NEW DELHI: The Centre has opposed in the Supreme Court a plea seeking to debar convicted lawmakers for life from contesting polls, saying imposing such a disqualification was solely within the domain of Parliament.
“The question whether a life-time ban would be appropriate or not is a question that is solely within the domain of Parliament,” the Centre said in an affidavit filed in response to a PIL filed by advocate Ashwini Kumar Upadhyay in 2016 for barring convicted persons from contesting polls, forming political parties and holding any post in a political party.
Under the current election law, a convicted person is immediately disqualified and they are also barred from contesting polls for six years from the date of completion of their sentence. But the disqualification disappears after the expiry of six years from the date of completion of their sentence.
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The affidavit came barely two weeks after the Supreme Court expressed serious concern over the criminalisation of politics and asked the Centre and the 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 could be permitted to come back to 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 should propose 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 the People 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 46-48% people with kidnapping, rape, murder charges coming back to Parliament where the sentences are for lesser period of time. This could never have been the intention of 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 within the powers of 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 the “basis of disqualification” and the “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 membership of either House of Parliament, Legislative Assembly or Legislative Council as “totally misplaced”, the Centre said the Clause (e) of Articles 102 and 191 were enabling provisions that conferred power on 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 Parliament to enact such further law governing disqualifications as it deems fit. Parliament has power both to determine the grounds for disqualification and the duration of disqualification,” it said.