# VIDYA CHARAN SHUKLA v. PURSHOITAM LAL KAUSHIK

- **Citation:** [1981] 2 S.C.R. 637
- **Court:** Supreme Court of India
- **Decided:** 1981-01-15
- **Case number:** Civil Appeal No. 2020 of 1980
- **Bench:** P. N. Bhagwati, R. S. Sarkaria, E. S. Venkataramiah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vidya-charan-shukla-v-purshoitam-lal-kaushik-8145
- **Pages:** 24

## Headnote

8
Dfaqualificution fron1 being chosen as a candidate for election-Whether the
electio11 of a returned candidate whose appeal against the orders of his convic·
tion and sentence exceeding two years' imprisonment, pending at the
date
of
scrufi,'iy of noniination papers is accepted by the appellate. court, resulting in the
acquittal, before the election petition against hitn becomes void under
section
C
lOO(l)(a) of the Representation of People .Act, 1951 on the ground that he wa.s
disqualified from being chosen aS a candidate within the m·eaning of section
8(2) uf the Act-Representation of the People Act, section 1(b), 8(2), (I). 32,
36(2) (a), 53, 66, 67A. IOO ( l ) (a); Constitution of India, 1950 Articles 84, 102,
173 and 191.
The appellant had been convicted and sentenced to imprisonment exceeding
tvvo years by the Sessions Judge, Delhi, on February 26/27, 1979.
By his Order
dated February 27, 1979, passed under section 389(3) of the Code of Criminal
Procedure, the Sessions Judge who had convicted the appellant suspended
the
execution of the sentence to afford the appellant time to file
an
appeal.
On
Morch 21. 1 979 the High Court of Delhi admitted his appeal and by an order
of the same date directed that his sentence shall remain suspended provided the
appellant furnished a personal bond and surety in the amount of Rs. 5,000/- to
the satisfaction of the Sessions Judge, which was complied with.
The respondent and the, appellant contested the election as rival candidates
to the Lok Sabha from No. 18 Mahasamund Parliamentary
Constituency
in
Ħfadhya Pradesh.
The last date for filing nominations wa.s· Decembe:ri. 7, 1979.
The scrutiny of the nomination papers took place on December 11, 1979.
The
Returning Officer by his Order dated December 11, 1979 rejected tbe objection
of the respondent that the appellant was disqil'alified from being chosen
as
a
candidate in view of sub·section (2) of section 8 of the .Representaotion of the
People Act, 1951 and accepted the appeUant's nomination as valid.
The result
of the election was declared on January 7, 1980.
The election result was noti·
fied
on
January
10, 1980.
The
&ppellant
was
declared
elected
and the
respondent
was
defeated.
Thereafter, on February 18, 1980 the respondent
filed au election petition I of 1980 in the High court of Madhya Pradesh to get
the election of the appellant declared
void
under
section
IOO(l) (a)
and
IOO(l)(b;(i) of the Act challenging that at the da·te of the election including
the date of the scrutiny of the nomination papers the appellant was disqualified
by virtue of section 8(2) of the Act from being chosen as candidate on account
of his aforesaid conviction and sentence.
The appellant's appeal pending in the High Court was transferred
to
the
Supreme Court under the Special Courts Act, 1979.
The Supreme Court by its
judgment dated April 11, 1980 allowed the appeal
set aside the conviction and
sentence of the appellant and acquitted him Qf charges against him. Sub'sequent
8-1 52SCl/81
D
E
F
G
H
638
SUPREME COURT REPORTS
(1981] 2 S.C.R.
A
to this decision of the Supreme Court, by its judgment dated September S, 1980,
the High Court of Madhya Pradesh allowed the election petition with costs and
declared the appellant's election to be void on the ground contamed in section
lOO(l)(d)(i) of the Act, hence the appeal.
Allowing the appeal, the Court
B
HELD : ( 1). Abiding by the principle of stare decisis and
following
the
c
D
E
F
G
H
ratio decidcndi of Manni Lal's case, [197.1] 1 SCR 798, the acquittal of
th~
appellant in appeal prior to the pronouncement of the judgment of the High
Court in the eJection petition had the result of wiping out his disqualification as
comr)letely and effectively as if it did not exist at &ny time including the date of
the scrutiny of the nomination papers and that his nomination paper was properly accepted by the Returning Officer. [660B..C]
Manni Lal v. Slzri Parmai Lal & Ors. [1971] I SCR 798, a.pplied
(2) An order of acquitta

## Text

_Characters 0–37,473 of 63,326. This is a partial read: ask again with offset=37473 for what follows._

-
;.,
-
VIDYA CHARAN SHUKLA
v.
