Back Up Plans at The Cost of Electorate

Vrinda Aggarwal

On 7th February, 2018, Ashwini Kumar Upadhyay filed a writ petition in the Supreme Court of India against the Election Commission (EC) and the State, challenging the validity of S. 33(7)(a) of the Representation of People’s Act, 1951 (Act), according to which “person shall not be nominated as a candidate for election— in the case of a general election to the House of the People from more than two parliamentary constituencies.” This was introduced by way of an amendment in 1996, which limited the number of seats from which a candidate could stand to two. In case a candidate wins from both the constituencies, S. 70 of the Act requires that the candidate ‘resign[s] from all but one seat’ within a prescribed time frame. After a candidate resigns from a seat, the constituency is forced to conduct by-elections. This provision may be utilised for a variety of purposes – such as for securing seat in the Lok Sabha [[i]] as well as displaying political influence [[ii]] – usually by the top leadership.

The Election Commission of India (EC) has shown its disdain towards this provision on the grounds that it unnecessarily burdens the public exchequer. It proposed that each candidate standing from multiple seats ought to deposit a prescribed sum which may cover the costs for conducting a bye-election. Even though the EC’s stand on the said question is agreeable but its reasoning is contestable. Firstly, the said suggestion suffers from the vice of arbitrariness as it discriminates between those candidates who can ‘buy’ their way through the system and those who cannot, thereby violating the principle of electoral equality. Secondly, it overlooks a larger value which is at stake– representational democracy.

Standing from multiple seats is the electoral equal of forum shopping. Just this time, it is not the due process which is at stake but the people’s mandate. Even though the electorate is aware that the candidate is standing from two seats, it is unlikely to know which seat would eventually be renounced in case a candidate wins from both the constituencies. This amounts to a fraud on the electorate since the candidate, who has no intention of retaining one of the two seats, induces the electorate to make a choice, only to render it meaningless, eventually.

The only possible rationale of this provision is to ensure that the candidates get their piece in the pie. The ‘candidate friendly’ law vests a right in the candidate, which neither flows from principles of constitutional justice nor democracy. In fact, it disrespects the mandate of the people by turning elections into political ploys for entering into power. In perusing through the validity of the said Act, two central issues arise:

  1. Whether the mandate of the people is constitutionally enforceable?

In political theory, electoral mandate is considered to be a tangible manifestation of the ‘general will’ of the people. [[iii]]  It gives legitimacy to a parliament to make laws for the people, who are bound by a social contract. According to Locke, “liberty of man in society is to be under no other legislative power but that established by consent in the commonwealth“. [[iv]]

The first phrase of the constitution – we the people – lends credence to the thesis that the political will of the people is above all, even constitutional will. Observing the same, the supreme court has held that representational democracy and by implication, free and fair elections, forms part of the basic structure of the constitution. It therefore follows that the electoral will of the people is constitutionally enforceable.

If this is the case, then how can a statute, subordinate to the constitution as well as the will of the people, create a condition which bars the proper enforceability of the electoral mandate? It cannot. Despite the foregoing, the Supreme Court has denuded the right to vote to a meagre position of a ‘legal right’.[[v]] It is suggested that the court utilises this opportunity to correct this position of law.

 2. What is the role of the EC as a constitutional body in taming the legislature on matters pertaining to elections?

Given that the EC has indicated its disdain towards the said provision, it would be interesting to analyse its institutional position in keeping the parliament in check, while it acts in its own interest specifically in the context of laws governing election.  Art. 324 of the Constitution vests EC with the duty to look after the “superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections”. Simultaneously under Art. 327, the Constitution, also recognises the power of the Parliament to make laws “with respect to all matters relating to, or in connection with, elections”. However, this power, under Art. 327, is to be exercised ‘subject to the Constitution’, thereby making Art. 327 (power of the Parliament to make laws with respect to elections) subservient to Art. 324 (EC’s control over matters pertaining to elections). Such a constitutional scheme checks that the parliament, constituted by the will of the people, does not make laws in its own favour in order to undermine the very source of its power.  Following the said rational, the Supreme Court in the case of Shri Sadiq Ali and Another v. EC of India while recognising this relationship held that the EC does not act under the guise of another entity while making its rules and regulations. This position now has significantly been altered now.

In the case of AC Jose v. Sivan Pillai and Others, the court, while upholding the legality of the introduction of the Electronic Voting Machines (also known as EVMs) held that “Commission (EC) in the garb of passing orders for regulating the conduct of elections cannot take upon itself a purely legislative activity which has been reserved under the scheme of the Constitution only to Parliament and the State Legislatures.” Further, in the case of Kanhiya Lal Omar v. RK Trivedi and Ors., the court held that the powers of the EC are plenary and operate in areas which have been left free by the legislature. Such an interpretation gives primacy to the legislature, thereby rendering the EC to a residuary position. Such a holding is contrary to the ordinary reading of the constitution.

The present petition allows the apex court yet another chance to recognise the elaborate system of checks and balances which our constitutional makers had deliberated upon. Allowing candidates to stand from two constituencies is totally inappropriate and requires urgent the intervention by the .

[i] For example, Rahul Gandhi, the President of the Working Committee of the Indian National Congress, stood from two seats in the 2019 General Elections – Amethi and

[ii] For Example, Narendra Modi, Prime Ministerial Candidate of the BJP in 2014 stood from two seats – Varanasi and Baroda – and won from both

[iii] J. Rousseau, The Social Contract and Discourses (Everyman ed., New York: Dutton, 1950), p.

[iv] John Locke, Of Civil Government (Everyman ed., New York, 1943), Book II, p. 127

[v] P.T. Rajan v. T.P.M. Sahir

The author is a student of Jindal Global Law School, Sonipat