PRADEEP KUMAR SONTHALIA versus DHIRAJ PRASAD SAHU @ DHIRAJ SAHU & ANR. on 18 December 2020

SUPREME COURT REPORTS

[2020] 14 S.C.R.

APRADEEP KUMAR SONTHALIA

v.

DHIRAJ PRASAD SAHU @ DHIRAJ SAHU & ANR.

(Civil Appeal No. 611 of 2020)

BDECEMBER 18, 2020

[S.A. BOBDE,CJI, A.S. BOPANNA ANDV. RAMASUBRAMANIAN, JJ.]

Constitution of India – Arts.191, 193, 190, 188 and 80(4) –Biennial elections for two seats in the Council of States from theCState of Jharkhand – Appellant and two others filed nominations –An elected member of the Assembly admittedly cast his vote at 9.15a.m on 23.03.18 in favour of one of the winning candidate – Hewas convicted and sentenced in a criminal case in the afternoon ofthe same day – Suffered disqualification u/Art.191(1)(e) r/w s.8(3),D1951 Act – Appellant secured 2599 value of votes, and the othertwo candidates secured 2601 value of votes and 2600 value of votes– Objection lodged requesting the Returning Officer to declare thevote cast by the aforesaid convicted elected member to be invalid –Rejected – Appellant was declared defeated and the other twocandidates were declared duly elected – Appellant filed electionEpetition praying for a declaration that the Returning Officer hascaused improper reception of the void vote – Dismissed by HighCourt – On appeal, held: To hold that a Member of the LegislativeAssembly stood disqualified even before he was convicted wouldgrossly violate his substantive right to be treated as innocent untilFproved guilty – Thus, vote cast by such member at 9:15 a.m on23.03.18 was rightly treated as a valid vote – Representation of thePeople 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 Gof.

Words & Expressions – “the date” in s.8(3), 1951 Act – Held:Interpretation to be given to the expression “the date” appearing ins.8(3) will have a bearing upon the interpretation to be given to thedate of happening of any one of the events of disqualification u/H

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 thecircumstances under which a person will be treated as disqualified(i) either for being chosen as (ii) or for being, a member of the StateLegislative Assembly. The language of Article 191 makes it clearthat it covers both a contest in an election and the continuance inoffice after getting elected. If a person, being a member of theAssembly, suffers a disqualification, his seat becomes vacant. Thissituation is taken care of by Article 190. The event which causesthe disqualification under Article 191(1)(e) read with Section 8(3)is a conviction of a person for any of the specified offences. Theconsequence of such disqualification is that the seat becomesvacant. Obviously therefore, a Member of the LegislativeAssembly who has become disqualified and whose seat has becomevacant is not entitled to cast his vote for electing a representativefrom his State under Article 80(4) which provides that therepresentatives of each State “shall be elected by the electedmembers”. His name is liable to be deleted from the list ofmembers of the State Legislative Assembly maintained underSection 152 of the Representation of the People Act, 1951. Heceases to be an elector in relation to election by assembly memberand 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 enactedfor the purpose of providing for the conduct of elections of bothhouses of Parliament and to the House/Houses of StateLegislatures, the qualifications and disqualifications formembership of those houses, the corrupt practices etc. Section 8of the Act deals with disqualification on conviction for certainoffences. For the purpose of disqualification, the offences areclassified in section 8 into 3 categories. The present case isconcerned with sub-section (3) of section 8, as Amit Kumar Mahtowas convicted for offences which do not fall either under sub-section (1) or under sub-section (2). The disqualification under A

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ASection 8 of Act 43 of 1951 is relatable to Article 191(1)(e) of theConstitution. Therefore, any interpretation to Section 8 shouldbe in sync with the Constitutional scheme. [Paras 14, 16 and17][494-F-H; 495-B-E]

1.3 Section 8(3) of the Act deals both with the conditions ofBdisqualification and with the period of disqualification. As regardsthe period of disqualification, Section 8(3) is comprehensive inthat it indicates both the commencement of the period and itsexpiry. The date of conviction is prescribed to be the point ofcommencement of disqualification and the date of completion of aperiod of six years after release, is prescribed as the point ofCexpiry of the period of disqualification. Once the period ofdisqualification starts running, the seat hitherto held by the persondisqualified becomes vacant by virtue of Article 190(3) of theConstitution. While speaking about the seat of the disqualifiedperson becoming vacant, Article 190(3) uses the expressionD“thereupon”. This has to be kept in mind while interpreting thewords “the date of such conviction”. One fundamental principlethat has to be kept in mind while interpreting the phrase appearingin Section 8(3) is that in cases of this nature, the Court is notdealing with a fundamental right or a common law right. [Paras18-20][495-F-H; 496-A-F]ESaritha S. Nair vs. Hibi Eden Decision of SupremeCourt dated 08.12.2020 in SLP (C) No. 10678 of 2020;Jyoti Basu vs. Devi Ghosal (1982) 1 SCC 691:[1982] 3SCR 318 – relied on.

F2.1 Even in criminal law, there is a vast difference between(i) the interpretation to be given to the expression “date”, whilecalculating the period of imprisonment suffered by a person and(ii) the interpretation to be given to the very same expressionwhile computing the period limitation for filing an appeal/revision.Say for instance, a person is convicted and sentenced toGimprisonment and also taken into custody pursuant thereto, on23.03.2018, the whole of the day of March 23 will be included inthe total period of incarceration. But in contrast, the day of March23 will be excluded for computing the period of limitation for filingan appeal. Though one contrasts the other, both interpretationsHare intended to benefit the individual. Disqualification is not a penal provision and that the object of disqualification is to arrestcriminalisation of politics. But what triggered the disqualificationin this case, under Section 8(3) was a conviction by a criminalCourt, for various offences under the Penal Code. Therefore, thephrase “the date of conviction” appearing in Section 8(3) shouldreceive an interpretation with respect to the penal provisionsunder 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 provedguilty is a long-standing principle of constitutional law and cannotbe taken to be displaced by the use of merely general words. Inlaw this is known as the principle of legality and clearly applies tothe present case. To hold that a Member of the LegislativeAssembly stood disqualified even before he was convicted wouldgrossly violate his substantive right to be treated as innocentuntil proved guilty. In the present case, it would be significant toadd that it is not necessary to make a declaration incompatible inthe use of the word “date” with the general rule of law since theword “date” is quite capable of meaning the point of time whenthe event took place rather than the whole day. While it is knownthat an acquittal operates on nativity, no case has been cited forthe proposition that a conviction takes effect even a minute priorto itself. Moreover, the word “date” can be used to denoteoccasion, time, year etc. It is also used for denoting the time upto the present when it is used in the phrase “the two dates”.Significantly, the word “date” can also be used to denote a pointof time etc. To say that this presumption of innocence wouldevaporate from 00.01 A.M., though the conviction was handedover at 14.30 P.M. would strike at the very root of the mostfundamental principle of Criminal Jurisprudence. Inasmuch as aconviction for an offence is under a penal law, it cannot be deemedto 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 norelevance to cases of disqualification. A policy of insurance lies in A

