Lawmaker's Vote Cast Prior To Conviction On Same Day Valid: Top Court

Referring to the legal provisions, the bench said that the consequence of such disqualification is that the seat becomes vacant

Lawmaker's Vote Cast Prior To Conviction On Same Day Valid: Top Court

The bench said that this is an "interesting but important question of far-reaching consequence"

New Delhi:

The Supreme Court on Friday in a landmark ruling held that a vote cast by a lawmaker prior to his conviction in a criminal case on the same day cannot be termed as invalid saying holding him disqualified even before he was convicted "would grossly violate his substantive right to be treated as innocent until proven guilty".

The top court, which termed it as an "interesting but important question of far-reaching consequence," said that to say that this presumption of innocence would evaporate from 00.01 AM, though the conviction was handed over at 14.30 PM would strike at the very root of the most fundamental principle of Criminal Jurisprudence.

A bench of Chief Justice SA Bobde held as valid, the vote cast by then Jharkhand Mukti Morcha (JMM) MLA Amit Kumar Mahto in 2018 Rajya Sabha election at 9.15 am prior to his conviction and sentence at 2.30 pm on March 23, resulting in the loss of BJP candidate Pradeep Kumar Sonthalia.

"Therefore, on the first issue we hold that the vote cast by Amit Kumar Mahto at 9:15 am on March 23, 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 9:15am about the 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," the bench said.

The bench also comprising Justices AS Bopanna and V Ramasubramanian said disqualification under the Representation of People Act is a consequence after a conviction and a consequence can never precede the cause.

It said, "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 proven guilty".

The bench said, "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," the bench said.

The bench said that this is an "interesting but important question of far-reaching consequence" that "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?"

Referring to the legal provisions, the bench said that the consequence of such disqualification is that the seat becomes vacant and 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.

Rejecting the submission of Sonthalia that "on the date" means "on the whole of the day" as was held in 1968 verdict of the top court in Pashupati Nath Singh versus Harihar Prasad Singh on the issue of rejection of nomination papers during scrutiny by the returning officer, the bench said that the said verdict hardly supports his contention.

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"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", the bench said.

It added that there is no doubt that disqualification is not a penal provision and that "the object of disqualification is to arrest criminalisation of politics".

"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," it said.

The Chief Justice who wrote the 32-page verdict on behalf of the bench said that it is known that an acquittal operates on nativity; no case was cited before the court for the proposition that a conviction takes effect even a minute prior to itself.

"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," the bench said.

The high court had delivered its judgement on January 17 this year and dismissed the election petition filed by Sonthalia, who was a BJP candidate in the 2018 Rajya Sabha poll from Jharkhand, challenging Congress candidate Dhiraj Prasad Sahu''s election as a member of the upper house.

The BJP leader''s plea had said that a notification was issued by Election Commission in February 2018 for Rajya Sabha election on two seats in Jharkhand and on March 12, Sonthalia had filed his nomination as a BJP candidate.

Besides Sonthalia, two others -- Samir Oraon from BJP and Dheeraj Prasad Sahu from Congress - had also filed their nominations for the two seats.