'For Parliament To Decide Whether To Allow Candidates To Contest From Two Seats' : Supreme Court Dismisses Challenge To Sec 33(7) RP Act

The Supreme Court on Tuesday dismissed a PIL challenging the constitutionality of Section 33(7) of the Representation of Peoples Act 1951, which allows a candidate to contest from two seats in elections.

Observing that it is a matter of legislative policy, the bench comprising Chief Justice of India DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala dismissed the PIL filed by Ashwini Upadhyay. The provision was challenged as unreasonable and arbitrary for creating extra burden on the public exchequer as bye-elections will invariably follow because candidates have to give up one seat in case they win from both the seats.

"Permitting a candidate for contesting for more than one seat is a matter of legislative policy since ultimately it is the Parliament's will on whether the political democracy is furthered by granting such choice", the bench observed in the order.

"Candidates may contest from different seats due to variety of reasons. Whether this would further the course of democracy is up to the Parliament", the bench stated further.

Senior Advocate Gopal Sankaranarayanan, appearing for the petitioner, placed reliance on the recommendations made by the Law Commission of India for doing away with the provision. In this regard, the bench observed that it is the prerogative of the Parliament to act upon the recommendations of the Law Commission. A statutory provision cannot be struck down as unconstitutional on the basis of the recommendation of the Law Commission.

Sankaranarayanan pointed out that before 1966, a candidate could contest from any number of seats. However, the law was amended in 1966 restricting this number of two. The bench observed that the Parliament may at a later time think it fit to further restrict the number and it can always amend the Act. However, a judicial interference is unwarranted.

The petitioner sought an alternative relief that candidates who seek to contest from two seats must be asked to deposit a higher sum on money. This prayer also the bench did not entertain terming it as a policy matter.

During the hearing, CJI Chandrachud orally observed that these are matters of political democracy and not for judicial interference. "What is wrong with this?", CJI asked the petitioner.

"There is another way to look at it. A leader can say that i want to establish my pan India and show that I can stand from West, east, north, south. These are all political decisions and ultimately the electorate will decide", CJI orally said.

"There is no immorality in that. There are historical figures who had that kind of popularity", Justice Narasimha added.

Case Title : Ashwini Kumar Upadhyay vs Union of India W.P.(C) No. 967/2017

Citation : 2023 LiveLaw (SC) 84

For Petitioner(s) Mr. Gopal Sankaranarayanan, Sr. Adv. Mr. Ashwani Kumar Dubey, AOR

For Respondent(s) Mr. R. Venkataramani, AG Mr. Tushar Mehta, SG Ms. Saudamini Sharma, Adv. Mrs. Rukhmini Bobde, Adv. Mr. Ankur Talwar, Adv. Mr. Chinmayee Chandra, Adv. Mr. Kanu Agrawal, Adv. Mr. Digvijay Dam, Adv. Mr. Vinayak Mehrotra, Adv. Mrs. Mansi Sood, Adv. Mr. Chitvan Singhal, Adv. Ms. Sonali Jain, Adv. Mr. Abhishek Kumar Pandey, Adv. Mr. Raman Yadav, Adv. Mr. Anand Venkatramani, Adv. Ms. Vijay Lakshami Venkataramani, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Amit Sharma, AOR Mr. Dipesh Sinha, Adv. Mr. Pallavi Barua, Adv. Ms. Sakshi Upadhayya, Adv. Ms. Aparna Singh, Adv. Mr. Balaji Srinivasan, AOR

Representation of Peoples Act 1951- Section 33(7) - Challenge to provision allowing candidates to contest from two seats rejected- 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. It is a matter pertaining to legislative policy since, ultimately, Parliament determines whether political democracy in the country is furthered by granting a choice such as is made available by Section 33(7) of the Act of 1951. A candidate who contests from more than one seat may do so for a variety of reasons not just bearing on the uncertainty which the candidate perceives of an election result. There are other considerations which weigh in the balance in determining whether this would restrict the course of electoral democracy in the country. This is a matter where Parliament is legitimately entitled to make legislative choices and enact or amend legislation. The Law Commission and the Election Commission may at the material time have expressed certain viewpoints. Whether they should be converted into a mandate of the law depends on the exercise of Parliamentary sovereignty in enacting legislation. 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- Para 12

Click here to read/download the judgment