Supreme Court of India
SARITHA S. NAIRversusHIBI EDEN
- Citation
- 2020 INSC 693
- Decided
- 9 December 2020
- Disposal
- Dismissed
- Bench
- S A BOBDE
Holding
Defective verification and prayer are curable defects, and disqualification under Section 8(3) continues unless the conviction itself is stayed.
Summary
Saritha S. Nair filed nominations from two Lok Sabha seats but her nominations were rejected because she had been convicted in two criminal cases, each carrying a three‑year imprisonment, invoking disqualification under Section 8(3) of the Representation of the People Act, 1951. She challenged the rejection through election petitions, which the Kerala High Court dismissed on the ground of alleged incurable defects in verification, annexures and prayer, and on the basis of her disqualification. On appeal, the Supreme Court examined whether such defects are curable under Section 86(1) and whether a mere suspension of the execution of sentence, without a stay of conviction, removes the disqualification. The Court held that defects in verification and prayer are curable and the High Court should have given the petitioner an opportunity to cure them. It also held that suspension of sentence does not affect the disqualification; only a stay of conviction would do so, and therefore the petitioner remained disqualified and her nominations were validly rejected. The Special Leave Petition was dismissed.
Issues considered
- Whether defects in verification and prayer of an election petition are incurable under Section 86(1) of the Representation of the People Act, 1951 or are curable.
- Whether suspension of the execution of a sentence, without a stay of conviction, removes disqualification under Section 8(3) of the Representation of the People Act, 1951.
Legislation cited
- Code of Criminal Procedure, 1908s. 389(1)
- Indian Evidence Act, 1872
- Representation of the People Act, 1951s. 81, s. 82, s. 8(3), s. 83, s. 84, s. 86(1), s. 98(a)
Subjects
election petitionverification defectcurable defectdisqualificationRepresentation of the People ActSection 8(3)Section 86(1)stay of convictionsuspension of sentenceSupreme Court
Judgment
[2020] 13 S.C.R. 635 635
SARITHA S. NAIR A
v.
HIBI EDEN
(Special Leave Petition (Civil) No. 10678 of 2020)
DECEMBER 09, 2020 B
[S.A. BOBDE, CJI, A.S. BOPANNA AND
V. RAMASUBRAMANIAN, JJ.]
Representation of the People Act, 1951 – s.8(3) –
Disqualification under – The petitioner filed nominations from two
C
Lok Sabha Constituencies – The nominations were rejected on the
ground that she was convicted in 2 criminal cases – In both cases,
she was imposed with a punishment of imprisonment for 3 years
separately – The High Court, in one case suspended the conviction
and in another case stayed the execution of sentence – After the
elections were over, the petitioner filed two election petitions D
contending that the rejection of her nomination was illegal and
unjustified – Lots of defects were noticed in her election petitions
by the Registry of the High Court including the defect in prayer of
one of the election petition – The High Court rejected both the
election petitions on the grounds that there were incurable defects
E
in terms of s.86(1) of 1951 Act and that the petitioner was
disqualified u/s.8(3) of the 1951 Act r/w. Art.102(1)(e) of the
Constitution – Aggrieved two SLPs were filed, one arising out of
each election petition – One SLP was dismissed for non-prosecution
– In the remaining SLP, it was observed that what weighed with the
High Court in election petition was; (i) lack of proper verification; F
(ii) an incomplete prayer; (iii) serious allegations made against
Chief Minister – Held: A defective verification is a curable defect –
The High Court committed a grave error in holding defects as
incurable – The defects were curable and an opportunity to cure
defects ought to have been given – Further, the Rules of the High
G
Court of Kerala, 1971 contains a set of Rules from Rule Nos.207 to
219 in Chapter XVI, these rules govern the procedure for institution
and trial of election petitions – There is nothing to indicate in the
Rules that the designated Judge was powerless to return the petition
to petitioner for curing the defects – The High Court was wrong in
thinking that the defective verification of the election petition was H
635
636 SUPREME COURT REPORTS [2020] 13 S.C.R.
A a pointer to the game plan of the election petitioner after making
serious allegations against former Chief Minister – High Court
should have given opportunity to the petitioner to cure defects before
reaching such conclusion – No motives motives could have been
attributed to the petitioner, only because she made serious
allegations against someone – The defect in the prayer made by the
B
petitioner was also a curable defect – As far as effect of punishment
by criminal court is concerned, the suspension of the execution of
the sentence would not alter or affect the conviction and that
therefore such a person would remain disqualified u/s.8(3) of the
1951 Act – The Appellate Court has ample powers u/s.389(1) of the
C Code, to stay the conviction as well as the sentence and that wherever
a stay of conviction has been granted, the disqualification will not
operate – In the instant case, the disqualification u/s.8(3) of the
1951 Act will continue so long there is no stay of conviction – The
petitioner only obtained a stay of execution of the sentence and
could not obtain stay of conviction – Hence, her nominations were
D
validly rejected.
Dismissing the Special Leave Petition, the Court
HELD: 1. The upshot of the various Supreme Court
decisions is that a defective verification is a curable defect. An
E election petition cannot be thrown out in limine, on the ground
that the verification is defective. [Para 43][652-C-D]
2. Therefore, the High Court committed a grave error in
holding the 3 defects mentioned as incurable. The defects are
curable and as rightly contended by the counsel for the petitioner,
F an opportunity to cure the defects ought to have been given.
