Govt defends 6-year election ban on convicted politicians, tells Supreme Court lifetime disqualification ‘unduly harsh’

The affidavit was filed in response to a petition by Advocate Ashwini Kumar Upadhyay challenging the constitutional validity of Sections 8 and 9 of the Representation of the People Act 1951. Section 8 of the Act states that a person who has been sentenced to undergo imprisonment for offences specified in the provision shall be disqualified from contesting elections for six years after their release from prison. As per section 9, for public servants dismissed for corruption or for disloyalty to the state, the disqualification shall be for five years from the date of such dismissal.

The plea argued that limiting the disqualification by time is violative of constitutional provisions and urged that the disqualification in such cases should be for a lifetime.

Responding to the petition, the government said, “The question whether a lifetime ban would be appropriate or not is a question that is solely within the domain of Parliament. It is not for the petitioner or the respondent to state that the same is appropriate or even to state that the same would be excessive. As a matter of law, in imposing any penalty, Parliament seeks to maintain the principles of proportionality and reasonability.”

The Centre insisted that “the impugned laws are constitutionally sound, do not suffer from the vice of excess delegation and are intra vires the powers of Parliament”.

The counter-affidavit said that “the disqualifications made under the impugned sections are limited by time as a matter of parliamentary policy and it would not be appropriate to substitute the petitioner’s understanding of the issue and impose a lifetime ban.” It added that while the court can exercise judicial review and declare the provisions to be unconstitutional and inoperative, “the relief that the petitioner is seeking amounts to rewriting the provision as it effectively seeks to read ‘life-long’ instead of ‘six years’ in all sub-sections of Section 8 of the Representation of the People Act, 1951.” The government argued that such an “approach is unknown to judicial review and unknown to any canon of constitutional law”.

The Centre submitted that a lifetime disqualification is the maximum that can be imposed under the provisions and that 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 prayer of the petitioner amounts to rewriting the statute or directing 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,” reads the counter-affidavit.

The Centre said that “issues raised by the petitioner have wide-ranging ramifications and clearly fall within the legislative policy of Parliament and the contours of judicial review would be suitably altered in such regard”. It pointed out that the court “has consistently held that legislative choice over one option or the other cannot be questioned in courts over its efficacy or otherwise”.

The counter-affidavit concluded that “merely because, as a matter of policy, the petitioners feel that the impugned provisions may not be appropriate, the same would not be a ground for unconstitutionality of the provision”.