SC to decide if candidate can contest from two seats

New Delhi: The Supreme Court on Wednesday agreed to examine whether a candidate can be allowed to contest from two Assembly or Lok Sabha constituencies during the elections.

A bench headed by Justice S.A. Bobde told advocate and petitioner Ashwini Kumar Upadhyaya, who mentioned the issue for urgent listing, that the matter would be listed for hearing after two weeks.    

The Election Commission has said that it favoured the proposal to bar a candidate from contesting in two Assembly or parliamentary constituencies during elections but the Centre has justified such a provision of law.

Section 33(7) of the Representation of the People Act (RPA), 1951, allows a person to contest a general election or a group of byelections or biennial elections from two constituencies, wher-eas Section 70 of the RPA specifies that if a person is elected to more than one seat in either House of the Parliament or in either House of the state Legislature, then he/she can only hold on to one of the seats that he/she won in the election.

Bharatiya Janata Party (BJP) advocate and spokesperson Ashwini Kumar Upadhyaya had challenged this provision as unconstitutional.

The Election Commission, however, in its response said it had made a proposal to the government in 2004 and 2016 to amend the provisions of Representation of the People Act to restrict the contest from only one constituency. It was for the Centre to act on the proposal.

Rejecting the Election Commission’s proposal, the Centre in its affidavit said the provision was intended to strike a reasonable balance for candidates who wanted to contest in two constituencies and the rights of voters. Such a provision provides wider choice to the polity as well as the candidate and is in line with the democratic set up in the country, the Centre stated. 

The affidavit also said the petitioner had failed to demonstrate the injustice it may cause to the voters at large and could not ask the court to legislate  and that said every individual has a right to contest elections.

The petitioner said one Person One Vote and One Candidate One Constituency is the dictum of democracy. However, as per the law, as it stands today, a person can contest the election for the same office from two constituencies simultaneously.

He said when a candidate contests from two seats, it is imperative that he/she has to vacate one of the two seats if he/she wins both. This, apart from the consequent unavoidable financial burden on the public exchequer, government manpower and other resources for holding bye-election against the resultant vacancy is also an injustice to the voters of the constituency, which the candidate is quitting from where he/she was elected.

The EC said on 05.07.2004, the Chief Election Commissioner urged the Prime Minister for amendment of Section 33(7) RP Act to provide that a person cannot contest from more than one constituency for the same office simultaneously. The ECI alternatively suggested that if existing provisions are retained then the candidate contesting from two seats should bear the cost of the bye-election to the seat that the contestant decides to vacate in the event of his/her winning both seats.