ASHWINI KUMAR UPADHYAYversusUNION OF INDIA AND ANOTHER

                          [2023] 5 S.C.R. 701                            701


                 ASHWINI KUMAR UPADHYAY                                  A
                                  v.
               UNION OF INDIA AND ANOTHER
                (Writ Petition (Civil) No 967 of 2017)
                        FEBRUARY 02, 2023                                B
        [DR. DHANANJAYA Y CHANDRACHUD, CJI,
          PAMIDIGHANTAM SRI NARASIMHA AND
                      J. B. PARDIWALA, JJ.]
      Representation of the People Act, 1951: s. 33(7) –
Constitutional validity of –s. 33(7) permitting person to contest from   C
more than one constituency for the same office simultaneously –
Plea that a person should not be permitted to contest from more
than one seat at a time – Held: Such relief cannot be granted –
Permittinga candidate to contest from more than one seat in a
Parliamentary election or at an election to the State Legislative        D
Assembly is a matter of legislative policy – Thisis a matter where
Parliament is legitimately entitled to make legislative choices and
enact or amend legislation – In absence of any manifest arbitrariness
of the provision or violation of Art. 14 or Art. 19, not possible to
strike down the provision as unconstitutional – However, the
Parliament not restrained from taking an appropriate view if it          E
decides to do so at any point of time in pursuance of its legislative
authority– Constitution of India – Arts. 14, 19.
     CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
No.967 of 2017.
                                                                         F
      (Under Article 32 of The Constitution Of India)
       Gopal Sankaranarayanan, Sr. Adv., Ashwani Kumar Dubey, Adv.
for the Petitioner.
      R. Venkataramani, AG, Tushar Mehta, SG, Ms. Saudamini Sharma,
Mrs. Rukhmini Bobde, Ankur Talwar, Chinmayee Chandra, Kanu               G
Agrawal, Digvijay Dam, Vinayak Mehrotra, Mrs. Mansi Sood, Chitvan
Singhal, Ms. Sonali Jain, Abhishek Kumar Pandey, Raman Yadav, Anand
Venkatramani, Ms. Vijay Lakshami Venkataramani, Arvind Kumar
Sharma, Amit Sharma, Dipesh Sinha, Pallavi Barua, Ms. Sakshi
Upadhayya, Ms. Aparna Singh, Balaji Srinivasan, Advs. for the
Respondents.                                                             H
                                  701
702               SUPREME COURT REPORTS                          [2023] 5 S.C.R.


A              The Judgment of the Court was delivered by
               DR. DHANANJAYA Y CHANDRACHUD, CJI
            1. The petitioner has invoked the jurisdiction of this Court under
      Article 32 of the Constitution to challenge the constitutional validity of
      Section 33(7) of the Representation of the People Act 19511.
B
             2. Apart from the above challenge, the petitioner seeks a direction
      to the Central government and the Election Commission of India to take
      appropriate steps to restrict any person from contesting an election for
      the “same office” from more than one constituency simultaneously.
             3. At this stage, it would also be material to note that the third
C     prayer, prayer (c), which sought a direction to the Union government
      and the Election Commission “to take appropriate steps to discourage
      independent candidates from contesting the Parliamentary and Assembly
      elections” was rejected by an order of this Court dated 11 December
      2017.
D            4. The basis of the petition is that on 5 July 2004, the Chief Election
      Commissioner urged the then Prime Minister to amend Section 33(7) of
      the Act of 1951 insofar as it permits a person to contest from more than
      one constituency for the same office simultaneously. The petitioner urges
      that the Law Commission in its 255th Report had opined that the
      Representation of the People Act 1951 should be amended to provide
E
      that a person should not be permitted to contest from more than one seat
      at a time.
             5. We have heard Mr Gopal Sankaranarayanan, senior counsel
      appearing on behalf of the petitioner and Mr R Venkataramani, Attorney
      General for India. The Election Commission of India has also appeared
F     in these proceedings through its counsel, Mr Amit Sharma.
             6. Counter affidavits have been filed by the Union of India and
      the Election Commission.
             7. During the course of the hearing, Mr Gopal Sankaranarayanan,
G     senior counsel urged that the petition implicates an issue under Article
      19 of the Constitution. It has been submitted that citizens exercise their
      right to vote after knowing about a candidate’s character, qualifications
      and criminal antecedents among other details. When a candidate who
      contests from two seats, is elected from both, one of the two seats has
      1
H         “Act of 1951”
     ASHWINI KUMAR UPADHYAY v. UNION OF INDIA                                703
       [DR. DHANANJAYA Y CHANDRACHUD, CJI]

