Recently, Senior Advocate Vijay Hansaria, serving as Amicus Curiae in the case of Ashwini Kumar Upadhyay vs. Union of India [Writ Petition (C) No. 699 of 2016] informed the Supreme Court that imposing a six-year disqualification on elected representatives (MPs/MLAs) after the release of a convict lacks a clear connection and is evidently arbitrary, thus contravening Article 14 of the Constitution. Hansaria went on to propose to the Court that instead of a six-year ban, such convicts should face permanent disqualification.

"The law makers are required to be much more sacrosanct and inviolable than the persons holding office under such law. The Parliamentarians and the Legislators represent the sovereign will of the people and once found to have committed an offence involving moral turpitude, are liable to be permanently disqualified from holding the said office. Limiting the period of disqualification is a flagrant violation of the equality clause enriched in Article 14 of the Constitution", Hansaria submitted.

Hansaria has filed its nineteenth report as per the directions of the Apex Court in the Public Interest Litigation filed by Advocate Ashwini Kumar Upadhyay seeking the debarment of the convicted persons from the Legislature, Executive and Judiciary for life and adequate infrastructure to set up Special Courts to decide criminal cases related to People's Representatives Public Servants and Members of Judiciary within one year.

Hansaria has submitted his report in accordance with the directives of the Apex Court, which were issued in response to the Public Interest Litigation filed by Advocate Ashwini Kumar Upadhyay seeking lifetime disqualification of convicted individuals from the Legislature, Executive, and Judiciary, as well as the establishment of adequate infrastructure for Special Courts to adjudicate criminal cases involving People's Representatives, Public Servants, and Members of the Judiciary within a one-year timeframe.

The Petitioner had further filed an Interim Application and had sought that the words “and shall continue to be disqualified for a further period of six years since his release” be severed from sections 8(1)(ii), 8(2) and 8(3) of the Representation of the People Act, 195. However, the Union of India had opposed such prayers.

Assisting the Court, Hansaria submitted his suggestion on the Constitutional validity of section 8 of the Representation of the People Act, 1951 which reads that, "There is no nexus for limiting the disqualification for a period of six years since the release of the convict with the object of disqualifying him from becoming a member of the legislature. The provisions of sub-sections (1), (2) and (3) of section 8 to the extent they provide that “shall continue to be disqualified for a further period of six years since his release” is manifestly arbitrary and violative of Article 14 of the Constitution."

The Amicus Curiae, in its report, has also highlighted that one common thread in all cases where a sentence of imprisonment has been imposed is that disqualification continues only for a period of six years since the release of the convict, thus, a person is eligible to contest the election after six years of the release even if convicted for heinous offences like rape or for dealing with drugs or being involved in terrorist activities or having indulged in corruption.

The report further submits that "Statutory authorities constituted under various legislations provide for permanent disqualification and/or removal from holding such statutory office upon conviction of an offence involving moral turpitude and that if statutory authorities cannot comprise convicted persons, it is manifestly arbitrary that such convicted persons can occupy the supreme legislative bodies after the expiry of a certain period of conviction."

Hansaria on the afore-mentioned para states that there is no nexus that a person can make a law to disqualify another person from holding a statutory office, but the person making the law would incur the disqualification only for a limited period. "The law makers are required to be much more sacrosanct and inviolable than the persons holding office under such law. The Parliamentarians and the Legislators represent the sovereign will of the people and once found to have committed an offence involving moral turpitude, are liable to be permanently disqualified from holding the said office", reads the Report.

It has been strongly suggested in the Report that limiting the period of disqualification is a flagrant violation of the equality clause enriched in Article 14 of the Constitution.

Further, relying on numerous statutes which enforce permanent disqualification or removal for individuals convicted of offences involving moral turpitude, Hansaria states that the Central Vigilance Commissioner and Vigilance Commissioner can be removed upon conviction for moral turpitude under the Central Vigilance Commission Act, 2003, Section 6(3)(b); Convictions for moral turpitude disqualify individuals from serving as Lokpal and Lokayukta under the Lokpal and Lokayuktas Act, 2013, Section 3(4)(ii); Chairman and members of National and State Human Rights Commissions face potential removal upon conviction for moral turpitude as per the Protection of Human Rights Act, 1993, Sections 5(3)(e) and 23(2)(e); Conviction for moral turpitude can lead to removal for Central Chief Information Commissioners, State Information Commissioners, and Information Commissioners, governed by the Right to Information Act, 2005, Sections 14(3)(b) and 17(3)(b) and similarly many more statues.

Concluding, Hansaria submits that there is no nexus for limiting the disqualification for a period of six years since the release of the convict with the object of disqualifying him from becoming a member of the legislature.

The Court will now consider the matter on September 15, 2023.

Cause Title: Ashwini Kumar Upadhyay v. Union of India [Writ Petition (C) No. 699 of 2016]

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Supreme CourtAshwini Kumar UpadhyayRepresentation of People Act

Ramey Krishan Rana