PURSHOITAM LAL KAUSHIK
January 15, 1981
637
A
{P. N. BHAGWATI, R. S. SARKARIA AND E. S. VENKATARAMIAH, JJ.J
8
Dfaqualificution fron1 being chosen as a candidate for election-Whether the
electio11 of a returned candidate whose appeal against the orders of his convic·
tion and sentence exceeding two years' imprisonment, pending at the
date
of
scrufi,'iy of noniination papers is accepted by the appellate. court, resulting in the
acquittal, before the election petition against hitn becomes void under
section
C
lOO(l)(a) of the Representation of People .Act, 1951 on the ground that he wa.s
disqualified from being chosen aS a candidate within the m·eaning of section
8(2) uf the Act-Representation of the People Act, section 1(b), 8(2), (I). 32,
36(2) (a), 53, 66, 67A. IOO ( l ) (a); Constitution of India, 1950 Articles 84, 102,
173 and 191.
The appellant had been convicted and sentenced to imprisonment exceeding
tvvo years by the Sessions Judge, Delhi, on February 26/27, 1979.
By his Order
dated February 27, 1979, passed under section 389(3) of the Code of Criminal
Procedure, the Sessions Judge who had convicted the appellant suspended
the
execution of the sentence to afford the appellant time to file
an
appeal.
On
Morch 21. 1 979 the High Court of Delhi admitted his appeal and by an order
of the same date directed that his sentence shall remain suspended provided the
appellant furnished a personal bond and surety in the amount of Rs. 5,000/- to
the satisfaction of the Sessions Judge, which was complied with.
The respondent and the, appellant contested the election as rival candidates
to the Lok Sabha from No. 18 Mahasamund Parliamentary
Constituency
in
Ħfadhya Pradesh.
The last date for filing nominations wa.s· Decembe:ri. 7, 1979.
The scrutiny of the nomination papers took place on December 11, 1979.
The
Returning Officer by his Order dated December 11, 1979 rejected tbe objection
of the respondent that the appellant was disqil'alified from being chosen
as
a
candidate in view of sub·section (2) of section 8 of the .Representaotion of the
People Act, 1951 and accepted the appeUant's nomination as valid.
The result
of the election was declared on January 7, 1980.
The election result was noti·
fied
on
January
10, 1980.
The
&ppellant
was
declared
elected
and the
respondent
was
defeated.
Thereafter, on February 18, 1980 the respondent
filed au election petition I of 1980 in the High court of Madhya Pradesh to get
the election of the appellant declared
void
under
section
IOO(l) (a)
and
IOO(l)(b;(i) of the Act challenging that at the da·te of the election including
the date of the scrutiny of the nomination papers the appellant was disqualified
by virtue of section 8(2) of the Act from being chosen as candidate on account
of his aforesaid conviction and sentence.
The appellant's appeal pending in the High Court was transferred
to
the
Supreme Court under the Special Courts Act, 1979.
The Supreme Court by its
judgment dated April 11, 1980 allowed the appeal
set aside the conviction and
sentence of the appellant and acquitted him Qf charges against him. Sub'sequent
8-1 52SCl/81
D
E
F
G
H
638
SUPREME COURT REPORTS
(1981] 2 S.C.R.
A
to this decision of the Supreme Court, by its judgment dated September S, 1980,
the High Court of Madhya Pradesh allowed the election petition with costs and
declared the appellant's election to be void on the ground contamed in section
lOO(l)(d)(i) of the Act, hence the appeal.
Allowing the appeal, the Court
B
HELD : ( 1). Abiding by the principle of stare decisis and
following
the
c
D
E
F
G
H
ratio decidcndi of Manni Lal's case, [197.1] 1 SCR 798, the acquittal of
th~
appellant in appeal prior to the pronouncement of the judgment of the High
Court in the eJection petition had the result of wiping out his disqualification as
comr)letely and effectively as if it did not exist at &ny time including the date of
the scrutiny of the nomination papers and that his nomination paper was properly accepted by the Returning Officer. [660B..C]
Manni Lal v. Slzri Parmai Lal & Ors. [1971] I SCR 798, a.pplied
(2) An order of acquittal particularly one passed on merits wipes off the
conviction and sentence for all purposes, and as effectively as if it had never
been passed. An order of acquittal annulling or voiding a conviction operates.
from nativity. [6S4BJ
Mallni Lal v. Shri Parmai Lal & Ors., [1971] I SCR 798; Dilip Kumar
Sharma & Ors. v. State of Madhya Pradesh, [1976] 2 SCR 289, followed.
