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Center Opposes Plea for Banning MPs/MLAs from contesting elections for life on Conviction in Criminal cases

By Dev Kumar Patel      04 December, 2020 03:29 PM      0 Comments
MP MLA contesting elections Conviction Criminal cases

By way of Affidavit, the Centre has opposed in the Supreme Court an amended PIL seeking imposition of a lifetime ban on convicted politicians from contesting elections, saying the elected representatives are "equally bound" by law.

BJP leader and lawyer Ashwini Upadhyay in the plea stated "that when a member of Executive/Judiciary is convicted for even a minor crime, he is debarred from his services for a lifetime. But a Legislator, convicted for even heinous crimes like murder, rape, smuggling, money laundering, dacoity, etc. is debarred only from contesting the election merely for six years therefore Section 8 and 9 of the Representation of Peoples Act,1951 is against the spirit of the Article 14 and basic structure of the Constitution,"

The amended plea also seeks direction to the Centre to take 'appropriate steps' to debar the person convicted for the offenses specified under some provisions of the Representation of the People Act,1951 from contesting 'MLA or MP election, forming a political party or becoming office-bearer of the political party'.

BJP leader and lawyer Ashwini Upadhyay, in his amended PIL, has sought a lifetime ban on convicted persons including politicians, from contesting elections as against the six-year ban from the date of release after serving the jail terms of two years or more as provided under the Representation of Peoples Act,1951.

In its plea he has urged the Court for the following reliefs:

  • Provision of adequate infrastructure to set up Special Courts to decide criminal cases related to People Representatives, Public Servants and Members of Judiciary within one year and to debar the convicted persons from Legislature, Executive and Judiciary for life uniformly in the spirit of Article 14, Article 15 and 16 of the Constitution.
  • Directions for implementation of the Important Electoral Reforms proposed by Election Commission, Law Commission, and National Commission to review the working of the Constitution to ensure a free and fair election in the spirit of Article 324.
  • Directions to set minimum qualification and maximum age limit for People Representatives and allow cost to petitioner.
  • Directions to set up Special Courts to decide the cases related to people representative and public servants within one year and implement the important electoral reforms, proposed by the National Commission to Review the Working of the Constitution, Law Commission of India in its 244th and 255th Report and Election Commission of India.
  • Directions to debar the person convicted for the offenses specified in Sections 8(1), 8(2), 8(3), 9(1) of the Representation of the People Act 1951 from contesting MLA/MP election, forming a political party or becoming office-bearer of a political party.

Previously, A Bench of Justices N.V. Ramana, Surya Kant, and Aniruddha Bose had sought the Centre’s reply on a public interest plea filed by Upadhyay, a Supreme Court advocate, and a BJP leader. 

The Centre, in its affidavit filed by the Union Ministry of Law and Justice, has clarified that there is no distinction between public servants and elected representatives. The elected representatives are ordinarily bound by an oath that they have taken to serve the citizens of their constituency in particular and the country in general. Elected representatives are not above the law and are equally bound by provisions of various statutes in force. Therefore, there is no distinction between public servants and elected representatives.

At the outset, it is submitted by the center that the prayer in the original writ petition has already sought uniform action against convicted persons from the legislature, executive, and judiciary in the form of debarring them from their respective fields for life. Hence, the amendment as sought in the present application is not at all required and no purpose will be served by enlarging the scope and ambit of the present proceedings to the extent of entertaining a challenge to the vires of the impugned provisions of the Representation of the People Act 1951.

The Centre advanced that in any case, the five-judge bench of the Supreme Court in the landmark judgment in Public Interest Foundation v. Union of India has held that the prescription as regards provisions for disqualification is complete in view of the language employed in Section 7(b) and Section 8 and Section 10A (Disqualification for failure to lodge account of election expenses) of the Representation of the People Act 1951.

The affidavit has come after the petitioner filed an amendment application seeking permission to amend his prayer and the same has been opposed by the Centre. 



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