to be vacated. Apart from the financial burden which is imposed on the       A
public exchequer for holding a bye-election, it has been urged that the
electorate which has cast its vote in favour of a candidate on the basis
of the representations which were held out during the course of
campaigning would be deprived of being represented by that candidate
for the Parliamentary or, as the case may be, the State Legislative
                                                                             B
Assembly constituency. Consequently, it has been urged that the electorate
which has opted for a candidate in pursuance of its right to know under
Article 19(1)(a) would be deprived of its right when the candidate vacates
the seat.
      8. Section 33(7) of the Act of 1951 provides as follows:
                                                                             C
      “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             D
      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;                                                            E
      (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    F
      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                  G
      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;
                                                                             H
704             SUPREME COURT REPORTS                            [2023] 5 S.C.R.


A           (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
B           constituencies which are held simultaneously, from more than two
            such Council constituencies.
            Explanation.—For the purposes of this sub-section, two or more
            bye -elections shall be deemed to be held simultaneously where
            the notification calling such bye-elections are issued by the Election
C           Commission under Sections 147, 149, 150 or, as the case may be,
            151 on the same date.”
             9. The above provision was inserted by Act 21 of 1996 with effect
      from 1 August 1996. It is common ground between senior counsel and
      the Attorney General for India that prior to 1 August 1996, there was no
D     bar on the number of seats which a candidate could contest in the course
      of one election, be it for Parliamentary or State Legislative Assembly
      constituencies. Parliament has stepped in to provide that a candidate
      cannot contest more than two seats simultaneously in one and the same
      election.

E            10. The issue which has been raised by the petitioner pertains to
      the legislative domain. Undoubtedly, where a candidate contests more
      than one seat simultaneously in the course of the same general election,
      one seat has to be vacated if the candidate succeeds in both the electoral
      contests. That necessitates a bye-election. The petitioner has highlighted
      the fact that this involves a drain on the public exchequer. The issue,
F     however, is whether this by itself would result in the invalidation of a
      statutory provision.
             11. A statutory provision can be challenged before the Court either
      on the ground that it has been made by a legislature which lacks legislative
      competence to enact a law or on the ground that there is a violation of a
G     Fundamental Right in Part III of the Constitution. The former is not in
      issue.
             12. Permitting a candidate to contest from more than one seat in
      a Parliamentary election or at an election to the State Legislative
      Assembly is a matter of legislative policy. It is a matter pertaining to
H     legislative policy since, ultimately, Parliament determines whether political
       ASHWINI KUMAR UPADHYAY v. UNION OF INDIA                                      705
         [DR. DHANANJAYA Y CHANDRACHUD, CJI]

democracy in the country is furthered by granting a choice such as is                A
made available by Section 33(7) of the Act of 1951. A candidate who
contests from more than one seat may do so for a variety of reasons not
just bearing on the uncertainty which the candidate perceives of an
election result. There are other considerations which weigh in the balance
in determining whether this would restrict the course of electoral
                                                                                     B
democracy in the country. This is a matter where Parliament is
legitimately entitled to make legislative choices and enact or amend
legislation. The Law Commission and the Election Commission may at
the material time have expressed certain viewpoints. Whether they
should be converted into a mandate of the law depends on the exercise
of Parliamentary sovereignty in enacting legislation. Absent any manifest            C
arbitrariness of the provision so as to implicate the provisions of Article
14 or a violation of Article 19, it would not be possible for this Court to
strike down the provision as unconstitutional.
       13 This will not restrain Parliament from taking an appropriate
view if it decides to do so at any point of time in pursuance of its legislative     D
authority. Parliament has intervened in the past in the form of Act 21 of
1996 which restricts the choice of a candidate for electoral contest to
two seats in one and the same election.
      14. For the above reasons, we are of the view that no relief can
be granted in these proceedings.                                                     E
        15. The Petition shall accordingly stand dismissed.
        16. Pending applications, if any, stands disposed of.

Nidhi Jain                                                Writ petition dismissed.
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