Supreme Court Upholds the Validity of Contesting from Two Seats in Elections: Ashwini Kumar Upadhyay vs. Union of India (2023)

Date of the Judgment: February 2, 2023
Citation: (2023) INSC 75
Judges: Dr Dhananjaya Y Chandrachud, CJI, Pamidighantam Sri Narasimha J, and J B Pardiwala J. The judgment was authored by Dr Dhananjaya Y Chandrachud, CJI.

Can a candidate contest from multiple constituencies in the same election? The Supreme Court of India recently addressed this question, which has significant implications for electoral democracy. The court examined the constitutional validity of Section 33(7) of the Representation of the People Act, 1951, which allows a candidate to contest from a maximum of two constituencies simultaneously. The petitioner argued that this provision leads to unnecessary bye-elections and deprives voters of their chosen representative, thereby violating their right to information under Article 19(1)(a) of the Constitution. The Supreme Court, however, upheld the validity of the provision, emphasizing that it falls within the legislative domain and does not violate any fundamental rights.

Case Background

The petitioner, Ashwini Kumar Upadhyay, filed a writ petition challenging the constitutional validity of Section 33(7) of the Representation of the People Act, 1951 (the “Act of 1951”). The petitioner also sought a direction to the Central Government and the Election Commission of India to restrict any person from contesting an election for the same office from more than one constituency simultaneously. The petitioner’s case was based on the premise that the Chief Election Commissioner had, on 5 July 2004, urged the then Prime Minister to amend Section 33(7) of the Act of 1951 to prevent candidates from contesting from more than one constituency. The petitioner also cited the 255th Law Commission Report, which recommended a similar amendment.

Timeline:

Course of Proceedings

The Supreme Court heard the arguments of the petitioner, represented by Mr. Gopal Sankaranarayanan, and the respondents, represented by the Attorney General for India, Mr. R Venkataramani. The Election Commission of India also appeared through its counsel, Mr. Amit Sharma. Counter affidavits were filed by the Union of India and the Election Commission. The petitioner argued that Section 33(7) of the Act of 1951 violates Article 19 of the Constitution, specifically the right to information of the voters.

Legal Framework

The core legal provision under scrutiny was Section 33(7) of the Representation of the People Act, 1951, which states:

“Notwithstanding anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election,—
(a) in the case of a general election to the House of the People (whether or not held simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies;
(b) in the case of a general election to the Legislative Assembly of a State (whether or not held simultaneously from all Assembly constituencies), from more than two Assembly constituencies in that State;
(c) in the case of a biennial election to the Legislative Council of a State having such Council, from more than two Council constituencies in the State;
(d) in the case of a biennial election to the Council of States for filling two or more seats allotted to a State, for filling more than two such seats;
(e) in the case of bye-elections to the House of the People from two or more Parliamentary constituencies which are held simultaneously, from more than two such Parliamentary constituencies;
(f) in the case of bye-elections to the Legislative Assembly of a State from two or more Assembly constituencies which are held simultaneously, from more than two such Assembly constituencies;
(g) in the case of bye-elections to the Council of States for filling two 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 a State having such Council from two or more Council constituencies which are held simultaneously, from more than two such Council constituencies.
Explanation.—For the purposes of this sub-section, two or more bye-elections shall be deemed to be held simultaneously where the notification calling such bye-elections are issued by the Election Commission under Sections 147, 149, 150 or, as the case may be, 151 on the same date.”

This provision, inserted by Act 21 of 1996, limits a candidate to contesting from a maximum of two seats in the same election. Prior to this amendment, there was no restriction on the number of seats a candidate could contest.

Arguments

The petitioner argued that Section 33(7) of the Act of 1951 violates Article 19 of the Constitution. The primary arguments were:

• Violation of Voters’ Right to Know: Citizens exercise their right to vote based on a candidate’s character, qualifications, and criminal antecedents. When a candidate contests from two seats and wins both, one seat must be vacated. This deprives the electorate of their chosen representative, undermining their right to information under Article 19(1)(a) of the Constitution.

• Financial Burden: The need for bye-elections due to a candidate vacating a seat imposes a financial burden on the public exchequer.