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Athe realm of contract. Therefore, the interpretation to be givento the terms of such contract would largely depend upon the intentof the parties, with a certain degree of latitude in favour of a partywhose bargaining power is not equal to that of other contractingparty. It is not possible to adopt the interpretation given to theword “the date” appearing in a contract of Insurance. [Paras 41,B42][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 bythe criminal Court. In other words, conviction is the cause anddisqualification is the consequence. A consequence can neverCprecede the cause. [Para 43][503-C-E]

5. Article 193 deals with the penalty to be imposed upon anerring member who sits or votes as a member of the LegislativeAssembly or the Legislative Council (i) either before he hascomplied with the requirements of Article 188; (ii) or when heDknows that he is not qualified for membership; (iii) or when heknows that he is disqualified from being a Member; (iv) or whenhe knows that he is prevented by any law from sitting or voting. Adisqualification for which penalty is prescribed under Article 193,also invites civil consequences such as the denial of privilegesEthat go with the membership, other than the penalty stipulated inArticle 193. Once a person is disqualified, he ceases to be amember and his right to vote also ceases alongwith hismembership. This is a natural consequence of a person ceasingto be a member and this consequence is automatic and notdependent upon Article 193. Therefore, Article 193 cannot beFstretched to such an extent that even the natural consequencesof disqualification of a member will not get attracted because ofthe prescription of a penalty. Dehors the liability for penalty underArticle 193, the act done by the elected member is not liable tobe invalidated, but only in certain circumstances. One of themGmay be a case like the one on hand apart from cases falling foul ofArticle 188. [Paras 47, 48 and 53][504-C-G; 506-D-E]

6. The acts of the officers de facto performed within thescope of their assumed official authority, in the interest of the H

public or third persons and not for their own benefit, are generallyregarded as valid and binding as if they were the acts of the officersde jure. The de facto doctrine is founded on good sense, soundpolicy and practical expedience and that it is aimed at theprevention of public and private mischief and the protection ofpublic and private interest. [Para 55][506-G; 507-A-B]

6. It is not possible to hold that the vote cast by Shri AmitKumar Mahto at 9:15 a.m. on 23.03.2018 should be treated asinvalid on account of the conviction and sentence passed by thecriminal Court at 2:30 p.m. on the same day. This conclusion canbe drawn through another process of reasoning also. Article 191(1) of the Constitution deals with five different grounds ofdisqualification. They are (i) holding an office of profit as specifiedin the First Schedule; (ii) unsoundness of mind, which stands sodeclared by a competent Court; (iii) undischarged insolvency; (iv)absence of citizenship of India or acquisition of citizenship of aforeign State etc.; and (v) disqualification by or under any law madeby Parliament. The interpretation to be given to the expression“the date” appearing in Section 8(3) of the Representation of thePeople Act, 1951 will have a bearing upon the interpretation tobe given to the date of happening of any one of the above eventsof disqualification. While it may be convenient for the appellant inthis case to interpret the expression “the date” appearing inSection 8(3) with reference to Article 191(1)(e), it may have to beseen 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 theinterpretation offered by the appellant would not survive. Thevote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018was rightly treated as a valid vote. Therefore, the Civil AppealNo.611 of 2020 is dismissed. Civil Appeal No.2159 of 2020 isallowed, setting aside the findings of the High Court on issueNos. 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 AIR1968 SC 1064:[1968] SCR 812; Prabhu Dayal Sesmavs. State of Rajasthan (1986) 4 SCC 59 : [1986] 3 SCR665; Tarun Prasad Chatterjee vs. Dinanath Sharma AB

C

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E

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(2000) 8 SCC 649 : [2000] 3 Suppl. SCR 634; B.R Kapurvs. State of T.N. & Anr. (2001) 7 SCC 231 : [2001] 3Suppl. SCR 191; New India Assurance Company Limitedvs. Ram Dayal & Ors (1990) 2 SCC 680 : [1990] 2SCR 570; National Insurance Company Limited vs.Jijubhai Nathuji Dabhi & Ors. (1997) 1 SCC 66 : [1996]8 Suppl. SCR 929; State of Madhya Pradesh vs. Centrefor 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 ofAndhra Pradesh (1981) 3 SCC 132 : [1981] 3 SCR474; Pushpadevi M. Jatia vs. M.L. Wadhawan, AdditionalSecretary, Government of India & ors. (1987) 3 SCC367 : [1987] 3 SCR 46 – relied on.

K Prabhakaran vs. P Jayaraja, (2005) 1 SCC 754 :[2005] 1 SCR 296; Pashupati Nath Sukul vs. NemChandra 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. LiquorLicensing Court, (2009) 83 ALJR 327; In re F.B. Warren(1938) 2 All ER 331; Pulin Behari Das & Ors. vs. KingEmperor (1912) 15 Cal.LJ 517 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 611 of

From the Judgment and Order dated 17.01.2020 of the High Courtof Jharkhand at Ranchi in E.P. No. 01 of 2018.

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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. MishaRohatgi, Shashank Khurana, Bibhash Sinha, Bharat Monga, NishanthPatil, Azeem, Ms. Sneha Ravi Iyer, Javedur Rahman, Aditya Bhat, ManojC. Mishra, Advs. for the appearing parties.

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The Judgment of the Court was delivered by E

S. A. BOBDE, CJI

1. An interesting but important question of far-reachingconsequence arises for consideration in these appeals. It is this. “Whetherthe vote cast by a Member of the Legislative Assembly in an election tothe Rajya Sabha, in the forenoon on the date of election, would becomeinvalid, consequent upon his disqualification, arising out of a convictionand sentence imposed by a Criminal Court, in the afternoon on the verysame day?”

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2. We have heard learned counsel for the parties.