(3) The ratio decidendi logically deducible from Manni Lal's case is that if
the successful candidate is disqualified for being chosen, at the date of his election
or at any earlier stage of any step in the election process on account of his
conviction and sentence exceeding two years' imprisonment, but his conviction
and sentence are set aside and he is acquitted on appeal before the pronouncement of judgment in the election-petition pending against him, his disqualification
is annulled rendered non est with retroactive force from its very inception, snd
the challenge to his election on the ground that he was so disqualified is no
longer sustainable. [656D-E]
(4) A plain reading of section 100(1) of the Act shows that it can be
conveniently divided into two parts. Clauses (a), (b) and (c) of the sub-section
fall in the first part and clause ( d) along with its sub-clauses falls in the
second part. The distinction between clauses (a), (b) and (c) in the first part
and clause (d) in the second part lies in the fact that whereas on proof of any
of the grounds mentioned in clauses (a), (b) and (c), the election has to be
declared void without any further requirement, in a case falling under clause (d)
the election cannot be declared void merely on proof of any of the grounds
mentioned in its sub-clauses, unless it is further proved "that the result of the
election in so far as it concerns the returned candidate has been materially
affected". The expression "any nomination" occurring in sub-clause (i) of
clause (d) in the second part may include nomination of a returned candidate
as well; but in the case of a returned candidate whose nomination has been
improperly accepted, the effect on the result of the election so far as it concerns
him, is obvious. However, if the election is challenged on the ground that the
nomination of a candidate, other than the returned candidate, has been improperly accepted, the petitioner in order to succeed will be required to prove under
clause (d)(i) in addition to improper acceptance the further fact that thereby
'
'
-~
..
V. C. SHUKLA V. P. L. KAUSHIK
639
the result of the election so far as it concerns the returned c~didate has been
materilllly affected. [651H-652D]
Clause (a) of sub-section (1) requires that the disqualification or lack of
qualification of the returned candidate is to be judged with reference to "the
date of his election", which date, according to section 67A is "the date on
which a candidate is declared by the returning officer under the provisions of
section 53 or section 66, to be elected to a House of Parliament or of the
Legislature of a State". But, the word "disqualified" used in clause (a) is
capable of an expensive construction also, which may extend the scope of the
inquiry under
this clause to all the earlier steps in the
election
process.
Section 7 (b) defines "disqualified" to mean "disqualified for being chosen as,
and for being, a member of either House of Parliament etc." The words ;'for
being chosen" in that definition have been interpreted by the Supreme Court
in Chatturbhuj's case, [1954] SCR 817, to include the whole "series of steps
starting with the nomination and ending with the announcement of the election.
It follows that if a disqualification attaches to a candidate at any one of these
stages he cannot be chosen." But this definition of "disqualified" is in terms
of section 7(b) meant for Chapter III, in Part II of the Act; while section lf)O
falls in Chapter III of Part VI. If the expression "for being chosen" \vhich
is a central limb of the definition of "disqualified", is given such an extensive
interpretation V.'hich will bring in its train the whole series of steps an_d earlie1
stages in the election process commencing with the filing of the nominations. it
will be repugnant to the context and inconsistlent with "the date of his election".
Such a ronstruction which will introduce disharmony and inconsistency between
the various limbs of clause (a) has to be eschewed. In the
context
of
clause (a), therefore, the ambit of the words "for being chosen" in the de:finiti0n
of "disqualified" bas to be restricted to "the date of his election" i.e. declaration
of the result of the election under section 53 or section 66, and such date is
to be the focal point of tin1e in an inquiry under this clause.
[652H-653D]
In contrast with .;lause (a), in a case falling under clause (d)(i) of section
100, if an objection is taken before the Returning Officer against the nomination
A
B
c
D
of any candidate on the ground of his being not qualified, or being disqualified
F
for being chosen the crucial date as per section 36(2) (a) with reference to
which the existence or non-existence of such disqualification is to be enquired
,, J ~to is the date of scrutiny of the nomination of the candidate.
[653CJ
'
Assuming that technically, the election-petitioner's case that survives is one
under clause (d)(i), and not under clause (a) of section 100(1). Even so, the
fact remains that, in substance, the election of the appellant is being challenged
G
on the ground that on account of his conviction and sentence exceeding two
years, the appellant was under Article 102(1)(e) of the Constitution read with
section 8(2) and 36(2)(a) of the Act, disqualified for being chosen to fill the
seat concerned.
Such being the real ground of challenge, apart from sub-clause
(i), sub-clause (iv) of clause (d) of section 100(1) will also be attracted,
because the phrase "non-compliance with the provisions of the Constitution or
of this Act etc." according to the decision of this Court in Durga
Shankar H
Mehta's case is wide enough to cover a case where the improper acceptance or
rejection of the nomination is challenged on the ground of the candidate being
disqualified for being chosen. [653E-G]
A
B
c
D
E
F
6 4 0
SUPREME COURT REPORTS
[1981] 2 S.C.R.
Dln}.;a Sl;a11/,cr illclua v. Ihakul' Raghuraj Singh & Ors. [1955] 1 SCR 267
and Chatturbhu.j Vithaldas Jasani v. Nareshwar Parashram & Ors., [1978] 2 SCR
272, followed.
(a) It is true that in order to adjudicate upon the validity of the challenge
in the appellant's election under clause (d) (i) of section 100(1), what was
required to be determined by the High Court was whether the nomination of
the appellant ¥.'as properly or improperly accepted ·by tile Returning Officer.