Instead, the election petition was posted before Court without
numbering, in view of the defects noticed. The Court directed
the petition to be numbered subject to arguments on the curability
of defects. Thereafter notices were issued to the respondents in
the election petition and finally the order impugned herein was
G passed after hearing both sides. The High Court did not even
rely upon any rule framed by the High court to follow the said
procedure. [Para 44][652-D-F]
H
SARITHA S. NAIR v. HIBI EDEN 637
3. The manner in which Rule 210 of the Rules of High Court A
of Kerala, 1971 has been worded gives an impression as though
an election petition should be placed bef ore the Judge,
immediately after it is registered, for passing Orders under
Section 86(1). If the petition is not dismissed under Section 86(1),
summons should be issued to the respondents on the direction
B
of the Judge. In the case on hand the designated Judge before
whom the election petition was listed as defective, chose to issue
summons to the respondents, calling upon them to argue on the
curability of defects as well as the maintainability of the petition.
There is nothing to indicate in the Rules that the designated Judge
was powerless to return the petition to the petitioner for curing C
the defects. [Para 46][653-B-D]
4. The procedure adopted by the High Court of Kerala
cannot be approved. The High Court was wrong in thinking that
the defective verification of the election petition was a pointer to
the game plan of the election petitioner to disown the pleadings D
at a later stage, especially after making serious allegations against
the former Chief Minister. 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. The failure E
of the High Court to give an opportunity to cure the defects is
improper. [Para 47][653-D-F]
5. The defect in the prayer made by the petitioner was also
a curable defect, as the words “as void” were omitted to be
included, making the prayer as it existed, meaningless. It is true F
that the election petitioner should have been more careful and
diligent in incorporating an appropriate relief and making a proper
verification. But no motives could have been attributed to the
petitioner, only because she made serious allegations against
someone. Hence, this Court holds on the first issue that the G
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. [Para 48][653-F-H]
H
638 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 6. A Constitution Bench of this Court held in B.R. Kapur
vs. State of Tamil Nadu that an order of the appellate/revisional
Court suspending the sentence of imprisonment has to be read
in the context of Section 389 of the Code of Criminal Procedure
and that under the said provision, what is suspended is only the
execution of the sentence and not the sentence itself. The
B
Constitution Bench made it clear that the suspension of the
execution of the sentence would not alter or affect the conviction
and that therefore such a person would remain disqualified under
Section 8(3). In fact, in B.R. Kapur a person whose nomination
was rejected on the ground of disqualification, got elected as the
C leader of the party which secured majority in the elections and
became the Chief Minister and hence Article 164 was pressed
into service. But even the same was rejected on the ground that
a person who was disqualified from contesting the elections,
cannot take the route of Article 164. [Para 57][655-B-E]
D 7. Possibly taking cue from what was observed in B.R.
Kapur, a challenge was made to Section 8(4) in Lily Thomas vs.
Union of India on the ground that it is ultra vires the Constitution.
While declaring the said provision to be unconstitutional, this
Court held in Lily Thomas that a Member of Parliament or the
State Legislature who suffers a frivolous conviction, will not be
E remediless. Taking note of the decisions in Rama Narang vs.
Ramesh Narang and Ravikant S. Patil vs. Sarvabhouma S. Bagali
this Court held in Lily Thomas that the appellate Court has ample
powers under Section 389(1) of the Code, to stay the conviction
as well as the sentence and that wherever a stay of conviction
F itself has been granted, the disqualification will not operate. [Para
59][655-G-H; 656-A-C]
8. Just as the observations made in B.R. Kapur led to a
challenge to Section 8(4) of the Act in Lily Thomas, the discussion
in Lily Thomas about the power of the appellate Court to stay the
G conviction as well as the execution of sentence, led to another
bout of litigation. In Lok Parhari vs. Election Commissioner of
India the petitioner sought a declaration that even a stay of
conviction by the appellate Court will not have the effect of wiping
H
SARITHA S. NAIR v. HIBI EDEN 639
out the disqualification. The contention of the petitioner was that A
the law does not provide for stay of conviction. But this Court
rejected the challenge on the ground that the decisions in Rama
Narang and Lily Thomas clinched the issue in this regard. [Para
60][656-C-E]
9. Therefore, in effect, the disqualification under Section B
8(3) will continue so long as there is no stay of conviction. In the
case on hand, the petitioner could not obtain a stay of conviction
but obtained only a stay of execution of the sentence. Hence her
nominations were validly rejected by the Returning Officer.
Merely because the Returning Officer in Amethi Constituency
committed an error in overlooking this fact, the petitioner C
cannot plead estoppel against statutory prescription. [Para
61][656-E-F]
B.R. Kapur v. State of Tamil Nadu (2001) 7 SCC
231:[2001] 3 Suppl. SCR 191 – followed.
D
Murarka Radhey Shyam Ram Kumar v. Roop Singh
Rathore AIR (1964) SC 1545:[1964] 3 SCR 573; F.A.
Sapa v. Singora (1991) 3 SCC 375:[1991] 2 SCR 752 ;
Sardar Harcharan Singh Brar v. Sukh Darshan Singh
(2004) 11 SCC 196:[2004] 5 Suppl. SCR 682 – relied
on. E
R.P. Moidutty v. P.T. Kunju Mohammad (2000) 1 SCC
481; K.K. Ramachandran Master v. M.V.
