The Centre on Wednesday opposed a plea in the Supreme Court seeking a lifetime ban on convicted politicians from contesting elections, arguing that the introduction of such punitive measures was the sole preserve of Parliament.
In a counter-affidavit filed in the court, the Union government said the implementation of such a measure would necessitate an amendment to the statute or directing Parliament to frame a law in a particular manner, both of which were beyond judicial reach.
“The question whether a lifetime ban would be appropriate or not is a question that is solely within the domain of Parliament,” the Centre said.
According to the government, the question of imposing a lifetime ban on convicted politicians might be too harsh. “By confining the operation of the penalty to an appropriate length of time, deterrence is ensured while undue harshness is avoided,” the affidavit said.
Under Section 8 of the Representation of the People Act, 1951, a convicted person cannot contest elections for six years from the date of release from jail. In case there is no jail term and only a fine has been imposed upon conviction, the six-year disqualification period will begin from the day of the conviction.
Under Section 9 of the Act, which applies to government servants convicted of corruption and disloyalty, the disqualification period is
five years.
Advocate Ashwini Kumar Upadhyay had filed a PIL in the Supreme Court seeking a lifetime ban on convicted politicians. The court had sought the response of the government and the Election Commission on the PIL.
The government’s counter-affidavit, filed by Mahesh Babu, deputy legislative counsel, ministry of law and justice, said: “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 is submitted that as a matter of judicial review, the Hon’ble Court can declare the provisions to be unconstitutional and declare them to be inoperative, however, the relief that the Petitioner is seeking amounts to re-writing 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… the said approach is unknown to judicial review and unknown to any canon of constitution law.
“It is submitted that a lifetime disqualification is the maximum that can be imposed under the provisions and to impose such a disqualification is certainly within the power of Parliament. However, it is one thing to say that a power exists and another to say that it must necessarily be exercised in every case.”
The government said the impugned laws were “constitutionally sound” and “did not suffer from the vice of excess delegation”.
The Centre said the petition had failed to make the crucial distinction between the basis and effects of disqualification.
“It is true that the basis of disqualification is conviction for an offence and that this basis remains unchanged so long as the conviction stands. The effect of such conviction lasts for a fixed period of time. As stated above, there is nothing inherently unconstitutional in limiting the effect of penalties by time,” it said.
The government pointed out that Articles 102 and 191 conferred on Parliament the power to make laws governing disqualification and the 1951 Act was based on this.
“The Constitution has left the field open to Parliament to enact such further law governing disqualifications as it deems fit. Parliament has the power both to determine the grounds for disqualification and the duration of disqualification,” it said.