election writ final 25.02.2014
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IN THE SUPREME COURT OF INDIA
ORIGINAL WRIT JURISDICTION
WRIT PETITION (C) NO.__________OF 2014
(Writ Petition Under Article 32 of the Constitution of India)
IN THE MATTER OF:
VOTERS PARTY
THROUGH ITS NATIONAL PRESIDENT
MR. D.K.GIRI … PETITIONER
VERSUS
UNION OF INDIA & ANR. … RESPONDENTS
WITH
I.A. NO. OF 2014
APPLICATION FOR DIRECTION
PAPER BOOK
(FOR INDEX KINDLY SEE INSIDE)
ADVOCATE FOR THE PETITIONER: MS. USHA NANDINI. V
RECORD OF PROCEEDINGS
SL. NO. DATE OF PROCEEDINGS PAGE NO.
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SECTION X
USHA NANDINI V.
IN THE SUPREME COURT OF INDIA
ORIGINAL WRIT JURISDICTION
WRIT PETITION (C) NO.__________OF 2014
(Writ Petition under Article 32 of the Constitution of India)
IN THE MATTER OF:
VOTERS PARTY
THROUGH ITS NATIONAL PRESIDENT
MR. D.K.GIRI … PETITIONER
VERSUS
UNION OF INDIA & ANR. … RESPONDENTS
I N D E X
S. NO. PARTICULARS COPIES C/FEES
1. Listing Performa 1+3
2. Synopsis 1+3
3. Writ Petition with affidavit 1+3
4. Annexures P-1 to P-2 1+3
5. I.A. NO. OF 2014
Application for Direction.
1+3
6. Vakalat & Appearance
Total 622/-
Filed by:
New Delhi
Dated: 25.02.2014
(USHA NANDINI V.)
Advocate for the Petitioner
57, Lawyers Chambers,
Supreme Court of India
New Delhi – 110001.
Code No. 1925
I.C. No. 3527
Mr. R. Purushothaman
I N D E X
SL.NO PARTICULARS PAGE NO.
1. Listing Performa
2. Synopsis
3. Writ Petition with affidavit.
4. ANNEXURE P/1:
A true Copy of the proposed electoral reforms
presented by the then CEC, T. S. Krishna Murthy
to the Prime Minister of India Dr. Manmohan
Singh on July 30, 2004.
5. ANNEXURE P/2:
A true Copy of 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.
6. I.A. NO. OF 2014
Application for Direction.
PROFORMA FOR FIRST LISTING
SECTION X
The case pertains to (Please tick/check the correct box)”
Central Act: (Title) CONSTITUTION OF INDIA, THE
REPRESENTATION OF PEOPLE ACT
1951.
Section: ARTICLE 32
SECTION 33 (6) (7) & SECTION 70
Central Rule: (Title):
Rule No(s):
State Act: (Title)
Section:
State Rule: (Title)
Rule No(s):
Impugned Interim Order: (Date)
Impugned Final Order/Decree: (Date)
High Court: (Name)
Names of Judges:
Tribunal / Authority: (Name)
1. Name of Matter:
Civil
Criminal
2. (a) Petitioner/Appellant No. 1: VOTERS PARTY,
THROUGH ITS
NATIONAL PRESIDENT
MR. D.K. GIRI
(b) E-mail ID:
(c) Mobile Phone
Number:
3. (a) Respondent No. 1: UNION OF INDIA & ORS.
(b) E-mail ID:
(c) Mobile Phone
Number:
4. (a) Main category
classification:
(b) Sub classification:
5. Not to be listed before:
6. Similar / Pending matter:
7. Criminal Matters:
(a) Whether accused / convict
has surrendered
Yes
No
(b) FIR No. Date:
(c) Police Station:
(d) Sentence Awarded:
(e) Sentence Undergone:
8. Land Acquisition Matters:
(a) Date of Section 4 notification:
(b) Date of Section 6 notification:
(c) Date of Section 17 notification:
9. Tax Matters: State the tax effect:
10. Special Category:
(First petitioner/appellant only)
Senior citizen
> 65 Years
SC/ST
Woman
/child
Disabled
Legal
Aid Case
In custody
11. Vehicle number (in case of Motor Accident Claim matters:
12. Decided cases with citation:
Date: 25.02.2014 AOR for petitioner(s) / Appellant(s)
(Name) MS. USHA NANDINI V.
