Lok Prahari vs Election Commission Of India

WRIT PETITION (CIVIL) No. 330 OF 2016

Lok Prahari, through its General Secretary S.N. Shukla .... Petitioner

Versus

Election Commission of India & Ors. .....Respondents

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 The petitioner, Lok Prahari, is a society registered under the

Societies’ Registration Act 1860 with objects pertaining to public

governance and administration. It has invoked the jurisdiction of this Signature Not Verified

Court under Article 32 of the Constitution, in the present Public Interest Digitally signed by SUBHASH CHANDER Date: 2018.09.26 16:01:12 IST Reason:

Litigation through its General Secretary, who appeared in person. The

1 following amongst other reliefs have been sought:

1 “Declare that since the law does not provide for stay of conviction, even in case of stay of conviction by the appellate court for an offence attracting disqualification under Section 8 of RP Act, 1951, any such stay order does not have the effect of wiping out the disqualification and reviving the membership with retrospective effect and consequently, the seat of the concerned member is deemed to have beome vacant with effect from the date of conviction in terms of Article 101(3)(a) and 190(3)(a) of the Constitution.

2 Declare that as a consequence of the declaration as per 1 above, any member of Parliament of State legislature who becomes subject to disqualification mentioned in Article 102(1)(e) or 190(1)(e) shall be liable to penalty under Article 104/193 notwithstanding any order of the appellate/ revisional court purporting to stay his conviction for an offence attracting disqualification mentioned in Section 8 of RP Act, 1951....

3 issue a writ, order of direction in the nature of Mandamus to the respondent no. 1 to issue within 24 hours of receipt of certified copy of the judgment and order regarding sentence the notification regarding disqualification and consequent vacancy of the seat of the concerned MP/MLA/MLC with effect from the date of his/her conviction as a result of his/her disqualification for an offence under Section 8(1)(2) and (3) of the Representation of the People Act, 1951.

4 issue a writ, order or direction in the nature of Mandamus to the respondent no. 1 to ensure action for filing the vacancy of the seat of a member of Parliament/State legislature as per Section 151 of the RP Act, 1951 disregarding any order of the appellate/ revisional court purporting to stay of conviction for an offence attracting disqualification mentioned in Section 8 of RP Act, 1951....”

2 An erstwhile member of the Legislative Assembly in the State of

Uttar Pradesh was convicted of offences under Sections 353, 504 and

506 of the Penal Code and was sentenced to imprisonment. In appeal,

the District Court stayed the execution of the sentence and of the

conviction.

2 3 The petitioner instituted a Public Interest Litigation before the

Lucknow Bench of the High Court of Allahabad, seeking a declaration

that the MLA stood disqualified notwithstanding the stay granted by the

Sessions Judge. The PIL was dismissed by the High Court on the

ground that since the appellate court stayed the conviction, the

disqualification, which would otherwise stand attracted, would not

operate from the date on which the conviction has been stayed.

4 The petitioner urges that the seat held by a Member of Parliament

or of the State legislature becomes vacant upon a disqualification being

incurred under Article 102 or Article 191, respectively. According to the

petitioner, once the disqualification is incurred under Section 8 of the

Representation of the People Act 1951 read with Article 102(1)(e) or

Article 191(1)(e), the seat becomes vacant effective from the date of

conviction. Relying on the decision of this Court in B R Kapur v State

of Tamil Nadu 1 , the petitioner contends that under Section 389 of

Cr.P.C. the appellate court does not have the power to stay conviction

and can stay only the execution of sentence.

Article 102 of the Constitution provides thus:

“102. (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—

(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;

1 (2001) 7 SCC 231

3

(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 acknowledgment 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 by reason only that he is a Minister either for the Union or for such State. 2 [(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.]”

Article 191 of the Constitution provides a disqualification in similar terms

for membership of a legislative assembly or legislative council of a

state.

