Centre Opposes Lifetime Ban On Convicted Lawmakers In SC, Defends Existing 6-Year Disqualification Period

The Union government has opposed a petition seeking a lifetime ban on convicted lawmakers from contesting elections, arguing before the Supreme Court that there is "nothing inherently unconstitutional in limiting the effect of penalties by time" to ensure deterrence while avoiding "undue harshness."

Defending the current legal provisions that disqualify convicted legislators for six years after completing their prison sentence, the Centre, in an affidavit submitted to the top court, contended that the challenged provisions of the Representation of the People Act, 1951, are based on principles of "proportionality and reasonability."

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It further stressed that Parliament, as the sole legislative authority, has the discretion to determine the duration of disqualification or penalties for convicted lawmakers, reported the Hindustan Times.

"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," stated the affidavit, which was filed by the Union law ministry on Tuesday.

The affidavit was submitted in response to a public interest litigation (PIL) by advocate Ashwini Upadhyay, which challenged the constitutional validity of Sections 8 and 9 of the Act and sought a lifetime ban on convicted legislators.

It stated: "The relief that the petitioner is seeking amounts to rewriting of the provision as it effectively seeks to read 'life-long' instead of 'six years' in all sub-sections of Section 8 of the Representation of the People Act, 1951."

This response followed a Supreme Court order on February 10, in which a bench led by Justice Dipankar Datta questioned the rationale for restricting the disqualification period to six years, noting that there was an "apparent conflict of interest" in allowing a law-breaker to become a lawmaker.

Section 8 of the 1951 Act disqualifies convicted legislators from contesting elections for six years after completing their sentence.

It applies to a range of specified offences and any conviction carrying a sentence of two years or more. 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. Section 8 has been part of the legislation since its inception.

The Centre's affidavit highlighted that while the judiciary has the power to strike down unconstitutional legislation, courts cannot compel Parliament to draft or amend laws in a specific manner.

"It is trite law that the Courts cannot direct Parliament to make a law or to legislate in a particular way," the affidavit stated, citing the Supreme Court's judgment in "Madras Bar Association vs Union of India" (2021), which ruled that "the courts cannot direct the legislature to frame or enact a law in a particular manner."

The Centre also referred to the ruling in "State of Himachal Pradesh vs Satpal Saini" (2017), which reinforced that policymaking is the domain of the executive and legislature, and courts should not intervene in policy decisions unless they violate constitutional principles.

The affidavit stressed that the question of whether a lifetime ban should be imposed lies solely within the jurisdiction of Parliament.

"As a matter of law, in imposing any penalty, Parliament seeks to maintain proportionality and reasonability. 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," the government asserted.

It further pointed out that time-limited penalties are a fundamental principle in penal laws. "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."

The government also dismissed the petitioner's reliance on Articles 102 and 191 of the Constitution, which deal with the disqualification of legislators.

"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 affidavit stated.

It noted that other grounds for disqualification under Articles 102 and 191-such as holding an office of profit, unsoundness of mind, insolvency, and loss of Indian citizenship-are not permanent and cease to apply once the disqualifying condition is resolved.

The Supreme Court is set to hear the matter on March 4, with Attorney General R Venkataramani expected to assist in the proceedings. During the previous hearing, the court also directed the Election Commission to clarify its stance, remarking that "criminalisation of politics is a major issue."

On 10 February, the court noted the alarming number of pending criminal cases against lawmakers.

Amicus curiae and senior advocate Vijay Hansaria informed the bench that more than 5,000 cases remain unresolved. Justice Manmohan, part of the two-judge bench, voiced concern over the lack of progress in special MP/MLA courts, recalling his visit to Rouse Avenue Court in Delhi, where he found that the judge handling cases against legislators had "retired for the day."

The court is also assessing the implementation of its 2015 ruling in "Public Interest Foundation vs Union of India", which directed that cases against MPs and MLAs be resolved within a year through daily hearings. The bench has called for a comprehensive study to determine why cases against lawmakers continue to stagnate.