed over at 2.30 P.M. He was sentenced to various
periods of imprisonment for those offences, but all of them
were to run concurrently. The maximum punishment was for
the offence under Section 506/149 and the Court awarded
RI for a period of two years;
(vi)
Since the election to the Council of States is by a system of
proportional representation by means of single transferable
vote, the counting of votes began at 7.30
P.M on 23.03.2018.
Out of the 80 votes cast, two were declared invalid by the
Returning Officer. The remaining 78 votes, which were validly
cast, were converted into points (at the rate of 100 points per
vote) and Pradeep Kumar Sonthalia was declared to have
secured 2599 value of votes, Samir Uraon was declared to
have secured 2601value of votes and Dhiraj Prasad Sahu
was declared to have secured 2600 value of votes. Thus, the
election petitioner was declared defeated and the other two,
declared duly elected;
(vii) It appears that an objection was lodged at 11.20 P.M.
requesting the Returning Officer to declare the vote cast by
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Shri Amit Kumar Mahto invalid, on the basis of the conviction
and sentence imposed in the afternoon on the same day by
the Criminal Court;
(viii) However, the Returning Officer went ahead and declared
the results at 12.15 A.M. on 24.03.2018. Shri Samir Uraon
and Shri Dhiraj Prasad Sahu were declared by the Returning
Officer to be duly elected and they were also issued with a
certificate in Form No. 24 in terms of Rule 85 of the Conduct
of Election Rules, 1961;
(ix)
Therefore, Pradeep Kumar Sonthalia, the defeated candidate
filed an election petition in Election Petition No.01/2018,
praying for a declaration that the Returning Officer has caused
improper reception of the void vote of Shri Amit Kumar Mahto.
He also prayed for setting aside the election of Shri Dheeraj
Prasad Sahu with a consequential declaration that the
petitioner was duly elected as a member of Rajya Sabha;
(x)
The High Court framed as many as 6 issues for consideration
in the Election Petition and they are as follows: -
1.
Whether Shri Amit Kumar Mahto has cast his vote in
favour of respondent no. 1 in Biennial Election to the
Council of States, 2018 in connection with State of
Jharkhand?
2.
Whether on conviction and sentence of two years in
Sessions Trial No. 481 of 2010 by the Additional Judicial
Commissioner-XVIII, Ranchi, Shri Amit Kumar Mahto
ceased to be a Member of Legislative Assembly and his
disqualification came into effect immediately from the
date of his conviction and
sentence of two years and,
therefore, the vote of Shri Amit Kumar Mahto could not
have been taken into consideration at the time of
counting?
3.
Whether the disqualification of Shri Amit Kumar Mahto
rendered his vote void/illegal that was cast to respondent
no.1 and, therefore, reception of his vote was improper
and, thus, in terms of Section 100 (1) (d) (iii) of the
Representation of People Act, 1951, the election of
respondent no. 1 is liable to be declared void?
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4.
Whether the communication from the Returning Officer
(e-mail dated 24.03.2018) rejecting the objection made
on behalf of the petitioner on the ground that the
Returning Officer had not received the judgment of
conviction of Shri Amit Kumar Mahto till the declaration
of the results, is absolutely illegal and unlawful?
5.
Whether disqualification of Shri Amit Kumar Mahto in
terms of Section 8 (3) of the Representation of People
Act, 1951, takes effect from the date of his conviction
and sentence of two years i.e. 23.03.2018 which means
the day as per English calendar beginning at midnight
and covering a period of 24 hours i.e. with effect from
23.03.2018 at 00.00 hours?
6.
The respondent no. 1 having been declared to be elected
in the Biennial Election to the Council of States – 2018
by a margin of 0.01 vote and in the event, the vote of
Shri Amit Kumar Mahto which has been received
improperly is ignored, then whether the petitioner is
entitled to be declared successful and consequently for
being elected as a Member of Rajya Sabha?