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3. The brief facts sufficient for answering the issue arising forconsideration in these appeals are as follows: -

(i) By a notification dated 05.03.2018, the Election Commissionof India notified the biennial elections for two seats in theCouncil of States from the State of Jharkhand; H

A(ii)Three candidates by name Pradeep Kumar Sonthalia, SamirUraon and Dhiraj Prasad Sahu, filed their nominations on12.03.2018. It is stated that the first two candidates belongedto the Bharitya Janata Party (BJP), and the third candidatebelonged to the Indian National Congress (INC); B(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 ofthe Legislative Assembly of the State of Jharkhand cast theirvotes;

(iv) One Shri Amit Kumar Mahto who was an elected memberCof 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 theAdditional Judicial Commissioner XVIII, Ranchi, in SessionsDTrial No.481 of 2010, for the offences punishable underSections 147, 323/149, 341/149, 353/149, 427/149 and 506/149 IPC, on the same day, but the conviction and sentencewere handed over at 2.30 P.M. He was sentenced to variousperiods of imprisonment for those offences, but all of themwere to run concurrently. The maximum punishment was forEthe offence under Section 506/149 and the Court awardedRI for a period of two years;

(vi) Since the election to the Council of States is by a system ofproportional representation by means of single transferablevote, the counting of votes began at 7.30 P.M on 23.03.2018.FOut of the 80 votes cast, two were declared invalid by theReturning Officer. The remaining 78 votes, which were validlycast, were converted into points (at the rate of 100 points pervote) and Pradeep Kumar Sonthalia was declared to havesecured 2599 value of votes, Samir Uraon was declared toGhave secured 2601value of votes and Dhiraj Prasad Sahuwas declared to have secured 2600 value of votes. Thus, theelection 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 byH

Shri Amit Kumar Mahto invalid, on the basis of the convictionand sentence imposed in the afternoon on the same day bythe Criminal Court;

(viii) However, the Returning Officer went ahead and declaredthe results at 12.15 A.M. on 24.03.2018. Shri Samir Uraonand Shri Dhiraj Prasad Sahu were declared by the ReturningOfficer to be duly elected and they were also issued with acertificate in Form No. 24 in terms of Rule 85 of the Conductof Election Rules, 1961;

(ix) Therefore, Pradeep Kumar Sonthalia, the defeated candidatefiled an election petition in Election Petition No.01/2018,praying for a declaration that the Returning Officer has causedimproper reception of the void vote of Shri Amit Kumar Mahto.He also prayed for setting aside the election of Shri DheerajPrasad Sahu with a consequential declaration that thepetitioner was duly elected as a member of Rajya Sabha;

(x) The High Court framed as many as 6 issues for considerationin the Election Petition and they are as follows: -

1. Whether Shri Amit Kumar Mahto has cast his vote infavour of respondent no. 1 in Biennial Election to theCouncil of States, 2018 in connection with State ofJharkhand?

2. Whether on conviction and sentence of two years inSessions Trial No. 481 of 2010 by the Additional JudicialCommissioner-XVIII, Ranchi, Shri Amit Kumar Mahtoceased to be a Member of Legislative Assembly and hisdisqualification came into effect immediately from thedate of his conviction and sentence of two years and,therefore, the vote of Shri Amit Kumar Mahto could nothave been taken into consideration at the time ofcounting?

3. Whether the disqualification of Shri Amit Kumar Mahtorendered his vote void/illegal that was cast to respondentno.1 and, therefore, reception of his vote was improperand, thus, in terms of Section 100 (1) (d) (iii) of theRepresentation of People Act, 1951, the election ofrespondent no. 1 is liable to be declared void?

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A4.Whether the communication from the Returning Officer(e-mail dated 24.03.2018) rejecting the objection madeon behalf of the petitioner on the ground that theReturning Officer had not received the judgment ofconviction of Shri Amit Kumar Mahto till the declarationof the results, is absolutely illegal and unlawful?

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5. Whether disqualification of Shri Amit Kumar Mahto interms of Section 8 (3) of the Representation of PeopleAct, 1951, takes effect from the date of his convictionand sentence of two years i.e. 23.03.2018 which meansthe day as per English calendar beginning at midnightCand covering a period of 24 hours i.e. with effect from23.03.2018 at 00.00 hours?

6. The respondent no. 1 having been declared to be electedin the Biennial Election to the Council of States – 2018by a margin of 0.01 vote and in the event, the vote ofDShri Amit Kumar Mahto which has been receivedimproperly is ignored, then whether the petitioner isentitled to be declared successful and consequently forbeing elected as a Member of Rajya Sabha?

(xi) By a judgment dated 17.01.2020, the High Court dismissedEthe Election Petition, after recording a finding in favour ofthe election petitioner on Issue Nos. 1, 2, 3 & 5. On IssueNos. 4 & 6, the High Court did not record any finding.

(xii) Despite deciding Issue Nos. 1, 2, 3 & 5 in favour of theelection petitioner, the High Court refused to grant any reliefFto the election petitioner, primarily on the ground that theelection to the Council of States by a system of proportionalrepresentation by means of single transferable vote, is a highlycomplex, technical issue and that it is not possible for theCourt to find out whether the election petitioner could haveGwon 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 CivilAppeal No.611 of 2020. Aggrieved by the findings on IssueNos. 1, 2, 3 & 5, one of the two returned candidates, namelyShri Dhiraj Prasad Sahu, has come up with the other appealH

namely Civil Appeal No.2159 of 2020.For the purpose ofconvenience, we refer to the appellant in Civil Appeal No.611 of 2020, as the appellant throughout and the appellant inthe other appeal as the returned candidate.

4. Before proceeding further, it must be recorded that there is nodispute either before us or before the High court, about the fact that ShriAmit Kumar Mahto cast his vote at 9.15 A.M. on 23.03.2018 and thatthe judgment of the criminal court was rendered at 2.30 p.m. on the verysame day.

