The Union Government has filed a counter-affidavit in the Supreme Court, firmly opposing a petition that seeks to impose a permanent ban on politicians from contesting elections after being convicted in criminal cases.
In its submission, the Government emphasized that determining the period of disqualification is a matter that falls strictly within the domain of legislative policy. It argued that such decisions should be left to the legislature rather than being subjected to judicial intervention. The affidavit was filed in response to a petition submitted in 2016 by lawyer Ashwini Upadhyaya, who has challenged the constitutional validity of Sections 8 and 9 of the Representation of the People Act, 1951. These provisions currently outline the rules governing the disqualification of convicted individuals from participating in electoral processes for a specific duration, rather than imposing a lifetime ban.
Under Section 8 of the Representation of the People Act, 1951, any individual convicted and sentenced for specified offenses faces disqualification from contesting elections for a period of six years following the completion of their jail term. Similarly, Section 9 states that public servants who have been dismissed on grounds of corruption or disloyalty to the State will be barred from contesting elections for a period of five years from the date of their dismissal.
The petitioner, however, argues that these disqualification periods are insufficient and is demanding a lifetime ban on such individuals, asserting that those convicted of criminal offenses or dismissed for misconduct should not be allowed to re-enter electoral politics at any stage.
Opposing the plea, the Centre said that "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 term of disqualification is determined by the Parliament "considering the principles of proportionality and reasonability."
"By confining the operation of the penalty to an appropriate length of time, deterrence is ensured while undue harshness is avoided," the Centre stated.
The Centre firmly stated that the provisions being challenged are "constitutionally sound" and neither suffer from "excess delegation" nor exceed the legislative powers of Parliament. It argued that the relief sought by the petitioner essentially amounts to rewriting the law by replacing the stipulated "six years" with "life-long" in all subsections of Section 8 of the Representation of the People Act, 1951. Such an approach, the Government contended, is beyond the scope of judicial review and is not supported by any established principle of constitutional law.
"The prayer of the Petitioner amounts to re-writing of the statute or directing the Parliament to frame a law in a particular manner which is wholly beyond the powers of judicial review. It is trite law that the Courts cannot direct Parliament to make a law or to legislate in a particular way," the Centre stated. The provisions will not become unconstitutional merely because the petitioner feels that they are inadequate.
The Centre also pointed out that various penal laws limit the period of disqualification by time. "There is nothing inherently unconstitutional in limiting the effect of penalties by time," the Centre said.
Two weeks ago, a bench consisting of Justice Dipankar Datta and Justice Manmohan had sought the Union Government's response on the matter. During the hearing, the bench emphasized that the criminalization of politics was a grave concern. It also made an oral observation highlighting a potential conflict of interest, noting that politicians were responsible for enacting the very laws that governed their own disqualification.
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