Sreyamakumar (2010) 7 SCC 428:[2010] 7 SCR 712;
P.A. Mohammed Riyas v. M.K. Raghavan (2012) 5 SCC
511:[2012] 4 SCR 56; G.M. Siddeshwar v. Prasanna F
Kumar (2013) 4 SCC 776; Lily Thomas v. Union of India
(2013) 7 SCC 653:[2013] 10 SCR 1130; Rama Narang
v. Ramesh Narang (1995) 2 SCC 513:[1995] 1 SCR
456; Ravikant S. Patil v. Sarvabhouma S. Bagali (2007)
1 SCC 673:[2006] 8 Suppl. SCR 1156 – referred to. G
Case Law Reference
[1964] 3 SCR 573 relied on Para 36
[1991] 2 SCR 752 relied on Para 37
H
640 SUPREME COURT REPORTS [2020] 13 S.C.R.
A (2000) 1 SCC 481 referred to Para 39
[2004] 5 Suppl. SCR 682 relied on Para 40
[2010] 7 SCR 712 referred to Para 41
[2012] 4 SCR 56 referred to Para 42
B [2001] 3 Suppl. SCR 191 followed Para 57
[2013] 10 SCR 1130 referred to Para 59
[1995] 1 SCR 456 referred to Para 59
[2006] 8 Suppl. SCR 1156 referred to Para 59
C
SPECIAL LEAVE PETITION (CIVIL) NO. 10678 OF 2020 :
Civil Appeal Nos. 2175-2178 of 2018.
From the Judgment and Order dated 31.10.2019 of the High Court
at Kerala at Ernakulam in Election Petition No. 4 of 2019.
D Ms. D.Geetha, Ms. Priya Ramola Devi, V. Ramasubramanian,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
1. As against a common order passed by the High Court of Kerala
E
throwing out 2 election petitions filed by the petitioner herein, on the
ground of incurable defects, the election petitioner has come up with the
above Special Leave Petition. This SLP arises out of Election Petition
No.4 of 2019. Another Election Petition filed by the very same petitioner
against the very same common order, but arising out of Election Petition
F No.3 of 2019 was dismissed by this Court on 02.11.2020 for non-
prosecution. Therefore, this order covers Election Petition No.4 of 2019.
2. Heard Ms. D. Geetha, learned counsel for the petitioner.
3. In the elections held to the Lok Sabha in April-May, 2019, the
petitioner filed her nomination on 04.04.2019 in the Ernakulam
G Constituency. The petitioner was to contest as an independent candidate.
4. On 06.04.2019 the nomination of the petitioner was rejected on
the ground that she was convicted in 2 criminal cases, one in CC No.1300
of 2013 on the file of the JFMC-I, Pathanamthitta and another in CC
No.102 of 2014 on the file of the JFMC-I, Perumbavoor. In the first
H
SARITHA S. NAIR V. HIBI EDEN 641
[V. RAMASUBRAMANIAN, J.]
case the petitioner was imposed with a punishment of imprisonment for A
3 years, with a fine of Rs.45 lakhs, by a judgment dated 08.06.2015. In
the second case she was imposed with a punishment of imprisonment
for 3 years, with a fine of Rs.10 lakhs, by a judgment dated 16.02.2016.
5. The petitioner filed Criminal Appeal No.87 of 2015 before the
Sessions Court, Pathanamthitta, against her conviction in CC No.1300 B
of 2013. But the appeal was dismissed and the petitioner filed a revision
before the High Court in Criminal R.P.No.9 of 2018. On 04.01.2018, the
High Court merely suspended the execution of the sentence and enlarged
the petitioner on bail, subject to her executing a bond for Rs.5 lakhs with
2 solvent sureties and also upon her depositing Rs.10 lakhs towards the
fine amount. C
6. Similarly, the petitioner filed Criminal Appeal No.25 of 2017
before the Sessions Court, Ernakulam against her conviction in CC
No.102 of 2014. The Appellate Court stayed the execution of the sentence
on condition of the appellant executing a bond for Rs.1 lakh with 2
sureties. D
7. The Returning Officer, noted in his order dated 06.04.2019 that
the petitioner stood disqualified in terms of Section 8(3) of the
Representation of the People Act, 1951, as the period of disqualification
had not lapsed.
E
8. Aggrieved by the order of rejection of the nomination, the
petitioner filed an appeal to the Chief Electoral Officer. Thereafter, the
petitioner moved a writ petition in W.P.(C)No.11282 of 2019. But the
Writ Petition was dismissed on 09.04.2019. The petitioner filed a writ
appeal but the same was also dismissed on 12.04.2019.
F
9. Therefore, after the elections were over, the petitioner filed an
election petition in Election Petition No.4 of 2019, primarily contending
that the rejection of her nomination was illegal and unjustified and that
such rejection materially altered the outcome of the election in which
the Respondent herein was declared elected. The main contention of
the petitioner in her election petition was that she had simultaneously G
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,
she contended that 2 different yardsticks cannot be applied and that in
any case, so long as the sentence of imprisonment remained suspended,
H
642 SUPREME COURT REPORTS [2020] 13 S.C.R.
A the disqualification under Section 8(3) of the Representation of the People
Act, 1951, may not be attracted.
10. It is to be noted at this stage that the petitioner filed her
nomination from one more constituency, namely Wayanad Constituency
and her nomination was rejected even in the said Constituency, for the
B very same reasons. Therefore, she filed another election petition in
Election Petition No.3 of 2019 as regards the election from the Wayanad
Constituency.
11. It appears that lot of defects were noticed by the Registry of
the High Court in both the election petitions. The defects noticed in both
C the election petitions were more or less the same. But in so far as Election
Petition No.4 of 2019 is concerned, out of which the present SLP arises,
the Registry noted one additional defect namely that the prayer of the
petitioner was incomplete.