The relevant provision in Section 8 of the Representation of the People

Act 1951 reads thus:

“8. Disqualification on conviction for certain offences.—

[(1) A person convicted of an offence punishable under—

(a) section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171F (offence of undue influence or personation at an election) or sub-section (1) or sub-section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly

4 engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860); or

(b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for the preaching and practice of “untouchability”, and for the enforcement of any disability arising therefrom; or

(c) section 11 (offence of importing or exporting prohibited goods) of the Customs Act, 1962 (52 of 1962); or

(d) sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967);

or

(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or

(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or

(g) section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or

(h) section 7 (offence of contravention of the provisions of section 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or

(i) section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) or clause (a) of sub-section (2) of section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act; 1 [or]

[(j) section 6 (offence of conversion of a place or worship) of the Places of Worship (Special Provisions) Act 1991], [or]

[(k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971) 4 [or];]

[(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or

(m) the Prevention of Corruption Act, 1988 (49 of 1988); or

5

(n) the Prevention of Terrorism Act, 2002 (15 of 2002),]

[shall be disqualified, where the convicted person is sentenced to—

(i) only fine, for a period of six years from the date of such conviction;

(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]

(2) A person convicted for the contravention of—

(a) any law providing for the prevention of hoarding or profiteering; or

(b) any law relating to the adulteration of food or drugs; or

(c) any provisions of the Dowry Prohibition Act, 6 [1961 (28 of 1961);],

and sentenced to imprisonment for not less than six months, 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.]

(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.]”

5 It has been contended by the petitioner that there is no provision

in the Constitution or in the Representation of the People Act 1951 to

the effect that upon a subsequent stay of conviction by the appellate or

revisional court, the disqualification shall stand wiped out retrospectively

and that the membership of a convicted Member of Parliament or of the

Legislative Assembly or Council shall get revived despite the vacancy

having occurred from the date of conviction. It has been urged that in

the absence of any constitutional or statutory provision, stay of

6 conviction can only operate prospectively to enable a person to contest

an election again since membership of the legislature terminates

instantly from the date of conviction.

6 In response to the present proceedings, a counter affidavit dated

10 April, 2015 has been filed on behalf of the Election Commission of

India stating that:

i) The Election Commission of India supports the first prayer in the

present Public Interest Litigation;

ii) The Election Commission of India has issued instructions on 13

October 2015 by which it has required the Chief Secretaries to

issue appropriate instructions to the department dealing with

prosecutions in States and Union Territories to ensure that cases

of conviction of sitting Members of Parliament or of the State

legislature are brought to the notice of the Speaker or Chairman of

the House and the Chief Electoral Officer of the State along with

the order of conviction within seven days of the order;

iii) In the decision of this Court in Lily Thomas v Union of India2 it

was observed that there is an automatic disqualification upon

conviction and there is no question of postponing the effect of the

disqualification on the ground of giving the member of the

legislature an opportunity to exhaust the remedy of appeal and a

2 (2013) 7 SCC 653

7 subsequent stay of conviction cannot retrospectively cure the

disqualification; and

iv) For the purpose of filling the seat which has fallen vacant, it would

not be necessary to await the decision of the President or

Governor under Articles 103 and 192. No decision by the President

or Governor is required on the question of disqualification arising

out of conviction. In view of the decision in P V Narasimha Rao v

State (CBI/SPE)3, only a ‘disputed’ question of disqualification is to

be referred to the President or Governor.

7 The Union government has opposed the petition. In the counter

affidavit which has been filed on behalf of the Union of India through the

Secretary in the Department of Justice, Ministry of Law and Justice, it

has been submitted that the issues raised in the present petition have

already been considered and decided in the decision of this Court in

Lily Thomas (supra). Moreover, it has been submitted that no

challenge has been addressed in the present petition to any provision of

the Act or the Rules made under it. The petitioner has only relied on the

provisions of law and on judicial pronouncements on the subject of

disqualification on conviction.