But; in order to determine this question, it was necessary for the High Court
to decid::, as a preliminary step, whether the appellant was di$qualified at the
date of scrutiny of the nomination papers, for if he was
disqualified,
his
non1ination could not be said to have been properly accepted by the Returning
Officer and if, on the other hand, he was not disqualified, his nomiilation would
have to be regarded as properly accepted by the Returning Officer.
The primary
question before the High Court therefore, was whether or not the appellant was
disqualified at the date of scrutiny of the nomination papers and it is difficult
to see how the determination of this question could be made on any principle
other than that governing the determination of a similar question under clause
(a) of section 100(1).
If, as laid down in
Manni Lal's case, the returned
candidate cannot be said to be disqualified at the date of the election, if before
or during the pendency of the election petition in the High Court his conviction
is set aside and he is acquitted by the appellate court, on the application of the
same prillciple, that, in like circumstances, the returned candidate cannot be
said to be disqualified at the date of scrutiny of the nomination papers.
On
this view, the appellant could not be said to be disqualified on the date of
scrutiny of the nomination paper since his conviction was set aside in appeal
by this Court and if that be so, the conclusion must inevitably follow that the
nomination of the appellant was properly accepted by the Returning Officer.
The position is analogous to that arising where a case is decided by a Tribunal
on the basis of the law then prevailing and subsequently the law is amended
with retrospective effect and it is then held by the High Court in the exercise
of its writ jurisdiction that the order of the Tribunal discloses. an error of law
apparent on the face of the record, even though having regard to the law as it
then existed, the Tribunal w.is quite correct in deciding the case in the manner
it did.
[656C-H]
Venkatachalam v. Bombay Dyeing & Manufacturing Company Lin1ited, 34
!TR 143, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2020 of 1980.
G
From the Judgment and Order dated 5-9-1980 of the
Madhya
Pradesh High Court in Election Petition No. 1 of 1980.
A. K. Sen, 0. P. Sharma,
Rajinder Singh,
P. L.
Dubey
and
P. N. Tewari for the appellant.
S. N. Kacker, Swaraj
and
Mrs. Sushma Swaraj for Respondent
H
No. 1 .
Y. S. Chitale (Dr.) and Miss Rani Jethmalani for the Iqtervener.
1'
'
v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, J.)
641
The Judgment of the Court was delivered by
SARKARIA, J. This is an appeal under Sections HG(A) and l16(B)
of the Representation of People Act, 1951 (hereinafter referred to
as the Act) against a judgment dated September 5, 1980, of a learned
Judge of the High Court of Madhya Pradesh, whereby the Election
Petition 1 of 1980 filed by the respondent was acccpteu and the
appellant's election to Lok Sabha was declared to be void.
Tho princip"I question that falls to be dctcnnincd in this appeal
is, whether the election of a returned candidate whose appeal ogainst
the ·orders of his conviction and sentence exceeding two years i1nprisonment, pending at
the date of the scrutiny of nomination papers,
is accepted by the appellate court, resulting in his acquittal, before the
decision of Lhe l:lection-petition
against him, can be declared to be"
vmd under Section 100(1) of lhe Act, on the ground that he was disqualified from being chosen as a candidate within the meaning or
Section 8(2) of the Act.
The material facts arc as follows :
The respondent and the appellant contested the election as rival
candidates, to the Lok Sabha from No. 18, Mahasamund Parliamentary Constituency in Madhya Pradesh. The last date for filing nominations was December 7, 1979. The scrutiny of the nomination papers
c
D
took place on December 11, 1979.
E
The respondent raised an objection to the validity of the
appellant's nomination before the Returning OffLcer at the tiine of the scrutiny.
The objection was that t)le appellant had been convicted and
sentenced to in1prisonment exceeding t\VO years by the Sessions Judge,
Delhi on February 22/27, I 979, and, as such, the appellant was dis
'.._,.aualificd from being chosen as a candidale in view or sub-section (2)
rof Section 8 of the Act.
The Returning Officer, by his order dated
December I I, 1979, rejected the objection and accepted the appellanl's
nomination as valid.
The result l\f the election was declared
on
January 7, 1980.
The election result was notified on January 10,
1980.
Th<0 appellant was declared elected, and the respondent was
•
defeated.
Thereafter on February 18, 1980, the respondent filed an
Election Petition in the High Courf to get the election of the appellant
herein, declared void under Section 100(1) (a) and I 00(1) ( d) (i)
'
of the Act. alleging that at the date of the election, including the date
of the scrutiny of the nomination papers, the appellant was disqualified
by vi1tue of Section 8(2) of the Act from being chosen as a candidate
on account of his aforesaid conviction and sentence.
F
G
H
A
B
c
642
SUPREME COURT REPORTS
[1981) 2 S.C.R.
The Sessions Judge who had convicted the appellant, had, by his
order dated February 27, 1979, passed under Section 389 (3) of the
Code of Criminal Procedure, suspended the execution of the sentence
to afford the appellant time to file an appeal.
On March 21, 1979,
the High Court of Delhi admitted his appeal and
by an order of the
same date directed that his sentence shall remain suspended provided
the appellant furnished a personal bond and surety in the amount of
Rs. 5000/- to the satisfaction of the Sessions Judge.