Registration No. 1925
SYNOPSIS
The Petitioner is a political party registered under section 29A of the
Representation of Peoples Act 1951 with effect from 03.01.2011 and is
represented by its National President Dr. D.K. Giri. The Petitioner files the
present Writ Petition as a pro bono publico to challenge the constitutional
validity of Section 33 and Section 70 of the Representation of the People
Act, 1951.
The Petitioner is filing the present petition primarily for repealing the
provision in the Representation of the People Act, 1951 which promotes
the 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 on of the seats
thereby forcing a unwarranted byelection and its related expenses. It is
submitted that in such situations being representative of a particular
constituency the elected candidate should bear the cost of the entire bye –
election in the vacated constituency. The Petitioner further submits that a
person who vacates a seat, in such a situation, he/she not only impose/put
additional burden of cost of entire un-called bye- election on the citizen of
the country but also acts against the fundamental principles of
representative democracy as well as distorts the faith of people who have
elected him/her.
The Representation of the People Act, 1951, provides for the conduct
of elections to the Houses of Parliament and to the House or Houses of the
Legislature of each State.
Section 33 of the Representation of the People Act, 1951, provides
that a person can contest a general election or a group of bye-elections or
biennial elections from a maximum of two constituencies.
Further, Section 70 of the Representation of the People Act, 1951 says 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.
If the candidate manages to win from both constituencies,
then section 70 of the Representation of the People Act, 1951 becomes
applicable and the vacation of the one of the two seats won by the
candidate results in bye-election for the vacated seat, which is a tedious
process, one which is, needless to say, expensive, as the money that is
spent for this is taxpayer money. The provision allows candidates to fall
back upon a contingency if they are to lose the election to a seat.
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.
It is submitted that under the current law a candidate can contest
from two constituencies, but has to vacate one of the seats within 10 days
necessitating a bye-election. It is submitted that, in the event of the person
winning both seats from which he/she contests for in a bye-election for the
seat, which he/she will ultimately vacate, involves avoidable labour and
expenditure. The provision of law is very often misused by the contestants
as a security / insurance at the cost of the general public/ taxpayer which is
forced to bear the burden of a candidates fancy.
COST OF CONDUCTING ELECTIONS
The General Elections of India are the world’s biggest election exercise.
During the 2009 General Elections, an estimated 717 million strong
electorate exercised their franchise through 1.3 million Electronic Voting
Machines deployed in 834 thousand polling stations spread across the
length and breadth of India to elect 543 Members of the Lok Sabha from
amongst eight thousand candidates contesting the elections.
The General Elections are conducted every five to six years since
independence to decide as to who rules over 850 million Indians. It is an
enormous exercise and a mammoth venture in terms of money spent.
Hundreds and thousand of vehicles of various kinds are pressed on to the
roads in the 543 parliamentary constituencies on behalf of thousands of
aspirants to power, many days before the general elections are actually
held. Millions of leaflets and many millions of posts are printed and
distributed or pasted all over the country. Banners by the lakhs are hoisted.
Flags go up, walls are painted, and hundreds of thousands of loudspeakers
play out the loud exhortations and extravagant promises. VIPs and VVIPs
come and go, some of them in helicopters and air taxis.
According to the Government of India’s Ministry of Law, Justice and
Company Affairs (Legislative Department), the official expenditures for
the conduct of elections have been increasing steeply in each successive
general election. Without adjusting for inflation, the estimated cost of the
2004 general election is 125 times greater than the cost of the first general
election held in 1952. For the 15 general elections held in India to date
(from 1952 to 2009), the official costs as computed by the government for
Lok Sabha elections since 1952.