3 (1998) 4 SCC 626

8 8 In response to the Counter affidavit filed by the first Respondent,

a Rejoinder dated 20 February 2017 has been filed by the petitioner

stating that:

i) The role of the Election Commission commences immediately

with the conviction of a sitting legislator. The EC need not await

the receipt of a notification regarding the disqualification and of

the vacancy in the seat by the Secretariat of the legislative body;

and

ii) There exists no legal requirement of a notification regarding the

vacancy in the seat in view of the categorical provision in Article

101(3)(2) and Article 190(3)(a) of the Constitution that the seat

becomes vacant upon conviction.

9 In response to the Counter affidavit filed by the second

Respondent, a Rejoinder dated 10 November 2017 has been filed by

petitioner submitting that revival of membership retrospectively after a

conviction is stayed, will open a floodgate with convicted MPs/ MLAs/

MLCs approaching the appellate/ revisional court to get a stay on

conviction enabling them to continue even without the protection of

Section 8(4) of the Representation of the People Act 1951.

9 10 Section 3894 of the Code of Criminal Procedure, 1973, empowers

the appellate court, pending an appeal by a convicted person and for

reasons to be recorded in writing to order that the execution of a

sentence or order appealed against, be suspended. In the decision in

Rama Narang v Ramesh Narang 5 , a Bench of three judges of this

Court examined the issue as to whether the court has the power to

suspend a conviction under Section 389 (1). This Court held that an

order of conviction by itself is not capable of execution under the Code

of Criminal Procedure, 1973. But in certain situations, it can become

executable in a limited sense upon it resulting in a disqualification under

other enactments. Hence, in such a case, it was permissible to invoke

the power under Section 389 (1) to stay the conviction as well. This

Court held:

“19. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in

4 Section 389 provides as follows :

“Suspension of sentence pending the appeal; release of appellant on bail. (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.” 5 (1995) 2 SCC 513

10 Section 267 of the Companies Act, we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code.”

11 In Navjot Singh Sidhu v State of Punjab 6 a Bench of two

learned judges of this Court held that a stay of the order of conviction by

an appellate court is an exception, to be resorted to in a rare case, after

the attention of the appellate court is drawn to the consequences which

may ensue if the conviction is not stayed. The court held:

“The legal position is, therefore, clear that an appellate Court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate Court to the consequences that may arise if the conviction is not stayed. Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case.”

6 AIR 2007 SC 1003

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12 The above position was reiterated by a Bench of three judges of

this Court in Ravikant S Patil v Sarvabhouma S Bagali 7 , after

adverting to the earlier decisions on the issue, viz. Rama Narang v

Ramesh Narang (supra), State of Tamil Nadu v A. Jaganathan8, K.C.

Sareen v CBI, Chandigarh9, B.R. Kapur v State of T.N. (supra) and

State of Maharashtra v Gajanan.10 This Court concluded as follows:-

“It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. As order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying that consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.”

13 In Lily Thomas (supra), it was urged that in the absence of

Section 8(4), a Member of Parliament or of the State Legislature would

be left without a remedy even if the conviction was “frivolous”. Rejecting

the submission, this Court held (relying on Ravi Kant Patil (supra):

“In the aforesaid case, a contention was raised by the respondents that the appellant was disqualified from contesting the election to the Legislative Assembly under sub-

7 (2007) 1 SCC 673 8 (1996) 5 SCC 329 9 (2001) 6 SCC 584 10(2003) 12 SCC 432

12 section (3) of Section 8 of the Act as he had been convicted for an offence punishable under Sections 366 and 376 of the Penal Code and it was held by the three-Judge Bench that as the High Court for special reasons had passed an order staying the conviction, the disqualification arising out of the conviction ceased to operate after the stay of conviction.

