Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : .no Reason To Entertain Or To Accept That Section 33 (7) And Section 70 Of The Representation Of The People Act, 1951 Are Contrary To Article 101....
JUDGEMENT TITLE : Raja John Bunch Vs. Union Of India Thru' Secy. & 2 Others On 28/04/2014 By Allahabad High Court
CASE NO : PUBLIC INTEREST LITIGATION (PIL) NO. 24206 OF 2014
CORAM : Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Dilip Gupta,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Chief Justice's Court A.F.R.

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 24206 Of 2014

Petitioner :- Raja John Bunch
Respondent :- Union Of India Thru' Secy. & 2 Others
Counsel For Petitioner :- Tanveer Ahmad Siddiqui,Bidhan Chandra Rai
Counsel For Respondent :- A.S.G.I.,Bhoopendra Nath Singh, Krishna Agrawal.

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Dilip Gupta,J.

This Petition Has Been Filed In The Public Interest. The Petitioner Is An RTI Activist And Is A Life Member Of The National Campaign For People's Right To Information. The Petitioner Challenges The Constitutional Validity Of The Provisions Of Section 33 (7) Of The Representation Of The People Act, 1951 On The Ground That These Provisions Are Inconsistent With Article 101 Of The Constitution. The Petitioner Also Seeks A Writ Of Mandamus To Implement The Recommendation Which Was Made By The Election Commission Of India To Restrict A Candidate From Contesting An Election From More Than One Constituency In A Particular Election. The Petitioner Further Seeks A Mandamus To Recover The Entire Expenses Incurred In A Constituency In Which A Seat Gets Vacated As A Consequence Of A Candidate Resigning His Seat. Finally, The Petitioner Seeks That Guidelines Be Framed To Debar Every Member From Contesting An Election For A Stipulated Duration Upon Resigning His Or Her Seat.
Section 33 (7) Of The Representation Of The People Act, 1951 Provides As Follows:
"(7) Notwithstanding Anything Contained In Sub-section (6) Or In Any Other Provisions Of This Act, A Person Shall Not Be Moninated As A Candidate For Election,--
(a) In The Case Of A General Election To The House Of The People (whether Or Not Held Simultaneously From All Parliamentary Constituencies), From More Than Two Parliamentary Constituencies;
(b) In The Case Of A General Election To The Legislative Assembly Of A State (whether Or Not Held Simultaneously From All Assembly Constituencies), From More Than Two Assembly Constituencies In That State;
(c) In The Case Of A Biennial Election To The Legislative Council Of A State Having Such Council, From More Than Two Council Constituencies In The State;
(d)in The Case Of A Biennial Election To The Council Of States For Filling Two Or More Seats Allotted To A State, For Filling More Than Two Such Seats;
(e) In The Case Of Bye-elections To The House Of The People From Two Or More Parliamentary Constituencies Which Are Held Simultaneously, From More Than Two Such Parliamentary Constituencies;
(f) In The Case Of Bye-elections To The Legislative Assembly Of A State From Two Or More Assembly Constituencies Which Are Held Simultaneously, From More Than Two Such Assembly Constituencies;
(g) In The Case Of Bye-elections To The Council Of States For Filling Two Or More Seats Allotted To A State, Which Are Held Simultaneously, For Filling More Than Two Such Seats;
(h) In The Case Of Bye-elections To The Legislative Council Of A State Having Such Council From Two Or More Council Constituencies Which Are Held Simultaneously, From More Than Two Such Council Constituencies.
Explanation.--For The Purposes Of This Sub-section, Two Or More Bye-elections Shall Be Deemed To Be Held Simultaneously Where The Notification Calling Such Bye-elections Are Issued By The Election Commission Under Sections 147, 149, 150 Or, As The Case May Be, 151 On The Same Date."

Section 70 Makes The Following Provisions:
"70. Election To More Than One Seat In Either House Of Parliament Or In The House Or Either House Of The Legislature Of A State--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, Unless Within The Prescribed Time He Resigns All But One Of The Seats By Writing Under His Hand Addressed To The Speaker Or Chairman, As The Case May Be, Or To Such Other Authority Or Officer As May Be Prescribed, All The Seats Shall Become Vacant."