12. Therefore, both the election petitions were posted before the
D Court without being numbered. However, the Court, by order dated
29.07.2019 directed the election petitions to be numbered subject to the
condition that the petitioner should address arguments on the question of
curability of the defects. Thereafter, notices were issued to the Election
Commission, the respective Returning Officers and the respective
returned candidates.
E
13. It may be relevant to note at this stage that the fact that the
petitioner was convicted in 2 independent criminal cases and sentenced
to imprisonment for 3 years in each of those cases and the fact that
though the execution of the sentence was suspended in both the cases,
the conviction was not suspended, were all admitted by the petitioner
F herself. The case of the petitioner was that it is enough if an appellate/
revisional court had suspended the sentence and not the conviction.
14. In view of the aforesaid stand of the petitioner, the High Court
framed a preliminary issue on 01.10.2019 as to whether the election
petitions were maintainable, when the conviction was not suspended in
G appeal or revision. The High Court decided to take up this preliminary
issue also for consideration along with the question relating to curability
of defects noticed in the election petitions.
15. Thereafter, the High Court heard the learned counsel for the
petitioner and learned counsel for the returned candidates and passed
H
SARITHA S. NAIR V. HIBI EDEN 643
[V. RAMASUBRAMANIAN, J.]
an order dated 31.10.2019 rejecting both the election petitions on 2 grounds A
namely:-
(i) that there were incurable defects in the election petitions in
terms of Section 86(1) of the Representation of the People
Act, 1951; and
(ii) that the petitioner was disqualified in view of the inhibitions B
contained in Section 8(3) of the Act read with Article
102(1)(e) of the Constitution.
16. Aggrieved by the common order passed on 31.10.2019 in
Election Petition Nos. 3 and 4 of 2019, the petitioner filed SLP(C) Diary
No.4200 of 2020 and SLP(C) No.10678 of 2020. The SLP in SLP(C) C
Diary No.4200 of 2020, arising out of the order in Election Petition No.3
of 2019, was dismissed for non-prosecution on 02.11.2020. The present
SLP arising out of Election Petition No. 4 of 2019 came up thereafter
for hearing.
17. As pointed out above, the election petition of the petitioner D
was dismissed on 2 grounds namely (i) that it contained incurable defects;
and (ii) that in any case, the petitioner admittedly suffered from a
disqualification. Let us now examine the correctness of the findings of
the High court in regard to these 2 issues.
Issue-1 (Incurability of defects) E
18. On the first issue, the High court noted that some of the defects
in the election petition are covered by Sections 81 and 82 and that there
was no semblance of any verification in terms of section 83 (1) (c) read
with Order VI, Rule 15 of the CPC. The High court held that there were
3 defects which were incurable. They were: F
(i) Petitioner has not signed in the declaration portion of
verification of the election petition;
(ii) In verification portion, in respect of Annexures, affidavits
and petitions, it is stated that the index has been verified
instead of Annexures, affidavits and petitions; G
(iii) Annexures are not verified by the petitioner as mandated
and instead of verification, annexures are seen certified as
true copies by the petitioner and the counsel.
H
644 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 19. In addition to the above 3 defects, which the High Court
considered as incurable in both the election petitions, the High Court
noted that in Election Petition No. 4 of 2019, even the relief sought was
incomplete and meaningless. Prayer (a) made in the election petition
was “To declare that the election of the 5th respondent from
Ernakulam Lok Sabha Constituency”. It actually meant nothing, unless
B the word “void” had been added thereto. Since the word “void” was not
there in prayer (a), the High Court thought that the election petition had
been prepared and filed in a casual manner. Coupled with this, was the
fact that the election petition also contained some allegations of serious
nature against the former Chief Minister of Kerala. Therefore, the High
C Court thought that the petitioner had malafide intentions to malign the
reputation of third parties, through the election petition without proper
verification and prayer and that this is nothing but a ruse for the petitioner
to escape at a later stage from owning up the pleadings.
20. In other words, what weighed with the High Court were:-
D (i) Lack of proper verification;
(ii) An incomplete prayer; and
(iii) Allegations of serious nature made against the former Chief
Minister with a possible leverage not to own up the pleadings.
E To hold that the defects stated above are incurable, the High Court
relied upon Sections 81, 82 and 83 read with Section 86 of the
Representation of the People Act, 1951. Let us now test the correctness
of the approach of the High Court, with regard to the statutory provisions.
21. Chapter-II, Part-VI of the Representation of the People Act,
1951, contains provisions for “Presentation of election petitions to High
F
Court” and Chapter III contains provisions for “Trial of election petitions”.
Section 86(1), with which Chapter-III begins, obliges the High Court to
dismiss an election petition which does not comply with the provisions of
Section 81 or Section 82 or Section 117. The dismissal of an election
petition under Section 86(1) is deemed by the Explanation under Section
G 86(1) to be a decision under Section 98(a). Section 98 speaks about 3
types of orders that could be passed at the conclusion of the trial of an
election petition. They are:-
(i) The dismissal of the election petition; or
(ii) A declaration that the election of the returned candidate is
H void; or
SARITHA S. NAIR V. HIBI EDEN 645
[V. RAMASUBRAMANIAN, J.]
(iii) A declaration not only that the election of the returned A
candidate is void, but also that the petitioner or any other
candidate was duly elected.
22. It is important to note that the above 3 different types of
decisions under Section 98, can be rendered by the High Court only at
the conclusion of the trial. But the dismissal under Section 86(1) is an B
exception. The reference in the Explanation under Section 86(1) to
Section 98(a), makes it clear that the power of the High Court to
dismiss an election petition which does not comply with the provisions
of Section 81 or Section 82 or Section 117, is available at the pre-
trial stage.
