India / Are you willing to ban convicted politicians from polls for life?: SC to Centre

New Delhi: The Supreme Court on Wednesday asked for the Centre’s view on imposing life bans from contesting elections on convicted lawmakers, noting that the issue was hanging fire for the last five years.

Dealing with a 2016 petition filed by lawyer and Bharatiya Janata Party (BJP) leader Ashwini Kumar Upadhyay, a three-judge bench headed by Chief Justice of India (CJI) NV Ramana asked the Centre to make clear its stand on the issue. “Is the government prepared to have life ban on contesting elections for convicted politicians? You have to take a view. Unless you take some view, we cannot ask the Election Commission to ban such people from contesting elections.”

Additional solicitor general (ASG) SV Raju, appearing for the Centre, replied that he would require to take instructions in this regard.

The court also dealt with a petition filed by Samajwadi Party (SP) leader and MLA Mohammad Azam Khan, who complained that due to court’s orders in these proceedings, cases to be tried by a magistrate were shifted to a sessions court designated as a special court to try cases against MPs and MLAs, thus depriving him of an essential layer of appeal.

The bench, also comprising justices Dhananjaya Y Chandrachud and Surya Kant, noted that the Allahabad high court “misconstrued” its past orders requiring special courts for MPs and MLAs to be designated at both the magisterial and sessions court levels. “Our directions do not mandate the high courts to transfer cases which are triable by magistrates to sessions courts,” the bench said.

Accordingly, the Court directed the Allahabad high court to issue a fresh notification replacing its earlier order of August 2019 designating 62 Sessions courts as special courts to try MP/MLA cases and provide for such courts at magistrate level. For cases already pending trial before sessions court, the bench directed the entire case records to be transferred to the special court at magistrate level while clarifying that “proceedings shall commence from the stage which has been reached prior to the transfer of the proceedings, as a consequence of which the trial shall not have to commence afresh.”

When the discussion on this matter was concluded, the pending issue of life ban on convicted politicians was brought up by Upadhyay. He told the court that his petition, filed five years ago, raised the issue of criminalisation of politics, demanding fast-tracking criminal trials against sitting and former members of Parliament and legislative assemblies. Though this was sufficiently addressed through various orders passed by the court directing high courts to set up special courts for speedy trials, the petition also sought a life ban from contesting polls on convicted lawmakers.

Upadhyay’s application challenged the validity of Sections 8(1), 8(2), 8(3) and 9(1) of the Representation of Peoples (RP) Act, 1951, in which a six-year disqualification from contesting polls is prescribed on a legislator being convicted for an offence which carries a sentence of two years and above.

In December 2020, the ministry of law and justice responded on the issue by filing an affidavit opposing the life ban. Although the matter has since been heard on many occasions, the aspect of life ban and the affidavit in question has not been taken up by the Court. The Court has not indicated when the matter will be taken up next.