Centre Opposes Plea For Life Ban On MPs/MLAs On Conviction In Criminal Cases, At Par With Public Servants

The affidavit was filed in response to a 2017 application by Supreme Court advocate and BJP leader Ashwini Upadhyay seeking amendment of his prayers in an earlier writ petition.

Opposing the plea for life ban, the affidavit submits that the premise underlying the prayer appears to be the discrimination claimed to be existing between the public servants who are debarred from the services for life time if convicted of offences punishable under various provisions of various laws such as the IPC, PMLA, Protection of Civil Rights Act, UAPA, FERA, NDPS etc and the legislator who is disqualified for the stated offences only for a period specified in the are RPA.

The affidavit urges that the petitioner is now seeking to declare the vires of section 8(1)(ii), 8(2) and 8(3) of the Representation of Peoples Act (on the period of disqualification on conviction for certain offences) and sever the same from section 9(1) of the said Act (providing Disqualification for dismissal for corruption or disloyalty for 5 years from the date of dismissal). The petitioner has also sought to add further prayers, directing the respondents to take appropriate steps to debar the person convicted for the offences specified in section 8(1), 8(2), 8(3) and 9(1) of the RPA from contesting the MLA or MP elections, forming a political party or becoming office bearer of a political party.

It is stated that the application is devoid of any merits and does not justify the challenge to the vires of the statutory provisions under the RPA- "The amendment application does not indicate existence of any conclusive and factual material to substantiate the contention that the said provisions under challenge are unconstitutional and ultra wires".

At the outset, it is submitted 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 RPA.

It is stated that there are no specific 'service conditions' laid down in respect of elected representatives albeit, the fact that the people's representatives are public servants. "The elected representatives are ordinarily bound by the oath that they have taken to serve the citizens of their constituency in particular and in the country in general. Their conduct is bound by propriety, good conscience and they are expected to generally work in the interest of the nation. They are bound by the disqualifications in terms of the RPA as well as in the various directions and precedents as laid down by the Supreme Court from time to time", it is argued.

It is submitted that the elected representatives are not above the law and equally bound by the provisions of various statutes in force. The offences, as defined in the IPC or in any other laws for the time being in force, are applicable to elected representatives also. It is submitted that there is no apparent discrimination between public servants and elected representatives in so far as any offences committed by either are concerned.

"In so far as the conditions of service of public servants, not being elected representatives, is concerned, the same is regulated by the respective service laws, including recruitment rules etc. Thus, there is no justification for the challenge to the vires of the said provisions of the RP Act, as made out in the amendment application", it is averred.

The Centre advanced that in any case, the five judge bench of the Supreme Court in the landmark judgement 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 10A (Disqualification for failure to lodge account of election expenses) of the RPA.

"The Supreme Court has further held that the legislature has very clearly enumerated the grounds for disqualification in the Act and the language of the said provision gives no room for any new ground to be added or introduced. The issue that is sought to be raised by the petitioner in the present matter by way of an amendment application has already been addressed to some extent by the Supreme Court. The Supreme Court has not remained oblivious to the issue of criminalisation of politics and has proceeded to issue certain directions to spend in the democratic set up. It will not be out of place to mention that the present petitioner was also one of the petitioners in the said matter",it is suggested.