Serious Candidate Will Find Resources To Make Deposit For Contesting In Election: Orissa High Court Upholds Constitutional Validity Of Section 34 RP Act

The Orissa High Court upheld the Constitutional validity of Section of Section 34 of the Representation of the People Act, 1951 which stipulates that eligible citizens can contest the election for being a Member of the Legislative Assembly (MLA) of the State only if each of them deposits Rs.10,000/- and for being a Member of Parliament (MP) only if they deposit Rs.25,000/.

A serious candidate for an election, who is keen on contesting will be able to find the resources to make the deposit of Rs.10,000/- for an election to the Legislative Assembly or Rs.25,000/- for the Parliament, the bench comprising the Chief Justice S. Muralidhar and Justice R K Pattanaik observed.

Uma Charan Mishra, the President of Odisha Durniti Sangharsa Mancha, had approached the High Court challenging the constitutional validity of Section 34 of RP Act. The petitioner contended that in terms of 2011 census, more than 22% of Indian population is below the poverty line i.e. having an annual income of not less than Rs.27,000. Therefore, debarring a large section of the population, which cannot afford the security money stipulated, from contesting an election, would make it a prerogative of those economically affluent; this adversely impacts the democratic process and the system of free and fair elect, he contended. Opposing this plea, the respondents contended that serious candidates who may have even to borrow money to file a nomination would, if they obtain a sufficient number of votes, be able to get refund of the amount so deposited without any serious prejudice to themselves.

The court noted that the right to contest an election or even to vote in an election in the Indian legal system is a statutory right and not a fundamental or common law right.  The court further noted that various High Courts have rejected the challenge against the unamended Section 34. [ Bholanath Srivastava v. Union of India AIR 1963 All 363, Raju V.B v. Chief Electoral Officer, State of Gujarat AIR 1976 Guj 66 , Ramayan Singh v. Union of India (2003) 2 PLJR 698]

The issue thus considered in this case was whether the increase in the deposit amount for contesting elections to the State Legislative Assembly and the Parliament brought about by the 2009 Amendment to Section 34 of the RP Act violates the basic structure of the Constitution?

In this regard, the bench made the following observations:

Serious candidate for an election, who is keen on contesting will be able to find the resources to make the deposit

A serious candidate for an election, who is keen on contesting will be able to find the resources to make the deposit of Rs.10,000/- for an election to the Legislative Assembly or Rs.25,000/- for the Parliament. These are days where crowd sourcing is not unknown. A candidate should be able to count on a minimum number of supporters for such an exercise.

Increase in the amounts cannot be said to be arbitrary or unreasonable.

While it is true that the previous amounts of deposit were Rs.10,000/- for an MP election and Rs.5,000/- for MLA election (for SC and ST Candidates) these amounts were Rs.5,000/- and Rs.2,500/- respectively. This has been enhanced to Rs.25,000/- and Rs.10,000/- respectively. In other words, this change has happened more than 13 years ago and if one were to adjust it for the Consumer Price Index, the increase in the amounts cannot be said to be arbitrary or unreasonable.

Elections are open to serious candidates and not to non-serious ones

The legislative scheme appears to be that even if a person of modest means who has to borrow to make a deposit of the minimum amount for elections to the Parliament or the Legislative Assembly, as the case may be, is unable to win the election, she can still hope to get the amount refunded provided of course he is able to secure a minimum number of votes. This way the elections are open to serious candidates and not to non-serious ones, who are not in a position to even muster the minimum range of support. The Court is unable to find the Scheme itself to be arbitrary and irrational. It appears to be logical. It gives sufficient room for serious candidates to contest the election and requirement of deposit of money does not act as deterrent, particularly since it is an amount that is refundable in terms of Section 158 of the RP Act. Therefore, the negative impact of the increase in the deposit amount brought about by the 2009 amendment is to a large extent neutralised by Section 158 of the RP Act. The Court is thus unable to view the above amendment as being arbitrary much less "manifestly arbitrary" so as to strike it down as being unconstitutional.

Judgment of Ireland High Court

The petitioner had also relied on a judgment of Ireland High Court in Thomas Redmond v. The Minister for the Environment, Ireland and the Attorney General (judgment dated 31st July, 2001 in 1997 No.4318P) which held that every citizen has an equal right to contest in an election. The court said that the said decision has to be understood in the context of the size of the population of the Republic Ireland and the chances on offer for the serious candidates to contest in the elections. While dismissing the writ petition, the court observed:

Therefore, the Court is not satisfied that in the Indian context the deposits would reduce the instances of "obsessive and anti democratic candidates wishing to open exploit the system for commercial gain". The High Court of Ireland felt that there was no reasonable alternative route to ballot paper "such as the nomination and signature system". Therefore, it was held that the deposit system would have effect of excluding persons from the ballot paper. In the present case, however, there is no such empirical demonstration of the negative effects of the requirement of a candidate having to make the monetary deposit for contesting the elections. In fact this system has been in vogue in India right from beginning and all that had happened in 2009 is the increase in the amount.

Case details

Uma Charan Mishra vs Union of India | 2022 LiveLaw (Ori) 56 | WP(C) 10633 of 2018 | 26 April 2022

Coram: Chief Justice S. Muralidhar and Justice R K Pattanaik

Counsel: Adv Ashutosh Mishra for petitioner, ASG P.K. Parhi , CGC D.K. Sahoo for respondents