Equivalent Citation - MANU/KE/0166/2002 Petitioner: Raveendran Nair & Ors. Respondent: R. Balakrishna Pillai Bench: B Srikrishna, G Sivarajan
Facts of the case
There were three original petitions which challenged the constitutional validity of Sub-section 4 of Section 8 of the Representation of the People Act, 1951. According toone of the Petitions, the first respondent, R. Balakrishna Pillai was elected as member of the Kerala Legislative Assembly. While he was a sitting MLA he was convicted and sentenced to undergo five years of rigorous imprisonment for offences under Sections 120-B, 409 of IPC and Section 5(2) of the Prevention of Corruption Act read with Section 120-B of the IPC by the Special Judge, Edamalayar Investigations.
He has challenged his conviction by an appeal in the Supreme Court which is admitted and is pending in the Supreme Court. During this period, the election process started on 20.4.2001. The first respondent in the Election Petition filed his nomination. The nomination was scrutinised on 24.4.2001, and the Returning Officer by an order made on 25.4.2001 overruled the objection raised against the validity of the nomination of the first respondent in the Election Petition and took the view that on the date of scrutiny, that is, on 24.4.2001 inasmuch as the first respondent is a sitting M.L.A., he got the benefit of Section 8(4) of the Act, and he is not disqualified under Section 8. As a matter of information, it was pointed out that by a notification issued on 10.5.2001, the Governor of Kerala, in exercise of his power under Article 174(2)(b) had dissolved 10th Kerala Legislative Assembly with effect from 16.5.2001.
(1) Whether the disqualification under Section 8(3) of the R.P. Act, 1951 arising from Annexure-A2 judgment passed in C.C. No. 1/91 on 10.11.99 disentitled the 1st respondent from contesting the election to the 11th Kerala Legislative Assembly as on the last date for filing nominations notwithstanding the fact that the conviction and sentence in the said C.C. 1/91 was pending in appeal?
(2) Whether the 1st respondent was protected by Section 8(4) of the R.P. Act, 1951 considering the pendency of the said Criminal Appeal as held in Annexure- A4 order?
(3) Whether the dissolution of the 10th Legislative Assembly on 29.5.2001 has disentitled the 1st respondent from claiming the protection of Section 8(4) of the R.P. Act?
(4) Whether Annexure-A4 order accepting the nomination given by the 1st respondent is legally valid?
(5) Whether the election of the 1st respondent to the 11th Legislative Assembly deserves to be set aside on the ground that his nomination was illegally accepted or that he was disentitled to contest the election?
(6) Whether the petitioner can be declared as the duly elected candidate from 117 Kottarakkara Legislative Assembly Constituency in the General Election based on poll taken on 10.5.2001?
(7) Relief and cost
The learned counsel for the petitioners contended that Sub-section (4) of Section 8 of the Act infringes Article 14 of the Constitution, for it makes invidious and hostile discrimination between ordinary citizens and Members of Parliament or Legislature of a State in the matter of incurrence of disqualification. While in the case of the ordinary citizen, the disqualification would operate from the date of conviction, in the case of a Member of Parliament or Legislature of a State, there is an interregnum of three months before the disqualification comes into play, and a further period of pendency of appeal or application for revision if one has been preferred to challenge the conviction or sentence.
It is contended that this classification is based on no discernible rational criteria, which would have a reasonable nexus with the object sought to be achieved by the statute. The objective of Section 8 of the Act is to ensure that there is no criminalisation of politics. That is the reason why a person convicted of a criminal offence is disqualified from being chosen as a member of the Parliament or the Legislative Assembly; if he is already a member, he becomes disqualified from continuing as a member. The distinction made between a person who is not a member of the House, and a member of the House, is not based on any valid criteria having a rational nexus with the aforesaid object. This is the general thrust of the argument on behalf of the parties who impugn the constitutional validity of the statute.
It was contended that the presumption of innocence would be available to a sitting member till the conviction was finally upheld, but in the case of a non-member, the disqualification would operate from the date of conviction by the court of first instance. Hence, it was argued that Sub-section (4) Section 8 of the Act has to be read down so that its provision was not restricted to a sitting member and it must be, held that in all cases the disqualification arises when the conviction and sentence is finally upheld.
Even in the case of Purushottamlal Kaushik v. Vidyacharan Shukla, it was observed by supreme court that:
“The object of this provision clearly is to exclude from the election arena all persons who have a subsisting conviction and sentence of not less than two years on the date of scrutiny in order to ensure beyond doubt the qualifications of contesting candidates and to obviate a fresh election made necessary due to doubtful qualifications. The only exception made is in the case of sitting members by virtue of Section 8(3) to enable continuity in their tenure till the final court decides their criminal case. No such continuity is needed for others, they being already of the Legislature. Otherwise Section 8(3) makes no sense and is redundant which intention cannot be attributed to the Legislature. Right to contest election is a statutory right and can be exercised only in the manner prescribed by the statute. Section 8(2) is apart of the statute and the right is subject to it. There is thus no hardship as suggested, by the learned counsel for the respondent”.
The Bench, in its decision dated 1.3.2002, a copy of which will be appended to this decision, upheld the constitutional validity of Section 8(4) of the R.P. Act and directed that the Election Petition be placed before it again for disposal in accordance with law. All the points of attack against Section 8(4) were raised before the Bench and it was found by the Bench that the classification made between the legislators and non-legislators is perfectly justified and Section 8(4) is constitutionally valid.
It is unnecessary for this Court to consider the aspect all over again especially by this Bench of a lesser strength. The 1st respondent was protected by Section 8(4) of the R.P. Act, 1951. Issues 1 to 4 were hence found in favour of the 1st respondent. Issues 5 and 6 were considered together for the sake of convenience. The counting of votes on 13.5.2001 based on poll of 10.5.2001 revealed that the petitioner got only 42723 votes as against 55691 votes secured by the 1st respondent. There is no challenge made with regard to the counting or the details of the votes. It follows that the declaration of result made in favour of the 1st respondent was well justified. Issues 5 and 6 are also, hence, found in favour of the 1st respondent. 10. Under issue No. 7, in view of the findings on the aforesaid issues, the Election Petition lacks merit. It is accordingly dismissed with costs of Rs. 10,000/- payable to the 1st respondent.
AIR 1980 MP 188.