Disqualification of Convicted Representatives of the Electorate and the Legality of the Vote Cast

I. Introduction

Representative parliamentary democracy is a salient feature of our Constitution. Disqualified person cannot be a representative of the electorate. The implied prohibition that disqualified persons shall not hold office arises from the constitutional structure and scheme, namely the rule of law and responsible and representative parliamentary democracy. Such a person cannot occupy any seat or vote in either House of Parliament of either House of the State Legislature.³The Constitution provides strict penalties in this behalf.⁴

Under our Constitution, Articles 101 and 102 relate to vacation of seats and disqualifications for membership of the Houses of Parliament. The corresponding provisions contained in Articles 190 and 191 of the Constitution of India relatable to the disqualification of Members of a State Assembly being otherwise in pari materia therewith. Whereas Article 102 of the Constitution of India deals with disqualification of Members of both Houses of Parliament, Article 191 provides for the eventualities for disqualification for Members of both Houses of the Legislature of a State. These provisions expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting Member of Parliament or a State Legislature. This power has been recognised by the Hon’ble Supreme Court in Lily Thomas Vs. Union of India⁵. Articles 102 (2) and 191 (2) of the Constitution of India also stipulate disqualification under the Tenth Schedule of the Constitution.

These two articles also elucidate as per clause (e) that such disqualification would be incurred as well, if the Member concerned shall be disqualified by or under any law made by the Parliament. Thus, the Representation of People Act of 1951 is the yield of the exercise of the power of the Parliament as conferred by Articles 102(1)(e)⁶ and 191(1)(e)⁷ of the Constitution of India

The Representation of People Act, 1951 in terms of Article 191(e)⁸ of the Constitution of India was enacted to provide for the conduct of elections of the Houses of Parliament and to the House or Houses of Legislature of each state, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decisions on doubts and disputes arising out of or in connection with such elections.

Thus, as far as disqualification of a Member of a Parliament or a State Legislature is concerned, it has been broadly dealt with in the Constitution of India and the Representation of People Act, 1951. There are five disqualifications under the Constitution of India. Most relevant article for the present discussion has been enumerated below-

(i) a candidate must not be disqualified by or under any Law made by the Parliament.⁹

In addition to the Constitutional disqualifications, the Representation of the People Act, 1951 has laid down a number of disqualifications for being chosen as, or for being, a member of Parliament.

Chapter III of the Representation of People Act, 1951 deals with “ Disqualification for Membership of Parliament and State Legislatures” containing various provisions from Sections 8 to 10A of the Act, 1951 identifying the various grounds/contingencies, envisaged for such disqualification.

The term disqualification has been defined under Section 7(b) of the Representation of People Act, 1951 which states as hereunder:

7(b) “disqualified” means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.

The definition of the word “disqualified” as provided in Section 7(b) brings within the sweep of disqualification, a prospective Member of the House of Parliament or of the Legislative Assembly of Legislative Council of a State as well as an existing or continuing member thereof.

Section 8 to Section 11 of the Representation of People Act, 1951 indicates the disqualification on conviction for certain offences for commission of corrupt practice. The position under the Representation of People Act, 1951, therefore, is that in order to stand for election to the Parliament or a legislative assembly of a State, the candidate must not be subject to any of the disqualifications stipulated in Chapter III of the Representation of People Act, 1951.¹⁰ Therefore, these disqualifications may, therefore, be called statutory disqualifications to distinguish them from constitutional disqualifications mentioned above.¹¹ There are six statutory disqualifications. relevant article for the present discussion has been enumerated below-

(i) If he is convicted and sentenced for any offence as provided or enumerated in Section 8 of the Representation of the People Act, 1951.

Section 8 of the Representation of People Act, 1951 deals with disqualification on conviction for certain offences as enumerated under sub-sections (1), (2), (3), and also prescribes the sentence therefore, that would attract disqualification as well as the period thereof.