(xi)
By a judgment dated 17.01.2020, the High Court dismissed
the Election Petition, after recording a finding in favour of
the election petitioner on Issue Nos. 1, 2, 3 & 5. On Issue
Nos. 4 & 6, the High Court did not record any finding.
(xii) Despite deciding Issue Nos. 1, 2, 3 & 5 in favour of the
election petitioner, the High Court refused to grant any relief
to the election
petitioner, primarily on the ground 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 that it is not possible for the
Court to find out whether the election petitioner could have
won the election, if that one vote had been rejected;
(xiii) Finding that the surgery was successful but the patient died,
the election petitioner has come up with one appeal in Civil
Appeal No.611 of 2020. Aggrieved by the findings on Issue
Nos. 1, 2, 3 & 5, one of the two returned candidates, namely
Shri Dhiraj Prasad Sahu, has come up with the other appeal
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namely Civil Appeal No.2159 of 2020.For the purpose of
convenience, we refer to the appellant in Civil Appeal No.
611 of 2020, as the appellant throughout and the appellant in
the other appeal as the returned candidate.
4. Before proceeding further, it must be recorded that there is no
dispute either before us or before the High court, about the fact that Shri
Amit Kumar Mahto cast his vote at 9.15 A.M. on 23.03.2018 and that
the judgment of the criminal court was rendered at 2.30 p.m. on the very
same day.
5. Before the High court, a preliminary objection was raised about
the validity of the presumption on the part of the election petitioner that
Sri. Amit Kumar Mahto cast his vote in favour of Shri Dhiraj Prasad
Sahu. Unless Shri Amit Kumar Mahto had cast his vote in favour of Shri
Dhiraj Prasad Sahu, the entire edifice on which the election petition was
built could have crumbled. Therefore, the Returning Officer, Mr. Binay
Kumar Singh was examined as PW-1 and through him the original ballot
paper by which Shri Amit Kumar Mahto cast his vote was marked as
Exhibit-9. On the basis of the same, the High Court came to the conclusion
that Shri Amit Kumar Mahto cast his vote in favour of Shri Dhiraj Prasad
Sahu, the Congress candidate. It was also clear from the evidence of
PW-1 and Exhibit-9 that Shri Amit Kumar Mahto did not cast his 2nd, 3rd
and 4th preference vote. Therefore, the validity of the vote cast by Amit
Kumar Mahto assumed significance,
especially in view of the margin of
victory.
6. Since the factual position that Amit Kumar Mahto cast his vote
in favour of Dhiraj Prasad Sahu has now become unassailable, many of
the issues framed by the High Court have now paled into insignificance.
There are only 2 issues which now survive for consideration and they
are: -
(i)
Whether the vote admittedly cast by Shri Amit Kumar Mahto
in favour of Shri Dhiraj Prasad Sahu at 9.15 A.M. on
23.03.2018 should be treated as an invalid vote on account of
the disqualification suffered by the voter under Article
191(1)(e) of the Constitution of India read with Section 8(3)
of the Representation of the People Act, 1951, by virtue of
his conviction and sentence by the Sessions Court in a criminal
case, rendered at 2.30 P.M. on the very same date
23.03.2018; and
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(ii)
Whether, in the event of the first issue being answered in the
affirmative, the election petitioner is entitled to be declared
as duly elected automatically.
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.
9. The primary contention of Shri Mukul Rohatgi and Shri K.V.
Vishwanathan, learned senior counsel appearing for the defeated candidate
who is the appellant in the first civil appeal, is that wherever a statute
uses the word “date” with reference to an event, courts have always
interpreted the same to have happened at the intersection of the previous
day and the present day, namely 00.01 a.m. This is firstly because it is at
that time that the day begins and secondly because law abhors fractions.
Therefore, it is their contention that though the Sessions Court delivered
its judgment of conviction and sentence at 2.30
P.M. on 23.03.2018, the
date of such conviction is deemed in law to have commenced at about
00.01 A.M. when the date of March 22 lapsed and the date of March 23
began. It is the further contention of the learned Senior Counsel that if
the time at which the judgment was delivered is irrelevant and the focus
is actually on the date of conviction, then the disqualification would also
commence at 00.01 A.M. on 23.03.2018. As a corollary, the vote cast at
9.15 A.M. on 23.03.2018 would be a vote by a disqualified member and
thus invalid.
