SARITHA S. NAIR versus HIBI EDEN

Citation: [2020] 13 S.C.R. 635 · Decided: 09-12-2020 · Supreme Court of India · Bench: S.A. BOBDE · Disposal: Dismissed

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Judgment (excerpt)

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SARITHA S. NAIR
v.
HIBI EDEN
(Special Leave Petition (Civil) No. 10678 of 2020)
DECEMBER 09, 2020
[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
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
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
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;
(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
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
[2020] 13 S.C.R. 635
635
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SUPREME COURT REPORTS
[2020] 13 S.C.R.
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
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
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
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
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,
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
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]
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3. The manner in which Rule 210 of the Rules of High Court
of Kerala, 1971 has been worded giv

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