In 1967, the exercise cost the exchequer only Rs 10.79 Crores. This
figure rose steadily to Rs 11.6 Crores in 1971, Rs 23.03 Crores in 1977,
Rs 54.77 Crores in 1980, Rs 81.51 Crores in 1984 and Rs 154.22 Crores
in 1989. The government's election expenses shot up enormously in 1991
to Rs 359.10 Crores, Rs 597.34 Crores in 1996, Rs 666.22 Crores in
1998, and Rs 880.0 Crores in 1999, in 2004 it rose to 1300 Crores.
According to a study conducted by the Center for Media Studies various
parties and government spent an estimated Rs. 10,000 Crores for the
conduct of the 2009 elections. The Government spent about 20% of the
total expenses including Rs. 1300 Crores in addition to which Rs.700
Crores were spent by various governmental agencies for photo identity
cards, EVMs, Polling Booth etc.
ELECTION MACHINERY
The responsibility for conducting the elections to the Lok Sabha is vested
in the Election Commission of India according to the provisions of Article
324 of the Constitution of India. The Election Commission is assisted at the
State level by the Chief Electoral Officer of the State, who is appointed by
the Election Commission in consultation with the State government. The
Chief Electoral Officer is assisted by District Election Officers, Electoral
Registration Officers, and Returning Officers at the constituency level. In
addition, the Election Commission co-opts a large number of officials from
the Central (or federal) and State governments for about two months during
each General Election, for conducting the elections. About 5 million
officials were deployed during the 2009 General Election.
PROPOSED REFORMS
The Election Commission of India has, on many occasions, proposed a
change to this provision. In 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,
the Election Commission at Issue No.6.5 has expressly
recommended restricting the number of seats from which a person can
contest from in a particular election.
The Election Commission has 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.
However 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.
It is submitted that it is often noticed in Indian political senario that
an elected leader resigns from the party and joins new party and the burden
of such also resignation compels by election.
It is also noticed that if parliament election is declared then some
assembly members file nomination dor the parliamnt seats and if they are
elected, then they force upon the voters an unwarrented by election to
assembly constituencies vacated by them.
There have also been instances when political parties induct non
elected leaders into cabinet and force some one to leave seats forcing a by-
election on the public. By election itself causes huge expenses and is a
drain on the public exchequer. It is submitted that the law should be stteled
as to when a by-election should be conducted.
It is respectfully submitted that a byelection should not be forced
upon the public without death or serious ailment of the candidates. The
political parties should not be allowed to fight their internal disputes at the
cost of the general public and public funds by forcing by-elections. An
elected representative shall not be entitled to resign from the post
prematurely other, than on the ground of physical illness, without
depositing the entire costs of the election in which he has declared as
elected, and in case he failed to deposit the cost of the election the same
should be recovered by the Election Commission just like the dues of land
revenue.
It is submitted 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 implementd to save the citizens from an
unwanted hardship and to create a more fair and transparent electroral
mechanism.
The merit of this proposal could be enhanced by extending it to
occasions when:
a) An incumbent MLA contests for Lok Sabha, and on election vacates
the assembly seat and vice versa;
b) A candidate may contest for both assembly and Lok Sabha when
elections are held simultaneously; and
c) An elected member vacates a seat and seeks re-election in the
ensuing bye-election to establish his hold over the electorate, or to
change party affiliation.
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.
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.
Since the winner can represent only one constituency, all of them
had to later vacate one of the seats forcing a by election in that constituency
which involves additional expenses and effort. So 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, which could not be
implemented till date and the interference of this Hon'ble Court is highly
warranted.
Hence This Writ Petition.
IN THE SUPREME COURT OF INDIA
(ORIGINAL CIVIL JURISDICTION)
WRIT PETITON (C) NO. OF 2014
IN THE MATTER OF:
VOTERS PARTY
THROUGH ITS NATIONAL PRESIDENT
MR. D.K.GIRI
PARTY OFFICE,
A-3, KAVERI APARTMENTS,
PLOT NO. 111/9,
KISHANGARH, VASANT KUNJ,
NEW DELHI – 110070. PETITIONER
VERSUS
1. UNION OF INDIA
REPRESENTED BY THE
CABINET SECRETARY,
NORTH BLOCK
NEW DELHI.