II. Scope and object of the representation of people act, 1951.

The Statement of Objects and Reasons accompanying Bill No. 128 of 1988¹² stated, inter alia, that Section 8 of the Representation of People Act, 1951 deals with disqualification on the ground of conviction for certain offences. It is proposed to include more offences in this section so as to prevent persons having criminal record enter into public life.¹³ Sub-section (3) of Section 8 in its present form was introduced in the body of the Representation of People Act, 1951 by Act No. 1 of 1989 with effect from 15^th March, 1989. The purpose of enacting disqualification under Section 8(3) of the Representation of People Act, 1951 was to prevent criminalization of politics. Those who break the law should not make the law. Generally speaking, the purpose sought of enacting disqualification on conviction for certain offences is to prevent persons with criminal background from entering into politics, and the House a powerful wing of governance.¹⁴ It had been incorporated as a measure of electoral reforms to ensure purity in elections and unblemished electoral representations in the Parliament and the State Legislatures. The amendments to Section 8 clearly indicate the addition of offences to enlarge the zone of disqualifications, thus, attesting the stringent rigour and expanse of the provisions with the legislative mission of securing against election and continuance of any Member of the Houses of Parliament or of the Legislature of a State, who is disqualified on the touchstone thereof. The statutory objective is thus unequivocally clear to also weed out disqualified Members from the elected representatives of the people otherwise entrusted with the sacrosanct role in the constructive governance of our democratic polity.

The qualification or disqualification is to be determined with reference to the date fixed for scrutiny of nomination. The subsequent acquittal is not relevant to remove the disqualification as on the date of the scrutiny of the nomination.¹⁵ In Dilip Kumar Sharma vs. State of M.P¹⁶, the view expressed was that the case of a conviction of the candidate being set aside on appeal, it wipes off the conviction retrospectively, as if it had never passed. This may be true under criminal law but not for the purpose of election law. If subsequently the conviction is set aside, It would not have the effect of wiping out disqualification retrospectively.¹⁷ Persons with criminal background do pollute the process of election as they do not have many a holds barred and have no reservation from indulging into criminality to win success at election.¹⁸

III. Disqualification through conviction

Section 8(3) being the most relevant out of all sub-sections for the current discussion states that-

8(3): A person convicted for any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

The expression ‘a person convicted of any offence’ has to be construed as all offences of which a person has been charged and held guilty at one trial. The applicability of the expression ‘ sentenced to imprisonment for not less than 2 years’ would be decided by calculating the total term of imprisonment for which the person has been sentenced.¹⁹

Section 8(3) of the 1951 Act projects three striking features which for convenience, are set-out hereunder:

i. A person convicted of an offence and sentenced to imprisonment for not less than two years for an offence other the ones referred to in sub-section (1) and sub-section (2).

ii. Shall be disqualified from the date of such conviction and

iii. Shall continue to be disqualified for a further period of six years since his release.

As is apparent from the above ingredients of Section 8(3), for a person to be disqualified in terms thereof, he has to be convicted of any offence, not mentioned in sub-section (1) or sub-section (2) of Section 8 and has to be sentenced to imprisonment for not less than two years. Having met and satisfied these pre-conditions, it would stand disqualified from the date of such conviction and the disqualification would continue for a period of six years from his release after serving the sentence.

Section 8(4) of the Act provided a temporary respite from such disqualification to an existing Member of Parliament or a Legislature of State by deferring such disqualification for a period of three months or till the disposal of any appeal or application for revision before a Court filed by such disqualified Member against conviction or the sentence. However, the constitutional validity of Section 8(4) of the Act was brought up before the Supreme Court in Lily Thomas Vs. Union of India²⁰, it was enunciated by the Hon’ble Court that the legislative power of Parliament to enact any law relating to disqualification for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State can be located only in Articles 102(1)(e) and 191(1)(e) of the Constitution of India and that the Parliament does not have the power to make different laws for a person to be disqualified for being chosen as a Member and for a person to be disqualified for continuing as a Member of Parliament or the State Legislature. It was propounded that if because of a disqualification, a person cannot be chosen as a Member of Parliament or State Legislature, for the same disqualification, he cannot continue as a Member of Parliament or the State Legislature. It was underlined that once a person, who was a Member of either House of Parliament or House of State Legislature becomes disqualified, by or under any law made by the Parliament under Articles 102(1)(e) and 191(1)(e) of the Constitution, his seat would automatically fall vacant by virtue of Articles 101(3)(a) and 190(3)(a) and that, the Parliament thus cannot make a provision as in sub-section 4 of Section 8 of the Act, to defer the date of such disqualification of a sitting member which, inter alia, would have the effect of preventing his seat becoming vacant on account of such disqualification. Section 8(4) was thus adjudged to be ultra vires the Constitution of India but the determination was given a prospective effect. The Supreme Court approved that sub-section (1),(2) and (3) of Section 8 of the Act, 1951 provided that a person convicted of an offence mentioned in any of these sub-sections shall stand disqualified from the “date” of the conviction and the disqualification was to continue for a specific period(s) mentioned in the said sub-sections. However, the expression “date” used in Section 8 of the Act, 1951 did not come up for consideration.