5. Before the High court, a preliminary objection was raised aboutthe validity of the presumption on the part of the election petitioner thatSri. Amit Kumar Mahto cast his vote in favour of Shri Dhiraj PrasadSahu. Unless Shri Amit Kumar Mahto had cast his vote in favour of ShriDhiraj Prasad Sahu, the entire edifice on which the election petition wasbuilt could have crumbled. Therefore, the Returning Officer, Mr. BinayKumar Singh was examined as PW-1 and through him the original ballotpaper by which Shri Amit Kumar Mahto cast his vote was marked asExhibit-9. On the basis of the same, the High Court came to the conclusionthat Shri Amit Kumar Mahto cast his vote in favour of Shri Dhiraj PrasadSahu, the Congress candidate. It was also clear from the evidence ofPW-1 and Exhibit-9 that Shri Amit Kumar Mahto did not cast his 2[nd], 3[rd]and 4[th] preference vote. Therefore, the validity of the vote cast by AmitKumar Mahto assumed significance, especially in view of the margin ofvictory.

6. Since the factual position that Amit Kumar Mahto cast his votein favour of Dhiraj Prasad Sahu has now become unassailable, many ofthe issues framed by the High Court have now paled into insignificance.There are only 2 issues which now survive for consideration and theyare: -

(i) Whether the vote admittedly cast by Shri Amit Kumar Mahtoin favour of Shri Dhiraj Prasad Sahu at 9.15 A.M. on23.03.2018 should be treated as an invalid vote on account ofthe disqualification suffered by the voter under Article191(1)(e) of the Constitution of India read with Section 8(3)of the Representation of the People Act, 1951, by virtue ofhis conviction and sentence by the Sessions Court in a criminalcase, rendered at 2.30 P.M. on the very same date23.03.2018; and A

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A(ii)Whether, in the event of the first issue being answered in theaffirmative, the election petitioner is entitled to be declaredas duly elected automatically.

7. It is needless to say that the second question as formulatedabove would arise only if the answer to the first question is in theBaffirmative and not otherwise.

8. Before proceeding further, we may point out that two ancillaryissues namely (i) the non-joinder of the Election Commission of India asa party to the election petition; and (ii) the absence of a specific prayerfor recounting of votes, were also dealt with by the High Court. TheseCissues may have gained importance, but for the appeal filed by Shri DhirajPrasad 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 candidateDwho is the appellant in the first civil appeal, is that wherever a statuteuses the word “date” with reference to an event, courts have alwaysinterpreted the same to have happened at the intersection of the previousday and the present day, namely 00.01 a.m. This is firstly because it is atthat time that the day begins and secondly because law abhors fractions.Therefore, it is their contention that though the Sessions Court deliveredEits judgment of conviction and sentence at 2.30 P.M. on 23.03.2018, thedate of such conviction is deemed in law to have commenced at about00.01 A.M. when the date of March 22 lapsed and the date of March 23began. It is the further contention of the learned Senior Counsel that ifthe time at which the judgment was delivered is irrelevant and the focusFis actually on the date of conviction, then the disqualification would alsocommence at 00.01 A.M. on 23.03.2018. As a corollary, the vote cast at9.15 A.M. on 23.03.2018 would be a vote by a disqualified member andthus invalid.

10. In order to test the veracity of the above contention, it isGnecessary first to take note of the relevant provisions of the Constitutionand the Representation of the People Act, 1951.

11. Article 191 of the Constitution speaks of the circumstancesunder which a person will be treated as disqualified (i) either for beingchosen 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 inH

an election and the continuance in office after getting elected. It reads asfollows: - “191. Disqualifications for membership

(1) A person shall be disqualified for being chosen as, andfor being, a member of the Legislative Assembly or LegislativeCouncil of a State (a) if he holds any office of profit under the Government ofIndia or the Government of any State specified in the FirstSchedule, other than an office declared by the Legislature ofthe State by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by acompetent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquiredthe citizenship of a foreign State, or is under anyacknowledgement of allegiance or adherence to a foreignState; (e) if he is so disqualified by or under any law made byParliament

[Explanation.- For the purposes of this clause] a person shallnot be deemed to hold an office of profit under the Governmentof India or the Government of any State specified in the FirstSchedule by reason only that he is a Minister either for theUnion or for such State.

[(2) A person shall be disqualified for being a member of theLegislative Assembly or Legislative Council of a State if he isso disqualified under the Tenth Schedule]”

12. If a person, being a member of the Assembly, suffers adisqualification, his seat becomes vacant. This situation is taken care ofby 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- A

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A(a) becomes subject to any of the disqualifications mentionedin clause ( 1 ) or clause ( 2 ) of Article 191; or (b) resigns his seat by writing under his hand addressed tothe Speaker or the Chairman, as the case may be, and hisresignation is accepted by the Speaker or the Chairman, asBthe case may be, his seat shall thereupon become vacant:

[Provided that in the case of any resignation referred to insub clause (b), if from information received or otherwise andafter making such inquiry as he thinks fit, the Speaker or theChairman, as the case may be, is satisfied that suchCresignation is not voluntary or genuine, he shall not acceptsuch resignation]”

13. It is clear as daylight that the event which causes thedisqualification under Article 191(1)(e) read with Section 8(3) is aconviction of a person for any of the specified offences. The consequenceDof such disqualification is that the seat becomes vacant. Obviouslytherefore, a Member of the Legislative Assembly who has becomedisqualified and whose seat has become vacant is not entitled to cast hisvote for electing a representative from his State under Article 80(4) whichprovides that the representatives of each State “shall be elected by theelected members”. His name is liable to be deleted from the list ofEmembers of the State Legislative Assembly maintained under Section152 of the Representation of the People Act, 1951. He ceases to be anelector in relation to election by assembly member and cannot cast hisvote.

14. The Representation of the People Act, 1951 was enacted forFthe purpose of providing for the conduct of elections of both houses ofParliament and to the House/Houses of State Legislatures, thequalifications and disqualifications for membership of those houses, thecorrupt practices etc.,. Section 8 of the Act deals with disqualification onconviction for certain offences. For the purpose of disqualification, theGoffences 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).H

15. The disqualification results in the Member becoming liable tobe removed from the list of voters under Section 152 of the Representationof the People Act, 1951, though the actual deletion may take time. In anycase, he ceases to be an elector vide Rule 2(d) of the Conduct of ElectionRules, 1961 which provides that an elector in relation to an election byassembly members means any person entitled to vote at that election.

16. We are concerned in this case with sub-section (3) of section8, as Amit Kumar Mahto was convicted for offences which do not falleither 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 toimprisonment for not less than two years [other than anyoffence referred to in sub-section (1) or sub- section (2)] shallbe disqualified from the date of such conviction and shallcontinue to be disqualified for a further period of six yearssince his release.]”