2. CHIEF ELECTION COMMISSINER
OFFICE OF THE ELECTION COMMISSIONER
ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN,
ASHOKA ROAD,
NEW DELHI-110001 RESPONDENTS
PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
TO
THE HON’BLE CHIEF JUSTICE OF INDIA AND
HIS COMPANION JUSTICES OF
THE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE
PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHOWETH:
1. That the petitioner is filing the present Writ Petition Under Article
32 of the Constitution of India praying for a writ of mandamus
directing the Respondents to amend / reform the provisions under
Sub-Section 6 and Sub-Section 7 of Section 33, Section 70 and any
other relevant Sections of The Representation of The People Act,
1951 as proposed by the Election Commission of India and Law
Commission of India on various occassions in order to restrict a
candidate from filing nomination papers for more than one
constituencies so as to reduce and to avoid unwarrented expense on
the exchequer or in the alternative in case the provisions are not
amended/reformed and the candidates who contests from two seats,
then he/she should bear the cost of the entire bye –election to the seat
that he or she decides to vacate in the event of his/her winning from
both the seats as penalty or fine.
1.A That the petitioner challenging the Constitutional validity of the
above said provisions of The Representation of The People Act,
1951 and this Hon’ble Court is the appropriate authority to approach
for the same and hence no need to approach any other authority for
any other reliefs.
2. The Petitioner is a political party registered under section 29A of the
Representation of Peoples Act 1951 with effect from 03.01.2011
represented by its National President Dr. D.K. Giri.The Petitioner
files the present Writ Petition as a pro bono publico to challenge the
constitutional validityof Section 33 (6), 33 (7), Section 70
Representation of the People Act, 1951.
“Section 33 (6) Nothing in this section shall prevent any
candidate from being nominated by more than one
nomination paper:
Provided that not more than four nomination papers shall be
presented by or on behalf of any candidate or accepted by
the returning officer for election in the same constituency.
(7) 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;
(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
section 147, section 149, section 150 or, as the case may be,
section 151 on the same date.
Section 70 Election to more than one seat in either House of
Parliament or in the House or either House of the
legislature of a State.—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, then, unless
within the prescribed time he resigns all but one of the seats
8[by writing under his hand addressed to the Speaker or
Chairman, as the case may be, or to such other authority or
officer as may be prescribed], all the seats shall become
vacant.”
(Emphasis Supplied)
3. It is submitted that the Petitioner is filing the present petition
preliminary for repealing the provision in the Representation of the
People Act, 1951 which promotes the 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 on of the seats thereby
forcing a unwarranted byelection and its related expenses. It is
submitted that in such situations being representative of a particular
constituency the elected candidate should bear the cost of the entire
bye –election in the vacated constituency. The Petitioner further
submits that a person who vacates a seat, in such a situation, he/she
not only impose/put additional burden of cost of entire un-called
bye- election on the citizen of the country but also acts against the
fundamental principles of representative democracy as well as
distorts the faith of people who have elected him/her.
4. The Representation of the People Act, 1951 (RPA), which
provides for the conduct of elections to the Houses of Parliament and
to the House or Houses of the Legislature of each State.
5. It is submitted that the Section 33 of the Representation of the People
Act, 1951, provides that a person can contest a general election or a
group of bye-elections or biennial elections from a maximum of two
constituencies.
6. It is further submitted that the Section 70 of the RPA says 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.
7. It is submitted that if the candidate manages to win from both
constituencies, then Section 70 of the RPA becomes applicable, and
the vacating of the one of the two seats won by the candidate results
in bye-election for the vacated seat, which can be a tedious process,
one which is, needless to say, expensive, as the money that is spent
for this is taxpayer money. It is difficult to ascertain the nature of
the legislative intent that went into the passing of this statute,
however the provision allows candidates to fall back upon a
contingency if they are to lose the election to a seat.
