Supreme Court clarifies the effect of suspended sentences on disqualification under Section 8(3) of the Representation of the People Act, 1951: Saritha S. Nair vs. Hibi Eden (9 December 2020)

Date of the Judgment: 9 December 2020
Citation: 2020 INSC 914
Judges: S.A. Bobde, CJI, A.S. Bopanna, J., V. Ramasubramanian, J.
Can a candidate, convicted of a crime and sentenced to imprisonment for more than two years, contest elections if their sentence is suspended by a higher court? The Supreme Court of India addressed this critical question in a recent judgment. The Court clarified the legal position regarding disqualification of candidates under Section 8(3) of the Representation of the People Act, 1951, emphasizing that a mere suspension of sentence does not remove the disqualification. This judgment was delivered by a three-judge bench comprising Chief Justice S.A. Bobde and Justices A.S. Bopanna and V. Ramasubramanian, with the opinion authored by Justice V. Ramasubramanian.

Case Background

The petitioner, Saritha S. Nair, filed her nomination on 04 April 2019 to contest the Lok Sabha elections from the Ernakulam Constituency as an independent candidate. Her nomination was rejected on 06 April 2019 by the Returning Officer. The reason for rejection was her conviction in two criminal cases. In one case (CC No.1300 of 2013), she was sentenced to three years imprisonment and a fine of Rs. 45 lakhs on 08 June 2015. In the second case (CC No.102 of 2014), she received a similar sentence of three years imprisonment with a fine of Rs. 10 lakhs on 16 February 2016.

Ms. Nair appealed her convictions. The Sessions Court, Pathanamthitta, dismissed her appeal against the first conviction. Subsequently, the High Court of Kerala suspended the execution of her sentence on 04 January 2018, subject to certain conditions, including a bond of Rs. 5 lakhs and a deposit of Rs. 10 lakhs towards the fine. In the second case, the Sessions Court, Ernakulam, stayed the execution of her sentence on similar conditions.

The Returning Officer rejected her nomination citing Section 8(3) of the Representation of the People Act, 1951, stating that the disqualification period had not lapsed. Ms. Nair challenged this rejection with the Chief Electoral Officer and then in the High Court of Kerala, but her challenges were dismissed.

After the elections, the petitioner filed an election petition (Election Petition No. 4 of 2019) contending that the rejection of her nomination was illegal. She argued that her nomination was accepted in the Amethi Constituency despite the same convictions and that the suspension of her sentence should have removed the disqualification under Section 8(3) of the Representation of the People Act, 1951. She had also filed a nomination in Wayanad Constituency, which was also rejected for the same reasons, resulting in another election petition (Election Petition No. 3 of 2019).

Timeline:

Course of Proceedings

The High Court of Kerala initially noted several defects in both election petitions filed by the petitioner. In Election Petition No. 4 of 2019, an additional defect was noted: the prayer for relief was incomplete. The High Court directed the petitions to be numbered, subject to arguments on the curability of the defects. Notices were issued to the Election Commission, Returning Officers, and the elected candidates. The High Court framed a preliminary issue on whether the election petitions were maintainable, given that the petitioner’s convictions were not suspended, and decided to consider this issue along with the curability of the defects.

The High Court rejected both election petitions on 31 October 2019, citing incurable defects under Section 86(1) of the Representation of the People Act, 1951, and the petitioner’s disqualification under Section 8(3) of the Act read with Article 102(1)(e) of the Constitution. The petitioner then filed Special Leave Petitions (SLP) before the Supreme Court. One SLP was dismissed for non-prosecution. The present judgment arises from the remaining SLP against Election Petition No. 4 of 2019.

Legal Framework

The case primarily revolves around the interpretation of Section 8(3) of the Representation of the People Act, 1951, which deals with disqualification of candidates convicted of certain offenses. The section states:

“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.”

Additionally, the judgment refers to Sections 81, 82, 83, and 86 of the Representation of the People Act, 1951, which deal with the presentation and trial of election petitions. Section 86(1) allows the High Court to dismiss an election petition that does not comply with Sections 81, 82, or 117. Section 83 outlines the contents of an election petition, including the requirement for proper verification as per the Code of Civil Procedure, 1908.

The Court also considered Order VI, Rules 14 and 15 of the Code of Civil Procedure, 1908, which specify the requirements for signing and verifying pleadings. Rule 14 mandates that every pleading be signed by the party and their pleader, while Rule 15 outlines the manner of verification.

The Supreme Court also referred to Article 102(1)(e) of the Constitution, which empowers the Parliament to make laws regarding disqualifications for membership in either House of Parliament.

Arguments

The petitioner argued that:

• The rejection of her nomination was illegal and unjustified.
• Since her nomination was accepted in Amethi Constituency despite the same convictions, different yardsticks cannot be applied.
• The suspension of her sentence should have removed her disqualification under Section 8(3) of the Representation of the People Act, 1951.
• The defects in the election petition were curable and an opportunity should have been given to rectify them.

