Two Be Or Not Two Be: Section 33(7) Of Representation Of Peoples Act 1951

Recently there has been news about Congress President Rahul Gandhi considering Wayanad as a second seat to contest Lok Sabha polls. Contesting elections from more than one seat is not new in the Indian scenario. Indira Gandhi contested the 1980 general elections from Medak and Rae Bareli, Sonia Gandhi contested from Amethi and Bellary in 1999. More recently, the current Prime Minister Narendra Modi contested the 2014 elections from Vadodara and Varanasi. The list incorporates various other leaders such as Lalu Prasad, Akhilesh Yadav, Mulayam Singh, N.T. Rama Rao, and Biju Patnaik who have chosen to contest from more than one constituency. In fact, Biju Patnaik went on to contest from four Lok Sabha seats during the1971 general elections.

As per section 33(7) of the Representation of Peoples Act 1951, a candidate to any election (parliamentary, the legislative assembly of states, biennial election to legislative councils, or bye-elections) can contest such election from not more than two constituencies. Inserted through an amendment in 1996, the provision aimed at limiting the number of seats from which one could contest elections from. Prior to the amendment, there was no limit on the number of constituencies a person could contest. Though negatively worded, the provision still provides scope to file nominations from more than one seat. However, Section 70 of the Act provides that if a person is elected to more than one seat in either House of Parliament or in the House or either House of the Legislature of a State, then s/he would have to resign from all but one seat within a prescribed time. In case the person fails to resign, all of those seats shall be deemed to have become vacant. This provision comes in conflict with 33(7), and even when one gets elected to two seats, s/he cannot continue to represent both and shall have to resign from at least one.

This conflict has led to criticism of Section 33(7) on multiple occasions. In 2004, the election commission had pegged 22 poll reforms to the then Prime Minister, which included limiting the number of seats to contest elections. The Law Commission of India in its 255th report submitted in 2015 has also recommended modifying the section. The report states that taking into account the expenditure of time and effort; election fatigue; and the harassment caused to the voters, Section 33(7) needs to be amended and candidates should be permitted to stand from only one constituency. The section has also been subject to public interest litigations (PIL) in the Supreme Court. In 2014, the Voters Party through its national president DK Giri moved the Supreme Court stating that Section 33(7) should be declared unconstitutional since the provision has no positive impact on the voters and is exploited by parties for political gains. Recently, advocate and BJP spokesperson Ashwini Kumar Upadhyay has also challenged the provision before the Apex Court. The petition is still under consideration and no judgment has been delivered as yet.

Numerous reasons are given for limiting the number of seats from which one could contest to one. It is argued that if a person is elected from both seats and has to resign from the other, it calls for bye-election, which is an unnecessary expenditure on the exchequer that could have been avoided with a different policy. Looking at the spending in each election, this concern appears legitimate. The 2014 Lok Sabha elections entailed a cost of Rs. 3,426 crore to the national exchequer, which accounts for jump of 131 percent over the expenses incurred in 2009 (Rs. 1483 crore). It is being reported that the 2019 general elections shall be the most expensive elections ever held in a democratic country. Apart from monetary expenditure, elections also involve deploying of man-force for conducting it. Bye-elections due to the vacancy by people elected from more than one seats would translate to the unnecessary burden on the government machinery.

The policy is also argued to be against the interest of voters. When a contestant is elected, voters place their trust in him/her to represent them and cater to them. The faith of at least one of the constituencies is shattered in cases where the contestant wins from more than one seat. The constituency then has to settle for someone who was probably not their first choice. Also, since election results are already declared, the outcome might have a bearing on bye-elections and free choice could in one way be compromised.

In spite of the flak drawn by the provision, political parties and the central government have mostly supported it. They believe that the provision allows leaders to maximize connect with voters and acts as a trust-building exercise. When an established leader contends from a seat away from his/her home turf along with the original seat s/he garners supporters for the party in the other constituency as well as maintains the confidence of his own people. It also acts as a buffer for politicians since the sway of votes cannot be predicted. Some also argue that it bridges the north-south divide or the east-west divide when a leader contests from divergent places. Also, voters know that the person concerned is contesting from another place and have a free choice of not electing him/her. Thus, there is no fraud against them and the policy does not violate voter's rights in any way.

On independent examination, it appears that the arguments made for retaining two-seat policy are driven by a self-centered agenda and appear politically motivated. The negative impacts of the provision appear to outweigh the arguments propounded in its favour. Thus it is high time that the policy of contesting from two constituencies is revaluated and amended. However, it should be kept in mind that people who are elected to state assemblies could still contest for the Lok Sabha, or vice versa even after amending the provisions. In order to remedy the situation, one solution could be a blanket bar, prohibiting member of one legislative body to not contest for the other without resigning. Another way could be syncing state assembly polls to the general elections. This would also tackle the issue of massive election expenditure in a larger way.

Tanaya Thakur is a 2nd-year LL.M student at South Asian University 

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