Disqualification following conviction: Supreme Court restrains EC from announcing schedule for Rampur assembly by-election

The court gave time to Samajwadi Party leader, Azam Khan to challenge his conviction in a hate speech matter, before the EC could announce the schedule for holding a by-election to the seat declared vacant by the assembly.

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THE Supreme Court on Wednesday directed the Election Commission of India ('EC') to not issue the gazette notification scheduling the by-election to the Rampur constituency in the Uttar Pradesh Vidhan Sabha, for 24 hours. The Court also directed that the EC may issue a notification for a by-election on or after November 11 depending upon the outcome of the stay application filed by the Samajwadi Party ('SP') leader Azam Khan seeking a stay of his conviction in a hate speech matter.

A bench comprising Chief Justice of India ('CJI') Dr. D.Y. Chandrachud and Justices Hima Kohli and J.B. Pardiwala passed the order to this effect on a petition filed by Khan, to enable him to have a fair and reasonable opportunity to go to court against his conviction. It directed the Additional Sessions Judge, Rampur before whom the appeal has been filed to advance the hearing of the application for stay of conviction and take it up peremptorily on November 10 2022 and decide the said application on the same day.

Khan filed an appeal against the order of conviction on November 9 before the Sessions Judge, Rampur which granted him interim bail. However, the application seeking a stay of the conviction was posted for hearing on November 15.

The bench also questioned the alacrity with which the secretariat of the Uttar Pradesh Legislative Assembly issued a notification declaring Rampur's constituency vacant.

On October 27, the Additional Chief Judicial Magistrate at Rampur convicted Khan of offences under Sections 153A (promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) and 505(1)(b) (statements conducing to public mischief) of the Indian Penal Code for making an inflammatory speech.

On October 28, the Secretariat of the Legislative Assembly, Uttar Pradesh, issued a notification declaring the legislative assembly seat held by Khan vacant.

On November 5, the EC issued a press note stating that it would be issuing the notification declaring the schedule for by-polls for, among others, the Rampur constituency on November 10.

During the hearing at the Supreme Court, senior advocate Arvind Datar, for the EC, argued that the seat falls vacant automatically upon the disqualification incurred by the legislator under Article 190 of the Constitution. He sought to submit that even if the conviction is stayed, Khan could not continue as a Member of the House and at the most, he could only file a nomination to contest the election afresh.

CJI Dr. Chandrachud, heading the bench, seemed unimpressed with the submission. He observed that "this argument is too far-fetched. The purpose of stay is to ensure that the consequences of a conviction are obliterated". 

CJI Dr. Chandrachud also referred to the observation made by the Supreme Court in Lok Prahari versus Election Commission of India (2018) to the effect that "it is untenable that the disqualification which ensues from a conviction will operate despite the appellate court having granted a stay of the conviction".

However, Datar insisted that Khan could not continue as legislator even if stay of his conviction is granted by the appellate court, for the seat gets vacant upon disqualification. CJI Dr. Chandrachud, however, observed that if this argument is accepted, then any stay granted will be meaningless.

Senior advocate for Khan, P. Chidambaram argued that stay would operate retroactively since any prospective stay of conviction would be meaningless. He cited the decision of the Supreme Court in Lily Thomas versus Union of India (2013). Chidambaram also tendered over to the judges a chart showing how the EC had only taken a long time to declare elections in other cases, but it showed alacrity in the case of Khan.

CJI Dr. Chandrachud questioned the hurry of the EC and the U.P. Legislative assembly. "Look at the alacrity with which you are acting. It seems like what is being done is because of the political affiliation of the accused and that is not even-handedness", he remarked.

Click here to read the order.