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Synopsis

Senior advocate Vijay Hansari has told the Supreme Court that the provisions under the Representation of People Act -- limiting the disqualification of convicted lawmakers for a period of six years since the release of the convict -- are manifestly arbitrary and violative of Article 14 of the Constitution.

He favoured permanent disqualification of convicted lawmakers from holding the office.

In a report, the counsel acting as amicus curiae stated that provisions of sub-sections (1), (2) and (3) of section 8 of the RP Act to the extent they provide that “shall continue to be disqualified for a further period of six years since his release” is manifestly arbitrary and violative of Article 14 of the Constitution.

"There is no nexus for limiting the disqualification for a period of six years since the release of the convict with the object of disqualifying him from becoming a member of the legislature," he said.

In his 19th report filed in the case of Ashwini Kumar Upadhyay related to the expeditious trial of MP and MLAs, the counsel along with associate Sneha Kalita suggested the court to examine the matter independently.

He said that Parliament has categorised the offences for the purpose of disqualification depending upon the nature, seriousness and gravity thereof and the impact on the society at large. In case of Specified Offences Category I, even a sentence of fine incurs disqualification; while in case of Specified Offences Category-II, a minimum sentence of six months incurs disqualification; and in case of Non-Specified Offences, disqualification arises only upon sentence of imprisonment for two years or more. 

"However, one common thread in all cases where a sentence of imprisonment has been imposed is that disqualification continues 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," he said.

Hansaria pointed out that there are many statutory authorities who are permanently disqualified from holding the posts upon conviction.

"But the person making the law would incur the disqualification only for a limited period. The lawmakers 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," he said.

The counsel also said that as per the Service Rules applicable to the Central Government and State Government employees, a person convicted for any offence involving moral turpitude is liable to be dismissed from the service. 

"Even a Class-IV employee would be terminated from service, once convicted for an offence involving moral turpitude, not to speak of Class-I, II and III employees and the persons holding any offices under the All India Services Act, 1951 and the Rules framed thereunder," he said.

Hansaria also highlighted that several expert panels including Dinesh Goswami Committee Report (1990), Vohra Committee Report (1993), Indrajit Gupta Committee on State Funding of Elections (1998) and Law Commission have raised concern on criminalisation of politics from time to time.