C
23. As stated earlier, the procedure for presentation of election
petitions to the High Court are dealt with in Sections 80 to 84 falling in
Chapter-II of Part-VI. For our present purpose, Sections 81(3), 83(1),
83(2) and 84 are relevant.
24. Section 81(3) makes it mandatory for every election petition D
to be accompanied by as many copies as there are respondents. Every
such copy is required to be attested by the petitioner under his own
signature to be a true copy of the petition. Section 81(3) reads as follows:-
“81. Presentation of petitions.- (1)….
(2) Omitted E
(3) Every election petition shall be accompanied by as many copies
thereof as there are respondents mentioned in the petition, and
every such copy shall be attested by the petitioner under his own
signature to be a true copy of the petition.”
F
25. Section 83 speaks about:-
(i) The contents of the election petition;
(ii) The signature and verification of the election petition; and
(iii) The signature and verification of any schedule or annexure
to the election petition. G
Section 83 reads as follows :-
“83. Contents of petition.—(1) An election petition—
(a) shall contain a concise statement of the material facts on
which the petitioner relies; H
646 SUPREME COURT REPORTS [2020] 13 S.C.R.
A (b) shall set forth full particulars of any corrupt practice that the
petitioner alleges including as full a statement as possible of
the names of the parties alleged to have committed such
corrupt practice and the date and place of the commission
of each such practice; and
B (c) shall be signed by the petitioner and verified in the manner
laid down in the Code of Civil Procedure, 1908 (5 of 1908)
for the verification of pleadings:
[Provided that where the petitioner alleges any corrupt
practice, the petition shall also be accompanied by an affidavit
C in the prescribed form in support of the allegation of such
corrupt practice and the particulars thereof.]
(2) Any schedule or annexure to the petition shall also be signed
by the petitioner and verified in the same manner as the petition.”
26. Section 84 indicates the relief/reliefs that could be claimed in
D an election petition. It reads as follows:-
“84. Relief that may be claimed by the petitioner.—A
petitioner may, in addition to claiming a declaration that the election
of all or any of the returned candidates is void, claim a further
declaration that he himself or any other candidate has been duly
E elected.”
27. In the trial of an election petition, the High Court is bound to
follow the procedure as applicable to the trial of suits under the Code of
Civil Procedure, 1908, as nearly as may be. This is by virtue of Section
87(1). The provisions of Indian Evidence Act, 1872 are made applicable
F in all respects to the trial of all elections petitions, under Section 87(2).
Section 87 reads as follows:-
“87. Procedure before the High Court.—(1) Subject to the
provisions of this Act and of any rules made thereunder, every
election petition shall be tried by the High Court, as nearly as may
G be, in accordance with the procedure applicable under the Code
of Civil Procedure, 1908 (5 of 1908) to the trial of suits: Provided
that the High Court shall have the discretion to refuse, for reasons
to be recorded in writing, to examine any witness or witnesses if
it is of the opinion that the evidence of such witness or witnesses
is not material for the decision of the petition or that the party
H
SARITHA S. NAIR V. HIBI EDEN 647
[V. RAMASUBRAMANIAN, J.]
tendering such witness or witnesses is doing so on frivolous grounds A
or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872),
shall subject to the provisions of this Act, be deemed to apply in all
respects to the trial of an election petition.”
28. It is relevant to note that the Act keeps in two separate B
compartments-
(i) the presentation of election petitions; and
(ii) the trial of election petitions.
The presentation of election petitions is covered by Sections 80 to C
84 falling in Chapter-II. The trial of election petitions is covered by
Sections 86 to 107 and they are contained in Chapter-III.
29. This compartmentalization, may be of significance, as seen
from 2 facts namely:-
(i) That under Section 80 no election shall be called in question D
except by an election petition presented in accordance with
the provisions of “this part”; and
(ii) That a limited reference is made to the provisions of the
Code of Civil Procedure, 1908 in Chapter-II, only in places
where signature and verification are referred to. E
30. In so far as presentation of election petitions is concerned,
Chapter-II is a complete code. This is because, the various provisions of
Chapter-II cover all aspects of the presentation of an election petition,
such as:-
(i) The person(s) who is/are entitled to file; F
(ii) Person(s) who could be joined as respondents;
(iii) The types of different reliefs that can be sought;
(iv) The grounds on which such reliefs could be sought;
(v) Period of limitation for filing an election petition; G
(vi) The court where the petition could be filed;
(vii) Contents of such petition; and
(viii) Format of the election petition and the manner in which it is
to be signed and verified. H
648 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 31. Some of the rules contained in Chapter II are inflexible and
inviolable. But some may not be. Whether the manner of signing and
verifying an election petition is an inflexible rule, is what is to be seen
here.
32. Section 83 (1) (c) mandates that an election petition shall be
B signed by the petitioner and verified in the manner laid down in the Code
of Civil Procedure for verification of pleadings. Signing a petition and
verifying the petition are 2 different aspects. While Order VI, Rule 14
deals with the signing of the petition, Order VI, Rule 15 deals with the
verification of pleading. Rule 14 mandates that every pleading shall be
signed by the party as well as the pleader, if any. But the proviso carves
C out an exception by stating that where a party is unable to sign the
pleading, by reason of absence or for other good cause, it may be
signed by any person duly authorized by him to sign the same or to
sue or defend on his behalf. Order VI, R.14 reads as follows:-
“14. Pleading to be signed.-Every pleading shall be signed by
D the party and his pleader(if any):
Provided that where a party pleading is, by reason of absence or
for other good cause; unable to sign the pleading, it may be signed
by any person duly authorized by him to sign the same or to sue or
defend on his behalf.”