17. The disqualification under Section 8 of Act 43 of 1951 isrelatable to Article 191(1)(e) of the Constitution. Therefore, anyinterpretation to Section 8 should be in sync with the Constitutionalscheme.

18. As this Court had an occasion to point out in Saritha S. Nairvs. Hibi Eden[1], Section 8(3) of the Act deals both with the conditions ofdisqualification and with the period of disqualification. As regards theperiod of disqualification, Section 8(3) is comprehensive in that it indicatesboth the commencement of the period and its expiry. The date of convictionis prescribed to be the point of commencement of disqualification andthe date of completion of a period of six years after release, is prescribedas the point of expiry of the period of disqualification.

19. Once the period of disqualification starts running, the seathitherto held by the person disqualified becomes vacant by virtue of Article190(3) of the Constitution. While speaking about the seat of the disqualifiedperson becoming vacant, Article 190(3) uses the expression “thereupon”.

1 SLP (C) No. 10678 of 2020 dated 08-12-2020

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AWe may have to keep this in mind while interpreting the words “the dateof such conviction”.

20. One fundamental principle that we may have to keep in mindwhile interpreting the phrase appearing in Section 8(3) is that in cases ofthis nature, the Court is not dealing with a fundamental right or a commonBlaw right. As pithily stated by this Court in Jyoti Basu vs. Devi Ghosal[2],an election dispute lies in a special jurisdiction and hence it has to beexercised without importing concepts familiar to common law and equity,unless they are ingrained in the statute itself. We may usefully extractthe relevant portion of the decision in Jyoti Basu which reads as follows:

C“8. A right to elect, fundamental though it is to democracy, is,anomalously enough, neither a fundamental right nor aCommon Law Right. It is pure and simple, a statutory right. Sois 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 beelected and no right to dispute an election. Statutory creationsDthey are, and therefore, subject to statutory limitation. AnElection petition is not an action at Common Law, nor in equity.It is a statutory proceeding to which neither the Common Lawnor the principles of Equity apply but only those rules whichthe statute makes and applies. It is a special jurisdiction, andEa special jurisdiction has always to be exercised in accordancewith the statutory creating it. Concepts familiar to CommonLaw and Equity must remain strangers to Election Law unlessstatutorily embodied”.

21. Placing heavy reliance upon the decision of this Court inFPashupati Nath Singh vs. Harihar Prasad Singh[3], it is contendedthat wherever the statute uses the words “on the date”, it should betaken to mean “on the whole of the day” and that law disregards as faras possible, fractions of the day.

22. But in our considered view Pasupati Nath Singh hardlyGsupports the contention of the Appellant. In that case the election to theBihar legislative Assembly from Dumro constituency was in issue. Asper the schedule, the filing of nominations was to take place from13.01.1967 to 20.01.1967. The date of scrutiny of nomination papers 2 (1982) 1 SCC 691H3 AIR 1968 SC 1064

was fixed as 21.01.1967. The returning officer, upon scrutiny ofnominations on 21.01.1967, rejected the nomination paper of the Appellantbefore this Court, on the ground that he had not made and subscribed therequisite 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 asfollows: - “4. The short question which arises in this appeal is whetherit is necessary for a candidate to make and subscribe therequisite oath or affirmation as enjoined by clause (a) of Art.173 of the Constitution before the date fixed for scrutiny ofnomination paper. In other words, is a candidate entitled tomake and subscribe the requisite oath when objection is takenbefore the Returning Officer or must he have made andsubscribed the requisite oath or affirmation before the scrutinyof nomination commenced?”

23. The answer to the above question turned on the interpretationto Section 36(2) of the Act, clause (a) of which used the words “on thedate fixed for scrutiny”. The contention of the appellant before thiscourt in Pashupati Nath Singh was that he was entitled to take the oathor affirmation, before the Returning Officer, immediately after an objectionis 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 thewhole of the day on which the scrutiny took place was available to him.However, this contention was rejected by this Court in the followingmanner: - “16. In this connection it must also be borne in mind that lawdisregards, as far as possible, fractions of the day. It wouldlead to great confusion if it were held that a candidate wouldbe entitled to qualify for being chosen to fill a seat till thevery end of the date fixed for scrutiny of nominations. If thelearned counsel for the petitioner is right, the candidatecould ask the Returning Officer to wait till 11.55 p.m. onthe date fixed for the scrutiny to enable him to take theoath”.

24. In other words, this Court interpreted the words “date” inPashupati Nath Singh, not necessarily to mean 00.01 A.M. to 24.00

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AP.M. This was despite the fact that in common parlance a date wouldmean 24 hours in time. But the running of time got arrested, the momentthe nomination of the appellant in Pashupati Nath Singh was taken upfor scrutiny. Thus, the benefit of the whole day of 24 hours was notmade available by this court in Pashupati Nath Singh to the appellanttherein and the act of the Returning officer in drawing the curtains downBat the happening of the event namely scrutiny of nomination papers, wasupheld by this court in Pashupati Nath Singh.

25. In fact, Pashupati Nath Singh can be said to be a mirrorimage or the converse of the case on hand. In the case on hand theperiod of commencement of an event is in question, while in PashupatiCNath Singh the period of conclusion was in issue. If the date on whichscrutiny was taken up can be held to have ended at the time whenthe event of scrutiny was taken up, we should, by the very samelogic, hold that the date of commencement of an event such asconviction and the consequent disqualification should also begin onlyDfrom the time when the event happened.

26. In fact, the argument of the appellant in this case is a doubleedged weapon. If the event of conviction and sentencing that happenedat 2.30 P.M. on 23.03.2018 can relate back to 00.01 A.M., the event ofvoting by Shri. Amit Kumar Mahto which happened at 9.15 A.M. canEalso relate back to 00.01 A.M. Once both of them are deemed to relateback to the time of commencement of the date, the resulting conundrumcannot be resolved. This why, the emphasis in Pashupati Nath Singhwas to provide an interpretation that will avoid confusion.

