Context: The Supreme Court recently asked the Centre if it was “willing” to favour a lifetime ban on contesting polls for people convicted of offences, even as it flagged the high number of cases pending against lawmakers, especially in Uttar Pradesh.

Centre Stand

  • In an affidavit filed by the Law Ministry in the court in December 2020, it had rejected the idea of a lifetime ban on convicted persons contesting elections or forming 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 their oath to serve citizens and country. They are bound by propriety, good conscience and interest of the nation.
  • The Centre 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”.
  • 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.
  • Centre’s stand in 2020 also 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 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,”.

Court Observations

  • A special bench headed by the CJI  asked the Additional Solicitor General appearing for centre that it is willing to ban people who have been convicted of offences from contesting elections.
  • 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”.
    • The lawyer for the Allahabad 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.
    • 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.

Related Facts

Attempts of Judiciary to the decriminalisation of politics

  • Association for Democratic Reforms(ADR) v. Union of Indian: A 2002 judgement of the SC made it obligatory for all candidates to file an affidavit before the returning officer, disclosing criminal cases pending against them.
  • PUCL v. Union of India: In its 2013 judgement SC upheld the constitutional right of citizens to cast a negative vote in elections. 
  • The famous order to introduce None of the above (NOTA) was intended to make political parties think before giving tickets to the tainted.
  • Lily Thomas v. Union of India (2013):  The Supreme Court struck down as unconstitutional Section 8(4) of the Representation of the People Act that allowed convicted lawmakers a three-month period for filing appeals to the higher court and to get a stay on the conviction and sentence.
  • Public Interest Foundation and Ors. v Union of India (2014): In its landmark judgment of SC directed all subordinate courts to decide on cases involving legislators within a year, or give reasons for not doing so to the chief justice of the high court.
  • Public Interest Foundation v. Union of India(2018): The court ordered political parties to publish the criminal details of their candidates in their respective websites and print as well as electronic media for public awareness. 
  • The court held that there is a lack of information about tainted candidates among the citizenry.
  • The recent judgment was based on a contempt petition filed about the general disregard shown by political parties to this 2018 Constitution Bench judgment. 

Section 321 of CrPC

  • Withdrawal from prosecution. 
  • The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried.

More about Decriminalization of Indian Politics.

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