Therefore, the disqualification under sub-sections (1), (2) or (3) of Section 8 of the Act will not operate from the date of order of stay of conviction passed by the appellate court under Section 389 of the Code or the High Court under Section 482 of the Code.”11

14 These decisions have settled the position on the effect of an order

of an appellate court staying a conviction pending the appeal. Upon the

stay of a conviction under Section 389 of the Cr.P.C., the disqualification

under Section 8 will not operate. The decisions in Ravi Kant Patil and

Lily Thomas conclude the issue. Since the decision in Rama Narang, it

has been well-settled that the appellate court has the power, in an

appropriate case, to stay the conviction under Section 389 besides

suspending the sentence. The power to stay a conviction is by way of an

exception. Before it is exercised, the appellate court must be made

aware of the consequence which will ensue if the conviction were not to

be stayed. Once the conviction has been stayed by the appellate court,

the disqualification under sub-sections 1, 2 and 3 of Section 8 of the

Representation of the People Act 1951 will not operate. Under Article

102(1)(e) and Article 191(1)(e), the disqualification operates by or under

any law made by Parliament. Disqualification under the above provisions

of Section 8 follows upon a conviction for one of the listed offences. 11 Id at page 673

13 Once the conviction has been stayed during the pendency of an appeal,

the disqualification which operates as a consequence of the conviction

cannot take or remain in effect. In view of the consistent statement of the

legal position in Rama Narang and in decisions which followed, there is

no merit in the submission that the power conferred on the appellate

court under Section 389 does not include the power, in an appropriate

case, to stay the conviction. Clearly, the appellate court does possess

such a power. Moreover, it is untenable that the disqualification which

ensues from a conviction will operate despite the appellate court having

granted a stay of the conviction. The authority vested in the appellate

court to stay a conviction ensures that a conviction on untenable or

frivolous grounds does not operate to cause serious prejudice. As the

decision in Lily Thomas has clarified, a stay of the conviction would

relieve the individual from suffering the consequence inter alia of a

disqualification relatable to the provisions of sub-sections 1, 2 and 3 of

Section 8.

15 Finally, we may address the relief which has been sought in

prayer clause 5 by which a direction has been sought to the Union

Government through the Secretary in the Department of Justice, Ministry

of Law and Justice, the second Respondent. Prayer clause 5 reads as

follows :

“5. Issue a writ, order or direction in the nature of the Mandamus to the respondent no. 2 to-

(i) issue a circular to the Registrar General/Registrars of

14 all High Courts to issue suitable instructions to all District and Sessions Judges to ensure that 2 certified copies of the judgments in cases attracting disqualification of a sitting MP/MLA/MLC under Article 102/191 of the Constitution are made available to the state counsel within 24 hours from the delivery of order regarding sentence for submission to the concerned District Magistrate,

(ii) issue a circular to the Chief Secretaries of the States/Union Territories for issuing suitable instructions to District Magistrates and the District Government Counsel to send by speed post/special messenger one certified copy of the judgment and order regarding sentence to the Chief Election Officer of the state and the other certified copy to the Secretary General/Principal Secretary/Secretary of the concerned House (Lok Sabha/Rajya Sabha/Legislative Assembly/Legislative Council.”

16 No such direction can be issued by the Secretary in the

Department of Justice to the Registrars General of the High Courts.

Moreover, following the implementation of the e-courts project, certified

copies of judgments are made available across all courts in a

streamlined manner. The affidavit filed by the Election Commission of

India indicates that the Commission has already issued instructions on

13 October 2015 to the Chief Secretaries of all states to ensure that

necessary steps are taken to bring to the notice of the Speaker or

Chairman as the case may be of the House and the Chief Electoral

Officer of the state, an order of conviction within a period of seven days

of the passing of the order. The Election Commission is sufficiently

empowered to take appropriate steps in accordance with law. No further

directions are necessary in that regard.

15 17 The writ petition shall accordingly stand dismissed. Pending

application, if any, is accordingly disposed of. There shall be no order

as to costs.

…….................................................CJI [DIPAK MISRA]

….……...............................................J [A M KHANWILKAR]

…......................................................J [Dr Dhananjaya Y Chandrachud]

New Delhi;

September 26, 2018.

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