Politicians are equally bound by law, cannot bar from contesting elections: Centre to SC

Dec 4, 2020 #SUPREME COURT
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The Centre opposed the amended PIL by BJP leader and lawyer Ashwini Upadhyay which sought permanent ban on convicted persons including politicians from contesting elections. The Centre argued that there is no distinction between public servants and elected representatives. They are ‘‘equally bound by law” hence cannot be barred from contesting elections.

The PIL contained that any person convicted including a politician must be banned from contesting elections for six years immediately after serving 2 years or more in jail as mentioned in the Representation of peoples Act (RPA) 1951.

The Law Ministry, in its affidavit, said: “It is submitted that the application for amendment is devoid of merits and does not justify the challenge to the vires of the statutory provisions under the RPA, 1951.”

The affidavit filed by S Mahesh Babu, official of the Law Ministry said that the amended application does not show any unquestionable or factual material to justify the argument that the provisions challenged were unconstitutional and ultra vires.

The affidavit contained,The elected representatives are ordinarily bound by oath that they have taken to serve the citizens of their constituency in particular and country in general. Their conduct is bound by propriety and good conscience. Elected representatives are not above the law and are equally bound by provisions of various statutes in force. Thus no distinction between public servants and elected representatives .

The Centre argued that this aspect of the case was previously dealt with, and the legislature had distinctly listed the grounds for disqualification of an elected representative.

A bench headed by Justice N V Ramana had earlier sought response of the Centre on the amended plea of Upadhyay.

Direct the Respondent-1 (Centre) to take appropriate steps to setup Special Courts to decide the cases related to people representative and public servants within one year and implement the important electoral reforms, proposed by the National Commission to Review the Working of the Constitution, Law Commission of India in its 244th and 255th Report and Election Commission,” said one of the amended prayers.

The fresh plea has also sought a direction to the Centre to take appropriate steps to debar the person convicted for the offences specified under some provisions of the Representation of the People Act (RPA) from contesting “MLA or MP election, forming a political party or becoming office bearer of political party”.

The plea has also sought some changes in the RPA provisions to ensure that politicians should not get special relief such as contesting elections after the expiry of six years after conviction and sentence.

That when a member of Executive/Judiciary is convicted for even a minor crime, he is debarred from his services for lifetime. But a Legislator, convicted for even heinous crimes like murder, rape, smuggling, money laundering, dacoity etc. is debarred only from contesting the election merely for six years, therefore, Section 8 and 9 of the RPA is against the spirit of the Article 14 and basic structure of the Constitution.”

Moreover, a convicted person, being behind the bar, can form his own political party or become officer bearer of the political party,” Upadhyay said in his plea.

The apex court has been passing several instructions to speed up trials so that sitting MLAs and MPs facing charges can get a quick decision from the courts.

The top court has been communicated that the politicians are facing criminal trials in 4,442 cases across the nation and out of these sitting MPs and MLAs are under trials in as many as 2,556 such matters.

The Supreme Court has been dealing with the petition of Upadhyay seeking various reliefs like inflicting of lifetime ban on convicted politicians.

The BJP leader and lawyer Ashwini Upadhyay has urged the court for the other reliefs:

  1. To provide adequate infrastructure to set up Special Courts to decide criminal cases related to People Representatives, Public Servants and Members of Judiciary within one year and to debar the convicted persons from Legislature, Executive and Judiciary for life uniformly in spirit of Article 14, Article 15 and 16 of the Constitution.
  2. Instructions for implementation of the Important Electoral Reforms proposed by Election Commission, Law Commission and National Commission to review the working of the Constitution to ensure free and fair election in spirit of the Article 324.
  3. Directions to set minimum qualification and maximum age limit for People Representatives and allow cost to petitioner.
  4. Directions to set up Special Courts to decide the cases related to people representative and public servants within one year and implement the important electoral reforms, proposed by the National Commission to Review the Working of the Constitution, Law Commission of India in its 244th and 255th Report and Election Commission of India.

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