ASHWINI KUMAR UPADHYAY VS. UNION OF INDIA

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INTRODUCTION:

The petitioner requests guidance to take the necessary action to prevent anyone from running in more than one constituency at once in an election for the “same office” by the central government and the Indian Election Commission. The court asked the Union government and the Election Commission to “take appropriate steps to discourage independent candidates from contesting the Parliamentary and Assembly elections

FACTS OF THE CASE:

In order to contest the constitutionality of Section 33(7) of the Representation of the People Act 1951[1], the petitioner has invoked the jurisdiction of this Court under Article 32 of the Constitution[2]. In addition to the above objection, the petitioner requests that the Central government and the Election Commission of India take appropriate action to prevent anyone from simultaneously running for the “same office” in more than one constituency. Now would be a good time to mention that the third prayer, {prayer (c)}which asked for the Union government and the Election Commission to “take appropriate steps to discourage independent candidates from contesting the Parliamentary and Assembly elections,” which was denied by this Court in an order dated December 11, 2017.The petition’s premise is that on July 5, 2004, the Chief Election Commissioner requested that the then-Prime Minister change Section 33(7) of the Act of 1951[3] in order to prevent someone from running concurrently for the same post from more than one constituency. The petitioner claims that the Law Commission recommended amending the Representation of the People Act 1951 to prohibit a person from running for more than one seat at once in its 255th Report.

ARGUMENTS:

PETITIONER:

The petitioner argued that the petition raises a constitutional right under Article 19. It has been argued that citizens should only exercise their right to vote after thoroughly researching a candidate’s background, including their character, education, and criminal history. One of the two seats must be relinquished when a candidate running for two seats is elected from both. In addition to the financial burden that a by-election places on the public purse, it has been argued that the electorate that supported a candidate based on the arguments made during the course of the campaign would be denied the opportunity to have that candidate represent them in the State Legislative Assembly or Parliament, as the case may be. As a result, it has been argued that when a politician leaves office, the electorate that chose that candidate in reliance on its right to know under Article 19(1) (a) would lose such right.

RESPONDENT:

The respondent argued that whether running for Parliamentary or State Legislative Assembly seats, there was no limit on the number of seats a candidate could run for in a single election prior to 1 August 1996. A candidate may not run for more than two seats at once in the same election, thanks to intervention from Parliament.

ISSUE OF THE CASE:

When a candidate runs for more than one seat at once during a general election, one seat must be given up if the candidate wins both of the electoral races. This calls for a by-election. The question is whether this would be sufficient to render a statutory provision unlawful.

JUDGEMENT:

The court said that a statutory provision may be contested in court on the grounds that it was passed by a body lacking the authority to do so or that it violates one of the Fundamental Rights enumerated in Part III of the Constitution. The former is unimportant. In parliamentary elections or elections for the State Legislative Assembly, it is a question of legislative policy whether a candidate may run for more than one seat. It is a legislative policy issue because, in the end, Parliament decides whether allowing a choice like the one provided by Section 33(7) of the Act of 1951 will advance democracy in the nation. A candidate may run for more than one seat for a variety of reasons, including ones unrelated to the candidate’s perception of the outcome of the election. Other factors come into play when considering if this would restrict how the country’s electoral system develops. In this situation, Parliament has a legal right to decide which laws to pass, repeal, or modify. It’s possible that during the relevant moment, the Law Commission and the Election Commission voiced particular opinions. The exercise of parliamentary sovereignty in making laws will determine if they should be transformed into a mandate of the law. It would not be conceivable for this Court to declare the provision to be unconstitutional if there was no obvious arbitrariness of the provision that would conflict with the provisions of Article 14 or a breach of Article 19.

This won’t prevent Parliament from expressing an appropriate opinion at any moment in accordance with its legislative authority. Act 21 of 1996[4], a previous intervention by Parliament, limits a candidate’s option for an electoral campaign to two seats in a single election. no relief will be given in this proceedings for the aforementioned reasons

STATUTE:

Section 33(7) representation of the peoples Act of 1951[5] :

“Notwithstanding anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated 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.

Article 19 of the Constitution of India, 1949[6]:

Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) To freedom of speech and expression;

(b) To assemble peaceably and without arms;

(d) To move freely throughout the territory of India;

(e) To reside and settle in any part of the territory of India; and

(f) Omitted

(g) To practice any profession, or to carry on any occupation, trade or business

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause

(5) Nothing in subclauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe

(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,

(i) The professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) The carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise

Article 14 in the Constitution of India 1949[7]

Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 32 in the Constitution of India 1949[8]

Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

CONCLUSION:

A voter have a right to exercise their right to vote only after carefully investigating a candidate’s background, including their morals, education, and criminal record. When a candidate running for two seats is chosen from both, one of the two seats must be given up. A by-election strains the public budget financially in addition to other ways. A candidate may run for more than one seat for a many reasons, including ones unrelated to the candidate’s perception of the outcome of the election. Other factors come into play when considering if this would restrict how the country’s electoral system develops. Parliament has a legal right to decide to pass, repeal, or modify law.and the Court dismissed the case because the provision can be declared unconstitutional if there was no obvious arbitrariness of the provision that would conflict with the provisions breach of Article 14 or Article 19.

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