ASHWINI KUMAR UPADHYAY versus UNION OF INDIA AND ANOTHER
[2023] 5 S.C.R. 701, Supreme Court of India, 2023
Outcome: Dismissed (Dismissed)
Segment: Ratio
A
B
C
D
E
F
G
H
701
   [2023] 5 S.C.R. 701
701
ASHWINI KUMAR UPADHYAY
v.
UNION OF INDIA AND ANOTHER
(Writ Petition (Civil) No 967 of 2017)
FEBRUARY 02, 2023
[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
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
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
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.
(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
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.
A
B
C
D
E
F
G
H
702
SUPREME COURT REPORTS
[2023] 5 S.C.R.
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.
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
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.
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
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
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,
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 “Act of 1951”
A
B
C
D
E
F
G
H
703
to be vacated. Apart from the financial burden which is imposed on the
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
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:
“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
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;
(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
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
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;
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
A
B
C
D
E
F
G
H
704
SUPREME COURT REPORTS
[2023] 5 S.C.R.
(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
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
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
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.
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,
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
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
legislative policy since, ultimately, Parliament determines whether political
A
B
C
D
E
F
G
H
705
democracy in the country is furthered by granting a choice such as is
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
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
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
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.
15. The Petition shall
accordingly stand dismissed.
16. Pending applications, if any, stands disposed of.
Nidhi Jain
Writ petition dismissed.
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, CJI]