IV. Principles of interpretation of the statute

The judicially acknowledged canons of interpretation of statutes would also provide the leading light to interpret and understand the rationale and intent behind enacting various provisions of Representation of People Act, 1951.

In Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. and other²¹, the Supreme Court did observe that interpretation must depend on the text and the context and these are the foundation of such interpretation. It was underlined that such interpretation is best which makes the textual interpretation match the contextual and a statute is best interpreted when we know why it was enacted.

The Hon’ble Supreme Court in the State of Madhya Pradesh vs. Ram Singh²², in discerning the underlying object of the enactment of the Prevention of Corruption Act, 1988, referred to its observation in R.S Nayak vs. A.R Antulay²³, and stated that the Court was entitled to ascertain the intention of the Legislature to remove the ambiguity by construing the provision of the statute as a whole, keeping in view what was the mischief when the statute was enacted and to remove which the legislature had enacted the same. It was propounded that it would be the duty of the Court to adopt that construction which would advance the object underlying the statute, namely, to make effective provision for the prevention of bribery and corruption and at any rate not to defeat it. The following observation with regard to the purposive interpretation of a statue made by Justice Frankfurter was relied upon with approval by the Hon’ble Supreme Court in United Bank of India, Calcutta vs. Abhijit Tea Co. Pvt. Ltd and others²⁴

“Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy to effect a change of policy, to formulate a plan of government. That aim, that policy is not drawn, like nitrogen, out of the air, it is evidenced in the language of the statute, as read in the light of the other external manifestations of purpose.”

To the same effect, a Constitution Bench of the Supreme Court in Union of India vs. Elphinstone Spinning and Weaving Co. Ltd. and others²⁵ had pronounced that the cardinal principle of construction of statutes is that the true or legal meaning of the words used in the enactment in the light of any discernible purpose or object/intent which comprehends the mischief and its remedy to which the enactment is directed and as and when the question arises as to the meaning of a certain provision in a statute, it is not only legitimate but proper to read that provision in its context.

In N.G Joshi vs. Commercial Municipal Corporation, Kalyan & Dombivali²⁶, it was held that in any event, if difficulty arises in a given situation to construe the statute upon applying a plain meaning thereof, it is well-settled that the rule of purposive construction should be applied. In the same vein, the Supreme Court in Nathi Devi vs. Radha Devi Gupta²⁷ reiterated that if there exists some ambiguity in the language or the same is capable of two interpretations which serves the object and purpose of the statute must be given effect to and in such a case, the doctrine of purposive construction should be adopted.

The House of Lords in Nokes vs. Doncaster Collieries²⁸ had proclaimed thus:

“At the same time, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.”

In Holmes vs. Bradfield Rural District Council²⁹, Finne More, J. observed that:

“ The mere fact that results of a statute may be unjust or absurd does not entitle this court to refuse to give it effect, but, if there are two different interpretations of the words in an Act, the court will adopt that which is just, reasonable and sensible rather than that which is none of those things”.

The pivotal tenets of interpretation of statutes as can be gathered from the above erudite exposition of the law thereon is that a statute is the will of the Legislature and that the fundamental rule of interpretation to which all others are subordinate is that a statute is to be expounded according to the legislative intent. If the words of the statute are clear and unambiguous, those are to be understood in their natural and ordinary sense, construing that those are best in declaring the intention of the legislature.

