The Union of India, in its Counter Affidavit, has opposed a petition before the Supreme Court seeking the imposition of a lifetime ban on individuals convicted of criminal offenses from contesting elections for Parliament and State Assemblies.

The government, in an affidavit filed before the Apex Court, contended that the discretion to impose such a ban lies exclusively with Parliament and not the judiciary, which would determine the matter based on the principles of proportionality and reasonability. "At the outset, it is submitted that 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.

The Centre's affidavit stated that the appropriateness of a lifetime ban is a legislative prerogative, emphasizing that it is beyond the scope of the petitioner to claim whether such a ban would be justified or excessive. “As a matter of law, in imposing any penalty, Parliament seeks to maintain a balance considering the principles of proportionality and reasonability,” the affidavit reads.

Government’s Response to Plea Challenging RPA Provisions

The Centre’s response came in a case filed by BJP leader and advocate Ashwini Upadhyay, who challenged the constitutional validity of Sections 8 and 9 of the Representation of People Act, 1951 (RPA).

1. Section 8 of the Act disqualifies convicted politicians from contesting elections for six years after completing their sentence if convicted of certain listed crimes or sentenced to imprisonment for two years or more.

2. Section 9 bars individuals dismissed from government service due to corruption or disloyalty to the country from contesting elections for five years post-dismissal.

Parliamentary Discretion Over Lifetime Ban

In defending the current legal framework, the government asserted that penalties under Indian law are inherently time-bound, including those under the Bharatiya Nyaya Sanhita, 2023. The affidavit reasoned that punitive measures should correspond to the gravity of the offense and that once an individual has served their sentence, they should be reintegrated into society with their rights restored.

“Post serving of such penalty, a person is free to rejoin society and enjoy all other rights available to any individual. Numerous penal laws impose time-limited restrictions on rights and freedoms, and these restrictions automatically cease after the prescribed period,” the affidavit states.

Furthermore, the Centre refuted claims that Articles 102 and 191 of the Constitution allow for permanent disqualifications. These provisions outline the grounds for disqualification of legislators, which include holding an office of profit, unsoundness of mind, insolvency, or non-citizenship. The government argued that such disqualifications last only as long as the disqualifying circumstances persist.

“For example, disqualification ceases when an office-holder resigns, an insolvent person clears their debts, an individual recovers from mental illness, or a non-citizen becomes an Indian citizen,” the affidavit elaborates.

Judicial vs. Legislative Authority in Election Laws

The Centre's stance underscores the separation of powers, maintaining that election laws and candidate eligibility fall within the legislative domain rather than judicial interpretation. It justified the existing framework of the RPA, which it claims ensures fair electoral participation while maintaining checks on criminal elements without imposing disproportionately harsh or indefinite restrictions.

Previously

It is to be noted that on February 10, the Bench led by Justice Dipankar Datta held that it would be inappropriate for a two-judge bench to reopen the issue of expeditious disposal of criminal cases against lawmakers, given that a three-judge bench had already addressed the matter in a previous ruling. The Court had directed that the issue be placed before the Chief Justice of India for consideration by a larger bench. However, the Court had retained jurisdiction over the challenge to Sections 8 and 9 of the Representation of the People Act, 1951, concerning the disqualification of convicted politicians, and sought a response from the Union of India and the Election Commission.

In 2023, the Amicus had informed the 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 had 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.

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

Click here to read/download the Affidavit


Ashwini Kumar UpadhyayRepresentation of People Act

Sukriti Mishra

Legal Correspondent

Sukriti Mishra is a Legal Correspondent at Verdictum. She extensively covers the Supreme Court. She has completed her graduation with BA. LL.B (Hons.) from The ICFAI University, Dehradun. Sukriti started covering courts in March 2022, she has previously worked with another legal news portal, where she extensively covered the Delhi High Court and Trial Courts.