10. In order to test the veracity of the above contention, it is
necessary first to take note of the relevant provisions of the Constitution
and the Representation of the People Act, 1951.
11. Article 191 of the Constitution speaks of the circumstances
under which a person will be treated as disqualified (i) either for being
chosen as (ii) or for being, a member of the State Legislative Assembly.
The language of Article 191 makes it clear that it covers both a contest in
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an election and the continuance in office after getting elected. It reads as
follows: -
“191. Disqualifications for membership
(1) A person shall be disqualified for being chosen as, and
for being, a member of the Legislative Assembly or Legislative
Council of a State
(a) if he holds any office of profit under the Government of
India or the Government of any State specified in the First
Schedule, other than an office declared by the Legislature of
the State by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a
competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired
the citizenship of a foreign State, or is under any
acknowledgement of allegiance or adherence to a foreign
State;
(e) if he is so disqualified by or under any law made by
Parliament
[Explanation.- For the purposes of this clause] a person shall
not be deemed to hold an office of profit under the Government
of India or the Government of any State specified in the First
Schedule by reason only that he is a Minister either for the
Union or for such State.
[(2) A person shall be disqualified for being a member of the
Legislative Assembly or Legislative Council of a State if he is
so disqualified under the Tenth Schedule]”
12. If a person, being a member of the Assembly, suffers a
disqualification, his seat becomes vacant. This situation is taken care of
by Article 190 which reads as follows:
“190. Vacation of seats- (1)……
(2)…….
(3) If a member of a House of the Legislature of a State-
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(a) becomes subject to any of the disqualifications mentioned
in clause ( 1 ) or clause ( 2 ) of Article 191; or
(b) resigns his seat by writing under his hand addressed to
the Speaker or the Chairman, as the case may be, and his
resignation is accepted by the Speaker or the Chairman, as
the case may be, his seat shall thereupon become vacant:
[Provided that in the case of any resignation referred to in
sub clause (b), if from information received or otherwise and
after making such inquiry as he thinks fit, the Speaker or the
Chairman, as the case may be, is satisfied that such
resignation is not voluntary or genuine, he shall not accept
such resignation]”
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.
14. The Representation of the People Act, 1951 was enacted for
the purpose of providing for the conduct of elections of both houses of
Parliament and to the House/Houses of State Legislatures, the
qualifications and disqualifications for membership of those houses, the
corrupt practices etc.,. Section 8 of the Act deals with disqualification on
conviction for certain offences. For the purpose of disqualification, the
offences are classified in section 8 into 3 categories, namely
(i)
offences falling under sub-section (1)
(ii)
offences falling under sub-section (1) and
(iii)
offences not falling either under sub-section (1) or under sub-
section (2).
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15. The disqualification results in the Member becoming liable to
be removed from the list of voters under Section 152 of the Representation
of the People Act, 1951, though the actual deletion may take time. In any
case, he ceases to be an elector vide Rule 2(d) of the Conduct of Election
Rules, 1961 which provides that an elector in relation to an election by
assembly members means any person entitled to vote at that election.
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). Therefore, Sub-
section (3) of section 8 alone is extracted as follows: -
“8. Disqualification on conviction for certain offences.-
(1)………
(2) ………….
(3) A person convicted of any offence and sentenced to
imprisonment for not less than two years [other than any
offence referred to in sub-section (1) or sub- section (2)] shall
be disqualified from the date of such conviction and shall
continue to be disqualified for a further period of six years
since his release.]”
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 Eden1, 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”.
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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 Ghosal2,
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”.
21. Placing heavy reliance upon the decision of this Court in
Pashupati Nath Singh vs. Harihar Prasad Singh3, it is contended
that wherever the statute uses the words “on the date”, it should be
taken to mean “on the whole of the day” and that law disregards as far
as possible, fractions of the day.
