Modi govt opposes plea seeking lifetime ban on convicted lawmakers. Here’s what it told SC

In an affidavit filed before the Supreme Court, the Union Ministry of Law and Justice said limited disqualification ensures deterrence while avoiding undue harshness.

Representative image | ANI

New Delhi: Defending the current election law that disqualifies convicted lawmakers from fighting elections for a limited number of years from the day their jail term ends, the Centre Wednesday opposed the idea that a lifetime ban should be imposed on such elected representatives.

In an affidavit filed before the Supreme Court, the Union Ministry of Law and Justice submitted that confining the operation of disqualification or penalty to an appropriate length of time serves two purposes—ensuring deterrence while avoiding undue harshness.

It was responding to a 10 February order by a Supreme Court bench, led by Justice Dipankar Datta.

The court, acting on a Public Interest Litigation (PIL) that challenged the constitutional validity of Sections 8 and 9 of the Representation of People Act, 1951, the bench had observed that there “exists an apparent conflict of interest” in allowing a lawbreaker to be a lawmaker. The sections of the Act deal with the disqualification of parliamentarians and legislators.

Through the PIL, advocate Ashwini Upadhyaya sought a lifetime ban on convicted lawmakers.

Objecting to Upadhyaya’s plea, the Centre said it amounts to rewriting of the law, which falls solely under the jurisdiction of the Parliament.

It said the court can declare a provision to be unconstitutional and make it inoperative, but review of a law or a provision of the Constitution can only be undertaken by the Parliament.

The ministry affidavit further said that the particular sections are “constitutionally sound” and do not “suffer from the vice of excessive delegation,” and, therefore, are intra vires (within the powers) of the powers of the Parliament.

The Centre took a similar stand in this case in December 2020. Despite that, it was asked to file a written response as the matter is now before a new bench.

Violates articles of Constitution: PIL

Upadhyaya’s petition has been pending since 2016. The particular sections that he has questioned fall under Chapter 3 of the Act, titled ‘Disqualifications for Membership of Parliament and State Legislatures.’ They regulate the conduct, disqualifications, qualifications of lawmakers, voters, modes of challenge to the elections amongst others.

Section 8 disqualifies convicted legislators from contesting elections for six years after completing their sentence. It applies to a range of listed offences and any conviction carrying a sentence of 2 or more years is covered under the provision.

Section 9 bars individuals dismissed from government service for corruption or disloyalty to the state from contesting elections for five years from the date of dismissal.

The poll watchdog, the Election Commission of India, is empowered under Section 11 to reduce or lift disqualifications from contesting elections.

In his petition, Upadhyaya has asked the Supreme Court to declare the words that restrict the period of disqualification to 6 years under the sections as invalid.

He claims that they are the ultra vires (beyond the powers) of Article 14 (equality before law) of the Constitution.  

He argued that if a convicted civil servant can be barred for life from joining the civil services, then a lawmaker found guilty should also be disallowed from contesting elections for life.

What the ministry contested

According to the law ministry affidavit, all penalties are limited, either by time or by quantum, and punitive measures must correlate with the gravity of the offence, which, it added, is in line with well-established principles of governing penal law.

It said, “Post the serving of such penalty, a person is free to rejoin society and enjoy all other rights available to any individual. By confining the operation of the penalty to an appropriate length of time, deterrence is ensured while undue harshness is avoided.”

“As a matter of law, in imposing any penalty, Parliament seeks to maintain proportionality and reasonability,” the Centre argued.

“The petition fails to make the crucial distinction between the basis of disqualification and the effects of disqualification. While the basis remains unchanged as long as the conviction stands, the effect lasts for a fixed period of time.”

It also asserted Parliament’s jurisdiction over such matters and said that the judiciary cannot direct the legislative body to frame laws in a particular manner.

“It is trite law that the Courts cannot direct Parliament to make a law or to legislate in a particular way,” the affidavit said. It cited the Supreme Court’s judgment in Madras Bar Association Vs Union of India (2021), which held that “the courts cannot direct the legislature to frame or enact a law in a particular manner”.

With regard to the reliance on Articles 102 and 191, the affidavit said: “These provisions are enabling provisions that confer power on Parliament to make laws governing disqualification. The Constitution has left the field open for Parliament to enact further laws as deemed fit, including determining both the grounds and duration of disqualification.”

The conditions outlined in the two articles are not permanent and cease to exist once the disqualifying condition is resolved, it said.

(Edited by Sanya Mathur)