27. The learned Senior Counsel for the appellant relied upon theFdecision of this Court in Prabhu Dayal Sesma vs. State of Rajasthan[4]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 theRajasthan State and Subordinate Services Rules 1962 which prescribedthe minimum and maximum age for participation in the selection for directGrecruitment to Rajasthan Administrative Service. The appellant in thatcase was born on 02.01.1956 and Rule 11B prescribed that an applicantfor participation in the selection, must not have attained the age of 28years on the first day of January, next following the last date fixed forreceipt of application. Therefore, when a notification was issued in theH4 (1986) 4 SCC 59

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 28years on 01.01.1984, his candidature was rejected. It was in suchcircumstances that this Court took note of Section 4 of the Indian MajorityAct 1875, which stipulated the method of computation of the age of anyperson. In view of the fact that Rule 11B used the words “must nothave attained the age of 28 years”, this court concluded that theappellant therein attained the said age at 12 o’clock midnight whenJanuary 1 was born. We should point out here that if Prabu Dayal Sesmaconcerned a case of retirement, he would be taken to have attained theage of superannuation on January 1 by the very same logic, but at 2400hours on January 1. But Rule 11B mandated that the candidate “mustnot have attained”. Therefore, Prabhu Dayal Sesma also does not goto the rescue of the appellant.

28. Tarun Prasad Chatterjee vs. Dinanath Sharma[5], relied uponby the learned senior counsel for the appellant concerned the question ofcomputation of the period of limitation for filing an Election petition undersection 81(1) of the R.P. Act 1951. Therefore, this Court referred toSection 9 of the General Clauses Act, 1897 that laid down the manner inwhich statutes prescribing the commencement and termination of time,can be worded by using expressions such as “from” and “to”. But thisdecision is also of no assistance to the appellant for the simple reasonthat Section 8(3) of the Act uses the word “from” as well as theexpression “the date of conviction” and Tarun Prasad Chatterjeeconcerned the interpretation to be given only to the word “from”.

29. In any case, Tarun Prasad Chatterjee need not have gone asfar as the General Clauses Act, since Section 12(1) the Limitation Act,1963 itself provides for the exclusion of the date from which the periodof 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 theexpression “date”, while calculating the period of imprisonment sufferedby a person and (ii) the interpretation to be given to the very sameexpression while computing the period limitation for filing an appeal/revision. Say for instance, a person is convicted and sentenced toimprisonment and also taken into custody pursuant thereto, on 23.03.2018, A

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Athe whole of the day of March 23 will be included in the total period ofincarceration. But in contrast, the day of March 23 will be excluded forcomputing the period of limitation for filing an appeal. Though one contraststhe other, both interpretations are intended to benefit the individual.

31. Placing reliance upon the decision of the Constitution bench inBB.R Kapur vs. State of T.N. & Anr.[6]it was contended by the learnedsenior counsel for the appellant that the disqualification under Article 191of the Constitution and Section 8 of the R.P. Act is not a penal provisionand that therefore the question of beneficial construction would not arise,especially when the object of such disqualification is to cleanse politics.

C32. We have no doubt that disqualification is not a penal provisionand that the object of disqualification is to arrest criminalisation of politics.

33. But what triggered the disqualification in this case, under Section8(3) was a conviction by a criminal Court, for various offences under thePenal Code. Therefore, the phrase “the date of conviction” appearingDin Section 8(3) should receive an interpretation with respect to the penalprovisions under which a person was convicted.

34. The rule that a person is deemed innocent until proved guilty isa long-standing principle of constitutional law and cannot be taken to bedisplaced by the use of merely general words. In law this is known as theEprinciple of legality and clearly applies to the present case. In Piersonvs. Secretary of State for the Home Department[7], House of Lordsheld that unless there be clearest provision to the contrary, Parliament ispresumed not to legislate contrary to rule of law which enforces ‘minimumstandard of fairness both substantive and procedural’.

F35. In our view to hold that a Member of the Legislative Assemblystood disqualified even before he was convicted would grossly violatehis substantive right to be treated as innocent until proved guilty. In Australiathis principle has been described as an aspect of the rule of law “knownboth to Parliament and the Courts, upon which statutory language will beinterpreted”[8].G

36. In the present case, it would be significant to add that it is notnecessary 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 2317 (1997) 3 All ER 577H8 K-Generation Pty. Ltd. vs. Liquor Licensing Court, (2009) 83 ALJR 327 para 47.

of meaning the point of time when the event took place rather than thewhole day.

37. The well-known presumption that a man is innocent until he isfound guilty, cannot be subverted because the words can accommodateboth competing circumstances. While it is known that an acquittal operateson nativity, no case has been cited before us for the proposition that aconviction 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 fordenoting the time up to the present when it is used in the phrase “the twodates”. Significantly, the word “date” can also be used to denote a pointof time etc. (See Roget’s International Thesaurus third edition Note 114.4).

38. To say that this presumption of innocence would evaporatefrom 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 CriminalJurisprudence.

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 theconviction itself. As rightly pointed by Dr. A.M. Singhvi, this court held inUnion of India vs. M/S G.S Chatha Rice Mills[9]that legal fiction cannotprevail over facts where law does not intend it to so prevail. It was acase where a notification was issued by the Government of India undersection 8A of the Customs Tariff Act 1975, introducing a tariff on allgoods originating in or exported from Pakistan. The notification wasuploaded on the e-gazette at 20:46:58 hours on 16.02.2019. TheGovernment of India took a stand that the enhanced rate of duty wasapplicable even to those who had already presented bills of entry forhome consumption before the enhanced rate was notified in the e-gazette.The importers successfully challenged the claim of the customs authoritiesbefore the High court and the Union of India came up on appeal to thisCourt. An extensive analysis was made in Section H of the decision inM/S G.S. Chatha Rice Mills, on the interpretation of the words “day”and “date”. After taking note of several decisions, some of which aroseunder the law of Limitation, some under the law of Insurance and someunder the Election law, this Court pointed out that these expressions wereconstrued in varying contexts and that a general position in law, divorcedfrom subject, context and statute, has not been laid down. As succinctly AB

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Aput by this Court, “Legislative silences create spaces for creativity”and that “between interstices of legislative spaces and silences, thelaw is shaped by the robust application of common sense”.

40. The decision in K Prabhakaran vs. P Jayarajan[10]reliedupon by the learned Senior Counsel for the appellant did not deal with theBquestion that we are now confronted with. It was a case where (i) theeffect of several sentences of imprisonment, each for a period of lessthan 2 years ordered to run consecutively and not concurrently, therebytotalling to more than the period prescribed under section 8(3) of the Actand (ii) the effect of the decision of the Appellate Court rendered in acriminal case after the election was over, were in question. It is in thatCcontext that the Constitution Bench held in K Prabhakaran that Section8 of the R.P Act has to be construed in harmony with the provisions ofCr.P.C so as to give effect to the provisions contained in both.

