NEW DELHI: The Centre has opposed in the Supreme Court a plea seeking life ban on convicted politicians, saying imposing such a disqualification was solely within the domain of Parliament.
In an affidavit filed in court, the Centre said the prayer in a plea, seeking the same, amounted to re-writing of the statute or directing Parliament to frame a law in a particular manner which was wholly beyond the powers of judicial review.
The government was responding to pleas, including one by advocate A.K. 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 its latest affidavit filed on February 24, 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.
Domain of Parliament
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.