The judicial renditions noted hereinabove proclaim in no uncertain terms that the purpose of interpretation of a statute is to determine what intention is conveyed, either expressly or impliedly, by the language applied and if the language is clear and capable of only one meaning, it must be enforced. Out of the two possible interpretations, if presented, the one that would advance and achieve the purpose of the legislation has to be adopted. In other words, it is the intention of the legislature that would be the paramount guiding factor in interpreting a provision of a legislation itself. Not only the words of statue are to be read in the context of their use, whenever there is a doubt about their meaning, those would have to be comprehended so as to best harmonise with the subject of enactment and the object it seeks to achieve. It would thus be the duty of one entrusted with the task of interpretation, to adopt such construction of a statute as shall suppress the mischief and advance the remedy sought to be secured. In the process of discerning the intention of the law makers, the one which comports to convenience, reason, justice and legal principles should be accepted to be real and any construction that would encourage the possible fraudulent evasion of the legislation and defeat the purpose thereof, ought to be eschewed.

V. Interpretation of the representation of people act, 1951

Having dealt with the cardinal rules of interpretation as mentioned hereinabove, and reverting to the provision under scrutiny, it is patent from the language applied in Section 8(3) of the Act, 1951 that if a person who aspired to be a member of a House of the Parliament or the Legislature of a State or who is an existing Member thereof, is convicted of an offence, not enumerated in Section 8(1) and 8(2) and is sentenced for a term of imprisonment for not less than two years, he would stand disqualified from the date of his conviction and in terms of Article 190(3) of the Constitution of India, his seat thereupon would fall vacant. The disqualifications from the date of conviction stands to logic even if the sentence is imposed after a time lag on affording an hearing to the person convicted, as the sentence is an inevitable incidence of conviction and when awarded has to logically relate back to the conviction.

The incidence of disqualification spells cessation of the membership of an existing member of a House of Parliament or of a State Legislature and the ineligibility of any person, who aspires to be a member thereof. Such disqualification would imply complete extinction of the status/eligibility of the Member/person concerned on and from the date of conviction. Such a disqualification for an existing member would not save any action/decision taken in exercise of his individual/personal right in such capacity, even if taken on the very same date, prior in point of time to the order of conviction.³⁰

VI. Definition of date and day

The Hon’ble Supreme Court hasn’t discussed or mentioned about what would constitute a “date” and “day” under Section 8(3) of the Act of 1951, it is imperative to refer at the outset to the dictionary meaning of the word “date” and “day” to identify the salient features thereof.

The definition of “date” as per Corpus Juris Secundum, Volume 25A is that“ While all the authorities give a definite meaning to the word in general, they also show that it may have a different meaning when that is necessary, ut res valeat….”

As per the Strouds Judicial Dictionary, “the word “date” is much more commonly descriptive of a day than of any smaller division of time³¹”

Date means day, so that were a cover note providing for temporary insurance of a motor car expires “15 days after the date of commencement” it runs for the full 15 days after the day on which it was to commence.³²

As mentioned in Halsbury’s Laws of England, 3^rd Vol. 37 para 178 at p.100, the law opined was as follows:

“In computing a period of time, at any rate when counted in years or months, no regard is as a general rule, paid to fractions of a day in the sense that the period is regarded as complete although it is short to the extent of a fraction of a day. Similarly, in calculating a person’s age the day of his birth counts as a whole day; and he attains a specified age on the day next before the anniversary of his birthday.”

The legislature has categorically provided in Section 4 of the Indian Majority Act, 1875 that how the age of majority is supposed to be construed and computed. It reads as follows:

“4. Age of majority how computed.—In computing the age of any person, the day on which he was born is to be included as a whole day, and he shall be deemed to have attained majority, if he falls within the first paragraph of Section 3, at the beginning of the twenty-first anniversary of that day, and if he falls within the second paragraph of Section 3, at the beginning of the eighteenth anniversary of that day.”

As per the Prem & Saharyas Judicial Dictionary, day means solar day of 24 hours beginning at mean midnight. The word “day” as per the English Calendar begins at midnight and covers a period of 24 hours thereafter.³³

Judicial pronouncement- date and day

The most significant mandate discernible from Section 8(3) is that though a person would incur a disqualification only if a sentence of imprisonment, for the offence for which he is convicted, is for not less than two years, the disqualification would, even if there is a time lag between the conviction and sentence, relate back to the date of such conviction, irrespective of the date or time of the sentence. This assumes significance as there is usually a time lag between the conviction and the sentence in view of the legal requirement of affording an opportunity of hearing to the convict before awarding the sentence for the offence for which he is convicted. Thus, it is abundantly clear that the date and time of sentence is of no relevance for disqualification under Section 8(3) of the Act of 1951.

There have been plethora of judgments on how the Hon’ble Supreme Court and other Courts have interpreted the ambit of day and day at various situations involving diverse facts and questions of law.

In an important judgment, the word “day” was defined to be the whole of the working hours of the day and not the moment when the case is called.³⁴ The Supreme Court while dilating on the period of 45 days as the limitation for filing an election petition from the date of election sought to be challenged held that the 45^th day would expire on the midnight immediately preceding commencement of the next day.³⁵ It was explained that the word “day” as per English Calendar begins at the midnight and covers a period of 24 hours thereafter, in the absence of there being anything to the contrary in the context. It was underlined that when the statue prescribes a particular date and day as the last day for any act being performed, it can be so done up to as late as the midnight immediately preceding the commencement of the next day. In another matter, the Hon’ble Supreme Court was confronted with the plea of the appellant who claimed to be a juvenile, contending that as his date of birth was 10.05.1978, he had not completed 16 years on 09.05.1994, the date of the incident. The Hon’ble Supreme Court held that in absence of any express provision stated otherwise, while calculating a person’s age, the day of his birth must be considered as a whole day and any specified age in law has to be computed as having been attained on the day preceding the anniversary of the birthday. Therefore, in the present scenario, the appellant was born on 10.05.1978, the said day was to be counted as a whole day and, thus, the appellant had not attained the age of 16 years before 12 o’clock in the midnight of 09.05.1994.³⁶

The Apex Court approved its earlier rendition in Prabhu Dayal Sesma Vs. State of Rajasthan³⁷ that in absence of any express provision stating otherwise, while calculating/computing a person’s age, the day of his birth must be counted as a whole day and any specified age in law is to be computed as having been attained on the day preceding the anniversary of the birthday. Thus, it was held that legal day commences at 12 O’clock midnight and continues until the same hour the following night. In view of the aforementioned deduction, the Supreme Court returned the finding that on 09.05.1994, the petitioner has not attained the age of 16 years before 12 O’clock in the midnight and therefore, at the time of the incident, he was a juvenile. It was also held in Municipal Council of Cuddalore vs. S. Subrahmania Aiyar³⁸ by the Hon’ble Madras High Court that the term “day” covers the time from sunrise to sunset and the word, “days” means in the absence of anything to the contrary it would be taken to mean a duration of 24 hours and not 12 hours. The Supreme Court in New India Assurance Co. Ltd. vs. Ram Dayal and others³⁹ had held that when an insurance policy is taken on a particular date, its effectiveness is from the commencement of the date and, therefore, the high Court was right in holding that the insurer was liable in terms of the Act to meet the liability of the owner under the award. The plea of the insurer that as the policy had been taken after the accident on the same date, and that therefore, it had no liability in law thereunder, was negated. Similarly, the Hon’ble Supreme Court in New India Insurance vs. Bhagwati Devi and others⁴⁰ reiterated the principle laid down in Ram Dayal judgment⁴¹. The textual facts of the case witnessed that the appellant insurer had issued the policy at about 4 pm on 17.12.1999, but prior thereto on the same date, i.e at 9 a.m., the accident had taken place. In arriving at this decision, the Supreme Court recognized the legal fiction that when a policy is taken on a particular date, its effectiveness would start from the commencement of the date which is from the previous midnight. This principle has been further reiterated by the Hon’ble Courts in a catena of judgments such as National Insurance company Ltd vs. Jikubhai Nathuji Dabhi⁴², Oriental Insurance Co. Ltd. Vs. Sunita Rathi⁴³, United India Insurance Co. Ltd. vs. Sashiprava Swain and another⁴⁴ and New India Assurance Co. Ktd. Vs. Sita Bai (Smt.) and Ors.⁴⁵ and Oriental Insurance Co. Ltd vs. Porselvi & Another.⁴⁶

These above-mentioned pronouncements indubitably authenticate that a legal day commences from 12 O’ clock midnight and continues until the same hour of the following night, signifying in clear terms that if in a statue, the word “date” is used unless the context suggests otherwise, it is to be construed to signify “day”, i.e the entire duration of 24 hours from the commencement of the day from 12 O’clock midnight till the same hour of the following night for the purpose(s) comprehended by the legislature.

