Will a vote by an MLA be counted in Rajya Sabha Elections if he is disqualified hours after he has casted his vote?

Case Citation

Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu & Another, 2020 SCC OnLine SC 1039, authored by Hon’ble C.J. S.A. Bobde on 18.12.2020.

Subject Matter

Whether the vote cast by a Member of the Legislative Assembly in an election to the Rajya Sabha, in the forenoon (9:15 AM) 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 (2:30 PM) on the very same day?

Important Provisions of Law

Article 191 of the Constitution of India

Article 190 of the Constitution of India

Section 8 (3) of the Representation of the People Act, 1951

Important Precedents Discussed

Jyoti Basu v. Devi Ghosal – “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.”

Pashupati Nath Singh v. Harihar Prasad Singh – 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. 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 which may even mean that a 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.

Crux of the Legal Reasoning

The Court observed that:

“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.”

The Court harmoniously construed the case of Pashupati Nath Singh (supra) in relation to the facts of the present case and observed that: -

“25….. 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.”

Thus, based upon the above stated conspectus of law, the Court held that to hold that an MLA stood disqualified even before he gets convicted would grossly violate his substantive right to be treated as innocent until proven guilty and there is no precedent to suggest that a conviction may take effect even a minute prior to itself. To fortify this observation, the Court relied upon the dictionary meaning of “date” and observed that “date” could also be used to denote a point of time.

The Court acknowledged that there is a legislative silence and observed that “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.” Therefore, it was opined that “conviction is the cause and disqualification is the consequence. A consequence can never precede the cause.”

The Court concluded by quoting Justice Oliver Wendell Holmes, Jr. in Henry R Towne v. Mark Eisner, as under: -

“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”

Hence, it was finally held that the vote cast by the returning candidate at 9:15 AM (23.03.2018) was rightly treated as a valid vote and to hold otherwise would mean that the Returning Officer ought to have foresighted about the outcome of a criminal case and would result into creating endless confusion and needless chaos.

Concluding Remarks

The Court acknowledged that there existed a legislative vacuum and used the interpretative tools at its disposal in magnificent and clever manner to remove the absurdity and conundrum that could have taken place in the times to come. The reasoning of the Judgment is in itself crystal clear that a person cannot know what is about to happen the future and hence, any such expectation is farcical.