E
33. Order VI, R.15 which speaks about verification of pleadings
reads as follows:-
“15. Verification of pleadings.- (1) Save as otherwise provided
by any law for the time being in force, every pleading shall be
F verified at the foot by the party or by one of the parties pleading
or by some other person proved to the satisfaction of the court to
be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the
numbered paragraphs of the pleading, what he verifies of his own
knowledge and what he verifies upon information received and
G
believed to be true.
(3) The verification shall be signed by the person making it and
shall state the date on which and the place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit
H in support of his pleadings.”
SARITHA S. NAIR V. HIBI EDEN 649
[V. RAMASUBRAMANIAN, J.]
34. It is to be noted that Sub-rule (1) of Rule 15 of Order VI also A
permits the verification of pleading to be done by a person other
than the party pleading, provided it is proved to the satisfaction of the
Court that such other person was acquainted with the facts of the case.
35. Section 86(1) empowers the High Court to dismiss an election
petition which does not comply with the provisions of Section 81, Section B
82 or Section 117 and it does not include Section 83 within its ambit.
Therefore, the question whether or not an election petition which does
not satisfy the requirements of Section 83, can be dismissed at the pre-
trial stage under section 86(1), has come up repeatedly for consideration
before this Court. We are concerned in this case particularly with the
requirement of Clause (c) of Sub-section (1) of Section 83 and the C
consequence of failure to comply with the same.
36. In Murarka Radhey Shyam Ram Kumar vs. Roop Singh
Rathore1, a preliminary objection to the maintainability of the election
petition was raised on the ground that the verification was defective.
The verification stated that the averments made in some paragraphs of D
the petition were true to the personal knowledge of the petitioner and
the averments in some other paragraphs were verified to be true on
advice and information received from legal and other sources. There
was no statement that the advice and information received by the election
petitioner were believed by him to be true. Since this case arose before E
the amendment of the Act under Act 47 of 1966, the election petition
was dealt with by the Tribunal. The Tribunal held the defect in the
verification to be a curable defect. The view of the Tribunal was upheld
by this Court in Murarka Radhey Shyam Ram Kumar (supra). This
Court held that “it is impossible to accept the contention that a defect
in verification which is to be made in the manner laid down in the F
Code of Civil Procedure for the verification of pleadings as required
by Clause (c) of Sub-section (1) of Section 83 is fatal to the
maintainability of the petition”.
37. The ratio laid down in Muraraka was reiterated by a three
member Bench of this Court in F.A. Sapa vs. Singora2 holding that G
“the mere defect in the verification of the election petition is not
fatal to the maintainability of the petition and the petition cannot be
1
AIR (1964) SC 1545
2
(1991) 3 SCC 375 H
650 SUPREME COURT REPORTS [2020] 13 S.C.R.
A thrown out solely on that ground”. It was also held in F.A. Sapa that
“since Section 83 is not one of the three provisions mentioned in
Section 86(1), ordinarily it cannot be construed as mandatory unless
it is shown to be an integral part of the petition under Section 81”.
38. In F.A. Sapa (supra) this Court framed two questions in
B paragraph 20 of the Report, as arising for consideration. The first question
was as to what is the consequence of a defective or incomplete
verification. While answering the said question, this Court formulated
the following principles: –
(i) A defect in the verification, if any, can be cured
C (ii) It is not essential that the verification clause at the foot of
the petition or the affidavit accompanying the same should
disclose the grounds or sources of information in regard to
the averments or allegations which are based on information
believed to be true
D (iii) If the respondent desires better particulars in regard to
such averments or allegations, he may call for the same, in
which case the petitioner may be required to supply the same
and
(iv) The defect in the affidavit in the prescribed Form 25 can
E be cured unless the affidavit forms an integral part of the
petition, in which case the defect concerning material facts
will have to be dealt with, subject to limitation, under section
81(3) as indicated earlier.”
39. It was also held in F.A. Sapa (supra) that though an allegation
F involving corrupt practice must be viewed very seriously and the High
Court should ensure compliance with the requirements of Section 83
before the parties go to trial, the defective verification of a defective
affidavit may not be fatal. This Court held that the High Court should
ensure its compliance before the parties go to trial. This decision was
followed by another three-member Bench in R.P. Moidutty vs. P.T.
G Kunju Mohammad3.
40. In Sardar Harcharan Singh Brar vs. Sukh Darshan Singh4,
this Court held that though the proviso to Section 83(1) is couched in
3
(2000) 1 SCC 481
4
H (2004) 11 SCC 196
SARITHA S. NAIR V. HIBI EDEN 651
[V. RAMASUBRAMANIAN, J.]
a mandatory form, requiring a petition alleging corrupt practice to A
be accompanied by an affidavit, the failure to comply with the
requirement cannot be a ground for dismissal of an election petition
in limine under Section 86(1). The Court reiterated that non-compliance
with the provisions of Section 83 does not attract the consequences
envisaged by Section 86(1) and that the defect in the verification and
B
the affidavit is a curable defect. The following portion of the decision
is of significance:
“14. xxxx
Therefore, an election petition is not liable to be dismissed in limine
under Section 86 of the Act, for alleged non-compliance with C
provisions of Section 83(1) or (2) of the Act or of its proviso. The
defect in the verification and the affidavit is a curable defect.
