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Will you ban convicts from polls, Supreme Court asks government

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Law Ministry rejected idea in 2020.

The Supreme Court on Wednesday asked the Centre whether it was “willing” to favour a lifetime ban on contesting elections for people convicted of offences.

“Are you willing to ban people who have been convicted of offences from contesting elections,” Chief Justice of India N.V. Ramana, heading a Special Bench, asked Additional Solicitor-General S.V. Raju, appearing for the Centre.

Mr. Raju said he had just been assigned the case and would need time to consult and formulate a response.

But the Government, in an affidavit filed by the Law Ministry in the court in December 2020, had rejected the idea of a lifetime ban on convicted persons contesting elections or becoming an office-bearer of a political party. The Ministry had reasoned that MPs and MLAs were not bound by specific “service conditions”.

“They are bound by oath to serve citizens and country… They are bound by propriety, good conscience and interest of the nation,” the Ministry had argued.

The Centre had attempted to buttress its case last year by citing a Constitution Bench decision in the Public Interest Foundation case of 2019 which said “though criminalisation of politics is a bitter manifest truth, which is a termite to the citadel of democracy, be that as it may, the court cannot make the law”.

In a separate case, the apex court said States have a large number of criminal cases pending against former and sitting legislators, and poll-bound Uttar Pradesh may host the “largest”.

The government had maintained that disqualification under the Representation of the People Act of 1951 for the period of prison sentence and six years thereafter was enough for legislators.

But the Centre’s stand in 2020 contradicts that of the Election Commission of India (ECI). In 2017, the top poll body had endorsed the call for a lifetime ban in the apex court. It had argued that such a move would “champion the cause of decriminalisation of politics”. The ECI had then agreed in the Supreme Court that a ban would be in the spirit of fundamental rights of the Constitution, including the right to equality.

The petitioner, advocate Ashwini Kumar Upadhyay, urged the need for a level playing field. He said if a convicted person cannot be a government clerk, the same rule should apply to a politician.

“A person who cannot be a government clerk, can be a Minister,” Mr. Upadhyay submitted.

In August 2021, the court had said Mr. Upadhyay’s petition raised a “vexed question” with “far-reaching ramifications and consequences”.

U.P. rapped over lack of courts to try cases against lawmakers

Meanwhile, in a separate case, the court said States across the country have a large number of criminal cases pending against former and sitting legislators, and poll-bound Uttar Pradesh may host the “largest”.

“There are a large number of cases…the largest is in your State,” Chief Justice Ramana addressed the counsel appearing for the Allahabad High Court.

The lawyer for the High Court said there were more than 1,300 criminal cases in Uttar Pradesh against legislators. Sixty-three Special Courts have been constituted to hear these cases. There are 74 districts of the State.

“Are these Special Courts constituted for this purpose [the trial of criminal cases against former and sitting MPs/MLAs] exclusively?” the CJI asked the lawyer.

Justice Surya Kant, on the Special Bench, said the total pendency of such cases in the State was 1,374. “You have not established a single court exclusively for this purpose,” he said.

Justice Kant said existing courts have been “labelled” Special Courts.

“Is it your intention to drag on these cases?” Chief Justice Ramana asked.

The court, in this case, is considering the delay in complying with a Supreme Court decision to have high courts constitute Special Sessions and Magisterial Courts to quicken the pace of long-pending criminal cases against legislators across the country.

Justice D.Y. Chandrachud referred to a December 4, 2018 order which had requested each High Court to “assign/allocate criminal cases involving former and sitting legislators to as many Sessions Courts and Magisterial Courts as each High Court may consider proper, fit and expedient”.

However, according to a report submitted by senior advocate Vijay Hansaria and advocate Sneha Kalita, the Allahabad High Court had constituted only Special Courts at the level of the Sessions Judge for trial of criminal cases against legislators. Moreover, the amicus report noted that the Special Judge in Allahabad was saddled with jurisdiction of over 12 adjoining districts where 300 cases against legislators were pending.

“You have misinterpreted the order of this court… We do not know the reason…” the CJI addressed the Allahabad High Court lawyer.

“Three hundred cases are pending in one court! These 300 cases are lying in the dust with other 7000 cases already pending in that court,” Justice Kant observed orally.

“You have misconstrued our order… The order is very clear. We had said ‘as many Sessions Courts and Magisterial Courts as each High Court may consider proper’. When other States have constituted Sessions and Magisterial Courts, Uttar Pradesh has constituted only Special Courts at the Sessions Judge level,” Justice Chandrachud said.

The court contemplated that the way forward may be to request the High Courts, which have not constituted Special Magisterial Courts, to establish them. The case on trial at the Special Sessions Courts would be transferred to these new Magisterial Courts. The trial of these cases would resume from the point of transfer.

Additional Solicitor General S.V. Raju, for the Centre, objected, saying the transfer of the records of these cases would take time and further delay the trial.

“They can constitute the Magistrate Court in the same court complex… No time will be taken,” Justice Kant responded.

Over 4400 criminal trials involving MPs and MLAs have been pending trial for decades. Some date back nearly 40 years. Most are stuck at the stage of framing of criminal charges. These cases range from corruption to money laundering.



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