Amicus Curiae Supports Life Ban On Convicted Politicians; Says Sec 8 RP Act Unreasonable For Limiting Disqualification Period

Senior Advocate Vijay Hansaria, the amicus curiae appointed by the Supreme Court in the matter relating to criminal cases against elected representatives (MPs/MLAs) in his 19th report has suggested that limiting the period of disqualification to contest elections after conviction to 6 years, is manifestly arbitrary and violative of Article 14 of the Constitution. The Amicus has suggested permanent disqualification of such convicts instead of a 6 year ban.

The Amicus has described the position occupied by Law Makers to be 'sacrosanct', and has suggested that once MPs/MLAs are found to have committed an offence involving moral turpitude, they should be permanently disqualified from holding office. 

The Supreme Court has been monitoring expeditious disposal of criminal cases against MPs and MLAs since 2016 in a PIL filed by Ashwini Kumar Upadhyay.

The writ petition has challenged the validity Constitutional validity of Section 8 of Representation of the People Act, 1951 which confines the period of disqualification to contest elections “for a period of six years since his release.” The petition has sought for debarment for life in cases of conviction.

The Amicus has stated in his latest report that statutory authorities under various legislations including the Central Vigilance Commission Act, 2003 and Lokpal and Lokayuktas Act, 2013, provide for permanent disqualification and/or removal from holding statutory office, if an officer has been convicted of an offence involving ‘moral turpitude’. The Amicus has contended that as long as statutory authorities do not allow convicted persons to occupy office, it is manifestly arbitrary that convicted persons can occupy supreme legislative bodies after expiry of a certain period of conviction.

“There is no nexus that a person can make law to disqualify another person from holding a statutory office, but the person making the law would incur the disqualification only for a limited period. The law makers are required to be much more sacrosanct and inviolable than the persons holding office under such law. The Parliamentarians and the Legislators represent the sovereign will of the people and once found to have committed an offence involving moral turpitude, are liable to be permanently disqualified from holding the said office. Limiting the period of disqualification is a flagrant violation of the equality clause enriched in Article 14 of the Constitution.” The Amicus has stated in his report.

The Amicus has also pointed out in his report that the offences under Section 8 have been categorised depending upon the nature, seriousness and gravity, however, in all cases the disqualification is only for a period of six years since the release of the convict. “Thus, a person is eligible to contest election after six years of the release even if convicted for heinous offences like rape or for dealing with drugs or being involved in terrorist activities or having indulged in corruption” the Amicus states in his report. The Amicus has argued that there is no nexus for such classification under Section 8, with the objective sought to be achieved and hence it is violative of Art. 14.

The Amicus has listed out several committee reports over the years that raised concerns about ‘the criminalisation of politics’. He has also referred to various judgments of the Apex Court that have opined that increasing criminalisation of politics has severely affected the country’s democratic functioning.

The Court is to consider two main issues in the said writ petition, namely the expeditious disposal of criminal cases against elected representatives and the Constitutional validity of section 8 of Representation of the People Act, 1951. With regard to the former, the Amicus has suggested a set of directions to be issued to subordinate courts for ensuring speedy disposal of such cases.

Advocate-on-Record Sneha Kalita assisted the amicus in drafting the report.

A bench led by Chief Justice Chandrachud is set to hear the matter on 15th September. 

Case Title: Ashwini Kumar Upadhyay vs. Union of India, Writ Petition (C) No. 699 of 2016

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