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
2 (1982) 1 SCC 691
3 AIR 1968 SC 1064
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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 words “on 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
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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.
27. The learned Senior Counsel for the appellant relied upon the
decision of this Court in Prabhu Dayal Sesma vs. State of Rajasthan4
in support of their contention that a legal date commences after 12 o’
clock midnight and continue until the same hour of the following night.
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
4 (1986) 4 SCC 59
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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 o’clock 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 candidate “must
not have attained”. Therefore, Prabhu Dayal Sesma also does not go
to the rescue of the appellant.
28. Tarun Prasad Chatterjee vs. Dinanath Sharma5, 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 word “from” as well as the
expression “the 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.
30. We must point out at this juncture that even in criminal law,
there is a vast difference between (i) the interpretation to be given to the
expression “date”, while calculating the period of imprisonment suffered
by a person and (ii) the interpretation to be given to the very same
expression while computing the period limitation for filing an appeal/
revision. Say for instance, a person is convicted and sentenced to
imprisonment and also taken into custody pursuant thereto, on 23.03.2018,
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the whole of the day of March 23 will be included in the total period of
incarceration. But in contrast, the day of March 23 will be excluded for
computing the period of limitation for filing an appeal. Though one contrasts
the other, both interpretations are intended to benefit the individual.
31. Placing reliance upon the decision of the Constitution bench in
B.R Kapur vs. State of T.N. & Anr.6 it was contended by the learned
senior counsel for the appellant that the disqualification under Article 191
of the Constitution and Section 8 of the R.P. Act is not a penal provision
and that therefore the question of beneficial construction would not arise,
especially when the object of such disqualification is to cleanse politics.
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 phrase “the 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 Department7, 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”8.
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
6 (2001) 7 SCC 231
7 (1997) 3 All ER 577
8 K-Generation Pty. Ltd.  vs.  Liquor Licensing Court, (2009) 83 ALJR 327 para 47.
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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. Moreover, the word
“date” can be used to denote occasion, time, year etc. It is also used for
denoting the time up to the present when it is used in the phrase “the two
dates”. Significantly, the word “date” can also be used to denote a point
of time etc. (See Roget’s International Thesaurus third edition Note 114.4).
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 Mills9 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
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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”.
40. The decision in K Prabhakaran vs. P Jayarajan10 relied
upon by the learned Senior Counsel for the appellant did not deal with the
question that we are now confronted with. It was a case where (i) the
effect of several sentences of imprisonment, each for a period of less
than 2 years ordered to run consecutively and not concurrently, thereby
totalling to more than the period prescribed under section 8(3) of the Act
and (ii) the effect of the decision of the Appellate Court rendered in a
criminal case after the election was over, were in question. It is in that
context that the Constitution Bench held in K Prabhakaran that Section
8 of the R.P Act has to be construed in harmony with the provisions of
Cr.P.C so as to give effect to the provisions contained in both.
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.11, 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.
Warren12, 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.13, 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
10 (2005) 1 SCC 754
11 (1990) 2 SCC 680
12 (1938) 2 All ER 331
13 (1997) 1 SCC 66
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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 Devi14.
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 appellant’s 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.
44. It is contended by the learned Senior Counsel for the Returned
candidate, that the Constitution also takes care of the contingency of
disqualified persons sitting and voting despite suffering a disqualification
and that a court cannot travel beyond what is so prescribed. Article 193
which takes care of this contingency reads as follows: -
“193. Penalty for sitting and voting before making oath or
affirmation under Article 188 or when not qualified or when
disqualified. - If a person sits or votes as a member of the
Legislative Assembly or the Legislative Council of a State before
he has complied with the requirements of Article 188, or when
he knows that he is not qualified or that he is disqualified for
membership thereof, or that he is prohibited from so doing by
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the provisions of any law made by Parliament or the Legislature
of the State, he shall be liable in respect of each day on which
he so sits or votes to a penalty of five hundred rupees to be
recovered as a debt due to the State.”