The appellant's appeal pending in the High Court W'ds transferred
to the Supreme Court under the Special
Courts Act, 1979.
This
Court by its judgment dated April 11, 1980, allowed the appeal, set
_ ~.
aside the conviction and sentence of the appellant and acquitted '.him
of the charg~s against him.
Subsequently, by its impugned judgment, dated September 5, 1980,
the High Court of Madya Pradesh, allowed with costs, the election
petition filed by the respondent, and declared the appellant's election to
D
be void on the ground contained in Section 100(1) (d) (i) of the
Act.
Hence this appeal.
The contentions canvassed by Shri Asoke Sen, learned counsel for
the appellant may be summarised as follows :
( 1) The conviction and sentence of the appellant had been quas·
E
hed by the Supreme Court in appeal.
The acquittal of the appellant
had the effect of wiping out the conviction with retrospective effect as
if he had never been convicted and sentenced.
In support of this
proposition, reliance has been
placed on Manni Lal v. Shri Parmai
Lal & Ors.(').
Reference has also been
made
to
Dilip Kumar
F
G
Sharma & Ors. v.' State of Madhya Pradesh(2 ).
(2) Conviction and sentence in Section 8(2) must mean t)ie final
and ultimate conviction and sentence.
Reference has been made to
;
Union of India v. R. Akbar-Sheriff(•); and
Di/bag Rai Jarry ~
Divisional Superintendent(•).
( 3) Invalidity of the appellant's election, in the instant case, was
to be tested under clause (a) and not under clause (d) (i) of Section
100 (!) of the Act, because-
•
H
( a) (i) "Election" within the meaning of Section 100 (1) (a)
connotes the entire process of election commencing with the filing of
(I) r1971] t S.C.R. 798 at pp 800.801.
(2) [l976j 2 S.C.R. 289 = A.LR. 1976 S.C. 133.
(3) A.1.R. 1961 Mad. 486
(4) A.LR. 1959 Pb. 401.
•
•
'
•
v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, J.)
643
nominations and ending with the declaration of the result of the poll.
A
111e stage of the scrutiny of the nominations and their acceptance or
rejection was an important step of the election process and, as such,
was an integral part of the 'election'.
Reliance on this point has been
placed on the decisions of this Court in N. P. Ponnuswami v. Returning Officer, Namaklal Constituency(,!); and M. S. Gill v. Chief
Election Commissioner(').
B
(ii) The tenn "disqualified" iu clause (a) of Section 100 (1), as.
defmed in Section 7 (b) means "disqualified for being chosen as, and
for being, a member of either House of Parliament, etc.", and the expression "being chosen". (which is the language of Article 102 of the
Constitution also) has been interpreted by this Court in Chatturbhuj
C
Vithaldas .Jasani v. Moreshwar Parashram & Ors.( 3), as embracing
"a series of steps starting with the nomination and ending with the
announcement of the election''.
(b) In substance and reality, the election of the appellant has been
challenged on the ground that both at the date of the scrutiny and
acceptance of his nomination and at the subsequent stages of the
election including the dates of poll and declaration of the election result, the appellant was disqualified for being chosen on account of his
having been convicted and sentenced to imprisonment exceeding two
years.
This ground finds specific mention in clause (a) and not ini
clause (d) (i) which is a general and residuary clause and its application to the instant case will be excluded on the principle that the
special excludes the general.
(c) The phrase "any candidate" in sub-clause (i) of clause (d)
of Section 100 (1) does not include the returned candidate.
(This
point was not seriously pressed).
(4) (a) Even if it is assumed that clause (d) (i) or (d) (iv) is
applicable, then also, the instant case cannot be taken out of the, ratio
of Manni Lal's case (ibid), because the effect of the quashing of the
appellant's conviction and sentence by the appellate court, during the
pendency of the Election Petition before the High Court was, that
the convictioh and sentence were retrospectively wiped out,
and th~
High Court could not at the date of deciding the Election Petition hold
that in spite of the acquittal by the Appellate Court, the disqualification
of the appellant "for being chosen" ever existed-even at the date of the
acceptance of his nomination paper by the Returning Officer.
The
proposition enunciated by this Court in Manni Lal's case must be taken
(!) [1952] S,C.R. 218.
(2) [1978] 2 S.C.R. 272.
(3) [1954] S.C.R. 817.
D
E
F
G
H
644
SUPREMI: COORT REPORTS
(1981] 2 S.C.R.
A
to its logical "nd and the imagination must not be allowed to bogg1"
.,
B
c
D
E
F
G
down.
(b) Clause (a) and clause (d) (i) of Section 100 (l)
of the
Act should be construed harmoniously. If these clauses are const111ed
differently, there will be serious contradiction,
and
inconsistencies.
Under Section 100 (1) (a), the
candidaic \\hose conviction
and
sentence are quashed, is
qualified to be chesen and elected on the
principle of retrospective wiping out of conviction and sentence. and
yet he remains disqualifi~d for his nomination.
