Should convicted politicians face a lifetime ban? No, says Union Govt – ‘solely within the domain of Parliament’

The Union government has opposed in the Supreme Court a plea seeking life ban on convicted politicians. The Centre has told the top court that imposing such a disqualification was solely within the domain of Parliament.

In an affidavit filed in Apex court, the Centre said the prayer in a plea seeking life ban on convicted politicians 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 question whether a life-time ban would be appropriate or not is a question that is solely within the domain of the parliament,” the affidavit said, according to news agency PTI.

As many as 251 (46 per cent) of the 543 elected Lok Sabha members in 2024 elections had criminal cases registered against them and 27 of them have been convicted, according to an analysis by election watchdog Association of Democratic Reforms (ADR). This is the highest number of candidates facing criminal charges to be elected to the Lower House.

By confining the operation of penalty to an appropriate length of time, deterrence was ensured while undue harshness was avoided, the government said in the affidavit. The Centre also said that there was nothing inherently unconstitutional in limiting the effect of penalties by time and it was a settled principle of law that penalties were limited either by time or by quantum.

“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,” the affidavit said.

The plea in the top court filed by advocate Ashwini Kumar Upadhyay seeks a life ban on convicted politicians aside from the expeditious disposal of criminal cases against MPs and MLAs in the country.

In its affidavit, the Centre underlined the apex court had consistently held that the legislative choice over one option or the other couldn’t be questioned in courts over its efficacy or otherwise.

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, it added.

“The disqualifications made under the impugned sections 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,” it said.

While imposing any penalty, the affidavit said, the Parliament considers the principles of proportionality and reasonability as for instance, the entirety of the Bharatiya Nyaya Sanhita, 2023, or penal law provide for imprisonment or fines up to certain limits and the rationale behind it was that the punitive measures would co-relate with the gravity of offence.

There were numerous penal laws that prescribe imposing restrictions on the exercise of rights and freedoms, which in most cases are time-specific, it said.

The Centre said 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.

The affidavit said the petitioner’s reliance on Articles 102 and 191 of the Constitution was totally misplaced.

Articles 102 and 191 of the Constitution deals with disqualifications for membership of either house of parliament, legislative assembly or legislative council.

The Centre said Clause (e) of Articles 102 and 191 were enabling provisions that confer on Parliament the power to make laws governing disqualification and it was in exercise of this power that the 1951 Act 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.

The Centre said the grounds for disqualification in the articles included holding of an office of profit, unsoundness of mind, insolvency and not being a citizen of India.

“It is submitted that these are not permanent disqualifications,” it added.

The apex court on February 10 sought responses of the Centre and the Election Commission on the challenge to constitutional validity of Sections 8 and 9 of Representation of People Act.