PIL in SC against contesting from multiple constituencies and Rajya Sabha MPs and Sitting MLAs contesting in Lok Sabha polls

http://upcpri.blogspot.in/2014/03/pil-in-sc-against-contesting-from.html

PIL in SC against contesting from multiple constituencies and Rajya
Sabha MPs and Sitting MLAs contesting in Lok Sabha polls

http://www.livelaw.in/constitutional-validity-sub-sections-6-7-sections-33-70-representation-people-act-1951-challenge-supreme-court-india/

On February 26, 2014 by Live Law News Network
SC 11 LL Size


In what is likely to throw up a gamut of issues related to the
legality of permitting a candidate from contesting elections from two
constituencies at a single time, a writ petition has been filed before
the Hon'ble Supreme Court of India, by the 'Voters Party'- a political
party registered under section 29A of the Representation of Peoples
Act 1951 with effect from 03.01.2011, and represented its National
president, Mr. D.K. Giri, challenging the constitutional validity of
sub-sections (6) and (7) of Sections 33 and 70 of the Representation
of the People Act, 1951. The Union of India and the Chief Election
Commissioner have been arrayed as the respondents in the writ
petition.

The petitioner contends, in his writ petition, that the said
provisions promote a situation 'where a person files nomination paper
from two constituencies and manages to win from both the
constituencies and on winning from both the constituencies he is bound
by the existing law to vacate one of the seats thereby forcing a
unwarranted by election and its related expenses.'

Section 33 of the Representation of the People Act, 1951, inter alia,
provides that a person can contest a general election or a group of
bye-elections or biennial elections from a maximum of two
constituencies, while Section 70 of the Act, stipulates 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 (some
states have a Legislative Council or Vidhan Parishad as well, along
with the Vidhan Sabha), then he/she can only hold on to one of the
seats that he/she won in the election.

In the writ petition filed by the petitioner through Adv. Usha Nandini
V., the petitioner further avers that 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 would result in financial burden
on the public exchequer and the public would be forced to participate
in an unwarranted and forced bye-election. The petitioner has thus
sought for a mandamus declaring that the provisions under Sub-Section
6 and Sub-Section 7 of Section 33, Section 70 and any other relevant
Sections in the Representation of The People Act, 1951 which permits a
candidate to contest from two constituencies at a time in a single
election are unconstitutional.
The petitioner, in his writ petition, has adverted to the Background
Paper on Electoral Reforms that was prepared by the Core-Committee on
Electoral Reforms, a part of the Legislative Department of the
Ministry of Law and Justice in collaboration with the Election
Commission and released in 2010, wherein the Election Commission at
Issue No.6.5 had expressly recommended restricting the number of seats
from which a person can contest from in a particular election.

The petitioner says that the Election Commission had also, in fact,
proposed that if this provision was not changed, then if a person
contested from two seats, he/she should bear the entire cost of the
bye-election to the seat that he/she decides to vacate in the event
the person wins both seats and that the Governments have not
considered this issue seriously and so this provision stands as it is,
and the taxpayer money is being used to conduct the bye-election when
the candidate wins both seats.
The petitioner further contends that "the Election Commission's (EC)
proposal to bar a candidate from contesting in more than one
constituency, or seek reimbursement of the expenditure for holding the
bye-election is perfectly reasonable and fair and should be
implemented to save the citizens from an unwanted hardship and to
create a more fair and transparent electoral mechanism" and he has
sought for the issuance 'of an appropriate writ, order or direction
in the nature of mandamus directing the Respondent No. 2 to recover
the entire election expenses in the following situations:

An incumbent MLA contests for Lok Sabha, and on election vacates
the Assembly seat and vice versa;
A candidate who contest for both Assembly and Lok Sabha when
elections are held simultaneously; and
An elected member who vacates a seat and seeks re-election in
ensuing bye-election to establish his hold over the electorate, or to
change party affiliation.'

The petitioners avers in his writ petition that in all these cases,
the politician is clearly seeking to maximise his bargaining power or
further career prospects, and the people should not be made to pay for
the caprice or political insurance or greed of politicians and that
the state should be spared the expense in one of the two ways. First,
apart from barring multiple contests, an incumbent in a House must be
barred from contesting another election; a candidate vacating a seat
in a House must be barred from contesting in a bye-election for the
same House, or another House; and a candidate must be banned from
contesting for two different Houses simultaneously. Secondly, if any
candidate does contest for a second office, or vacates a seat and
contests in a bye-election, he / she must be made to pay the cost of
that bye-election.

The petitioner has also pointed out that though in 2004, the Election
Commission (EC) had proposed to do away with the process of candidates
contesting elections from two seats at the same time, the same could
not be implemented till date and the interference of the Apex Court is
highly warranted. In this context, the petitioner has sought for a
mandamus 'directing the Respondent to implement the proposals of the
Election Commission of India to restrict a candidate from filing
nomination papers from more than one constituency; alternatively, if
the candidate contest the elections from two constituencies and wins
from both seats then the entire cost of the byelection for the seat
vacated in the particular constituency should be recovered as penalty
/ fine from the vacating candidate' and also for a mandamus 'directing
the Respondent No. 2 (Chief Election Commissioner) not to permit any
candidate who are holding the post of MLA in any State Legislative
Assembly/ Council or Rajya Sabha to contest for the Lok Sabha Election
or in any Legislative Assembly election and vice versa'.

In view of the impending general elections which is likely to be
notified by the Election Commission in the first week of March, the
petitioner has also filed an application along with the writ petition
seeking a direction to the Chief Election Commissioner, not to receive
more than one nomination from a candidate for Lok Sabha Elections and
also not to permit any member of State Legislative Assembly or Rajya
Sabha to contest the upcoming elections.

The writ petition which has been filed today, is likely to come up for
admission before the Supreme Court next week.