Such an anomalou'
result should he avoided.
( 5) The effect of wspcnsiotl of the sentrncc made by the
trial
court
and thereafter by tho High Court pending the appeal. would
be that the disqualification automatically stcicJ eclipsed.
(This point
was also not pressed).
On the other hand Shri S. N. Kacker, kcmicd counsel for
the
n;spondent, made these submissions:
(I) Article 102 ( l ) ( e) of the Constitution provides that "a person
shall be disqualified for being chosen as, and for being, a member of
either House of Parliament --- " "if he is so disqualified
by or
under any law made by Parliamenl." Under Section 8 (2) of the Representation of People Act, 1951.-whieh is a law made by Parliament
the appellant on account of his conviction and
sentence exceeding
two years. was disqualified at th'c
date of scrutiny of nominations
and the Returning Officer was bom1d i·n view of Section 36(2) (a). of
the Act. to take into account only such facts a> they stood on the date
of the scrutiny, which is an integral step in the process of election
i.e._. process of '"being chosen".
(Reference has been made in
this
connection to Chaturblwj's case (ibid) and C/w111l!ln Lal v. Ram Dass
and Another(').
(2) The phrase "dah: of such conviction" occurring in sub-section
(2) of Section 8 of the Act means the date of the initial conviction and
not the date of the final conviction. If this phrase was constm:d
to nican the date of the final and ultimate cc;1viction on termination
of the entire judicial precess in the hierarchy c,r courto, sub-section(3l
wonlcl k rcdnndant.
Sub-section (3) applies to a special category of
persons n1entioncd therein, and its language n1akL:-1 it clear that in their
case, conviction will not operate as disqualifice1tion unless it becomes
final in the course of judicial process.
H
(3) The present case is governed by clause (d) (i) and not by
clause (a) of Section 100(1). Jn the election-petition, both the
----- ------
(!) 41 E.L.R. 214 (SC).
~.
•
,
v. c. SHUKLA I". P. L. KAUSHIK (Sarkaria. !.)
645
•
grounds u"ndcr Section JOO(!) (d) (i) and und•cr Section 100(1)
A
(a) were taken, because -
(i) the appellant was disqualified on the date of scrutiny-a
ground under Section 100(1) (d) (i); and
(ii) the disqualification also existed on the dauc of declaration of
election rc,•.11t.-c:Jfordin!'. ground under Section 100(1) (a).
B
Since the aμpellant was subsequently acquitted during the pcnd·cncy
of ckct'on-pctition, the ground under Section I 00( I) (a) become noncxist·. nt in view of the princip:c laid down by this Court in Manni Lal's
case rihid). but the Ground under Section 100(1) (d) (i) still subsisted.
Co11seq11c11tly, at the stage of argument.<
before
the
High
C
Court. the
ground
under
Section
I 00 ( I ) (a)
was
given
up
and the petition was pressed only on the ground undtr Section 100( 1)
(d) (i).
I+) Section I (10( I) ( d ! (i) " applicahlc tp a returned candidate as
we]].
(SJ The basic distinction between clauses (a) and (d) (i) of Section 100 (I ) is that under the former clause the existence or non-existence of disqualification of the returned candidate is to be determined
as "on the date of his election", which date in view of Section 67A,
mecn' the dnte on which he was declared elected under Section 53 or
Section
66 o[ the
Act;
whereas
under
clause ( d) (i), the enquiry is
restricted
ic judgin~ the
propriety or
otherwise of the
actic,n of the Returning Officer in
accepting his nomination on the
date of scrufrny;
that
is to say, for purposes of the latter c:ausoo
all 'hat has
to be enquired into is whether the disqualification cxis
t•.:d :._111 the date of scrutiny.
(6) Th-.:
pro~1usition laid down in A1ru1ni Lal's case (ibid) to the
efTect that subsequent acquittal hy
the appellate court in a criminal
,,-1-..,,natter has the effect of wiping out the conviction from the date of its
•
very inception is not applicable to the case in hand because :-
(a) Manni Lars case was one under Section 100(1) (a): while
the p:cscnt case is under Section 100(1) (d) (i);
(b) in Mn1111i l.11l"s case the returned candidate was not disqualified
dn the date of the scrutiny; whereas in the instant case the clisqualification of the appellant did. in fact exist on the date of the
scrutin:y, althou~h th~ Saine may have ceased to exist in point of law
0
E
p
G
'
due to his subsequent acquittal; and
R
le) Section 36(2) (a) fixes a date for judging the qualification of
a candidate, and if
the legal fiction of retrospective repeal is applied
646
SUPREME COURT REPORTS
(1981] 2 S.C.R.
A
to the case of subsequent acquittal wiping out the disqualification
•
which ill fact existed on the date of scrutiny, Section 36(2) (a) could
be rendered nugatory and several inconsistent situations could arise.
