The Supreme Court today asked whether it can refer to a Constitution Bench a plea seeking to bar convicted politicians from contesting election for life.
The apex court referred to the fact that a question as to whether politicians charged with offences attracting five or more years of jail term should be barred or not from contesting polls had already been referred a five-judge Constitution Bench.
"A matter seeking to bar the politicians, who have been charged with offences entailing five or more years of punishment, have been already referred to a Constitution Bench. Here is a much higher case that is of conviction. Should this matter not go to Constitution Bench?" a bench of Justices Ranjan Gogoi and Navin Sinha asked.
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The court was hearing a plea which sought to declare the provisions of the Representation of People Act (RPA) which bars convicted politician from contesting the elections for six years as ultra-vires to the Constitution.
The court's query was opposed by lawyers representing the petitioners, who said that the two-judge bench can deal with the issue.
Senior advocate Vikas Singh appearing for petitioner Ashwini Kumar Upadhaya said that today's Parliament has 30-40 per cent of tainted members and they will never ever enact a law which would enable their disqualification.
"They would never bring any law to debar the politicians with criminal records. Law commission has repeatedly recommended for legislative reforms. They will never be a judge of their own cause. It can't be expected from Parliament. It is the court which has to struck down the provisions which puts a cap of six years only," he said.
He said like the apex court in its earlier verdict said that people need to be informed about the criminal records of lawmakers during elections, similarly the provisions of the RPA needs to be struck down as it put a bar of only six years on the convicted politicians from contesting polls.
"The politicians across party lines are only interested in increasing their salaries every year or they will get together for abolishing Collegium system but they will never come together to enact this kind of law," Singh said.
He said that MPs and MLAs are considered as public servants like bureaucrats and when upon conviction in a crime the officers get terminated from service then why can't the lawmakers be barred for life from contesting the polls.
Senior advocate Krishna Venugopal, appearing for an intervenor in the plea, said framers of the Constitution have not included the provision of disqualification for life upon conviction because at that time several people were booked by Britishers for their involvement in freedom struggle.
"Nowadays, every political party has people who have criminal records but they have done nothing to prevent such elements from coming into politics," he said.
Citing a report submitted by former union home secretary N N Vohra in October 1993 on the problem of the criminalisation of politics and of the nexus among criminals, politicians and bureaucrats in India, Venugopal said that even after two decades nothing has been done so far.
The hearing remained inconclusive and would commence on August 23.
The apex court had on July 12 pulled up the Election Commission for not taking a clear stand on a plea seeking barring of convicted politicians for life.
It had said that the poll panel cannot remain silent on the matter and wondered whether it was "constrained" to give its views in the matter.
Referring to the EC's reply, the apex court had said it was clear that the poll panel had supported the cause espoused by petitioner seeking a life ban for convicted politicians.
The Centre, in its affidavit, had said the prayer sought by the petitioner seeking life-time bar on convicted lawmakers was not maintainable and the plea should be dismissed.
The EC affidavit said it was in favour of setting up special courts to decide the criminal cases related to people's representatives, public servants and members of judiciary, in accordance with the spirit of the Constitution.
It said it has been championing the cause of decriminalisation of politics within the constitutional and statutory framework, with the aid of Article 324 which relates to the functions and powers of the poll body.
It has also issued necessary instructions in furtherance of the mandate to conduct free and fair elections and to "decriminalise democracy", the poll panel had said.
The petition has also sought a direction to the Centre and the Election Commission to fix minimum educational qualification and a maximum age limit for persons contesting elections.
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