What other consequences, if any, may follow from an allegedly
“defective” affidavit, is required to be judged at the trial of an
election petition but Section 86(1) of the Act in terms cannot be
attracted to such a case.” D
41. In K.K. Ramachandran Master vs. M.V. Sreyamakumar5,
this Court followed F.A. Sapa (supra) and Sardar Harcharan Singh
Brar (supra) to hold that defective verification is curable. The Court
again reiterated that the consequences that may flow from a defective
affidavit is required to be judged at the trial of an election petition and E
that such election petition cannot be dismissed under Section 86(1).
42. Though all the aforesaid decisions were taken note by a two-
member Bench in P.A. Mohammed Riyas vs. M.K. Raghavan6, the
Court held in that case that the absence of proper verification may lead
to the conclusion that the provisions of Section 81 had not been fulfilled F
and that the cause of action for the election petition would remain
incomplete. Such a view does not appear to be in conformity with the
series of decisions referred to in the previous paragraphs and hence
P.A. Mohammed Riyas cannot be taken to lay down the law correctly.
It appears from the penultimate paragraph of the decision in P.A. G
Mohammed Riyas (supra) that the Court was pushed to take such an
extreme view in that case on account of the fact that the petitioner
therein had an opportunity to cure the defect, but he failed to do so.
5
(2010) 7 SCC 428
6
(2012) 5 SCC 511 H
652 SUPREME COURT REPORTS [2020] 13 S.C.R.
A Therefore, P.A. Mohammed Riyas (supra) appears to have turned on
its peculiar facts. In any case P.A. Mohammed Riyas was overruled in
G.M.Siddeshwar vs. Prasanna Kumar7 on the question whether it is
imperative for an election petitioner to file an affidavit in terms of Order
VI Rule 15(4) of the Code of Civil Procedure, 1908 in support of the
averments made in the election petition in addition to an affidavit (in a
B
case where resort to corrupt practices have been alleged against the
returned candidate) as required by the proviso to Section 83(1). As a
matter of fact, even the filing of a defective affidavit, which is not in
Form 25 as prescribed by the Rules, was held in G.M. Siddeshwar to be
a curable defect and the petitioner was held entitled to an opportunity to
C cure the defect.
43. The upshot of the above discussion is that a defective
verification is a curable defect. An election petition cannot be thrown
out in limine, on the ground that the verification is defective.
44. Therefore, the High Court committed a grave error in holding
D the 3 defects mentioned in paragraph 18 hereinabove as incurable. The
defects are curable and as rightly contended by the learned counsel for
the petitioner, an opportunity to cure the defects ought to have been
given. Instead, the election petition was posted before Court without
numbering, in view of the defects noticed. The Court directed the petition
E to be numbered subject to arguments on the curability of defects.
Thereafter notices were issued to the respondents in the election petition
and finally the order impugned herein was passed after hearing both
sides. The High Court did not even rely upon any rule framed by the
High court to follow the said procedure.
F 45. The Rules of the High Court of Kerala, 1971 contains a set of
Rules from Rule Nos.207 to 219 in Chapter XVI. These Rules govern
the procedure for institution and trial of election petitions. Rule 210 of
these rules reads as follows:-
“210.Summons.-Immediately after registering, the petition shall
G be placed before the Judge for such orders as may be required to
be passed under Section 86 of the Act. If the petition is not
dismissed under Section 86(1) of the Act, a summons, on the
direction of the Judge shall be issued to the respondents to appear
before the High Court on a fixed date and answer the claim or
7
H (2013) 4 SCC 776
SARITHA S. NAIR V. HIBI EDEN 653
[V. RAMASUBRAMANIAN, J.]
claims made in the petition. Such date shall not be earlier than A
three weeks from the date of the issue of the summons. The
summons shall be for written statement and settlement of issues
and shall be served on the respondents by the process staff of the
High Court or the District Courts, all steps being taken to effect
service with the utmost expedition.”
B
46. The manner in which Rule 210 has been worded gives an
impression as though an election petition should be placed before the
Judge, immediately after it is registered, for passing Orders under Section
86(1). If the petition is not dismissed under Section 86(1), summons
should be issued to the respondents on the direction of the Judge. In the
case on hand the learned designated Judge before whom the election C
petition was listed as defective, chose to issue summons to the
respondents, calling upon them to argue on the curability of defects as
well as the maintainability of the petition. There is nothing to indicate in
the Rules that the learned designated Judge was powerless to return the
petition to the petitioner for curing the defects. D
47. The procedure adopted by the High Court of Kerala cannot
be approved. The High Court was wrong in thinking that the defective
verification of the election petition was a pointer to the game plan of the
election petitioner to disown the pleadings at a later stage, especially
after making serious allegations against the former Chief Minister. If E
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. The failure
of the High Court to give an opportunity to cure the defects is improper.
F
48. The defect in the prayer made by the petitioner was also a
curable defect, as the words “as void” were omitted to be included,
making the prayer as it existed, meaningless. It is true that the election
petitioner should have been more careful and diligent in incorporating an
appropriate relief and making a proper verification. But no motives could
have been attributed to the petitioner, only because she made serious G
allegations against someone. Hence we hold on the first issue that 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.
H
654 SUPREME COURT REPORTS [2020] 13 S.C.R.
A Issue-2 (effect of punishment by criminal court)
49. That takes us to the next issue regarding the punishments
imposed upon the petitioner in two criminal cases and the suspension of
execution of sentence alone granted by the appellate/revisional Courts.
50. Admittedly the petitioner was imposed with a punishment of
B imprisonment for a period not less than two years in two independent
criminal cases. Therefore, her case is covered by Section 8(3) of the
Act.
51. What was suspended by the appellate Court in one case and
the revisional Court in another case was only the execution of the sentence
C of imprisonment and not the conviction. The contention of the petitioner
is that the suspension of the sentence was sufficient to save her from
the applicability of Section 8(3).
