A petition seeking lifetime ban on politicians convicted in criminal case has come for a surprise opposition from none other the Centre government of BJP which has often taken pride in going after its rival politicians with criminal record. The petitioner in this case wants Supreme Court direction to order a lifetime ban on politician convicted of a criminal offence.
Currently, the law bars such convicted politician from contesting elections for six years, which petitioner contends is insufficient and puts society at the ignominy of having same person returning to rule who the people thought was a good riddance.
Public disquiet and anger over seeing the convicted politicians again sitting in state assembly or Parliament is not new. But this move to seek SC intervention has put the government in a bind. Probably more so, because it has some of such musclemen in its own stable. It has quickly responded by saying SC has power to change the law, only parliament can. But the question is, who will bell the cat? Will Government bring a bill to change it in Parliament? Unlikely.
The Challenge
Let’s examine the contentions put before the apex court. The petition, filed by Ashwini Kumar Upadhyay, seeks to remove the time limit on disqualification for convicted politicians, arguing that allowing them to re-enter politics after a fixed period violates Article 14 and the basic structure of the Constitution. The petitioner contends that sections 8(1), 8(2), 8(3), and 9(1) of the Act, which impose a six-year disqualification after conviction and a five-year disqualification after dismissal for corruption or disloyalty, are inadequate and should be replaced with a lifetime ban.
Additionally, the petition demands the setting up special courts to try cases against politicians within a year and urges the implementation of electoral reforms recommended by various commissions.
The Union of India has filed a counter affidavit in response to a writ petition challenging the constitutional validity of certain provisions in the Representation of the People Act, 1951.
Centre’s Contentions
The government, in its affidavit, firmly opposes these demands, stating that the Supreme Court cannot legislate or extend disqualification periods beyond what Parliament has already prescribed. It argues that judicial review is limited to striking down unconstitutional provisions, not rewriting laws to suit the petitioner’s preferences. The affidavit emphasizes that the relief sought by the petitioner amounts to legislative action, which falls solely within Parliament’s domain. Citing past Supreme Court judgments, the government asserts that courts do not have the authority to dictate how laws should be framed or amended. The power to impose lifetime disqualification exists, but whether to exercise it remains a policy decision of the legislature, not the judiciary.
The affidavit further contends that disqualification is a matter of legislative policy, balancing the need for deterrence with the principles of proportionality and reasonableness. The six-year period for convicted politicians aligns with well-established legal principles that ensure penalties are neither excessive nor arbitrary. If lifetime bans were imposed indiscriminately, it could result in unduly harsh consequences, denying individuals a chance at rehabilitation. The government stresses that existing election laws already uphold democratic integrity while allowing room for individual rights. The Election Commission has been vested with powers to remove or reduce disqualifications in appropriate cases, ensuring fairness in the system.
The affidavit also points out that the petitioner’s argument overlooks the distinction between the basis of disqualification and its effects. While a conviction remains a permanent record, the effects of that conviction, including disqualification from elections, can reasonably be limited by time. Furthermore, the petition’s reliance on Articles 102 and 191 of the Constitution is misplaced. These provisions merely empower Parliament to make laws on disqualification and do not impose any mandatory requirements for lifetime bans. The government asserts that judicial interference in such legislative choices would be an overreach of judicial powers and undermine the principle of separation of powers.
Only Parliament’s Domain
In support of its arguments, the affidavit references multiple Supreme Court rulings, reiterating that policy matters should be left to Parliament. It cites judgments affirming that courts cannot interfere in legislative decisions unless a law explicitly violates fundamental rights or constitutional provisions. The affidavit underscores that issues raised by the petitioner have significant policy implications, and any change must come through Parliament, not the judiciary. The Supreme Court has consistently held that policy decisions, even if contested, must be debated and resolved within legislative forums rather than the courts.
The government concludes by noting that a similar case, Lok Prahari vs Union of India, is already pending before the Supreme Court. Given the overlap between the two cases, the government argues that the present petition is redundant and lacks merit. It urges the court to dismiss the petition outright, maintaining that the Representation of the People Act, 1951, in its current form, is constitutionally valid and does not suffer from excessive delegation of power.
In its final remarks, the government emphasizes that all laws passed by the legislature are presumed constitutional unless proven otherwise. It maintains that the petitioner has failed to present any compelling argument to show that the existing disqualification provisions violate constitutional principles. The affidavit concludes with a firm assertion that the petition should be dismissed in the interest of justice.