VII. Doctrine of relation back and the judicial act

The doctrine of Relation back has been at forefront in many judgements by the Indian Courts as well as foreign Courts in coming to a conclusion when an act/ activity is to be treated as done or has taken place.

The Black’s Law Dictionary defines ‘relation back’ as: -

“The doctrine that an act done at a later time is, under certain circumstances, treated as though it occurred at an earlier time.”

The earliest possible moment of the day to which the judicial act could relate back must be taken to mean the earliest moment of the day. The court can always enquire at what time a non-judicial act was done⁴⁷ and there is no relating back of a non-judicial act. Alternatively, the rule is that a judicial act relates back to the earliest moment of the day on which it could have been done. This principle has been stipulated in various cases such as Wright vs. Mills⁴⁸, Marshall vs. James⁴⁹, Swann vs. Broome⁵⁰ and Tabernacle Permanent Building Society vs. Knight⁵¹.

In the case of Kruhlak vs. Kruhlak⁵², a married woman separated from her husband gave birth to an illegitimate child at 7:30 a.m. At 10 a.m. the same day a decree nisi of divorce dissolving her marriage was made absolute. The father of the child was at the time free to marry the mother, and subsequently did so. On an application by the mother, who had meanwhile obtained a separation order against the father, for an affiliation order in respect of the child as being a bastard child within section 3 of the Bastardy Laws Amendment Act, 1872, it was held that the decree absolute, being a judicial act, dated from the earliest time of the day on which it was made, and the child was accordingly legitimated under section 1 of the Legitimacy Act, 1926, by the subsequent marriage of a child’s parents. Therefore, the application failed. It was subsequently challenged and appealed to a Divisional Court of the Queen’s Bench Division which was also later dismissed.

Therefore, two principles can be inferred from the above-mentioned judgement which are:

i. The court can always inquire at what time a non-judicial act was done and there is no relating back of a non-judicial act.

ii. The true rule is that a judicial act relates back to the earliest moment of the day on which it could have been done.

Supplementing to these aforementioned principles, in the matter of Edwards Vs. Queen⁵³, Coleridge J. said⁵⁴ “The doctrine of judicial acts are to be taken always to date from the earliest minute of the day in which they are all done stands upon ancient and clear authority.”

Therefore a judicial proceeding cannot be split into a non-judicial part and a judicial part. To make sense of all the authorities on the topic, the application for judgment or for a receiving order, or for a decree absolute, has to be treated as part and parcel of the judicial act⁵⁵. Most judicial acts are preceded, and usually immediately preceded, by an application for the act to be performed. Thus, the judicial acts shall have precedence over non-judical acts.

In Re F.B. Warren, Ex parte Wheeler vs. Trustee in Bankruptcy⁵⁶ the word “date” in the phrase “before the date of the receiving order” was interpreted. On the true construction, it means the actual point of time when the order was pronounced and does not mean the date of the day on which the order was pronounced and which the order in fact bears. The learned judge held that the making of the receiving order was a judicial act and that in consequence it was unnecessary to consider at what point of time the actual pronouncement was made, because it is the rule of law that a judicial act and the making of a receiving order is admittedly such an act which is to be deemed to have been performed at the earliest moment of the day on which it is in fact performed.

