vote, voting, voting ballot-3569999.jpg

Constitutionality of S. 33(7), Representation of the People Act

Report by Eshna Ray

The petitioner in the case of Ashwini Kumar Upadhyay Vs. Union of India and Another, challenged the constitutional validity of Section 33(7) of the Representation of the People Act 1951, which allows a person to contest an election for the same office from more than one constituency simultaneously. The petition seeks direction from the court to the Central government and the Election Commission to take appropriate steps to prevent this practice. The basis for the challenge is the Chief Election Commissioner’s request to the Prime Minister in 2004 to amend the act and the Law Commission’s 255th Report opinion that the act should be amended to restrict a person from contesting from multiple seats at a time. The petition is filed under Article 32 of the Constitution.

Facts:

The petitioner filed a petition to challenge the validity of Section 33(7) of the Representation of the People Act 1951, which allows a person to contest from more than one constituency for the same office simultaneously. The Law Commission in its 255th Report recommended amending the act to prevent this. The Election Commission of India and the Union of India filed counter-affidavits. The court heard arguments from both parties and the Attorney General for India. The court noted that the provision falls under the legislative domain and can only be challenged if there is a violation of a Fundamental Right or if the legislature lacks the competence to enact a law. Permitting a candidate to contest from more than one seat in a Parliamentary or State Legislative Assembly election is a matter of legislative policy, determined by Parliament. The court found no manifest arbitrariness in the provision or violation of Article 19 and concluded that the provision cannot be struck down as unconstitutional. The petition was therefore dismissed.

Plaintiff’s Contention:

The petitioner argues that contesting from multiple constituencies for the same office undermines the right of citizens to know about a candidate’s character, qualifications, and criminal record, as stated in Article 19 of the Constitution. When a candidate is elected from multiple seats, they have to vacate one, leading to a financial burden on the public and depriving the electorate of representation. The petitioner contends that this deprives the electorate of their right to know, as stated in Article 19(1)(a), and that this legislative issue should be addressed to prevent a drain on public resources through bye-elections. The contention is that the current provision allowing multiple constituencies is invalid.

Defendant’s Contention:

The defendant argues that the provision in the Representation of the People Act 1951 that allows a person to contest from more than one constituency for the same office simultaneously is a matter of legislative policy. It is within the legislative authority of Parliament to make the decision and enact or amend legislation. The defendant argues that unless there is manifest arbitrariness or a violation of a Fundamental Right in the provision, the Court cannot strike it down as unconstitutional. The defendant also mentions that Parliament has already intervened in the form of Act 21 of 1996 which restricts a candidate’s choice for an electoral contest to two seats in one and the same election.

Judgment:

The petition challenging the validity of Section 33(7) of the Representation of the People Act 1951, which permits a candidate to contest from more than one constituency in the same election, has been dismissed by the court. The court held that this provision, allowing a candidate to contest from multiple seats, is a matter of legislative policy and within the discretion of Parliament. The court stated that a statutory provision can only be struck down if it is made by a legislature lacking the competence to enact a law or if there is a violation of a fundamental right. In this case, the provision does not violate any fundamental rights, and therefore, the court cannot interfere with it. The Parliament has the authority to make legislative choices, and it has intervened in the past by restricting the choice of a candidate to two seats in the same election.

READ FULL JUDGEMENT: https://bit.ly/3HCQ5v3

Leave a Reply

Your email address will not be published. Required fields are marked *