45. On the basis of Article 193, it is contended that when law
prescribes certain consequences for an act of commission, the Court
cannot impose additional consequences. Reliance is placed in this regard
on the decision of this Court in State of Madhya Pradesh vs. Centre
for Environment Protection Research and Development &
Ors.15,wherein it was held that when a Statute or the Statutory Rules
prescribes a penalty for any act or omission, no other penalty not
contemplated in the Statute or the Rules can be imposed.
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.
47. Article 193 deals with the penalty to be imposed upon an erring
member who sits or votes as a member of the Legislative Assembly or
the Legislative Council (i) either before he has complied with the
requirements of Article 188; (ii) or when he knows that
he is not qualified
for membership; (iii) or when he knows that he is disqualified from being
a Member; (iv) or when he knows that he is prevented by any law from
sitting or voting.
48. A disqualification for which penalty is prescribed under Article
193, also invites civil consequences such as the denial of privileges that
go with the membership, other than the penalty stipulated in Article 193.
Once a person is disqualified, he ceases to be a member and his right to
vote also ceases alongwith his membership. This is a natural consequence
of a person ceasing to be a member and this consequence is automatic
and not dependent upon Article 193. Therefore, we cannot stretch Article
193 to such an extent that even the natural consequences of disqualification
of a member will not get attracted because of the prescription of a penalty.
49. However, Article 193 and the interpretation given to the same
by this Court may be of significance for finding out whether an act or
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omission done by a person disqualified would also perish and if so in
what circumstances.
50. In Pashupati Nath Sukul vs. Nem Chandra Jain16, one of
the questions that arose for consideration was whether a person elected
as a member of the Assembly but who has not made and subscribed the
prescribed oath or affirmation as required by Article
188 can validly propose a person as a candidate at an election for
filling a seat in the Rajya Sabha. This question arose under peculiar
circumstances. The elections to the Legislative Assembly of the State of
Uttar Pradesh were held in May, 1980 and the notification containing the
names of elected members was issued on 09.06.1980 under Section 73
of the Representation of the People Act, 1951. The elected members
were notified that they could take oath as required by Article 188 at the
Session of the Assembly summoned to meet on 27.06.1980. But in the
meantime, election for filling up a vacancy in the Rajya Sabha was notified
on 17.06.1980. Therefore, the proposal of the name of a candidate for
election to the Rajya Sabha, made by an elected member who was yet to
take oath under Article 188, was objected to. The objection was overruled
and the nominated candidate won the election. Therefore, the question
as stated above arose, before this Court in an Election Petition.
51. Article 188 reads as follows: -
“188. Oath or affirmation by members. - Every member of the
Legislative Assembly or the Legislative Council of a
State shall,
before taking his seat, make and subscribe before the
Governor, or some person appointed in that behalf by him, an
oath or affirmation according to the form set out for the
purpose in the Third Schedule.”
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
16 (1984) 2 SCC 404
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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
Emperor17, was invoked by this Court in Gokaraju Rangaraju vs. State
of Andhra Pradesh18 when a question arose as to the validity of the
17 (1912) 15 Cal.LJ 517
18 (1981) 3 SCC 132
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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.19, 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
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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 Eisner20 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”
61. Therefore, on the first issue we hold that the vote cast by Shri
Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 was rightly treated as a
valid vote. To hold otherwise would result either in an expectation that
the Returning Officer should have had foresight at 9:15 a.m. about the
20 245 U.S. 418

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outcome of the criminal case in the afternoon or in vesting with the Election
Commission, a power to do an act that will create endless confusion and
needless chaos.
62. In view of our above answer to the first issue, the second
issue does not arise for consideration. Therefore, the Civil Appeal No.611
of 2020 is dismissed. Civil Appeal No.2159 of 2020 is allowed, setting
aside the findings of the High Court on issue Nos. 2, 3 and 5 framed by
the High Court. There will be no order as to costs.
PRADEEP KUMAR SONTHALIA v. DHIRAJ PRASAD SAHU @
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Divya Pandey
Appeals disposed of.