CASE TITLE : Ashwini Kumar Upadhyay v. Union Of India And Anr., W.P.(C) No. 699/2016
Two weeks ago, a bench comprising Justice Dipankar Datta and Justice Manmohan had sought the response of the Union Government on the issue. The bench remarked during the hearing that criminalisation of politics was a serious issue. The bench orally observed that there was an element of conflict of interest as the politicians themselves were making the laws.
The Union Government has filed a counter-affidavit in the Supreme Court opposing a plea to ban politicians permanently from contesting elections upon their conviction in criminal cases.
The Government said that the period of disqualification is a matter which is purely within the domain of legislative policy. The affidavit is filed in response to a petition filed by lawyer Ashwini Upadhyaya in 2016 challenging the constitutional validity of Sections 8 and 9 of the Representation of the People Act, 1951
As per Section 8, a person who has been sentenced for the specified offences shall be disqualified for a period of six years after serving the jail term. As per Section 9, public servants who have been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal. The petitioner demands that the disqualification should be for a life-term.
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 asserted that the provisions under challenge are “constitutionally sound” and “do not suffer from the vice of excess delegation and are intra vires the powers of Parliament.” 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 Representation of the People Act, 1951. The said approach, the Government said, is unknown to judicial review and unknown to any canon of constitution 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.