The doctrine of relation back has been interpreted and discussed by the Indian courts as well. In the case of G.P. Goval and Ors. v. Chief Secretary⁵⁷, it was stated that where the officiating appointment was followed by a confirmation, unless a contrary rule was shown, it would relate back to date on which the first appointment was made. This judgement has been relied on by the Hon’ble Supreme Court in Chandrakishore Singh vs. State of Manipur⁵⁸. The application of the "next below rule" is based on the doctrine of "relation back" which means that an act committed at a later time is considered as having occurred at the time of an earlier event or that "an act done today is considered to have been done at an earlier time."⁵⁹ In another judgment of Re. Seaford⁶⁰, also been referred by the Indian Court in the matter of Vir Narain Tyagi vs. State of U.P and others.⁶¹, a wife obtained decree nisi of divorce and the husband's appeal was dismissed in June of the same year. At 11.30 A.M. on July 6, 1965, the husband was found dead in bed and medical evidence established that he could not have died later than 4 A.M. on July 6 but it was not possible to say whether death occurred before the end of July 5, 1965. At 8.30 A.M. on July 6, 1965, the District Registry received a notice of application for the decree nisi to be made absolute which had been posted by the wife's solicitors on the previous afternoon, this constituted lodgement of the notice for the purposes of Rule 40 (2) of the Matrimonial Causes Rules, 1957, which provided that on the filing of such a notice the decree nisi should become absolute. At 10 A.M. the District Registry filed the notice of application and endorsed the court minutes with a note that the decree had been made absolute at that time. In proceedings by the wife for the grant of letters of Administration to the deceased husband's estate as his lawful widow the question arose about the effect of lodgement of the notice for the purposes of Rule 40 (2) aforesaid and the endorsement made by the District Registry at 10 A.M. on the court minutes that the decree had been made absolute at that time. It was held that no decree could be made absolute before a notice of application had been lodged and as in the present case the husband had died before the lodgement of the notice of the application with the consequence that by then the notice was a nullity and no decree could be made absolute. The doctrine of relation-back of a judicial act to the earliest moment of the day on which it was made was inapplicable in the circumstances and the wife was entitled to the letters of administration of her husband's estate.

In yet another judgment, the Hon’ble Gujarat High Court discussed the nuances and applicability of the doctrine of relation back. The Hon’ble Court applied the doctrine to supplementary examination that on declaration of results of supplementary examination, it related back to date of declaration of result of regular examination for which supplementary examination was held.⁶²

Therefore, the result of these afore-mentioned cases only conclude that when there is a competition in point of time between a judicial act and the act of a person, that is, a non-judicial act, the application of the rule gives precedence to the judicial act. If however the competition is between two judicial acts, the actual time when each was done can be considered and priority given to the judicial act earlier in point of time unless there be some other grounds for preferring the one act to the other.

VIII. Conclusion

A day must in absence of anything to the contrary in the text, be taken to mean a duration of 24 hours and not 12 hours. The 24 hours comprising a day commences from the intervening midnight between the previous day and the day concerned and encompasses these hours till the next midnight. Thus, the word “date” has to be construed as “day” comprising of 24 hours commencing from the intervening midnight of the previous day and the day concerned so much so that the conviction and sentence which otherwise attract the disqualification, if made at any point of time within the duration of 24 hours, would subject to person concerned to the disqualification as intended by Section 8 of the Representation of the People Act, 1951 for the whole of the day, irrespective of the actual time of conviction and sentence. If against this, the actual time of conviction and sentence is accepted to be the date of conviction, varying inconsistent, anomalous, uncertain and unpredictable consequences would follow which is impermissible in law and such exposition, besides defeating the purpose of enacting the provision, would be in apparent derogation of the acknowledged prescripts of interpretation of statues. On the other hand, if the word “date” is understood to mean the corresponding day, comprised of 24 hours from the intervening midnight of the previous day and the said day, up to the midnight of that day, the convicted person or the member, irrespective of the time of conviction or sentence in course of the date/day would incur the disqualification. Such an interpretation would thus ensure the desired, consistent, precise and predictable consequences, in all contemplated and both foreseen and unforeseen eventualities and guard against a variety of incongruent outcomes rendering the provisions unworkable and expose it to the innovative strategies of evasion, thus leading to negation of the legislative intendment to the contrary. Noticeably, the Legislature has consciously used the word “date” in Section 8(1), 8(2) and (3) and not “time”. Having regard to the background of the enactment of the Act 1951 and the objective behind incorporating Chapter III thereof, a purposive interpretation of the expression “date” is inevitable to achieve the statutory goal. There is no indication whatsoever explicit or otherwise suggestive of a different comprehension.

Thus, the author is of the view that the evident legislative objective of disqualifying a person/member from the date of his conviction and sentence as prescribed cannot be rendered nugatory on the fortuitous factor or actual time of order of conviction and sentence.

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Footnotes

1. Author is an Advocate at Supreme Court of India.

2. Article 8(3): A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. Notwithstanding anything [in sub-section (1), sub-section (2) or sub-section (3)] 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 in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.

3. Doabia & Doabia, Law of Elections and Election Petitions 214 (5 ed. 2016). ↩

4. B.R Kapur vs. State of Tamil Nadu, (2001) 7 SCC 231. ↩

5. (2013) 7 SCC 653. ↩

6. Article 102 (1)(e): if he is so disqualified by or under any law made by Parliament Explanation. -For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State. ↩

7. Article 191(1)(e): if he is so disqualified by or under any law made by Parliament. Explanation. - For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. ↩

8. Article 191(e): if he is so disqualified by or under any law made by Parliament. Explanation. - For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. ↩

9. Article 191(1)(e) of the Constitution of India. ↩

10. Rampakavi Rayappa Belagali vs. B.D Jati, 1970 (3) SCC 147. ↩

11. Election Commission of India, Handbook for candidate, 26, 31(Ed.1 2019). ↩

12. R.S Nayak vs. A.R Antulay, 1984 SCR (2) 495. ↩

13. Law Commission of India, Electoral Disqualification, Report no. 244, 28, (February 2014);. ↩

14. Doabia & Doabia, Law of Elections and Election Petitions 219 (5 ed. 2016). ↩

15. Doabia & Doabia, Law of Elections and Election Petitions 220 (5 ed. 2016). ↩

16. (1976) 1 SCC 560. ↩

17. K. Prabhakaran vs. P. Jayarajan, (2005) 1 SCC 754. ↩

18. K. Prabhakaran vs. P. Jayarajan, (2005) 1 SCC 754. ↩

19. K. Prabhakaran vs. P. Jayarajan, (2005) 1 SCC 754. ↩

20. (2013) 7 SCC 653. ↩

21. (1987) 1 SCC 424. ↩

22. AIR 2000 SC 870. ↩

23. (1984) 2 SCC 183. ↩

24. (2000) 7 SCC 357. ↩

25. (2001) 4 SCC 139. ↩

26. AIR 2005 SC 34 ↩

27. (2005) 2 SCC 271. ↩

28. [1940] AC 1014, 1022. ↩

29. (1) AER 381 (384). ↩

30. Pradeep Kumar Sonthalia vs. Dhiraj Prasad Sahu, 2020 SCC OnLine Jhar 22. ↩

31. Simpson vs. Marshall, 37 S.L.R. 316 ↩

32. Cartwright Vs. Mac Cormack; Trafalgar Insurance Co. [1963] 1 W.L.R. 18]; Ahmadsahab Abdul Mulla vs. Bibijan and others (2009) 5 SCC 462. ↩

33. Ramkisan Onkarmal Agarwal Vs. State of Maharashtra, AIR 1994 Bom 87 (DB). ↩

34. Ram Narain vs. Mool Chand, AIR 1963 ALL 296 (299). ↩

35. Raj Kumar Yadav vs. Samir Kumar Mahaseth and others (2005) 3 SCC 601. ↩

36. Errati Laxman vs. State of Andhra Pradesh (2009) 3 SCC 337. ↩

37. (1986) 4 SCC 59. ↩

38. (1906) 16 MLJ 101 ↩

39. (1990) 2 SCC 680. ↩

40. (1998) 6 SCC 534. ↩

41. (1990) 2 SCC 680. ↩

42. (1997) 1 SCC 66. ↩

43. (1998) 1 SCC 365. ↩

44. ACJ 871. ↩

45. (1999) 7 SCC 57. ↩

46. (6) SCR 289. ↩

47. Clarke vs. Bradlaugh, (1881) 8 Q.B.D 63. ↩

48. (1859) 4 H.& N. 488. ↩

49. (1874) L.R. 9 C.P 702. ↩

50. (1764) 3 Burr. 1595. ↩

51. (1892) A.C. 298. ↩

52. (1958) 1 W.L.R. 606. ↩

53. (1854) 9 Exch. 628. ↩

54. Ibid. 631. ↩

55. Marshall vs. James, (1874) L.R. 9 C.P. 702. ↩

56. (1938) 2 All E.R. 331 ↩

57. ) 4 SCC 329. ↩

58. AIR 1999 SC 3616. ↩

59. Ishtiyak Ahmad Makrani vs. State of U.P and Ors, (2011) 1 All LJ (NOC 83) 21. ↩

60. (1968) 1 ALL ER 482. ↩

61. AIR 1978 ALL 490. ↩

62. Patel Kruti Dilipkumar and Ors. vs. State of Gujarat, AIR 2014 (NOC 558) 203 ↩