Choosing Expression Over Content: The Superficial Reasoning in Pradeep Kumar Sonthalia v. Dhiraj Sahu

Abstract

The Supreme Court of India generally distinguishes between content and its expression to judge the precise legal implications if the case so demands. In the twilight of the year 2020, it delivered a judgment that not only digresses from this healthy norm but is also heinously per incuriam. The process of elections in India is not taken to be complete until the votes are validly counted, and this is more so the case with Rajya Sabha elections. In Pradeep Kumar Sonthalia v. Dhiraj Sahu, the Court seems to have disagreed, without any justifiable basis. The Supreme Court, through this decision, unduly focusses on the voter’s status during voting, not the vote’s status by the stage of electoral scrutiny. It commits one more error in construing disqualification of a sitting legislative member as only applicable against the member, not her acts. Disqualification has always been a tool to mitigate damage to the democratic will, as soon as the knowledge of something illegal comes to light. Additionally, the public law evolved to preserve the actions taken in public interest was wrongly applied, especially when Parliamentary privileges have notably excluded voting for Rajya Sabha elections from its ambit. The other line of reasoning it adopted is also the most unusual: grafting the presumption of innocence in favour of the convict, post-conviction/sentencing, that too in a non-criminal proceeding. All three errors in reasoning occur since the Court mistakes such elections to be ethically oriented towards expressivism. In reality, these are more approximate to the epistemic-ethics of voting. The implication of this misplaced assumption is debilitating damage to de-criminalisation of politics.