SC seeks details from ECI on removal of convicted politicians
The court was hearing a petition filed by a BJP leader seeking life ban on convicted legislators as he challenged the constitutional validity of sections 8 and 9 of the RP Act
New Delhi The Supreme Court on Tuesday sought a response from the Election Commission on the number of instances when it has either reduced or removed the period of disqualification incurred by any legislator pursuant to conviction in a criminal case.
Hearing a petition seeking a life ban on contesting polls for convicted members of Parliament and legislative assemblies, a bench headed by justice Dipankar Datta found this information to be in “interest of justice” as in the past, there were two recorded instances in 1977 when the EC used its authority under Section 11 of the Representation of Peoples Act, 1951 (RP Act) to reduce the period of disqualification.
The bench, also comprising justice Manmohan said, “In the interest of justice, we direct the ECI to indicate instances when the power was exercised under Section 11.” This provision states, “The EC may, for reasons to be recorded, remove any disqualification under this Chapter (except under section 8A dealing with disqualification on ground of corrupt practices) or reduce the period of any such disqualification.”
The court was hearing a petition filed by Bharatiya Janata Party (BJP) leader and lawyer Ashwini Kumar Upadhyay seeking life ban on convicted legislators as he challenged the constitutional validity of sections 8 and 9 of the RP Act that prescribes a six-year ban to contest elections after undergoing the period of sentence.
Section 8 provides that a legislator of a state assembly or Parliament gets disqualified to contest election for a period of six years beginning from the date he serves out the sentence for his crime. Under this provision, a host of offences are listed, which can incur disqualification under the Act. Additionally, Section 8 prescribes that any conviction in an offence punishable with two or more years of sentence will also attract disqualification.
At the same time, section 9 states that a person having held office under the state or Central government, who has 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.
Recently, the Centre had filed a response in the matter opposing life ban and informed the top court that a similar petition raising the same challenge to Section 8 of RP Act is pending consideration before another bench of the top court where the hearing is fixed for March 26.
To avoid a possible “conflict of decision”, the bench directed Upadhyay’s petition to be listed before the Chief Justice of India (CJI) for taking orders to have it listed along with the other pending case. As the bench adjourned the matter, awaiting the decision of CJI, senior advocate Vijay Hansaria assisting the court as amicus curiae along with advocate Sneha Kalita said that the Election Commission is yet to file any response to the petition.
Hansaria said, “The EC cannot remain silent as this issue concerns criminalisation of politics. The EC must take a stand and file a response.” The amicus pointed out that the EC must also answer about decisions taken under Section 11 of the Act citing an order of the top court in this matter passed on November 1, 2017 calling for EC’s response.
The poll panel represented by advocate Sidhant Kumar said, “We are bound by the laws passed by Parliament. Since the petition involves a challenge to the constitutional vires of section 8 of RP Act, the Election Commission will have no say.” On the other issue of section 11, Kumar said, “There is no challenge in these proceedings to section 11. But if the court desires, we are willing to provide the information as EC has nothing to hide.”
The court referred to EC’s earlier response of November 15, 2017 giving information about the two instances when section 11 was used by the poll panel. The two instances when the orders were issued concerned then MLAs Shyam Narain Tiwari and Mitra Sen Yadav, issued in 1977.
Senior advocate Vikas Singh who appeared for Upadhyay questioned the silence of the EC on the issue of life ban. He pointed out that in a petition before the top court for considering whether legislators who are charge-sheeted in heinous offences should be disqualified, the EC had filed an affidavit supporting this view. The court permitted the petitioner to produce the relevant affidavit.
The issue has confronted the courts due to an ever increasing number of lawmakers with criminal cases entering legislative bodies. In the present Lok Sabha, as many as 251 MPs (46%) face criminal charges with 170 having serious criminal charges including rape, murder, kidnapping and crimes against women.