8. It is submitted 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 apart from involving avoidable labour and
expenditure on the conduct of that bye-election.
9. It is submitted that the winner can represent only one constituency,
all of them had to later vacate one of the seats forcing a by election
in that constituency which involves additional expenses and effort.
So 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 proposed electoral reforms presented by the then
CEC, T. S. Krishna Murthy to the Prime Minister of India Dr.
Manmohan Singh on July 30, 2004. The report is divided into two
parts. At ISSUE No. 04 the then CEC mentioned to the Prime
Minister of India that,
“4. Restriction on the Number of Seats from which One May
Contest
The Commission is of the view that the law should be amended
to provide that a person cannot contest from more than one
constituency at a time. The Commission will also add that in
case the legislature is of the view that the provision
facilitating contesting from two constituencies as existing at
present is to be retained, then there should be an express
provision in the law requiring a person who contests and wins
election from two seats, resulting in a bye-election from one of
the two constituencies, to deposit in the government account
an appropriate amount of money being the expenditure for
holding the bye-election. The amount could be Rs.5,00,000/-
for State Assembly and Council election and Rs.10,00,000/-
for election to the House of the People.”
A true Copy of the proposed electoral reforms presented by the then
CEC, T. S. Krishna Murthy to the Prime Minister of India Dr.
Manmohan Singh on July 30, 2004 is produced herewith and marked
as ANNEXURE P/1(PAGES TO ).
10. It is submitted that the Election Commission of India has, on many
occasions, proposed a change to the provision of the Representation
of Peoples Act 1951. In 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, the Election Commission at Issue No.
6.5 has expressly recommended restricting the number of seats from
which a person can contest from in a particular election. A true Copy
of 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 is
produced herewith and marked as ANNEXURE P/2 (PAGES
TO ).
11. It is submitted that under the current law a candidate can contest
from two constituencies, but has to vacate one of the seats within 10
days necessitating a bye-election. It is submitted that, in the event of
the person winning both seats from which he/she contests for in a
bye-election for the seat, which he/she will ultimately vacate,
involves an avoidable labour and expenditure and a burden of the
public exchequer. The provision of law is very often misused by the
contestants as a security / insurance at cost of the general public/
taxpayer which is forced to bear the burden of a candidates fancy.
The Election Commission has also, in fact, proposed that if this
provision was not changed, then if a person contested from two
seats, he/she should bear the cost of the bye-election to the seat that
he/she decides to vacate in the event the person wins both seats.
However, the Government did, not consider these proposals,
seriously and so this provision stands as it is, and the taxpayer
money is being used to conduct the bye-election when a candidate
wins both seats.
12. It is submitted that it is often noticed in Indian political senario that a
elected leader resigns from the party and joins new party and the
burden of such resignation compels by election. It is also noticed that
if parliament election is declared then some assembly members file
nomination and if they are elected, then they force upon the voters an
unwarrented by election to assembly constituencies. There have also
been instances when political parties induct non elected leaders into
cabinet and force some one to leave seats forcing a by-election on
the public. By election itself causes huge expenses and is a drain on
the public exchequer. It is submitted that the law should be stteled as
to when a by-election should be conducted.
13. It is respectfully submitted that a byelection should not be forced
upon the public without death or serious ailment of the candidates.
The political parties should not be allowed to fight their internal
disputes at the cost of the general public by forcing by-elections. An
elected representative shall not be entitled to resign from the post
prematurely other, than on the ground of physical illness, without
depositing the entire costs of the election in which he is declared as
elected, and in case he/ she fails to deposit the cost of the election the
same should be recovered by the Election Commission just like the
dues of land revenue.
14. It is submitted 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 implementd to save the
citizens from an unwanted hardship and to create a more fair and
transparent electroral mechanism. The merit of this proposal could
be enhanced by extending it to occasions when:
a) An incumbent MLA contests for Lok Sabha, and on election
vacates the assembly seat;
b) A candidate may contest for both assembly and Lok Sabha
when elections are held simultaneously; and
c) An elected member vacates a seat and seeks re-election in the
ensuing bye-election to establish his hold over the electorate,
or to change party affiliation.