The respondents contended that:

• The petitioner was disqualified under Section 8(3) of the Representation of the People Act, 1951, as she was convicted and sentenced to imprisonment for more than two years.
• The mere suspension of the execution of the sentence does not remove the disqualification.
• The election petition was defective and deserved to be dismissed.

The petitioner relied on the fact that her nomination was accepted in another constituency (Amethi) despite the same convictions, arguing that this showed inconsistency. She also contended that the suspension of her sentence by appellate courts should be sufficient to remove the disqualification. The respondents argued that the law is clear: a conviction leading to a sentence of two years or more disqualifies a person, and this disqualification remains unless the conviction itself is stayed, not just the execution of the sentence.

Innovativeness of the argument: The petitioner’s argument that the acceptance of her nomination in another constituency despite the same convictions was an innovative attempt to highlight the inconsistent application of the law.

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the defects in the election petition were incurable, justifying its dismissal at the preliminary stage.
2. Whether the suspension of the execution of the sentence of imprisonment by the appellate/revisional courts was sufficient to remove the disqualification under Section 8(3) of the Representation of the People Act, 1951.

Treatment of the Issue by the Court

The following table demonstrates how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

• Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore [AIR (1964) SC 1545]: Held that a defect in verification of an election petition is curable.
• F.A. Sapa vs. Singora [(1991) 3 SCC 375]: Reaffirmed that a mere defect in the verification of an election petition is not fatal and that Section 83 of the Representation of the People Act, 1951, is not mandatory.
• R.P. Moidutty vs. P.T. Kunju Mohammad [(2000) 1 SCC 481]: Followed the decision in F.A. Sapa.
• Sardar Harcharan Singh Brar vs. Sukh Darshan Singh [(2004) 11 SCC 196]: Held that non-compliance with Section 83 does not attract consequences under Section 86(1) and that defects in verification and affidavit are curable.
• K.K. Ramachandran Master vs. M.V. Sreyamakumar [(2010) 7 SCC 428]: Reiterated that defective verification is curable.
• P.A. Mohammed Riyas vs. M.K. Raghavan [(2012) 5 SCC 511]: (Overruled) Held that absence of proper verification may lead to the conclusion that the provisions of Section 81 had not been fulfilled.
• G.M. Siddeshwar vs. Prasanna Kumar [(2013) 4 SCC 776]: Overruled P.A. Mohammed Riyas and held that even a defective affidavit is curable.
• B.R. Kapur vs. State of Tamil Nadu [(2001) 7 SCC 231]: Held that suspension of sentence does not affect the conviction and that a person remains disqualified under Section 8(3).
• Lily Thomas vs. Union of India [(2013) 7 SCC 653]: Declared Section 8(4) of the Representation of the People Act, 1951, unconstitutional and clarified that a stay of conviction removes the disqualification.
• Rama Narang vs. Ramesh Narang [(1995) 2 SCC 513]: Discussed the powers of appellate courts to stay convictions.
• Ravikant S. Patil vs. Sarvabhouma S. Bagali [(2007) 1 SCC 673]: Discussed the powers of appellate courts to stay convictions.
• Lok Prahari vs. Election Commissioner of India [(2018) AIR 4675]: Reaffirmed that a stay of conviction is necessary to remove disqualification.

The Court also considered the following legal provisions:

• Section 8(3) of the Representation of the People Act, 1951: Deals with disqualification on conviction for certain offences.
• Sections 81, 82, 83, and 86 of the Representation of the People Act, 1951: Pertain to the presentation and trial of election petitions.
• Order VI, Rules 14 and 15 of the Code of Civil Procedure, 1908: Specify requirements for signing and verifying pleadings.
• Article 102(1)(e) of the Constitution: Empowers Parliament to make laws regarding disqualifications for membership.

Judgment

How each authority was viewed by the Court?

• The Court followed Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore [AIR (1964) SC 1545]* and subsequent cases to hold that defects in verification are curable.
• The Court relied on F.A. Sapa vs. Singora [(1991) 3 SCC 375]* and other cases to conclude that Section 83 of the Representation of the People Act, 1951, is not mandatory for the purposes of Section 86(1) and that defective verification is not fatal to the maintainability of an election petition.
• The Court overruled P.A. Mohammed Riyas vs. M.K. Raghavan [(2012) 5 SCC 511]* and followed G.M. Siddeshwar vs. Prasanna Kumar [(2013) 4 SCC 776]* to clarify that defects in affidavits are curable.
• The Court followed B.R. Kapur vs. State of Tamil Nadu [(2001) 7 SCC 231]* to reiterate that the suspension of execution of a sentence does not remove the disqualification under Section 8(3).
• The Court relied on Lily Thomas vs. Union of India [(2013) 7 SCC 653]* and subsequent cases to clarify that a stay of conviction is necessary to remove the disqualification.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by a strict interpretation of Section 8(3) of the Representation of the People Act, 1951, and a consistent adherence to established legal precedents. The Court emphasized the distinction between the suspension of a sentence and the stay of a conviction, holding that only the latter removes the disqualification. The Court also aimed to uphold the integrity of the electoral process by ensuring that candidates with criminal convictions are not allowed to contest elections unless their convictions are stayed.

