Analyzing the Constitutionality of S 33 (7), Representation of People Act, 1951: Proposing Remedies

Deeksha Sharma

Recent trends in Indian electoral politics have seen the emergence of an increasing number of candidates contesting from more than one constituency. This article highlights how the apex court of India, had already erroneously upheld the Constitutionality of this provision and also suggests some solutions for the same. This system of parliamentary elections was borrowed from the United Kingdom, where presently contesting from two constituencies is considered illegal.

Supporting multiple candidacies, the Central Government said, it was intended to strike a reasonable balance for candidates who wanted to contest in two constituencies and the rights of voters. Election Commission contradicts with this provision because by poll causes an extra burden on the exchequer and the administration.

But, the constitutional validity of Section 33(7), Representation of People’s Act, 1951 has already been upheld by a Division Bench of the Hon’ble Allahabad High Court in Raja John Bunch v. Union of India.[i] The judges held that:

Article 101 does not contain any prohibition or restriction on a person contesting an election or filing a nomination from more than one constituency.”

There is nothing inconsistent between Article 101 and Section 33(7).

The Court further held that this provision results in a situation where the constituency would fee unrepresented once the candidate resigns from the seat. This circumstance would not 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.

The same has been upheld in Prabuddha Nagrik Chetna Manch v. Union of India[ii] and Dilip Kumar Mishra v Sunita Singh Chauhan[iii].

What the court failed to address was its consistency with the Indian Constitution, apart from what Article 101 had to say. Because Article 101, is silent on multiple candidacies for the Lok Sabha.

Effective representation, being essential to a democratic system, the process of popular representation assumes importance. This is undermined by the system of multiple elections. A democratic government is one in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.  Here the supreme power is lost from the hands of people, rested in those who are in power. The valuable vote is entirely lost.

Further, because he has to resign from all but one of his seats and by-elections are to be held within the maximum period of 6 months (S. 151-A of the Representation of the People Act, 1951), it is possible that the constituency may go unrepresented for a long period of time. This surely does not amount to effective representation and makes a mockery of the democratic process.

Likewise, the United Nations, in its ‘1948 Universal Declaration of Human Rights’, laid down in Article 21 that ‘Everyone has a right to take part in the government of his country, and ‘The will of the people shall be the basis, which shall be expressed by-elections on the idea of universal and equal suffrage’. But, where is the will here? People have already selected their preferred candidate. Their will is highly subdued and mitigated when asked to vote again. They might get upset and not choose to vote again for the same party which won even though it had the best candidate.  This is strictly against the Basic Structure of the Constitution.

It is also against Article 14 of the Indian constitution. The Indian Constitutional scheme clearly recognizes that effective representation is possible only through the system of one person, one constituency, which is also the objective of the Representation of People Act, 1951. When the object is single representation, allowing for multiple candidacies which in turn results in bye-elections, has no logical nexus with the end it seeks to achieve. It, therefore, is liable to be struck down as unconstitutional, being violative of Article 14.

The multiple-candidature is also discriminatory in nature as it provides a second chance to the voters of a constituency where the seat is vacated. Hence bringing in inequality amongst the voters in India.  It is also against the idea of “fair elections”, as the economically weaker candidates, would not have enough to contest from multiple constituencies, and hence the wealthier candidate gets more chances of winning, resulting in a totally unfair election.

A case has already been listed in the hon’ble Supreme Court for hearing. But what should be done until its final decision!! Until then, in my opinion, Multiple Candidacies can be exploited to increase the representation of women in politics. More precisely, party lists must be filled in such a way that each candidate cannot be followed by a candidate of the same gender (i.e. the ‘zipper’ principle).

The Zipper Principle would then allow the constituency which is left vacant, to come up with the next candidate of the same party but of the opposite sex. India in the 21st century, has not been able to provide even 50% representation of women in the Lok sabha There are 78 women representatives in 17th Lok Sabha. It is 14.6% of the total Lok Sabha strength. One may argue as to why not go for female quotas which are already implemented as  33% women quota in Municipal bodies. This quota system has fabricated women as “dummy rulers” since it is their male counterparts who rule and make decisions. Whereas Zipper Principle would make it mandatory for parties to give equal opportunities to deserving women candidates in their party. And, if they fail to do so, their candidate would not be allowed for multiple candidacies.

Another solution is if contesting from two constituencies as existing at present is to be retained, then there should be an express provision in the law that the person should deposit in the Government account an appropriate amount of money being the expenditure for holding the by-election, example Rs 10,00,000/- for Lok Sabha.

[i] Raja John Bunch v. Union of India, (2014) 105 A.L.R. 17.

[ii] Prabuddha Nagrik Chetna Manch v.Union of India, (2015) 112 A.L.R. 239.

[iii] Dilip Kumar Mishra v Sunita Singh Chauhan, 2018 S.C.C. OnLine Pat. 2052.

Deeksha  is a student at RMLNLU, Lucknow

Image credit: LiveLaw