ASHWINI KUMAR UPADHYAY versus UNION OF INDIA AND ANOTHER on 2 February 2023

1. The petitioner has invoked the jurisdiction of this Court underArticle 32 of the Constitution to challenge the constitutional validity ofSection 33(7) of the Representation of the People Act 1951[1].B

2. Apart from the above challenge, the petitioner seeks a directionto the Central government and the Election Commission of India to takeappropriate steps to restrict any person from contesting an election forthe “same office” from more than one constituency simultaneously.

3. At this stage, it would also be material to note that the thirdCprayer, prayer (c), which sought a direction to the Union governmentand the Election Commission “to take appropriate steps to discourageindependent candidates from contesting the Parliamentary and Assemblyelections” was rejected by an order of this Court dated 11 December2017.

D

D4. The basis of the petition is that on 5 July 2004, the Chief ElectionCommissioner urged the then Prime Minister to amend Section 33(7) ofthe Act of 1951 insofar as it permits a person to contest from more thanone constituency for the same office simultaneously. The petitioner urgesthat the Law Commission in its 255th Report had opined that theRepresentation of the People Act 1951 should be amended to provideEthat a person should not be permitted to contest from more than one seatat a time.

5. We have heard Mr Gopal Sankaranarayanan, senior counselappearing on behalf of the petitioner and Mr R Venkataramani, AttorneyGeneral for India. The Election Commission of India has also appearedFin these proceedings through its counsel, Mr Amit Sharma.

6. Counter affidavits have been filed by the Union of India andthe Election Commission.

7. During the course of the hearing, Mr Gopal Sankaranarayanan,Gsenior counsel urged that the petition implicates an issue under Article19 of the Constitution. It has been submitted that citizens exercise theirright to vote after knowing about a candidate’s character, qualificationsand criminal antecedents among other details. When a candidate whocontests from two seats, is elected from both, one of the two seats has

to be vacated. Apart from the financial burden which is imposed on thepublic exchequer for holding a bye-election, it has been urged that theelectorate which has cast its vote in favour of a candidate on the basisof the representations which were held out during the course ofcampaigning would be deprived of being represented by that candidatefor the Parliamentary or, as the case may be, the State LegislativeAssembly constituency. Consequently, it has been urged that the electoratewhich has opted for a candidate in pursuance of its right to know underArticle 19(1)(a) would be deprived of its right when the candidate vacatesthe seat.

8. Section 33(7) of the Act of 1951 provides as follows:

“Notwithstanding anything contained in sub-section (6) or in anyother provisions of this Act, a person shall not be nominated as acandidate for election,—

(a) in the case of a general election to the House of the People(whether or not held simultaneously from all Parliamentaryconstituencies), from more than two Parliamentary constituencies; (b) in the case of a general election to the Legislative Assemblyof a State (whether or not held simultaneously from all Assemblyconstituencies), from more than two Assembly constituencies inthat State;

(c) in the case of a biennial election to the Legislative Council ofa State having such Council, from more than two Councilconstituencies in the State; (d) in the case of a biennial election to the Council of States forfilling two or more seats allotted to a State, for filling more thantwo such seats; (e) in the case of bye-elections to the House of the People fromtwo or more Parliamentary constituencies which are heldsimultaneously, from more than two such Parliamentaryconstituencies; (f) in the case of bye-elections to the Legislative Assembly of aState from two or more Assembly constituencies which are heldsimultaneously, from more than two such Assembly constituencies; AB

C

D

E

FG

H

A

(g) in the case of bye-elections to the Council of States for fillingtwo or more seats allotted to a State, which are held simultaneously,for filling more than two such seats; (h) in the case of bye-elections to the Legislative Council of aState having such Council from two or more CouncilBconstituencies which are held simultaneously, from more than twosuch Council constituencies.

Explanation.—For the purposes of this sub-section, two or morebye -elections shall be deemed to be held simultaneously wherethe notification calling such bye-elections are issued by the ElectionCCommission under Sections 147, 149, 150 or, as the case may be,151 on the same date.”

9. The above provision was inserted by Act 21 of 1996 with effectfrom 1 August 1996. It is common ground between senior counsel andthe Attorney General for India that prior to 1 August 1996, there was nobar on the number of seats which a candidate could contest in the courseDof one election, be it for Parliamentary or State Legislative Assemblyconstituencies. Parliament has stepped in to provide that a candidatecannot contest more than two seats simultaneously in one and the sameelection.

E10. The issue which has been raised by the petitioner pertains tothe legislative domain. Undoubtedly, where a candidate contests morethan one seat simultaneously in the course of the same general election,one seat has to be vacated if the candidate succeeds in both the electoralcontests. That necessitates a bye-election. The petitioner has highlightedthe fact that this involves a drain on the public exchequer. The issue,Fhowever, is whether this by itself would result in the invalidation of astatutory provision.

11. A statutory provision can be challenged before the Court eitheron the ground that it has been made by a legislature which lacks legislativecompetence to enact a law or on the ground that there is a violation of aGFundamental Right in Part III of the Constitution. The former is not inissue.

12. Permitting a candidate to contest from more than one seat ina Parliamentary election or at an election to the State LegislativeAssembly is a matter of legislative policy. It is a matter pertaining toHlegislative policy since, ultimately, Parliament determines whether political democracy in the country is furthered by granting a choice such as ismade available by Section 33(7) of the Act of 1951. A candidate whocontests from more than one seat may do so for a variety of reasons notjust bearing on the uncertainty which the candidate perceives of anelection result. There are other considerations which weigh in the balancein determining whether this would restrict the course of electoraldemocracy in the country. This is a matter where Parliament islegitimately entitled to make legislative choices and enact or amendlegislation. The Law Commission and the Election Commission may atthe material time have expressed certain viewpoints. Whether theyshould be converted into a mandate of the law depends on the exerciseof Parliamentary sovereignty in enacting legislation. Absent any manifestarbitrariness of the provision so as to implicate the provisions of Article14 or a violation of Article 19, it would not be possible for this Court tostrike down the provision as unconstitutional.

13 This will not restrain Parliament from taking an appropriateview if it decides to do so at any point of time in pursuance of its legislativeauthority. Parliament has intervened in the past in the form of Act 21 of1996 which restricts the choice of a candidate for electoral contest totwo seats in one and the same election.

14. For the above reasons, we are of the view that no relief canbe granted in these proceedings.

15. The Petition shall accordingly stand dismissed.

16. Pending applications, if any, stands disposed of.

Nidhi Jain

Writ petition dismissed.

A

BC

D

E

F

G

H