Election Petition Not Maintainable If Petitioner Faces Disqualification Due To Conviction

MATTER IN ISSUE

• Petitioner Saritha S. Nair filed a Special Leave Petition in the Supreme Court challenging the rejection of election petition by the High Court of Kerala. She also challenged Hibi Eden’s election.

• The nomination filed by Saritha S. Nair, a prime accused in the Kerala’s solar scam scandal, was rejected on the ground that she was convicted in 2 criminal cases. MP Hibi Eden was elected from Ernakulam constituency. After the elections, she filed an election petition contending that the rejection of her nomination was illegal and unjustified.

• The bench comprising CJI SA Bobde, Justice AS Bopanna and Justice V. Ramasubramanian were hearing the plea under Article 136 of the Indian Constitution.

ARGUMENTS BY THE PETITIONER

• The petitioner contended that, she had simultaneously filed a nomination in the Amethi Constituency of Uttar Pradesh and that despite disclosure of the very same information about her conviction and pendency of appeals, her nomination was accepted there.

• Therefore, so long as the sentence of imprisonment remained suspended, the disqualification under Section 8(3) of the Representation of the People Act, 1951, may not be attracted.

• Section 8 (3) of the Act states that if an MP or MLA is convicted for any offence other than those mentioned in s.8(1) and s.8(2), and is sent to jail for two years or more, he/ she will be disqualified for six years from the time of release. Even if a person is on bail after the conviction and his appeal is pending for disposal, he is disqualified from contesting an election.

OBSERVATIONS BY THE COURT

• The High Court was wrong in rejecting the election petition on ground of existence of incurable defects.

• The defects in the verification and prayer made by the petitioner were curable and an opportunity ought to have been given to the petitioner to cure the defects.

• If only the High Court had given an opportunity to the petitioner to cure the defects in the verification and if, despite such an opportunity, the petitioner had failed to come up with a proper verification, the High Court could have then held the petitioner guilty of playing hide and seek.

• Election petition filed by Saritha was rather not maintainable because she faced disqualification due to conviction.

DECISION OF THE COURT

• Mere suspension of the execution of the sentence is not sufficient to take the rigour out of Section 8(3) of Representation of the People Act, 1951.

• The petitioner was disqualified from contesting the elections in terms of Section 8(3) of the Act. In such circumstances, she could not have maintained an election petition as “a candidate at such election”. Therefore, the High Court was right in not venturing into an exercise in futility, by taking up the election petition for trial, though the High Court was wrong in rejecting the election petition on the ground of existence of incurable of defects.

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