15. It is submitted that in all these cases, the politicians are 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. The state should be
spared the expense in one of 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 must be made to pay the cost of that bye-election.
16. The Petitioner submits that the Union of India has not considered or
acted positively towards implementing the recommendation of the
Election Commission to amend/reform the provisions under the
Representation of Peoples Act 1951, restricting any candidate from
filing of nomination papers from more than one constituency,
alternatively, if the provisions are not amended/reformed a candidate
contesting from two seats, should bear the expenses for bye –election
to the seat that he/she decides to vacate in the event, both the seats
are won by that person/candidate, as a surcharge for the reason that
whenever bye-election is required to be conducted by the Election
Commission for the vacated seat, the Election Commission has to
exercise all its tedious efforts, one which needless to say expensive
and would result in financial loss to the public exchequer.
17. The Petitioner further refers that Mr. Binayak Ray in his book
“Sustainable Development and Good Governance Issue: A Case of
Redical Reassessment”, has dealt with this issues as follow:
“currently many politicials do not bother to serve their
constituency because they can stand from as many as
constituenty as they wish. This is not only a mockery of
representing a particular constituency, but also requires new
election if a candidate is elected from more than one
constituency. There is no reason why tax payers’ money
should be spent because a particular candidate was not sure
whether he/she should be elected from a particular
constituency. Therefore no person should be allowed to
stand from two constituencies, and no person should be
allowed to stand in an election if he/she remains a member
of any other legislature in the country. This will force
political parties to put up serious candidates, and not take a
chance with a particular electorate”.
18. The Petitioner is filing the present writ petition for the welfare of
the citizens of India who are paying tax out of their hard earned
money and which is unfortunately over spent for conducting
byelection due to vacation of seat by a candidate who files more
than one nomination papers in more than one constituencies
solely to satisfy his insatiable lust for power at the cost of
common public. The Petitioner is filing the instant petition on the
following grounds among others:
G R O U N D S
A. Because the moment a person is allowed to file nomination
papers from more than one constituency, an un-called bye-
election starts clouding among the constituencies where he/she
files his nomination papers.
B. Because a person files nomination papers from two
constituencies and manage to win from both the constituencies
in such situation an extra, un-called burden of expenses of bye
–election is being imposed on the citizen of India.
C. Because filling of nomination paper as well as vacating a
constituency becomes his/her sole discretion and once he/she
is accorded with the constitutional position, as being
representative of a particular constituency he/she should bear
the burden of the entire bye -election expenses.
D. Because conducting a bye-election for the reason of vacation
of seat by a candidate who has filed his nomination form, from
more than one constituencies not only imposes expenses of an
un-called bye- election on the citizen of the country but also
acts against the fundamental principles of representative
democracy which distorts the faith of people who have elected
him/her.
E. Because the provisions under the Representation of Peoples
Act, 1951 has been grossly misused by the politicians, which
encourages an unethical political practice rather than having
concern about serving people within their constituency.
F. Because conducting a bye -election for the reason of vacation
of seat by a candidate who managed to succeed in more than
one constituency not only cause financial burden over public
exchequre of the country but also puts the entire constitutional
and administrative machinery into motion, which is waste of
time and resources.
G. Because when a person files his nomination from more than
one constituency, then, from the very beginning, the person
contesting the election is very much aware that he ha to vacate
one seat, if he wins both the seats. Vacating any of the two
seats is his own discretion and accordingly he ought to be
burdened with the cost of bye- election for exercising his/her
discretion.
H. Because the Election Commission on many occasions
approached the 1st Respondent with a proposal to
amend/reform the provisions under the said act restricting any
candidate from filing of nomination papers from more than
one constituencies, alternatively, if the provisions would not
be amended/reformed in that case, a candidate contested from
two seats, ought to bear the cost of bye –election to the seat
that he/she decides to vacate in the event both the seats are
won by that person, as a penalty or fine.
