The Supreme Court on Wednesday asked the Central Government if it was willing to consider imposing a life-ban on contesting elections for politicians who have been convicted for offences.
"What is the stand of Union of India? Are you willing to ban politicians who got convicted from contesting elections?", the Chief Justice of India asked the Additional Solicitor General SV Raju, who was appearing for the Centre.
The CJI added that unless the Centre takes a decision regarding amendment to the Representation of Peoples Act, after taking the views of the Election Commission of India, it will be difficult for the Court to decide the issue.
ASG Raju replied that he can't say anything off hand, without taking instructions from the Government. "I need to take instructions. I can't say anything off hand", the ASG said.
The bench, also comprising Justice DY Chandracahud and Justice Surya Kant, was hearing a PIL filed by Ashwini Upadhyay seeking life-time ban on convicted politicians. The PIL challenges the vires of Section 8 of the Representation of Peoples Act to the extent it bars persons from contesting elections only for a period of certain years on being sentenced for the specified offences.
Upadhyay, appearing as party-in-person, urged the bench to hear the main issue raised in his PIL seeking life-ban.
"A convicted person cannot become a clerk, but can become a minister", Upadhyay submitted to argue that this was arbitrariness.
The CJI quipped in lighter vein, "Ashwini Upadhyay has filed 18 petitions? I thing we need to have a special court to hear the cases of Ashwini Upadhyay and ML Sharma".
In 2017, the Election Commission had told the Supreme Court that it favoured a life ban on convicted persons from elections. In December 2020, the Centre filed an affidavit opposing life ban on MPs/MLAs. The Centre argued that the comparison drawn by the petitioner between legislators and public servants was misconceived.
In Upadhyay's petition, the Court has passed a series of orders for creating Special Courts to try the cases against sitting and former MPs/MLAs. Yesterday, the Court was primarily dealing with the issue whether cases triable by Magistrates can be assigned to Special MP/MLA courts created at the Sessions Court level. The bench clarified that its orders cannot be misconstrued to mean that cases triable by Magistrates are to be assigned to Sessions Court.
"The directions of this Court mandate the assigning and allocation of criminal cases involving former and sitting legislators to Sessions Courts or, as the case may be, Magisterial Courts. This has to be in accordance with the governing provisions of the law as applicable", the Court said in the order.
"Consequently, where a case is triable by a Magistrate under the Penal Code, the case would have to be assigned/allocated to a court of a Magistrate vested with jurisdiction and the Order of this Court dated 4 December 2018 cannot be construed as a direction requiring the trial of the case by a Sessions Court", the Court added.