(7) In sum, the instant case being one under Section 100(1) (d)
(i) falls within the ratio of this Court's decision in Amritlal Ambalal
,B
Patel v. Himatbhai Gumanbhai Patel & Anr. (') and Manni Lafs
case is not in point.
Shri Chitale, appearing for the intervener, has elaborated contentions ( 5) and 6 ( c) of Slui Kacker and stressed !hat the facts constituting the disqualification, as obtaining on the date of scrutiny, are
under Section 36 the decisive factor.
Before dealing with the contentions canvassed on both sides, it
will be necessary to have a look at the relevant constitutional and
statutory provisions.
Article 102 of the Constitution, so far as material, reads thus :
n
" ( 1) A person shall be disqualified for being chosen
as, and for being, a member of either House of Parliament-
( a) to (d) ..... .
( e) if he is so disqualified by or under any Jaw made
by Parliament."
The words "for being chosen as, and for being, a member of either
House of Parliament" have been lifted from Article I 02 and incorporated in the definition of "disqualified" given in Section 7 (b) of
the Act. According to this definition, "disqualified" means "disqualified for b~ing chosen as, and for being, a member of either House of
Parliament or of the Legislative Assembly or Legislative Council of a
State.'.'
Section 8 of the Act provides for disqualification on conviction
>
for certain offences.
Under sub-section (1), a person convicted or---l....._
ally of the offences specified in that sub-section shall be disqualified
for a period of six years from the date of such conviction. The material
·G
part of sub-sections (2) and (3) reads as under:
1H
"(2) A person convicted by a court in India for any
offence and sentenced to imprisonment for not less than two
years shall be disqualified from the date of such conviction
a·nct shall continue to be disqualified for a further period of
five years since his release
Provided ..... .
(I) (1969] I S.C.R. 277.
•
•
•
•
v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, J.)
647
(3) Notwithstanding anything in sub-section
(1)
and
sub·section (2), a disqualification under either sub-section
shall not, in the case of a person who on the date of the
conviction is a member of Parliament or the Legislature of
a State, take effect until three months have elapsed from
that date or, if within that period an appeal or application
for revision is brought i'n respect of the conviction or the
sentence, until that appeal or application is dispooed of by
the court."
Then there is an Explanation appended to this Section, which is nut
material for our purpose.
Chapter I of Part V includes Sections 30 to 39 under the main
beading "Nomination of Candidates".
Section 30 requires the Election Commission to appoint dates for making nominations,
scrutiny
of nominations, withdrawal by candidates, for poll and also to specify
the date before which the election shall be completed.
The provision
in clause (b) requires that the date for the scrutiny of
nomination~
shall be the date immediately following the last date for making nominations or, if that day is a public holiday, the next succeeding day
which is not a public holiday.
Section 32 lays down that any person
may be nominated as a candidate for election to fill a seat if he is
qualified to be chosen to fill that seat under the provisions of the
Constitution and this Act, or under the provisions of the Government
of Union Territories Act, 1963 (20 of 1963), as the case may be.
Section 36 deals with scrutiny of nominations.
Sub-section (2) (a)
.of the Section is material.
It reads thus :
"(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be
made to any nomination and may, either on such objection
or on his own motion, after such summary inquiry, if any,
as he thinks necessary, reject any 'nomination on any of the
following grounds :-
(a) that on the date fixed for the scrutiny of noru.inations
the candidate either is not qualified or is disqualified
for being chosen to fill the seat under any of the
following
prov1s10ns
that
may
be
applicable,
namely:-
Articles 84, 102, 173 a'nd 191,
Part II of this Act and ...... "
A
B
c
D
E
F
G
H
A
B
c
648
SUPREME COURT REPORTS
[1981] 2 S.C.R.
Under sub-section (7), for the purposes of this Section,
a certified
copy of an entry in the electoral roll for the time being in force of a
constituency shall be conclusive evidence of the fact that the person
referred to in that entry is an elector for that constituency, unless it
is proved that lie is subject to a disqualification mentioned in Section
16 of the Representation of the. People Act, 1950.
Before the amendment of 1956, clauses (a) and (b) of sub-sec
tion (2) of Section 36 read as under :
"The returning officer shall then examine the
nomination papers and . . . . . . refuse any nomination on any of the
following grounds :
(a) that the candidate is not qualified to be chosen to fill
the seat under the Ccmstitution or this Act; or
(b) that the candidate is disqualified for being
chosen
to fill the seat under the Constitution or this Act .
"
D
The Amendment Act 27 of 1956 recast clauses (a) to (e) of ihe
old Section.
It also combined clauses (al and (b) and
the
recast
clause read as follows :
" (a) that the candidate is not qualified or is disqualified
for being chosen to fill the seat under any of the following
E
provisions that may be applicable, '.namely: . . . . . .
"
•
The Amendment Act 40 of 1961 substituted in Sub-section (2) (a),
+
F
G
H
for the words "that the candidate" the words "that on the date fixed
for the scrutiny of nominations the candidate".
