"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, December 2, 2010

Standard of proof and conditions of publication in election petition


The SC decided an election appeal yesterday (02/12/10) between Thomas M Puthussery and T.S John. (Civil Appeal No. 5310 of 2005). The election petition challenged the election of Mr. Thomas M. Puthussery to the Legislative Assembly of Kerala in the 2001 general election, alleging corrupt practice under section 123 (4) of the Representation of People Act 1951.

The decision becomes noteworthy on two counts; lambasting the HC for inventing new standard of proof required for proving corrupt practice and laying down that circulation of pre- published information does not amount to publication in section 123 (4).

The HC had set the standard of proof to be somewhere mid that of civil and criminal cases. A third standard that is more than preponderance of probabilities and below proof beyond reasonable doubt. The court correctly finds that this goes against holding precedents.

Court raises the question ‘whether republishing material from a Magazine, which was already distributed earlier, can be regarded as an act of publication of statements of fact relating to the personal character and/or conduct of the respondent’. Since the word publication is not defined, court uses the ordinary meaning of the term as in dictionaries. The court held that printing of pamphlets containing pre-published material cannot be held to be publication in the sense it is used in section 123 (4).

After Effect: One may wonder as to what is the relevance of the judgment after the life of the house has already come to an end. It is twofold; 1) Mr. Puthussaery will now get all the monitory benefits of the MLA, which were frozen due to the HC judgment. 2) Affirmation of the HC judgment would have led to further disqualification of six years from contesting an election.

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