Govt Opposes PIL That Seeks To Ban Convicted Criminal Politicians From Contesting Elections

The Centre has opposed a PIL in the Supreme Court which demands that convicted politicians should be banned for life from contesting polls.

The government said that there were already adequate provisions in the Representation of the People Act, 1951 to deal with the disqualification of convicted persons and a lifetime was ban was not needed.

The government’s affidavit was in response to a PIL filed in September 2016 that sought to secure the same punishment for criminal conviction for members of the executive, judiciary, and legislature. At present, any MLA or MP convicted in such a crime is debarred for the remaining of their term and for a period of six years after that.

The Representation of People Act, 1951

The Representation of People Act, 1951 is an act of Parliament to describe

• the conduct of elections of the Houses of Parliament and to the State Legislatures,
• the qualifications and disqualifications for membership of those Houses,
• the corrupt practices and other offences at or in connection with such elections, and
• the decision of doubts and disputes arising out of or in connection with such elections.

The entire text of the Representation of People Act, 1951 can be read here.

What the PIL petitioner said

The petition was filed in September 2016 by Ashwini Upadhyay, a lawyer and a Delhi BJP spokesperson.

Today filed a PIL in Supreme Court for debarring the convicted persons from Legislature Executive & Judiciary for life. Hope something good.

— Ashwini Upadhyay (@AshwiniBJP) September 1, 2016

Upadhyay argued that letting convicted politicians fight polls again was violative of the right to equality under Article 14 of the Constitution. He pointed out in the executive and judiciary when a person is convicted for any criminal offence, they are suspended automatically and debarred from his services for life, while this is not the same in the legislature.

The PIL states the following:

“Apart from terrorism and naxalism, the most serious problem, our country facing is extensive corruption and criminalisation of the politics … Purity and sanctity of electoral process appear to have become a forgotten thing in view of the entry of a large number of criminals in the Parliament and State Assemblies.

In the Executive and Judiciary, when a person is convicted for any criminal offence, he/she is suspended automatically and debarred from his services for life. However, this rule is applied differently in the case of convicted person is a legislature. Even after conviction and undergoing sentence, a convicted person can form his own political party and eligible to become the office bearer of any political party.

In addition, a convicted person is eligible to contest the election and eligible to become Member of Legislature and even Minister after the expiry of six years period from the date of conviction. Petitioner submits that Part-II, Chapter-III (Disqualifications for Membership of Parliament and State Legislatures) of the Representation of the People Act, 1951 is discriminatory and inconsistent with Article 14 read with Article 15 and 16 of the Constitution, and thus void.

Petitioner submits that decriminalisation of the Polity is impossible without debarring the convicted person from electoral politics for life, as done in case convicted person is from the executive and judiciary. We cannot apply different rules to debar convicted person from the judiciary, executive and legislature.”

The entire PIL can be read here.

What the Election Commission said

The EC, in its short affidavit submitted before the court, said that the plea is “not adversarial” in seeking directives for ensuring that trials of MPs and MLAs are concluded within a year and that such convicts are prohibited for life from the political process.

“… [The EC] supports the cause espoused by the petitioner,” stated the affidavit, filed by EC Director Vijay Kumar Pandey.

The poll panel has said it is “alive to the issues that concern the conduct of free and fair elections and functioning of healthy democracy and as such asserting for bringing in electoral reforms which further the cause of free and fair elections … It is pertinent to mention that most of the recommendations/proposals of the answering respondent (EC) has been endorsed by the Law Commission in its 244th and 255th reports. However, most of the reforms are either pending considerations by the Union of India or have not been approved for the time being.”

What the government said

The government maintained in its affidavit, filed through the Ministry of Law and Justice, that, “Given the nature and significance of functions of the Members of the Parliament and the State Legislature, their disqualifications are constitutionally provided and limited to what is specified under Article 102 (on disqualification of MPs) and this cannot be said to be arbitrary or violative of Article 14 (equality) of the Constitution.”

The government’s affidavit also stated:

“The provisions [in the Representation of People Act] involved are intra-vires and have been in the statute book for quite some time and continue to serve the purpose for which these are enacted i.e. curbing the entry of persons with criminal antecedents into political arena.”

The affidavit also argued that a constitutional court could step in only when there was a legislative vacuum in an area of public interest but since there were already subsisting legal provisions, the issue was “outside the scope of judicial review”.