That's the law: justice for tainted lawmakers too

New Delhi: The Supreme Court has reiterated that an elected representative cannot be unseated on mere charges that he won the election through electoral malpractice and corruption unless the charges are proved "beyond reasonable doubt like a criminal charge".

A bench of Justice D.K. Jain and Justice P Sathasivam emphasised this legal principle while dismissing a lawsuit challenging the election of former Bharatiya Janata Party (BJP) MP Manikrao Sivaji Kokate, who won the 2004 Lok Sabha election from the Sinnar constituency in Maharashtra.

"A charge of corrupt practice is equated with a criminal charge and therefore the standard of proof for it would not be preponderance of probabilities as required in adjudication of a civil suit but a proof beyond reasonable doubt as needed in a criminal trial," said the bench while dismissing the lawsuit filed by runner-up United Progressive Alliance (UPA) candidate Tukaram Dighole.

"If a stringent test of proof is not applied, a serious prejudice is likely to be caused to the successful candidate whose election would not only be set aside, he may also incur disqualification to contest an election for a certain period, adversely affecting his political career," the bench observed in the verdict released last week.

"Thus, a heavy onus lies on the election petitioner to prove the charge of corrupt practice in the same way as a criminal charge is proved," the bench held.

Dighole, who had lost the October 2004 by-election to the Lok Sabha by around 20,000 votes, had challenged Kokate's election. He charged that during Kokate's campaign, the eventual winner had told Maratha voters they should vote for him because he belonged to the same community.

In support of his allegations, Dighole had submitted to the court audio cassettes of Kokate's speeches that he claimed he had procured from the Election Commission of India (ECI), which had recorded them while monitoring the election process.

Dighole, however, had submitted no additional evidence to substantiate the contents of the cassettes or to prove that it was Kokate's voice. Nor had he submitted to the court a receipt showing that he had procured the cassettes from the ECI, contending that it was a public document, procured from a public authority.

Rejecting Dighole's total reliance upon the cassettes to make his charge, the apex court reiterated that courts must be cautious in relying upon the electronic evidence like audio or video tapes.

"There is no doubt that the new techniques and devices are the order of the day. Audio and video tape technology has emerged as a powerful medium through which a first hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence," said the court.

"At the same time, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be received with caution."

The bench said: "Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence."