'How Can Convicted Politicians Come Back?' : Supreme Court Seeks Union, ECI Stand On Lifetime Bar For MPs/MLAs After Conviction

In a PIL challenging election of convicted persons as MPs/MLAs, the Supreme Court today observed that criminalization of politics is a very major issue and sought the responses of Union of India and Election Commission on the challenge to constitutional validity of Sections 8 and 9 of Representation of People Act.

A bench of Justices Dipankar Datta and Manmohan was dealing with the public interest litigation (PIL) initiated by Advocate Ashwini Kumar Upadhyay, seeking life-long disqualification of MPs/MLAs who have been convicted of criminal offences. Vide this PIL, the petitioner has also challenged provisions of the Representation of People Act, which bar convicted politicians from contesting elections only for 6 years after serving the jail term.

At the outset of the hearing, Senior Advocate Vijay Hansaria, acting as Amicus Curiae, informed that despite many directions passed in the matter since filing of the PIL, about 5000 criminal cases pertaining to MPs/MLAs remain pending. He summarized the issues raised in the PIL thus: (i) expeditious disposal of MP/MLA cases (ii) constitutional validity of Section 8 of RP Act (which limits disqualification period of a convicted person to 6 years), and (iii) whether a person convicted of a criminal offense can form a political party, or be an office bearer of a political party?

Recapitulating previous orders of the Court, the Amicus highlighted that in 2017, a direction was passed for setting up of 12 special courts in 10 different states. Thereafter, up till 2023, orders were passed providing for nodal prosecution officers, no adjournments, etc. In 2023, the Court even passed a judgment in the case, issuing a slew of directions for monitoring of early disposal of pending criminal cases against MPs/MLAs. Yet, the situation remains abysmal.

"It's a matter of shame that after all this, 42% of sitting Lok Sabha members have [pending] criminal cases. For 30 yrs, cases are pending!", the Amicus exclaimed.

At this point, Justice Datta enquired from the Amicus as to where the fault for delay in disposal of the cases lay. Attempting to explain the reasons, the Amicus claimed: (i) Special Courts often take up cases other than MP/MLA matters, (ii) repeated adjournments are given and accused fail to appear, and (iii) witnesses are summoned by Courts but the summons are not served on them in time. 

When Justice Manmohan objected that the first reason seemed to be an "overgeneralized" statement as, in Delhi, designated MP/MLA courts have only a few matters listed and the concerned judge can be found to get free early in the day, the Amicus said that Delhi's may not be an appropriate example, as many states do not have designated MP/MLA courts.

"Let's not generalize the situation. You are painting the entire country with the same brush. It does not happen like this. Walk in the corridors of the trial court. Clients who have come for a hearing will curse you and tell you that 10.30 this judge has retired to his chambers. Another judge is so overloaded that...do a study minutely. Please tell us what the actual reason is. There can't be a blanket direction! Please study one court - take Rouse Avenue courts", said Justice Manmohan.

Senior Advocate Vikas Singh, supplementing Hansaria, submitted that there can be a direction for designated courts to take up MP/MLA matters first if they are listed, and thereafter, the other official works.

Justice Manmohan, however, stressed that despite Delhi having designated MP/MLA court, the numbers are not moving. The judge asked Amicus-Hansaria to approach the issue on a state-to-state basis, as each state may require a different approach.

Moving on, Vikas Singh drew the Court's attention to another issue ie the challenge to the vires of Sections 8 and 9 of Representation of People Act. He argued that it could not have been the intention of the Parliament that a person convicted of heinous offense (such as rape, murder) who is released after a short sentence of 2-3 yrs get elected as an MP/MLA.

"What we are seeing is 46-48% people with kidnapping, rape, murder charges coming back to Parliament where the sentences are for lesser period of time. This could never have been the intention of the Parliament, while drafting this section", he submitted.

Referring to Rambabu Singh Thakur v. Sunil Thakur, where the Supreme Court directed that all political parties must publish details of criminal antecedents of their candidates while filing nominations, Vikas Singh informed that a suggestion was given to the Court at the time that a political party would have to justify why it could not find a candidate with non-criminal background. "It was made a part of the Court's order. A status report was called thereafter...every political party, the stock answer is he is a social worker and all cases registered are false", he said.

Taking note, Justice Datta questioned as to how "after" conviction for criminal offenses, people can be permitted to come back to Parliament and State Legislatures: "once he is convicted, and the conviction is upheld...and after [...] enquiry...how can people come back to Parliament and Legislature? That they have to answer. There is also an apparent conflict of interest. They would be vetting the laws". Concurring, Vikas Singh summarized that the persons who are sought to be debarred are part of the Parliament which has to pass the laws for debarment.

With regard to the third prayer (pertaining to convicted persons being office bearers of political parties), it was claimed by the Amicus that under prevalent law, even a person convicted of murder can become President of a national recognized political party entitled to a reserved symbol. He further urged that Election Commission's defense is that its hands are tied, however, the poll body can issue guidelines dictating that convicted persons not act as office-bearers.

Notably, at one point, Justice Manmohan commented that there may be a situation where persons may have remote control of a political party through someone else, say, their wives. As such, all practical situations need to be visualized, so that no loophole is left. "Your goal is something which we need to achieve as a country. But there must not be a half-baked exercise...If tomorrow we leave a loophole, then the judgment ceases to have any impact. People will lose more faith in the institution rather than gaining...", the judge remarked.

Ultimately, the bench noted that the issue of expeditious disposal of MP/MLA cases was disposed of in 2023 by a three-judge bench of the Court, leaving it upon High Courts to monitor. However, as it was claimed that there was continuing delay in their disposal, with High Courts merely calling status reports and adjourning the matters, the division bench of Justices Datta and Manmohan placed the issue before CJI Sanjiv Khanna for constitution of an appropriate bench.

On the other hand, the issue pertaining to validity of Sections 8 and 9 of the RP Act was listed for consideration by the division bench itself after 3 weeks. The Court gave time to the Union (represented by Senior Advocate Sonia Mathur) as well as the Election Commission to file their affidavits. As a challenge to vires of statutory provisions was involved, it also called on Attorney General R Venkataramani to address the court.

Before the hearing ended, when counsel for Election Commission sought time to file a response, Justice Manmohan was heard remarking, "criminalization of politics is a very major issue. The Election Commission must have applied its mind and also have found a better solution than what has been canvassed before us". In response, the counsel submitted that the same would be placed before the Court.

Case Title: Ashwini Kumar Upadhyay v. Union Of India And Anr., W.P.(C) No. 699/2016