Centre opposes lifetime ban on convicted lawmakers, cites parliamentary policy-OxBig News Network

Asserting that it was a matter “within the legislative policy of the Parliament”, the Centre on Wednesday opposed before the Supreme Court a PIL seeking to debar convicted lawmakers for life from contesting polls, forming political parties and holding any post in a political party.

“The question whether a lifetime ban would be appropriate or not is a question that is solely within the domain of the Parliament,” the Centre said in an affidavit filed in response to a PIL filed by advocate Ashwini Kumar Upadhyay in 2016, seeking life ban on convicted persons from contesting polls.

Under the current election law, a convicted person is immediately disqualified and he/she is also debarred from contesting election for six years from the date of completion of his sentence. But the disqualification disappears after the expiry of six years from the date of completion of his/her sentence.

The affidavit came barely two weeks after the Supreme Court expressed serious concern over criminalisation of politics and asked the Centre and Election Commission to spell out their respective stand on the contentious issue.

A bench of Justice Dipankar Datta and Justice Manmohan had on February 10 wondered how a person convicted of crime can be permitted to come back to the Parliament and state assemblies. “Once he is convicted, and the conviction is upheld…and after that how can such people come back to Parliament and (state) legislatures?… that they (Centre and EC) have to answer. There is also an apparent conflict of interest. They would be making the laws,” the bench had said.

“Criminalisation of politics is a serious concern. The Election Commission must have deliberated on this and proposed a better solution than what has been presented before us,” it had said, posting the matter for further hearing on March 4.

The top court had also sought the assistance of Attorney General R Venkataramani as the PIL also challenged the validity of Sections 8 and 9 of the Representation of People’s Act (RPA) 1951, which disqualified convicted politicians from holding elected positions for a limited period only.

“Today, the law allows a person convicted of murder to serve as the chairman of a nationally recognised political party. This is a serious issue that requires judicial scrutiny,” senior counsel and amicus curiae Vijay Hansaria had pointed out.

On behalf of the petitioner, senior counsel Vikas Singh had said, “What we are seeing is 46 to 48 per cent people with kidnapping, rape, murder charges coming back to the Parliament, where the sentences are for lesser period of time. This could never have been the intention of the Parliament, while drafting this section.”

However, the Centre defended the RPA provisions saying, the impugned laws were “constitutionally sound” and did not suffer from the vice of excessive delegation, apart from being intra vires the Parliament.

“The disqualifications made under the impugned sections (of RPA) are limited by time as a matter of parliamentary policy and it would not be appropriate to substitute the petitioner’s understanding of the issue and impose a lifetime ban,” the Centre submitted.

The affidavit also sought to emphasise that the petition failed to make the crucial distinction between ‘basis of disqualification’ and ‘effects of disqualification’. “It is true that the basis of disqualification is conviction for an offence and that this basis remains unchanged so long as the conviction stands. The effect of such conviction lasts for a fixed period of time. As stated above, there is nothing inherently unconstitutional in limiting the effect of penalties by time,” it said.

Questioning the petitioner’s reliance on Articles 102 and 191 of the Constitution – that dealt with disqualifications for the membership of either House of the Parliament, legislative assembly or legislative council — as “totally misplaced”, the Centre said Clause (e) of Articles 102 and 191 were enabling provisions that conferred power on the Parliament to make laws governing disqualification and it was in exercise of this power that the RPA was enacted.

“The Constitution has left the field open to the Parliament to enact such further law governing disqualifications as it deems fit. The Parliament has power to determine both the ground for and duration of disqualification,” it said.

The Centre said the ground for disqualification in the Articles included holding of an office of profit; unsoundness of mind; insolvency; and not being a citizen of India, which were not permanent disqualifications.