‘Not maintainable’: Mani C Kappan opposes plea seeking his disqualification

Kochi: Pala MLA Mani C Kappan has opposed a petition filed before the Kerala High Court seeking his disqualification following his conviction in four cheque-bounce cases, arguing that the petition is not maintainable.

Businessman Dinesh Menon has approached the High Court seeking a direction to the Kerala Assembly Speaker to declare the Pala Assembly seat vacant and to the Election Commission of India to initiate proceedings for a by-election.

Kappan was convicted by a Mumbai court on September 1 in four separate cheque-bounce cases. He was sentenced to one year’s imprisonment in three cases and six months in the fourth.

Menon has relied on Section 8(3) of the Representation of the People Act, 1951, and contended that Kappan’s disqualification became automatic following the convictions. The four cases arose from the same transaction, according to the petition.

In his response, Kappan has argued that the High Court cannot directly decide the question of disqualification of a sitting MLA. He has cited Article 192 of the Constitution, under which questions concerning the disqualification of a member of a state legislature are to be referred to the Governor. The Governor is required to obtain the Election Commission’s opinion and act in accordance with it.

Kappan has also contended that the High Court cannot issue a writ of mandamus directing the Governor to exercise powers vested in the constitutional authority.

The MLA has further argued that the petitioner has misinterpreted the Constitution Bench judgment in K Prabhakaran v P Jayarajan (2005). According to Kappan, the judgment does not establish that sentences imposed in separate criminal proceedings can be combined to trigger automatic disqualification under Section 8(3) of the Representation of the People Act.

Kappan has maintained that the fact that the dishonoured cheques arose from the same transaction does not turn the four separate prosecutions, judgments and sentences into a single conviction or sentence for the purpose of determining disqualification.

“The petitioner has filed the writ petition seeking a declaration based on the calculated aggregate of the substantive sentences in the four independent cases as three and a half years,” Kappan stated in his counter-affidavit. He argued that such an interpretation was not the legislative intention behind Section 8(3), pointing out that none of the four individual sentences exceeds two years.

The issue came up for consideration earlier this week when the Kerala High Court raised a question on whether repeated convictions, each carrying a sentence of less than two years, could enable a legislator to avoid automatic disqualification under the Representation of the People Act.

The court is examining the legal questions arising from the petition.

(With LiveLaw Inputs)