Plea in Supreme Court seeks to temporarily debar Ministers from holding office who spend more than 2 days in judicial custody

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A Public Interest Litigation plea has been filed before the Supreme Court seeking a direction that a Minister, who is not only a public servant under Section 21 of the IPC and S. 2(c) of the Prevention of Corruption Act, but also a Law Maker and takes constitutional oath under Schedule-3; shall be temporarily debarred from holding office, after spending 2 days in judicial custody.

Alternatively, it is sought that the Law Commission of India should examine the election law of developed countries and prepare a comprehensive report to maintain nobility & dignity of Ministers, Legislators and Public Servants in spirit of Article 14.

The plea filed by Advocate Ashwini Upadhyay further seeks a direction to Maharashtra Government to sack its Cabinet Minister Nawab Malik who was arrested in February this year and continues to be in judicial custody in connection with cases of black money, Benami properties, money laundering and disproportionate assets, linked with Mafia Don Dawood Ibrahim.

Petitioner also seeks direction to Delhi Government to sack Cabinet Minister Satyendra Jain, who was arrested on May 31, 2022.

"Minister gets salary, free rail ticket, free air ticket and several other allowances & perks for entire tenure and pension & other benefits for lifetime. So, he is a full-time salaried public servant like IAS, IPS, Judges. But, unlike the public servants, Ministers like Nawab Malik and Satyendra Jain are still enjoying constitutional position, even while being in judicial custody for long time, which is arbitrary and contrary to Article 14...." the plea states.

The petition filed under Article 32 adds that although MLAs are the highest law-making organs of the State and the profession is honorable and noble but there is no restriction on them to practice other professions like the bar on IAS, IPS, Judges to practice other profession.

"There is no action even if they are in custody like IAS IPS Judges are suspended. There is no provision of minimum number of hours that an MLA must spend in Assembly and his constituency. Similarly, he can be Minister in being in jail", the petition further submits.

The plea further submits that what is alarming is that the percentage of candidates with criminal antecedents and their chances of winning have increased steadily over the years.

Criminals who earlier used to help politicians win elections in the hope of getting favours have cut out the “middle man” in favour of entering politics themselves, Upadhyay has stated.

"Political parties in turn have become steadily more reliant on criminals as candidates not only because they “self-finance” their own elections in an era where election have become phenomenally expensive but also because candidates with criminal antecedents are more likely to win than “clean” candidates....", the PIL states.

The PIL has been filed through AOR Ashwani Kumar Dubey.

Case Title: Ashwini Kumar Upadhyay vs. Union of India and Ors