41. Cases arising under the law of insurance, have no relevanceto cases of disqualification. Even under the law of insurance, differentDprinciples 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 hadinsurance cover upto 31.08.1984, which was not renewed. However, afresh policy was taken on 28.09.1984. It was on the very same day thatEthe vehicle got involved in an accident. The Motor Accident ClaimsTribunal upheld the repudiation of liability by the insurer, but the HighCourt held that the policy of insurance obtained on the date of the accidentbecame operative from the commencement of the date of insurance,namely from the previous midnight. While upholding the view taken bythe High Court, by a short order, this Court referred to In Re F.B.FWarren[12], wherein it was held that a judicial act will be referred to thefirst moment of the day on which it is done. However, in a subsequentdecision in National Insurance Company Limited vs. Jijubhai NathujiDabhi & Ors.[13], this Court explained the decision in Ram Dayal (supra)by stating that the same would hold good only in the absence of anyGspecific time mentioned in that behalf in the policy of insurance. In JijubhaiNathuji Dabhi (supra), the Court found that the contract clearly stipulatedthat it would be operative from 4.00 p.m on 25.10.1983 and that therefore 10 (2005) 1 SCC 75411 (1990) 2 SCC 68012 (1938) 2 All ER 331H13 (1997) 1 SCC 66

the insurance coverage was not available in respect of an accident thathappened before 4.00 p.m. on the same day. The decision in JijubhaiNathuji Dabhi (supra) was also followed in New India AssuranceCompany vs. Bhagwati Devi[14].

42. It must be remembered that a policy of insurance lies in therealm of contract. Therefore, the interpretation to be given to the termsof such contract would largely depend upon the intent of the parties, witha certain degree of latitude in favour of a party whose bargaining poweris not equal to that of other contracting party. Hence, it is not possible forus to adopt the interpretation given to the word “the date” appearing ina contract of Insurance.

43. Accepting the appellant’s submission would require us toconstrue the statutory scheme as intending something startling i.e.positing that the consequence precedes the cause. This would bereducing this provision to absurdity and require Courts to hold that aconsequence can precede its cause, but according to the learned counselthis is the intended effect of the provision since it states that a convictedperson shall be disqualified from the date of his conviction. But we donot agree. The disqualification arising under Section 8(3) of the Act,is the consequence of the conviction and sentence imposed by thecriminal Court. In other words, conviction is the cause anddisqualification is the consequence. A consequence can never precedethe cause. If we accept the contention of the appellant, the consequencewill be deemed to have occurred even before the cause surfaced.

44. It is contended by the learned Senior Counsel for the Returnedcandidate, that the Constitution also takes care of the contingency ofdisqualified persons sitting and voting despite suffering a disqualificationand that a court cannot travel beyond what is so prescribed. Article 193which takes care of this contingency reads as follows: - “193. Penalty for sitting and voting before making oath oraffirmation under Article 188 or when not qualified or whendisqualified. - If a person sits or votes as a member of theLegislative Assembly or the Legislative Council of a State beforehe has complied with the requirements of Article 188, or whenhe knows that he is not qualified or that he is disqualified formembership thereof, or that he is prohibited from so doing by A

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Athe provisions of any law made by Parliament or the Legislatureof the State, he shall be liable in respect of each day on whichhe so sits or votes to a penalty of five hundred rupees to berecovered as a debt due to the State.”

45. On the basis of Article 193, it is contended that when lawBprescribes certain consequences for an act of commission, the Courtcannot impose additional consequences. Reliance is placed in this regardon the decision of this Court in State of Madhya Pradesh vs. Centrefor Environment Protection Research and Development &Ors.[15],wherein it was held that when a Statute or the Statutory Rulesprescribes a penalty for any act or omission, no other penalty notCcontemplated in the Statute or the Rules can be imposed.

46. But we do not think that the aforesaid decision can be appliedto cases where consequences other than a penalty arise on account ofan act or omission. While it is true that a penalty other than the oneprescribed by the Statute cannot be imposed for a particular act orDomission, the said principle has no place in so far as consequences otherthan penalty which flow automatically out of such act or omission, areconcerned.

47. Article 193 deals with the penalty to be imposed upon an erringmember who sits or votes as a member of the Legislative Assembly orthe Legislative Council (i) either before he has complied with theErequirements of Article 188; (ii) or when he knows that he is not qualifiedfor membership; (iii) or when he knows that he is disqualified from beinga Member; (iv) or when he knows that he is prevented by any law fromsitting or voting.

48. A disqualification for which penalty is prescribed under ArticleF193, also invites civil consequences such as the denial of privileges thatgo 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 tovote also ceases alongwith his membership. This is a natural consequenceof a person ceasing to be a member and this consequence is automaticGand not dependent upon Article 193. Therefore, we cannot stretch Article193 to such an extent that even the natural consequences of disqualificationof a member will not get attracted because of the prescription of a penalty.

49. However, Article 193 and the interpretation given to the sameby this Court may be of significance for finding out whether an act orH15 (2020) SCC Online SC 687

omission done by a person disqualified would also perish and if so inwhat circumstances.

50. In Pashupati Nath Sukul vs. Nem Chandra Jain[16], one ofthe questions that arose for consideration was whether a person electedas a member of the Assembly but who has not made and subscribed theprescribed oath or affirmation as required by Article

188 can validly propose a person as a candidate at an election forfilling a seat in the Rajya Sabha. This question arose under peculiarcircumstances. The elections to the Legislative Assembly of the State ofUttar Pradesh were held in May, 1980 and the notification containing thenames of elected members was issued on 09.06.1980 under Section 73of the Representation of the People Act, 1951. The elected memberswere notified that they could take oath as required by Article 188 at theSession of the Assembly summoned to meet on 27.06.1980. But in themeantime, election for filling up a vacancy in the Rajya Sabha was notifiedon 17.06.1980. Therefore, the proposal of the name of a candidate forelection to the Rajya Sabha, made by an elected member who was yet totake oath under Article 188, was objected to. The objection was overruledand the nominated candidate won the election. Therefore, the questionas 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 theLegislative Assembly or the Legislative Council of a State shall,before taking his seat, make and subscribe before theGovernor, or some person appointed in that behalf by him, anoath or affirmation according to the form set out for thepurpose in the Third Schedule.”

