SC dismisses PIL on contesting from two seats


3 February 2023

New Delhi: The Supreme Court on Thursday dismissed a public interest plea seeking to restrict candidates from contesting election from more than one constituency during general elections to Lok Sabha and the State Assemblies, stating that the issue is a matter of “legislative policy” that comes under the domain of Parliament.

Refusing to strike down Section 33(7) of the Representation of People Act that permits a candidate to simultaneously contest from two constituencies during election to Lok Sabha or the State Assembly, a bench comprising Chief Justice D.Y. Chandrachud, Justice Pamidighantam S. Narasimha and Justice J.B. Pardiwala said that it is a matter of “legislative policy”  concerning “political democracy” falling within the domain of Parliament and the court has nothing to do with it.

The Section 33(7) of the Representation of People Act, 1951, permits a candidate to simultaneously contest any election (Parliamentary, State Assembly, Biennial Council, or bye-elections) from up to two constituencies. The provision was introduced in 1996 prior to which there was no bar on the number of constituencies from which a candidate could contest election at a time.

Rejecting the PIL by advocate Ashwini Kumar Upadhyay, the top court in its order said that there was, “No manifest arbitrariness for violation of article 14 and 21 of the constitution and it is not for this court to strike down the provision as unconstitutional. This issue lies in the domain of Parliamentary sovereignty. It is a matter for parliament to decide if such a choice should be made available.”

Noting that the Law Commission in its 255 report had  recommended  restricting a candidate to contest from one constituency only and 2004 Chief Election Commissioner’s recommendation to the then Prime Minister, the court in its order said that it was for Parliament to decide.

In the course of the hearing, the bench said that at times it happens that a leader to project his pan-India acceptance, contests election from two constituencies from different regions, and it has happened in India since long.

The court said that permitting a candidate to contest from more than one seat is a matter of legislative policy since ultimately it is for Parliament to decide whether the political democracy is furthered by granting such a choice.

The top court order leaving  it to parliament to take a call came on a PIL by advocate Ashwini Kumar Upadhyay seeking to declare as invalid and ultra-vires section 33(7) of the Representation of the People (RP) Act, which allows a person to contest a general election or a group of bye-elections or biennial elections from two constituencies.

He also sought direction to the Centre and the Election Commission of India (ECI) to take appropriate steps to discourage independent candidates from contesting Parliament and state Assembly elections.

“When a candidate contests from two seats, it is imperative that he has to vacate one of the two seats if he wins both. This, apart from the consequent unavoidable financial burden on the public exchequer, government manpower and other resources for holding bye-election against the resultant vacancy, is also an injustice to the voters of the constituency which the candidate is quitting from,” the plea had said.

Upadhyay in his plea had stated that in July 2004, the Chief Election Commissioner had urged the then Prime Minister for amendment of Section 33(7) of the RP Act to provide that a person cannot contest from more than one constituency for the same office simultaneously.

The poll panel, the PIL said, had alternatively suggested that if existing provisions are retained, then the candidate contesting from two seats should bear the cost of the bye-election to the seat that the contestant decides to vacate in the event of his/her winning both seats.

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