NEW DELHI: The Centre has opposed before the Supreme Court a plea made by eminent advocate Ashwini Kumar Upadhyay, also known as a PIL man of India, seeking a life long ban on convicted politicians as against the existing disqualification for merely six years under the Representation of People Act.
Centre Defends Existing Law, Says Lifetime Ban on Convicted Politicians Not Mandatory
The government contended the issue whether life time ban would be appropriate or not fell within the domain of Parliament and there is nothing inherently unconstitutional in limiting the effect of penalities.
It also cited the principles of proportionality and reasonability, to indicate the proposition advanced by Upadhyay would be unduly harsh.
Supreme Court Hearing on Disqualification of Politicians: Govt Cites Proportionality Principle
The government said, "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 response by the Law and Justice Ministry's legislative department came in the form of counter affidavit on February 24, 2025.
The court had on February 10, 2024 had asked the Centre to clarify its stand in the matter.
In its detailed written reply, the government defended the extant provisions and also pointed out a similar plea made by NGO Lok Prahari is pending consideration before the apex court wherein the government has filed an affidavit opposing it in November, 2023.
The government said that the provisions under the RP Act are constitutionally sound, do not suffer from the vice of excess delegation and are intra vires the powers of Parliament. All laws duly
passed by the Legislature are entitled to the presumption of constitutionality, it asserted.
It said the Upadhyay here failed to make the crucial distinction between basis and effect of disqualification. He also failed to make any cogent ground to show those provisions are constitutionally invalid, it said.
"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. Therefore, there is nothing inherently unconstitutional in limiting the effect of penalties by time," the government said.
The petitioner's reliance on Articles 102 and 191 of the Constitution is "totally misplaced," the reply claimed.
"Clause (e) of Article 102 and Article 191 are enabling provisions that confer on Parliament the power to make laws governing disqualification. It is in exercise of this power that the RP Act has been enacted. The Constitution has left the field open to Parliament to enact such further law governing disqualifications as Parliament deems fit. Parliament has power both to determine the grounds for disqualification and the duration of disqualification," it said.
The grounds for disqualification given in those Articles are holding of an office of profit, unsoundness of mind, insolvency and not being a citizen of India. Those are not permanent disqualifications and can be removed, it said.
The Center said what the petitioner, however, wanted amounts to re-writing of the provision as his plea effectively sought to read "life-long" instead of "six years" in all Sub-Sections of Section 8 of RP Act.
"The said approach is unknown to judicial review and unknown to any canon of constitution law," it contended.
The plea sought a direction to Parliament to frame a law in a particular manner, which is wholly beyond the powers of judicial review, the government said.
It is trite law that the courts cannot direct Parliament to make a law or to legislate in a particular way, the government also stated.
"As a matter of law, in imposing any penalty, the Parliament seeks to maintain considering the principles of proportionality and reasonability," it said.
The Centre pointed out in numerous penal laws, restrictions are imposed on the exercise of rights and freedoms but those are time-limited. At the end of the prescribed time, the restrictions cease to operate automatically.
The government also said by confining the operation of the penalty to an appropriate length of time, deterrence is ensured while undue harshness is avoided.
