Allahabad High Court - Lucknow Bench Judgement

Allahabad High Court - Lucknow Bench Judgement

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JUDGEMENT HEADLINE : Challenged The Validity Of Section 33 (7) Of The Representation Of The People Act, 19512...no Reason To Entertain The Challenge To Section 33 (7)...
JUDGEMENT TITLE : Prabuddha Nagrik Chetna Manch Gonda Thru. President[ P.I.L.] Vs. Union Of India Thru. Secy. Deptt. Of Law New Delhi & Anr. On 13/07/2015 By Allahabad High Court - Lucknow Bench
CASE NO : MISC. BENCH NO. 6051 OF 2015
CORAM : Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Shri Narayan Shukla,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Chief Justice's Court AFR

Case :- MISC. BENCH No. - 6051 Of 2015

Petitioner :- Prabuddha Nagrik Chetna Manch Gonda Thru. President[ P.I.L.]
Respondent :- Union Of India Thru. Secy. Deptt. Of Law New Delhi & Anr.
Counsel For Petitioner :- Hari Ram Shukla
Counsel For Respondent :- A.S.G.,Manish Mathur

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Shri Narayan Shukla,J.

The Petition Invoking The Jurisdiction In Public Interest Seeks Two Reliefs In Regard To The Law Pertaining To Elections To Parliament And The State Legislature. The First Relief Is In Respect Of Rule 64 Of The Conduct Of Election Rules, 19611 Under Which A Candidate To Whom The Largest Number Of Valid Votes Have Been Given, Is To Be Declared To Be Elected Under Section 66 Of The Representation Of The People Act, 19512. The Petitioner Seeks A Mandamus By This Court To Refrain From Giving Effect To The Expression "to Whom The Largest Number Of Valid Votes Have Been Given".
The Contention Of The Petitioner Is That Sections 14 And 15 Of The Act Of 1951 Contain No Provision Under Which A Candidate With The Largest Number Of Votes Is To Be Declared To Be Elected. Section 14 Provides For A Notification Of A General Election To The House Of The People. Sub-section (2) Of Section 14 Empowers The President By Notification To Call Upon All Parliamentary Constituencies To Elect Members In Accordance With The Provisions Of The Act On Such Dates As May Be Recommended By The Election Commission. A Similar Provision Is Contained In Section 15 In Relation To The State Legislative Assembly.
Rule 64 Adopts The First Past The Post Principle Since A Candidate With The Largest Number Of Valid Votes Is To Be Declared As Elected. The Petitioner Has Not Challenged The Constitutional Validity Of Rule 64. But, Technicalities Apart, There Is No Reasonable Basis For This Court To Come To The Conclusion That The Provision Is Ultra Vires. The Manner In Which Elections Have To Be Held And Results Computed And Declared Is A Matter Of Legislative Policy. Rule 64 Provides An Acceptable Mode For Declaration Of Results In A Democracy By Postulating That A Candidate With The Largest Number Of Valid Votes Would Be Declared To Be Elected. This Does Not Either Infringe The Provisions Of The Parent Legislation Or For That Matter Of The Constitution. Hence We See No Substance In The Challenge.
The Petitioner Has Also Challenged The Validity Of Section 33 (7) Of The Act Of 1951. Under Clauses (a) And (b) Of Section 33 (7), A Person Cannot Be Nominated As A Candidate For An Election For More Than Two Constituencies At A General Election To The House Of The People Or, As The Case May Be, The Legislative Assembly Of The State.
Article 101 Of The Constitution Provides As Follows:
"101. Vacation Of Seats.-- (1) No Person Shall Be A Member Of Both Houses Of Parliament And Provision Shall Be Made By Parliament By Law For The Vacation By A Person Who Is Chosen A Member Of Both Houses Of His Seat In One House Or The Other.
(2) No Person Shall Be A Member Both Of Parliament And Of A House Of The Legislature Of A State, And If A Person Is Chosen A Member Both Of Parliament And Of A House Of The Legislature Of A State, Then, At The Expiration Of Such Period As May Be Specified In Rules Made By The President, That Person's Seat In Parliament Shall Become Vacant, Unless He Has Previously Resigned His Seat In The Legislature Of The State.
(3) If A Member Of Either House Of Parliament--
(a) Becomes Subject To Any Of The Disqualifications Mentioned In Clause (1) Or Clause (2) Of Article 102, Or
(b) Resigns His Seat By Writing Under His Hand Addressed To The Chairman Or The Speaker, As The As May Be, And His Resignation Is Accepted By The Chairman Or The Speaker, As The Case May Be,
his Seat Shall Thereupon Become Vacant:
Provided That In The Case Of Any Resignation Referred To In Sub Clause (b), If From Information Received Or Otherwise And After Making Such Inquiry As He Thinks Fit, The Chairman Or The Speaker, As The Case May Be, Is Satisfied That Such Resignation Is Not Voluntary Or Genuine, He Shall Not Accept Such Resignation.
(4) If For A Period Of Sixty Days A Member Of Either House Of Parliament Is Without Permission Of The House Absent From All Meetings Thereof, The House May Declare His Seat Vacant:
Provided That In Computing The Said Period Of Sixty Days No Account Shall Be Taken Of Any Period During Which The House Is Prorogued Or Is Adjourned For More Than Four Consecutive Days.

The Constitutional Validity Of Section 33 (7) Has Been Upheld By A Division Bench Of This Court In Raja John Bunch Vs. Union Of India & Others3 In A Judgment Delivered On 28 April 2014. The Division Bench Observed As Follows:
"Article 101 Does Not Contain Any Prohibition Or Restriction On A Person Contesting An Election Or Filing A Nomination From More Than One Constituency. Clause (1) Of Article 101 Provides That A Person Shall Not Be A Member Of Both The Houses Of Parliament. Clause (2) Of Article 101 Provides That No Person Shall Be A Member Of Parliament And Of A House Of The Legislature Of A State. If Such An Eventuality Occurs, Then, Upon The Expiry Of The Period Specified In The Rules Made By The President, The Seat Held In Parliament Would Become Vacant, Unless The Person Has Previously Resigned His Seat In The Legislature Of The State.

Sub-clause (b) Of Clause (3) Of Article 101 Allows A Member Of Either House Of Parliament To Resign His Seat By Writing Under His Hand Addressed To The Chairman Or The Speaker, As The Case May Be. The Seat Becomes Vacant Upon The Acceptance Of The Resignation By The Chairman Or The Speaker.

Consequently, A Plain Reading Of Article 101 Would Indicate That It Does Not Place Any Restriction On The Number Of Constituencies From Which A Person May File His/her Nomination During The Course Of A General Election. Such A Restriction Is Imposed In Sub-section (7) Of Section 33 Of The Representation Of The People Act, 1951. There Is Nothing Inconsistent Between Article 101 And Section 33 (7). Under Section 70, If A Person Is Elected To More Than One Seat In Either House Of Parliament Or Of The Legislature Of A State, He Has To Resign From All But One Of The Seats Within The Prescribed Time Failing Which All The Seats Shall Become Vacant.

The Submission Is That The Provision By Which A Candidate May Contest Or File His Nomination From More Than One Seat (subject To A Maximum Of Two) Results In A Situation Where The Constituency Would Be Unrepresented Once The Candidate Resigns From The Seat. This Circumstance Would Not, In Our View, Render A Provision Unconstitutional. A Seat May Fall Vacant For A Variety Of Reasons Including, Amongst Them, The Disqualifications Which Are Contained In Article 102 Of The Constitution. The Seat Which Falls Vacant Has To Be Filled Up In Accordance With Law.

As A Matter Of Fact, Article 101 (3) (b) Contemplates That A Seat Would Become Vacant When The Resignation Of A Member Of Either House Of Parliament From His Seat Is Accepted By The Chairman Or The Speaker, As The Case May Be."

The Division Bench Observed That The Election Commission Of India In 2004 Suggested Amendments To The Law To Provide That A Person Cannot Contest From More Than One Constituency At A Time. However, The Division Bench Noted That These Are Matters Of Legislative Policy. The Division Bench Held As Follows:
"In A Cases Pertaining To The Enactment Of A Particular Law Or Policy, The Court Would Not Be Justified In Issuing A Writ Of Mandamus Directing That The Law Should Be Amended. A Mandamus To That Effect Cannot Be Issued By The High Court Under Article 226 Of The Constitution. No Direction Can Be Issued To A Legislative Body To Enact A Law Or To Amend An Existing Law. The Alternate Reliefs Which Have Been Sought In The Petition Are All Basically Matters Of Legislative Policy. The Election Commission Of India, Which Is Vested With The Authority Under Article 324 Of The Constitution Of Superintendence, Direction And Control Over Elections, Has Formulated Its Suggestions For Electoral Reforms. The Matter Must Rest There, Insofar As This Court Is Concerned. We Find No Reason To Entertain The Petition Or To Accept The Submission That Section 33 (7) And Section 70 Of The Representation Of The People Act, 1951 Are Contrary To Article 101 Of The Constitution. We Also Decline To Entertain The Other Reliefs Which Have Been Pressed In The Alternate."

Following The View Which Has Already Been Expressed By The Division Bench With Which We Respectfully Concur, We See No Reason To Entertain The Challenge To Section 33 (7) Which Is Lacking In Substance.
For These Reasons, There Is No Merit In The Petition Which Is, Accordingly, Dismissed. There Shall Be No Reason As To Costs.

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