No logic in barring convicted MPs, MLAs for 6 years: SC

The Supreme Court questions the six-year election ban for convicted legislators, seeking a life ban instead, citing conflict of interest in law-making.

The Supreme Court said on Monday that it found no logic in a convicted legislator being barred from contesting elections for just six years and sought the Centre’s response on a petition seeking a life ban instead, observing that there exists an “apparent conflict of interest” in allowing a law-breaker to be a lawmaker.

The Supreme Court of India (ANI)

Addressing the issue in a public interest litigation filed by advocate Ashwini Kumar Upadhyay, pending since 2016, a bench headed by justice Dipankar Datta said, “If conviction is upheld, a government servant gets barred for life. Then, how do people come back to Parliament? There is an apparent conflict of interest too. How do persons breaking the law make laws?”

Upadhyay, who was represented by senior advocate Vikas Singh, challenged the constitutional validity of sections 8 and 9 of the Representation of Peoples Act, 1951. The petition demanded imposing a life ban on convicted politicians and to fast-track trials pending against them in various courts.

On the issue of monitoring pending trials against present and retired MPs/MLAs, the court referred the matter to the Chief Justice of India (CJI) Sanjiv Khanna after noting a November 11, 2023 order passed by a three-judge bench of the top court which had disposed this aspect of Upadhyay’s petition by issuing a slew of guidelines that required high courts to constitute a dedicated bench and monitor the progress of these cases. By the same judgment, the issue of challenge to Sections 8 and 9 was segregated for future consideration.

At present, under Section 8 of the Representation of Peoples Act, 1951, a legislator of a state assembly or Parliament gets disqualified from contesting elections for a period of six years beginning from the date he serves out the sentence for his crime. Under this provision, a host of offences are listed which can incur disqualification under the Act. Additionally, Section 8 prescribes that any conviction in an offence punishable with two or more years of sentence will also attract disqualification.

Section 9 states that a person having held an office under the state or central government, who has been dismissed for corruption or for disloyalty to the state, shall be disqualified for a period of five years from the date of such dismissal.

Posting the matter for further consideration on March 4, the bench requested the Attorney General for India R Venkataramani to assist in this case as it involves a challenge to a statutory provision. Senior advocate Sonia Mathur appeared for the Centre and requested for time to file a response.

Granting three weeks’ time to the Centre and the Election Commission (EC) to file their responses, the bench, also comprising justice Manmohan, said, “Criminalisation of politics is a major issue and EC should have applied its mind to it....We need to be told how one who is not suitable to continue in government service, can become a minister.” It further clarified that in the event no response is filed, the court will proceed with the matter.

Senior advocate Vijay Hansaria assisting the court as amicus curiae filed a note indicating how more than 5,000 cases are still pending against MPs/MLAs and how some states were yet to have dedicated courts for hearing cases against legislators. Though the matter was referred to the CJI, the bench felt that an extensive exercise needs to be done as to why the number of cases against MPs/MLAs remains stagnant as old cases don’t get decided while new ones keep getting added up.

Hansaria said that the top court in a judgment in the Public Interest Foundation (2015) case raised concern over the growing criminialisation of politics and directed that all cases against MPs/MLAs be concluded within a year and preferably by having a day-to-day trial. As this was not being done, Upadhyay filed a petition, Hansaria said.

Justice Manmohan, the second judge on the bench, shared his experience of visiting the dedicated MP/MLA court at Rouse Avenue courts and said, “The cases against MPs/MLAs are not moving. I was shocked to find on my visit to Rouse Avenue courts that the judge had retired for the day. We must study the states which are having dedicated courts and how it is functioning.”

Further, the bench noted, “We must have a mechanism to drastically bring down the number (of pending cases against MPs/MLAs). But we find that to handle 121 odd cases, there is only one judge.”

The amicus report pointed out that in 2018, the total pending cases against MPs/MLAs was 4,075 and as on January 1, 2025, this number increased to 4,732, with 559 cases pending for over a decade. Hansaria said that in the present Lok Sabha, the number of MPs with criminal cases is 251 (46%), of which 170 have serious criminal offences lodged against them.

The court also took up a related petition seeking directions against convicted persons from heading registered national or state political parties.

The bench was not convinced to entertain this issue as it noted “practical” difficulties in getting its order implemented. The bench observed, “The goal is very attractive, and we need to achieve it as a country... But there is a practical problem. We have seen people remote-controlling the political party as in some cases, the wife is made incharge.”