The same Amendment Act snbstituted in sub-section (5) the proviso for
the
words
"an objection is made" the words "an objection is raised by thċ returning officer or is made by any other person''.
Thus, the amendmeRt
in sub-section 2(a) was only of a clarificatory character.
It made
it clear that the date of Bcrutiny of the nominations
is
a crucial
date.
Next, we come to Section
I 00.
The Section
enumerates
the
grounds oh which an election ca_n be declared to be void.
Before the
Amendment of 1956, Section 100, so far as material, was as follows :
" ( 1) If the Tribunal is of opinion -
(a)
(b)
( c) that the result of the election has been materially
affocted by the improper acceptance or rejection of
.•
-l
•
;. .
+
{
v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, J.)
649
any nomination, the Tribunal shall declare the elecA
lion to be wholly void.
Explanation . . . . . . . . . . . . .
( 2) Subject to the provisions of sub-section ( 1 ) if the
Tribunal is of opinion -
(a)
(b)
( c) that the result of the election has been
materially
affected by the improper receptio'n or refusal of a vote.
or by the reception of any vote which is void or by
any non-compliance with the provisions of the Consti
tution or of this Act or of any rules or orders made
under this Act or of any other Act or rul.,.; relating
to the electio'n, or by any mistake in the use of any
prescribed form,
the Tribunal shall declare the election of the returned candi
date to be void".
In Durga Shanker Mehta v. Thakur Raghuraj . Singh &
Ors.(•')
nominations were filed for a double member Legislative Assembly
<:onstituency in Madhya Pradesh.
No objection was taken before the
returning officer, that one of the candidates, Vasa'nt Rao, was
less
than 25 years of age at the date of the nomination and, as such, was
not qualified under Article 173 to be chosen to fill the seat.
The
Returning Officer accepted his nomination.
Tn the Election Petitio'n, the election of the returned candidate,
V asant Rao, was challenged on the ground that his nomination had
been improperly accepted by the Returning Officer within the contem
plation of Section 100 ( 1 ) ( c) of the Act, as then in force, because he
was llot qualified to be chosen in view of Section 173 of the Consti
tution.
The Tribunal held that the act of the Returning Officer in
accepting the nomination of Vasant Rao, who was disqualified to be
elected a member of the State Legislature
under the Constitution,
.amounted to an improper acceptance of nomination withi'n the meaning
of Section JOO ( 1) ( c) of the Act, and as the result of the election
was materially affected thereby, the whole election
must be
pro
nounced to be void.
The controversy centered round the question, whether on the facts
proved and admitted the caÝ was one u'nder sub-section (I ) ( c) or
Section 2(c) of the then extant Section 100.
This Court held that
(1)
[1955J I S.C.R. 267
B
c
D
E
F
G
B
A
B
c
D
E
F
G
H
650
SUPREME COURT REPORTS
(1981] 2 S.C.R.
the acceptance of the nomination paper of Vasant Rao by the Returning Officer could not be said to be improper acceptance "within the
contemplation of Section 100 ( 1) ( c) of the Act, and that the case
was of a description which came under sub-section (2) (c) of Section
100 and not under sub-section (1) ( c) of the Section, as it really
amounted to holding an election without complying with the provisions of the Constitution.
The expression
"non-compliance with
the provisions of the Constitution" in clause (c) of sub-section (2)
was held to be sufficiently wide to cover such cases where the question
was not one of improper acceptance or rejection of the nomination
by the Returning Officer, but there was a fundamental disability in the
candidate to stand for election at all.
There was no material difference
between "non-compliance" and "non-observanre" or ''breach"
and
this item in clause ( c) of sub-section (2) might be taken as a residuary provision contemplating cases where there had ken infraction
of the provisions of the Constitution or of the Act but which had not
been specifically enumerated in the other portions of th•c clause.
After the decision in Durga Shanker Mehta's case (ibid), Parliament in 1956 amended So~ction 100 along with Sections 36, 123, 124
and 125 of the Act.
By this Amendment, the various c:auses of subsections ( 1) and (2) were rearranged and recast and simplified in
accordance with the recommendations of the Select Co;nmittee
of
Parliament, "that sub-sections (1) and (2) of existing Section
100
should be suitably combined retaining the substance of the
existing
Jaw and at the same time making the Jaw simple and easily intelligible".
"'l
Now, Section 100, as amended, by the Amending Act of 1956 and
subsequent Amendment Acts, .reads as under :
"100. Grounds for declaring election to be void.-(1)
Subject to the provisions of sub-section (2) if the High Court
is of opinion-
(a) that on the date of his election a returned candidate
was not qualified, or was disqualifud, to be chosen
to fill the seat under the Constitution or this Act or
the Government of Union Territories Act, 1963 (20
of 1963); or
(b) that any corrupt practice has been committed by a
returned candidate or his election agent or by any
other person with the consent of a returned candidate or his election agent; or
•
•
'
..
•
i
v. c. SHUKLA v. P. L.