Say yes or no: SC raps ECI for unclear stand on barring convicted lawmakers

The Supreme Court on Wednesday pulled up the Election Commission for not taking a clear stand on a plea seeking a lifetime bar on convicted politicians from contesting elections, saying "silence was not an option" for it.

A bench comprising Justices Ranjan Gogoi and Navin Sinha came down heavily on the poll panel and asked whether it was "constrained" to not give its views on the matter.

"Is silence an option for you (ECI)? You must say either 'yes' or 'no' on whether you are supporting the petitioner. You are the ECI and here is a citizen of India who has come here to seek lifetime debarment of convicted persons. Can you say I will be silent? No, you cannot," the bench said.

"If you (ECI) feel constrained by the legislature, then let us know. If you are even constrained to the extent of giving your view, feel free and say so clearly," it said.

Referring to the ECI's reply, the apex court said it was clear that the poll panel has supported the cause espoused by petitioner Ashwini Kumar Upadhyay seeking a life ban for convicted politicians.

When the bench asked ECI to clarify its stand, its lawyer said the poll panel is supporting the cause to the extent of decriminalisation of politics.

The bench shot back, asking "Are you (ECI) supporting lifetime debarment?"

The counsel submitted that one of the paragraphs of the ECI's counter-affidavit said the poll panel supports the cause and it should not be "read in isolation".

"Paragraph eight of your counter-affidavit is very clear that you are supporting it. You are saying we have to read between the lines which we think we should not. We do not think why we should find out any other meaning of what is there in this paragraph," the bench said and fixed the matter for further hearing on July 19.

It also asked the ECI about what it had communicated to the Centre on the issue.When the ECI's counsel the court it has not said anything about that in the communication addressed to the Centre, the bench said "you cannot be silent".

However, the poll panel's counsel said the ECI was not the "correct authority to comment on it" and that it would file an additional affidavit in the apex court on the matter.

"It is submitted that the accompanying PIL, to the extent of relief claimed under prayers, are not adversarial and the answering respondent (Election Commission of India) supports the cause espoused by the petitioner," the ECI had said in its
affidavit.

During the arguments, Upadhyay, himself a lawyer who argued on behalf of one of the intervenors, told the bench that ECI's affidavit was clear that it was supporting the cause espoused by him.

When he claimed before the court that "30 per cent of the lawmakers are actually lawbreakers", the bench said, "It is a matter of statistics and we are not going into it".

"Are you also espousing the cause of convicted public servants and alleging discrimination," the apex court asked Upadhyay after he argued that on being convicted, public servants and judicial officers were eventually dismissed from service for life whereas a politician was debarred for only six years.

The Centre, in its affidavit, said the prayer of the petitioner for a lifetime ban on convicted lawmakers was not maintainable and the plea should be dismissed.

The ECI 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.

The affidavit was filed in response to a PIL which has also sought special courts for trial of criminal cases against people from the legislature, executive and judiciary.

The ECI 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.

On March 3, the apex court had granted the "last opportunity" to the government and the ECI to spell out their stand on a plea for barring convicts from contesting polls for life and stopping them from entering the judiciary and the executive.

The petition has also sought a direction to the Centre and ECI to fix minimum educational qualification and a maximum age limit for persons contesting elections.