A person stands disqualified from contesting polls under the election law if his conviction in a criminal case, in which a jail term of two or more years has been awarded, is not stayed, the Supreme Court said on Wednesday. The top court’s observation came in a judgement by which it dismissed an appeal of Saritha S Nair against the rejection of her nomination papers for contesting Lok Sabha polls from Ernakulam, Kerala, by the returning officers in 2019 on account of her conviction and sentencing in two criminal cases related to the Solar scam in the state. Hibi Eden of Congress party won the seat. Nair had also moved the top court against rejection of her nomination papers on the same grounds for contesting Lok Sabha polls from Wayanad seat against Rahul Gandhi.
The plea was dismissed earlier on November 2 on account of non-prosecution. A bench comprising Chief Justice S A Bobde and Justices A S Bopanna and V Ramasubramanian trashed the contention of Nair that the rejection of her nomination papers was incorrect as her sentence of three years was suspended by appellate courts.
The bench said 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. The top court was very critical of the Kerala High Court for holding the defects such as lack of proper verification, incomplete prayer and allegations against former Chief Minister as incurable in Nair’s petition.
The High Court committed a grave error in holding the three defects…as incurable. The defects are curable and as rightly contended by the counsel for the petitioner, an opportunity to cure the defects ought to have been given.., it said. Referring judgements and legal provisions on disqualification, the bench said, It will be clear that the mere suspension of the execution of the sentence is not sufficient to take the rigour out of Section 8(3) (of the Representation of Peoples Act).
Justice Ramasubramanian, writing the verdict, said an order of the 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 top court upheld the decisions of the Returning Officer saying in effect, the disqualification under Section 8(3) will continue so long as there is no stay of conviction, and also rejected her plea that her nomination papers to contest polls from Amethi was not rejected despite the disclosure of same facts. Merely because the Returning Officer in Amethi Constituency committed an error in overlooking this fact, the petitioner cannot plead estoppel against statutory prescription, the top court held. Nair had moved the top court against the October 31, 2019 decision of the Kerala High Court by which her election petitions challenging the Lok Sabha polls in Wayanad and Ernakulam also were dismissed.
The high court had not allowed Nair’s pleas challenging the polls in both Lok Sabha seats and said that her nomination papers were rejected as the conviction in the two criminal cases were not suspended. It had that only the sentences in the cases were suspended by the appellate court.
The high court said it was clear from the relief sought in the appeal petition that Nair had only sought suspension of the sentence and not suspension of conviction. Nair’s nomination papers were rejected under the Secrion 8(3) of the Representation of People Act, 1951 which prescribed for disqualification on account of conviction and sentencing in a criminal case.