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Synopsis

The Union government has opposed before the Supreme Court a plea for life-time ban on contesting elections for convicted politicians under the Representation of People Act, instead of the existing six years.

Maintaining the issue fell within the domain of Parliament, the legislative department contended under the power of judicial review, the court can declare a provision as unconstitutional or inoperative but the instant plea sought to rewrite the law which is unknown to the principle of judicial review and constitutional law.

In reply to a PIL filed by advocate Ashwini Kumar Upadhyay, the government said that the disqualifications made under Sections 8 and 9 of the RP Act 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 said the relief that the petitioner sought amounts to re-writing of the provision as it effectively seeks to read "life-long" instead of "six years" in all sub-sections of section 8 of Representation of the People Act, 1951. The said approach is unknown to judicial review and unknown to any canon of constitution law, it contended.

"A lifetime disqualification is the maximum that can be imposed under the provisions and 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," it said.

The government further said the plea of the petitioner amounted to re-writing of the statute or directing the Parliament to frame a law in a particular manner which is wholly beyond the powers of judicial review.

It is a trite law that the courts cannot direct Parliament to make a law or to legislate in a particular way, it asserted.

The government maintained the laws are constitutionally sound and do not suffer from the vice of excess delegation and are inter vires of Parliament.

"Merely because as a matter of policy the petitioners feel that the provisions may not be appropriate, the same would not be a ground of unconstitutionality of the provision," it said.

The government submitted that the question of 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 state that the same would be excessive. As a matter of law, in imposing any penalty, the Parliament seeks to maintain considering the principles of proportionality and reasonability," it said.

The government also said there are numerous penal laws that provide for restrictions to be imposed on the exercise of rights and freedoms, which are in most cases time-limited. At the end of the prescribed time, the restrictions imposed by the penalty cease to operate automatically.

"By confining the operation of the penalty to an appropriate length of time, deterrence is ensured while undue harshness is avoided," it said.

The government also pointed out the petition failed to make the crucial distinction between the basis of disqualification and the effects of disqualification.

"It is true that the basis of disqualification is conviction for an offence and that this basis remains unchanged so long as the conviction stands. The effect of such conviction lasts for a fixed period of time," it said.

Therefore, there is nothing inherently unconstitutional in limiting the effect of penalties by time, it underscored.

The government also said the petitioner's reliance on Articles 102 and 191 of the Constitution was totally misplaced.

"It is submitted that clause (e) of Article 102 and Article 191 are enabling provisions that confer on Parliament the power to make laws governing disqualification. It is in exercise of this power that the Representation of the People Act, 1951 has been enacted. The Constitution has left the field open to Parliament to enact such further law governing disqualifications as Parliament deems fit. Parliament has power both to determine the grounds for disqualification and the duration of disqualification," it said.

The grounds for disqualification given in those Articles are viz holding of an office of profit, unsoundness of mind, insolvency and not being a citizen of India, which are not permanent disqualifications. All those disqualifications last so long as the supervening circumstances last, it said.

The government said the petition was devoid of merit and should be dismissed.

On February 10, 2025, the court asked the government to respond to the plea by Upadhyaya seeking permanent ban on those convicted of criminal offences from contesting elections to Parliament and State Assemblies.

Case Title: Ashwini Kumar Upadhyay Vs Union of India (WP- Civil No 699/2016)