Manas Dasgupta
NEW DELHI, Feb 26: The Centre has opposed a lifetime ban on convicted politicians from contesting elections or being nominated to Parliament or State Legislatures and has preferred maintaining the status quo of six years disqualification from participating in any democratic process.
The Centre has questioned the logic behind the proposal for a lifetime ban on convicted politicians saying prison sentences or punishments under penal law were for a specific period, say a few years, after which convicts regain their rights and are prompted to re-join the society. The Centre reasoned that penal punishments largely tend to be finite in quantum and time.
The government was responding to pleas, including one by advocate Ashwini Upadhyay, seeking a lifetime ban on politicians from contesting elections. Five years ago, the Union had filed a similar affidavit in December 2020, maintaining that disqualification under Section 8 of the Representation of the People Act of 1951 for the period of prison sentence and six years thereafter was enough punishment for errant or criminal legislators.
But, on February 10, the apex court said there was an apparent conflict of interest if people found guilty of breaking the law return as lawmakers. “Once convicted, how can people come back to Parliament and Legislatures? There is an apparent conflict of interest,” Justice Dipankar Datta, heading a Bench comprising Justice Manmohan, had observed.
In his petition, Mr Upadhyay has challenged Sections 8 and 9 of the Representation of the People Act 1951. Under Section 8 (1) of the Representation of the People Act, 1951, the period of disqualification was six years from the date of conviction or, in case of imprisonment, six years from the date of release, the government said in the affidavit.
Under Section 9, public servants who have been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal. Mr Upadhyay had said that the disqualification in both cases should be for life.
In its latest affidavit, the Centre reasoned that penal laws impose a restriction on freedoms and rights of persons only for a specific period, that is, the time of prison sentence. These restrictions cease to operate automatically. The Centre indicated that banning a person, who has served his time in jail for an offence, from contesting elections or re-entering politics for life would be unduly harsh, disproportionate and excessive.
“By confining the operation of the penalty to an appropriate length of time, deterrence is ensured while undue harshness is avoided… The petitions fail to make a crucial distinction between the basis of disqualification and the effects of disqualification. The basis of disqualification is conviction for an offence. But the basis of the disqualification becomes non-existent when the period of the conviction ends,” the Union government countered in its affidavit.
Besides, the government said imposing a life ban would amount to rewriting Section 8 by replacing ‘six years’ with ‘life-long’. The Supreme Court cannot legislate. That was entirely the domain of Parliament. “A lifetime disqualification is the maximum that can be imposed under the provisions and to impose such a disqualification is certainly within the power of Parliament… It is trite law that courts cannot direct Parliament to make a law or to legislate in a particular way,” the government affidavit noted.
A report by amicus curiae, senior advocate Vijay Hansaria along with advocate Sneha Kalita, said about 5,000 criminal cases against MPs and MLAs were still pending despite directions passed by the apex court from time to time to facilitate their speedy disposal. “It is a matter of shame that after all this, 42% of sitting Lok Sabha members have criminal cases. For 30 years, cases are pending,” Mr Hansaria had submitted on February 10 in the top court.
Justice Manmohan had said convicted persons could hold onto power through proxy. The judge said the examination of the issue of decriminalisation of politics must not be a “half-baked exercise.” It must be studied from every aspect.
In the affidavit, the Centre said there was nothing unconstitutional about limiting the effect of penalties by time and that doing so was a settled principle of law.
“It is submitted that issues raised by the petitioner have wide-ranging ramifications and clearly fall within the legislative policy of Parliament and the contours of judicial review would be suitably altered in such regard,” it said. Under judicial review, the Centre argued, the Supreme Court could only strike down the laws as unconstitutional but not grant the relief of lifetime ban sought by the petitioner.
The affidavit said the current laws were “constitutionally sound” and “did not suffer from the vice of excess delegation.” “The Constitution has left the field open to Parliament to enact such further laws governing disqualifications as it deems fit. Parliament has the power both to determine the grounds for disqualification and the duration of disqualification,” it said, citing Articles 102 and 191 of the Constitution, which deal with disqualifications for membership of the Lok Sabha and Rajya Sabha, legislative assemblies or legislative councils.
The Supreme Court had, in April 2013, held that MPs and MLAs convicted with a minimum two-year sentence will be immediately disqualified from the House without getting three months to appeal, as was the case until then. The UPA government at the Centre had then pushed through an ordinance to negate this, which was vociferously opposed by Congress leader Rahul Gandhi. Mr Gandhi had called the move “complete nonsense” and the ordinance was eventually scrapped.