SC dismisses election petition by solar scam case accused Saritha Nair

A candidate stands disqualified so long as conviction is not stayed, says SC

The Supreme Court on Wednesday dismissed a plea filed by Kerala's solar scam case accused, Saritha Nair against the election of Hibi Eden as Congress party candidate from Ernakulam Parliamentary constituency, saying the suspension of the sentence was not enough to save a candidate from disqualification.

A bench of Chief Justice S A Bobde and Justices A S Bopanna and V Ramasubramanian held that she was disqualified to contest elections in view of her convictions in two separate cases.

"The disqualification under Section 8(3) of the Representation of the People Act 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," the bench said.

According to the provision in the RP Act, a candidate is disqualified to contest an election for six years from the date of conviction.

"The petitioner was imposed with a punishment of imprisonment for a period (of three years) not less than two years in two independent criminal cases. Therefore, her case is covered by Section 8(3) of the Act," the bench said.

Nair, for her part, claimed since the sentence in both the cases was suspended, it was sufficient to save her from the applicability of Section 8(3).

She also pointed out in the Amethi constituency of Uttar Pradesh, despite the disclosure of the very same information about her conviction and pendency of appeals, her nomination was accepted. She contended that two different yardsticks cannot be applied, so long as the sentence of imprisonment remained suspended.

The court rejected her plea, saying, "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, however, said that the Kerala HC was "wrong" and adopted "improper" procedure in rejecting her election petitions on October 31, 2019, on the ground of incurable defects, without giving her opportunity.

"The procedure adopted by the High Court cannot be approved. The HC 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," the bench said.