I. Because the Respondent has not taken any steps for
reforming/amending the provisions of the Representation of
Peoples Act, 1951, despite Election Commission of India’s
numerous representation/notification for the same.
J. Because the Petitioner has filed the instant petition with the
limited prayer to issue a direction to the Respondent to
consider the proposals of the Petitioner, whereby the Petitioner
proposes to restrict a candidate from filing nomination paper
from more than one constituencies, alternatively, in case the
provisions are not amended/reformed, and the candidate
contests from two seats, ought to bear the cost of bye –election
to the seat that he or she decides to vacate in the event of
his/her winning from both the seats as surcharge.
10. The Petitioners have not filed any other petition in this Hon’ble
Court or in any other High Court seeking the same reliefs as are
being sought in the present Writ Petition.
11. The Petitioner submits that this Hon’ble Court has the jurisdiction to
entertain the instant Petition.
PRAYER
In the premises, it is most respectfully prayed that this Hon’ble Court
may graciously be pleased to:-
i). Issue an appropriate writ, order or direction(s) in the nature of
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 constituency at a time in a
single election as unconstitutional; and or
ii). Issue an appropriate writ, order or direction in the nature of
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 or;
iii) Issue an appropriate writ, order or direction in the nature of
mandamus directing the Respondent to implement a proposal of
imposing financial obligation to the tune of entire election expenses
to the concerned constituency on the candidates who opt or consider
to contest from two constituencies thereby blocking two seats from
the impending election and;
iv) Issue an appropriate writ, order or direction in the nature of
mandamus directing the Respondent No. 2 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, and
or
vi) Issue 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:
1. An incumbent MLA contests for Lok Sabha, and on election
vacates the Assembly seat and vice versa;
2. A candidate who contest for both Assembly and Lok Sabha when
elections are held simultaneously; and
3. 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.
vii) Issue an appropriate writ, order or direction in the nature of
mandamus directing the Respondents to furnish the details pertaining
to the reasons and expenditure of the byelections conducted in India
since 1952.
v) Pass such other order or further orders that this Honourable Court
may deem fit and proper in the facts and circumstances of the instant
case.
AND FOR THE ACT OF KINDNESS THE PETITIONER, AS IN DUTY
BOUND, SHALL EVER PRAY.
Filed By:
DRAWN BY:
MR. DEEPAK PRAKASH
MR. BIJU. P. RAMAN
ADVOCATES
MS. USHA NANDINI V.
Advocate for petitioner
New Delhi
Date: 25.02.2014
IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
WRIT PETITION (CIVIL) NO. OF 2014
IN THE MATTER OF:
VOTERS PARTY
THROUGH ITS NATIONAL PRESIDENT
MR. D.K.GIRI … PETITIONER
VERSUS
UNION OF INDIA & ORS … RESPONDENTS
AFFIDAVIT
I, Dr. D.K. Giri, National President of Voters Party, S/o Late Dr.
L.K. Giri, Aged 54 Years, R/o. A-4, Kaveri Apartments, Plot No. 111/9,
Kishangarh, Vasant Kunj, New Delhi-110070, do hereby solemnly affirm
and state as under:-
1. That I am the Petitioner in the above Writ Petition and as such aware
of the facts and records of the case and averments made in the instant
Petition and am competent to swear this Affidavit.
2. That the statement of the facts incorporated in the above Writ
Petition at page to and para no. to and the application for
direction are true to my knowledge and belief based on records of the
case and the legal submissions made therein are based on counsel’s
advice which I believe to be true and correct.
3. That the Annexure to the accompanying Petition are a copy of are
true to their respective originals.
4. I the above named deponent hereby verify that what is stated in the
above paras 1 to 3 of my affidavit is true and correct.
DEPONENT
VERIFICATION
Verified at New Delhi on this day of day of February, 2014 that the
contents of the foregoing affidavit are true and correct to my knowledge,
no part of it is false and nothing material has been concealed there from.
Verified at New Delhi on this day of February, 2014.
DEPONENT