Under Clauses (a) And (b) Of Section 33 (7), It Is Provided That A Person Shall Not Be Nominated As A Candidate For An Election From More Than Two Constituencies At A General Election To The House Of The People Or, As The Case May Be, To The Legislative Assembly Of A State. In The Case Of Bye-elections To The House Of The People, A Candidate Cannot Be Nominated From More Than Two Parliamentary Constituencies. In The Case Of Bye-elections To The Legislative Assembly Of A State, A Candidate Cannot Be Nominated From More Than Two Assembly Constituencies In That State.
The Submission Before The Court Is That The Provisions Of Section 33 (7) Are Contrary To And Inconsistent With Article 101 Of The Constitution.
Article 101 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"

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 Election Commission Of India Had, In Its Proposals For Electoral Reforms Of 2004, Suggested That The Law Should Be Amended To Provide That A Person Cannot Contest From More Than One Constituency At A Time. In The Alternate, It Was Suggested That If The Provision Facilitating A Candidate To Contest From Two Constituencies Is To Be Retained, An Express Provision Should Be Made In Law To Deposit, With The Government, An Appropriate Amount Of Money Being The Expenditure For Holding The Bye-election. The Observations In The Report Of The Election Commission Of India Are Of Significance And Read As Follows:
"RESTRICTION ON THE NUMBER OF SEATS FROM WHICH ONE MAY CONTEST
As Per The Law As It Stands At Present [Sub-Section (7) Of Section 33 Of The Representation Of The People Act, 1951], A Person Can Contest A General Election Or A Group Of Bye-elections Or Biennial Elections From A Maximum Of Two Constituencies.
There Have Been Several Cases Where A Person Contests Election From Two Constituencies, And Wins From Both. In Such A Situation He Vacates The Seat In One Of The Two Constituencies. The Consequence Is That A Bye-election Would Be Required From One Constituency Involving Avoidable Labour And Expenditure On The Conduct Of That Bye-election.
The Commission Is Of The View That The Law Should Be Amended To Provide That A Person Cannot Contest From More Than On Constituency At A Time.
The Commission Will Also Add That In Case The Legislature Is Of The View That The Provision Facilitating Contesting From Two Constituencies As Existing At Present Is To Be Retained, Then There Should Be An Express Provision In The Law Requiring A Person Who Contests And Wins Election From Two Seats, Resulting In A Bye-election From One Of The Two Constituencies, To Deposit In The Government Account An Appropriate Amount Of Money Being The Expenditure For Holding The Bye-election. The Amount Could Be Rs.5,00,000/- For State Assembly And Council Election And Rs.10,00,000/- For Election To The House Of The People."

To The Same Effect, Is A Background Paper On Electoral Reforms Published By The Legislative Department Of The Ministry Of Law And Justice, Government Of India. The Suggestion In The Background Paper Is Thus:
"6.5 Restriction On The Number Of Seats Which One May Contest.
Section 33 Of The Representation Of The People Act, 1951, A Person Can Contest A General Election Or A Group Of Bye-elections Or Biennial Elections From A Maximum Of Two Constituencies. There Have Been Several Cases Where A Person Contests Election From Two Constituencies, And Wins From Both. In Such A Situation He Vacates The Seat In One Of The Two Constituencies. The Consequence Is That A Bye-election Would Be Required From One Constituency Which Apart From Involving Avoidable Labour And Expenditure On The Conduct Of That Bye-election.
* Recommendations
The Election Commission Is Of The View That The Law Should Be Amended To Provide That A Person Cannot Contest From More Than One Constituency At A Time."

These, In Our View, Are Matters Of Legislative Policy. What The Election Commission Of India Has Observed Is Undoubtedly A Matter Which Must Be Attributed The Greatest Weight And Deference But That Would Not Result In An Existing Provision Of Law Being Rendered Unconstitutional Or Arbitrary.
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.
The Petition Is, Accordingly, Dismissed. There Shall Be No Order As To Costs

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