52. But we do not think so. Section 8(3) reads as follows:
D “Disqualification on conviction for certain offences.-
(1) …
(2) …
(3) A person convicted of any offence and sentenced to
imprisonment for not less than two years [other than any offence
E 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.”
53. It is seen from a reading of Section 8(3) that it deals with two
aspects namely (i) the conditions for disqualification; and (ii) the period
F of disqualification. The conditions for disqualification are (i) conviction
for any offence other than an offence referred to in Sub-sections (1)
and (2); and (ii) sentence of imprisonment for not less than two years.
54. In so far as the period of disqualification is concerned, Section
8(3) says that the disqualification will commence from the date of
G conviction. This is made clear by the usage of the words “shall be
disqualified from the date of such conviction”. It is needless to state
that the words “the date” appearing in Section 8(3) refers to the event
of conviction and it is post facto. The disqualification which commences
from the date of conviction, continues till the expiry of a period of six
H years from the date of his release.
SARITHA S. NAIR V. HIBI EDEN 655
[V. RAMASUBRAMANIAN, J.]
55. In other words, the date of conviction is what determines A
the date of commencement of the period of disqualification. However,
it is date of release which determines the date on which the
disqualification will cease to have effect.
56. When viewed in that context, it will be clear that the mere
suspension of the execution of the sentence is not sufficient to take the B
rigour out of Section 8(3).
57. In fact, a Constitution Bench of this Court held in B.R. Kapur
vs. State of Tamil Nadu8 that an order of the appellate/revisional Court
suspending the sentence of imprisonment has to be read in the context
of Section 389 of the Code of Criminal Procedure and that under the C
said provision, what is suspended is only the execution of the sentence
and not the sentence itself. The Constitution Bench made it clear that
the suspension of the execution of the sentence would not alter or affect
the conviction and that therefore such a person would remain disqualified
under Section 8(3). In fact, in B.R. Kapur (supra) a person whose
D
nomination was rejected on the ground of disqualification, got elected as
the leader of the party which secured majority in the elections and became
the Chief Minister and hence Article 164 was pressed into service. But
even the same was rejected on the ground that a person who was
disqualified from contesting the elections, cannot take the route of Article
164. E
58. A contention was raised in B.R. Kapur (supra) that the sitting
members of Parliament or Legislatures are granted by Section 8(4) of
the Act, with a protection against removal from office, during the
pendency of their appeal or revision against conviction and that it is
violative of the guarantee of equality under the Constitution, if the class F
of persons getting convicted before elections are placed at a
disadvantageous position than the class of persons who are convicted
after getting elected to the Parliament or the State Legislatures. But the
Constitution Bench rejected this contention in B.R. Kapur (supra) on
the ground that the constitutional validity of Sub-section (4) of Section 8
G
was not in question.
59. Possibly taking cue from what was observed in B.R. Kapur
(in Para 38 and 39 of the Report), a challenge was made to Section 8(4)
8
(2001) 7 SCC 231
H
656 SUPREME COURT REPORTS [2020] 13 S.C.R.
A in Lily Thomas vs. Union of India9, on the ground that it is ultra vires
the Constitution. While declaring the said provision to be unconstitutional,
this Court held in Lily Thomas (supra) that a Member of Parliament or
the State Legislature who suffers a frivolous conviction, will not be
remediless. Taking note of the decisions in Rama Narang vs. Ramesh
Narang10 and Ravikant S. Patil vs. Sarvabhouma S. Bagali11, this
B
Court held in Lily Thomas (supra) that the appellate Court has ample
powers under Section 389(1) of the Code, to stay the conviction as well
as the sentence and that wherever a stay of conviction itself has been
granted, the disqualification will not operate.
60. Just as the observations made in B.R. Kapur (supra) led to a
C challenge to Section 8(4) of the Act in Lily Thomas (supra), the discussion
in Lily Thomas (supra) about the power of the appellate Court to stay
the conviction as well as the execution of sentence, led to another bout
of litigation. In Lok Parhari vs. Election Commissioner of India12, the
petitioner sought a declaration that even a stay of conviction by the
D appellate Court will not have the effect of wiping out the disqualification.
The contention of the petitioner was that the law does not provide for
stay of conviction. But this Court rejected the challenge on the ground
that the decisions in Rama Narang (supra) and Lily Thomas (supra)
clinched the issue in this regard.
E 61. Therefore, in effect, the disqualification under Section 8(3)
will continue so long as there is no stay of conviction. In the case on
hand, the petitioner could not obtain a stay of conviction but obtained
only a stay of execution of the sentence. Hence her nominations were
validly rejected by the Returning Officer. Merely because the Returning
Officer in Amethi Constituency committed an error in overlooking this
F fact, the petitioner cannot plead estoppel against statutory prescription.
CONCLUSION
62. Therefore, in fine, we hold that the petitioner was disqualified
from contesting the elections in terms of Section 8(3) of the Act. In such
G circumstances, she could not have maintained an election petition as “a
candidate at such election” in terms of Section 81(1). Therefore, the
9
(2013) 7 SCC 653
10
(1995) 2 SCC 513
11
(2007) 1 SCC 673
12
H (2018) AIR 4675
SARITHA S. NAIR V. HIBI EDEN 657
[V. RAMASUBRAMANIAN, J.]
High Court was right in not venturing into an exercise in futility, by taking A
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.
63. In view of the above, the Special Leave Petition is dismissed.
There will be no order as to costs. B
Ankit Gyan SLP dismissed.
C
D
E
F
G
H
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