The respondents, the Union of India and the Election Commission, argued that:

• Legislative Policy: Permitting a candidate to contest from more than one seat is a matter of legislative policy, and Parliament is entitled to make such choices. The provision does not violate any fundamental rights.

• No Manifest Arbitrariness: Section 33(7) of the Act of 1951 does not exhibit any manifest arbitrariness that would violate Article 14 of the Constitution.

Issues Framed by the Supreme Court

The Supreme Court addressed the following issue:

1. Whether Section 33(7) of the Representation of the People Act, 1951, is constitutionally valid, particularly in light of Article 19 of the Constitution?

Treatment of the Issue by the Court

Authorities

The Court considered the following:

• Representation of the People Act, 1951: Specifically, Section 33(7) which allows a candidate to contest from a maximum of two constituencies.
• The 255th Law Commission Report: Which had recommended amending the Act of 1951 to prevent candidates from contesting from more than one seat.

Judgment

How each authority was viewed by the Court?

• The Court examined Section 33(7) of the Representation of the People Act, 1951* and upheld its validity, stating that it was a matter of legislative policy.
• The Court acknowledged the 255th Law Commission Report* but stated that it is up to Parliament to decide whether to amend the law.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the principle of legislative sovereignty and the absence of any manifest violation of fundamental rights. The Court recognized that while there are valid concerns about the financial burden of bye-elections and the potential disenfranchisement of voters, these concerns do not outweigh the legislative prerogative of Parliament. The Court emphasized that the decision to allow candidates to contest from multiple seats is a matter of legislative policy, and unless such a policy is manifestly arbitrary or violates fundamental rights, the Court cannot interfere.

Logical Reasoning:

The Court considered the arguments that the provision leads to unnecessary bye-elections and deprives voters of their chosen representative. However, it held that these arguments do not outweigh the legislative prerogative of Parliament. The court stated: “Permitting a candidate to contest from more than one seat in a Parliamentary election or at an election to the State Legislative Assembly is a matter of legislative policy.”

The Court also noted: “A statutory provision can be challenged before the Court either on the ground that it has been made by a legislature which lacks legislative competence to enact a law or on the ground that there is a violation of a Fundamental Right in Part III of the Constitution.”

The Court further clarified: “Absent any manifest arbitrariness of the provision so as to implicate the provisions of Article 14 or a violation of Article 19, it would not be possible for this Court to strike down the provision as unconstitutional.”

The Court did not find any alternative interpretation that would invalidate the provision, and thus, it upheld the validity of Section 33(7) of the Act of 1951.

The decision was unanimous, with all three judges concurring.

Key Takeaways

• The Supreme Court upheld the constitutional validity of Section 33(7) of the Representation of the People Act, 1951, which allows a candidate to contest from a maximum of two constituencies simultaneously.
• The Court emphasized that this is a matter of legislative policy, and Parliament is entitled to make such choices.
• The decision reinforces the principle of legislative sovereignty, where the judiciary will not interfere unless there is a clear violation of fundamental rights or manifest arbitrariness.
• The judgment clarifies that concerns about financial burdens due to bye-elections and potential disenfranchisement of voters, while valid, do not outweigh the legislative prerogative.
• Parliament is free to amend the law in the future if it chooses to do so.

Directions

No specific directions were given by the Supreme Court in this judgment.

Development of Law

The ratio decidendi of this case is that Section 33(7) of the Representation of the People Act, 1951, is constitutionally valid, as it is a matter of legislative policy and does not violate any fundamental rights. There is no change in the previous position of law, as the court upheld the existing provision. The Court acknowledged that the Law Commission had recommended against allowing candidates to contest from more than one seat, but it stated that it is for Parliament to decide whether to amend the law.

Conclusion

The Supreme Court dismissed the writ petition challenging Section 33(7) of the Representation of the People Act, 1951, upholding the provision that allows candidates to contest from a maximum of two constituencies simultaneously. The Court emphasized that this is a matter of legislative policy and does not violate any fundamental rights. The decision reinforces the principle of legislative sovereignty and clarifies that concerns about the financial burden of bye-elections and potential disenfranchisement of voters do not outweigh the legislative prerogative of Parliament.