52. In view of the mandate of Article 188, it was argued beforethis 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 hehad 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 takenoath but whose name appears in the notification publishedunder Section 73 of the Act can take part in all non-legislative A

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Aactivities of an elected member. The right of voting at anelection to the Rajya Sabha can also be exercised by him. Inthis case since it is not disputed that the name of the proposerhad been included before the date on which he proposed thename of the appellant as a candidate in the notificationpublished under Section 73 of the Act and in the electoral rollBmaintained under Section 152 of the Act, it should be heldthat there was no infirmity in the nomination. For the samereason even the electoral roll which contained the names ofelected members appearing in the notification issued underSection 73 of the Act cannot be held to be illegal. That is howCeven respondent No. 1 appears to have understood the truelegal position as he was also proposed as a candidate by anelector who had not yet made the oath or affirmation.”

53. Therefore, it is clear that dehors the liability for penalty underArticle 193, the act done by the elected member is not liable to beDinvalidated, but only in certain circumstances. One of them may be acase like the one on hand apart from cases falling foul of Article 188.Butthe position would have been different if Shri Amit Kumar Mahto hadbeen convicted and sentenced in the forenoon of 23.03.2018 and yet hevoted in the election to the Rajya Sabha in the afternoon with fullknowledge.E

54. The fallacy of the argument of the appellant that wherever theword “date” is used in a Statute, it should be understood to relate back to00:01 a.m. can be best understood if we apply the same to a reversesituation. If in a hypothetical situation, the conviction and sentence hadtaken place in the forenoon and Shri Amit Kumar Mahto had cast hisFvote in the afternoon, the defeated candidate would not have argued thatthe 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 factoperformed within the scope of their assumed official authority, in theinterest of the public or third persons and not for their own benefit, areGgenerally regarded as valid and binding as if they were the acts of theofficers de jure, articulated in Pulin Behari Das & Ors. vs. KingEmperor[17], was invoked by this Court in Gokaraju Rangaraju vs. Stateof Andhra Pradesh[18] when a question arose as to the validity of the 17 (1912) 15 Cal.LJ 517H18 (1981) 3 SCC 132

judgments pronounced by an Additional Session Judge whose appointmentwas declared by the Court to be invalid subsequently. This Court pointedout that the de facto doctrine is founded on good sense, sound policy andpractical expedience and that it is aimed at the prevention of public andprivate mischief and the protection of public and private interest. Asstated by this Court this doctrine avoids endless confusion and needlesschaos.

56. Again, in Pushpadevi M. Jatia vs. M.L. Wadhawan,Additional Secretary, Government of India & ors.[19], this Courtreiterated the de facto doctrine as one born of necessity and public policyto prevent needless confusion and endless mischief. This Court held that“where an office exists under the law, it matters not how theappointment of the incumbent is made, so far as validity of his actsare concerned.” So long as he is clothed with the insignia of the officeand exercises its powers and functions, the acts performed by him wereheld by this Court to be valid.

57. Even in B.R. Kapur (supra), this Court invoked the de factodoctrine to declare as valid, all acts performed by a Chief Minister whoseappointment was held to be invalid from day one. Paragraph 57 of thesaid decision reads as follows:

“We are aware that the finding that the second respondentcould not have been sworn in as Chief Minister and cannotcontinue to function as such will have serious consequences.Not only will it mean that the State has had no validly appointedChief Minister since 14th May, 2001, when the secondrespondent was sworn in, but also that it has had no validlyappointed Council of Ministers, for the Council of Ministerswas appointed on the recommendation of the secondrespondent. It would also mean that all acts of the Governmentof Tamil Nadu since 14th May, 2001 would becomequestionable. To alleviate these consequences and in theinterest of the administration of the State and its people, whowould have acted on the premise that the appointments werelegal and valid, we propose to invoke the de facto doctrineand declare that all acts, otherwise legal and valid, performedbetween 14th May, 2001 and today by the second respondentas Chief Minister, by the members of the Council of Ministers A

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Aand by the Government of the State shall not be adverselyaffected by reason only of the order that we now propose topass.”

58. Therefore, it is not possible to hold that the vote cast by ShriAmit Kumar Mahto at 9:15 a.m. on 23.03.2018 should be treated asBinvalid on account of the conviction and sentence passed by the criminalCourt at 2:30 p.m. on the same day. This conclusion can be drawn throughanother process of reasoning also. Article 191 (1) of the Constitutiondeals with five different grounds of disqualification. They are (i) holdingan office of profit as specified in the First Schedule; (ii) unsoundness ofmind, which stands so declared by a competent Court; (iii) undischargedCinsolvency; (iv) absence of citizenship of India or acquisition of citizenshipof a foreign State etc.; and (v) disqualification by or under any law madeby Parliament.

59. The interpretation to be given to the expression “the date”appearing in Section 8(3) of the Representation of the People Act, 1951Dwill have a bearing upon the interpretation to be given to the date ofhappening of any one of the above events of disqualification.

60. While it may be convenient for the appellant in this case tointerpret the expression “the date” appearing in Section 8(3) withreference to Article 191(1)(e), we may have to see whether the sameEwould fit into the scheme of Article 191(1) in entirety. It may not. Iftested against each one of Sub-clauses (a) to (d) of Clause (1) of Article191 we would find that the interpretation offered by the appellant wouldnot survive. Justice Oliver Wendell Holmes, Jr. in Henry R Towne vs.Mark Eisner[20] while dealing with the construction of a word in theFConstitution as well as a statute, observed:- “A word is not a crystal, transparent and unchanged; it is theskin of a living though and may vary greatly in colour andcontent according to the circumstances and tie in which it isused”

G61. Therefore, on the first issue we hold that the vote cast by ShriAmit Kumar Mahto at 9:15 a.m. on 23.03.2018 was rightly treated as avalid vote. To hold otherwise would result either in an expectation thatthe Returning Officer should have had foresight at 9:15 a.m. about the PRADEEP KUMAR SONTHALIA v. DHIRAJ PRASAD SAHU @DHIRAJ SAHU [S.A. BOBDE, CJI]

outcome of the criminal case in the afternoon or in vesting with the ElectionCommission, a power to do an act that will create endless confusion andneedless chaos.

62. In view of our above answer to the first issue, the secondissue does not arise for consideration. Therefore, the Civil Appeal No.611of 2020 is dismissed. Civil Appeal No.2159 of 2020 is allowed, settingaside the findings of the High Court on issue Nos. 2, 3 and 5 framed bythe High Court. There will be no order as to costs.

Divya Pandey

Appeals disposed of.

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