REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
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 assembly4
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 in4 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 51310
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
11
12 The above position was reiterated by a Bench of three judges ofthis 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 43212
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.
16