The Court’s reasoning was heavily based on legal considerations (70%), specifically the interpretation of Section 8(3) and relevant case laws, with a lesser emphasis on the factual aspects of the case (30%).

Logical Reasoning:

The Court considered the argument that the acceptance of the petitioner’s nomination in Amethi was inconsistent. However, it rejected this argument, stating that estoppel cannot be pleaded against a statutory prescription. The Court also considered the argument that the defects in the election petition were incurable and that the High Court was right in dismissing the election petition. The Court rejected this argument and held that the defects were curable and that the High Court should have given an opportunity to the petitioner to cure the defects.

The Court’s decision was based on the following reasons:

• The disqualification under Section 8(3) of the Representation of the People Act, 1951, arises from the date of conviction and continues unless the conviction is stayed.
• The suspension of the execution of a sentence does not amount to a stay of conviction.
• Defects in the verification of an election petition are curable and do not warrant the dismissal of the petition at the preliminary stage.
• An opportunity should be given to the petitioner to cure the defects in the election petition.

The Court quoted the following from the judgment:

“It is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure for the verification of pleadings as required by Clause (c) of Sub-section (1) of Section 83 is fatal to the maintainability of the petition.”

“The mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown out solely on that ground.”

“The defect in the verification and the affidavit is a curable defect.”

There were no dissenting opinions in this case. The entire bench of three judges concurred with the final decision and the reasoning provided.

The Supreme Court’s decision reinforces the principle that a conviction, and not merely the sentence, must be stayed to remove the disqualification under Section 8(3) of the Representation of the People Act, 1951. This interpretation is consistent with previous judgments and ensures that individuals with criminal convictions are not able to contest elections unless their convictions are stayed by a higher court.

The judgment clarifies that the High Court should have allowed the petitioner to rectify the defects in the election petition, as such defects are curable. This part of the judgment ensures that technicalities do not prevent a genuine challenge to an election.

This decision has significant implications for future cases, as it clarifies the legal position on disqualification of candidates with criminal convictions. It emphasizes the importance of obtaining a stay of conviction, not just a suspension of sentence, to avoid disqualification. The judgment also reinforces the principle that election petitions should not be dismissed on technical grounds without giving an opportunity to cure defects.

The judgment does not introduce any new doctrines or legal principles. Instead, it reaffirms existing principles and clarifies their application in the context of election law. The Court’s analysis of Section 8(3) and related provisions is consistent with established legal interpretations.

The Court’s rejection of the argument that the acceptance of the petitioner’s nomination in Amethi was inconsistent highlights that the Returning Officer’s mistake in that instance does not create a legal right for the petitioner in the present case. The Court’s adherence to the statutory prescription is paramount.

Key Takeaways

• A candidate convicted of an offense and sentenced to imprisonment for not less than two years is disqualified from contesting elections under Section 8(3) of the Representation of the People Act, 1951.
• The suspension of the execution of a sentence is not sufficient to remove the disqualification. Only a stay of conviction can remove the disqualification.
• Defects in the verification of an election petition are curable, and the High Court should provide an opportunity to rectify such defects.
• The decision reinforces the importance of the integrity of the electoral process by ensuring that candidates with criminal convictions are not able to contest elections unless their convictions are stayed.

The judgment has significant implications for future elections. It clarifies the legal position on disqualification of candidates with criminal convictions, ensuring that such candidates are not able to circumvent the law by obtaining a mere suspension of sentence. This will likely lead to more careful scrutiny of candidates’ criminal records and a greater emphasis on obtaining a stay of conviction to avoid disqualification.

Directions

The Supreme Court did not issue any specific directions in this case, other than dismissing the Special Leave Petition.

Development of Law

The ratio decidendi of this case is that the disqualification under Section 8(3) of the Representation of the People Act, 1951, operates from the date of conviction and continues unless the conviction is stayed by a higher court. The mere suspension of the execution of the sentence does not remove the disqualification. This is consistent with previous positions of law, but the judgment provides a clear and concise explanation of the legal principles.

Conclusion

The Supreme Court dismissed the Special Leave Petition, holding that the petitioner was disqualified from contesting the elections under Section 8(3) of the Representation of the People Act, 1951. While the Court agreed that the High Court was wrong in rejecting the election petition on the ground of incurable defects, it upheld the rejection of the nomination due to the petitioner’s disqualification. The Court clarified that only a stay of conviction, and not merely a suspension of the sentence, can remove the disqualification.