In the Hon’ble High Court of Judicature at Allahabad,
Lucknow Bench, Lucknow
Writ petition No- of 2014 (PIL-Civil)
Amitabh Thakur and another Petitioners
Versus
Union of India and another Respondents
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Memo of Writ Petition
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Affidavit
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Lucknow
(Asok
Pande)
Dated- 22/03/2014 Counsel for Petitioners # 94154-65438
Dated- 22/03/2014 Counsel for Petitioners # 94154-65438
In the Hon’ble High Court of Judicature at Allahabad,
Lucknow Bench, Lucknow
Writ petition No- of 2014 (PIL-Civil)
Amitabh Thakur and another Petitioners
Versus
Union of India and another Respondents
LIST OF DATES AND EVENTS
S No Date Event
1.
1950 Constitution
of India
2.
1950 Representation
of Peoples Act 1950
3.
1951 Representation
of Peoples Act 1951
4.
1996 Amendment
in Representation of
Peoples Act 1951 to insert section
33(7)
Peoples Act 1951 to insert section
33(7)
Section 33(7) of the Representation of Peoples Act
1951 permits a person to contest from two places for the House of the People,
the Council of States, the Legislative Assembly of the States and the
Legislative Councils of States where they exist, when general
elections/biennial elections and bye-elections for these legislative bodies are
held. This provision was inserted through Act No 21 of 1996. Before this the
respondents had been permitting a person to contest from any number of seats.
While the previous situation before 1996 was completely against the various
Constitutional provisions, even the present permission to contest and hence win
and occupy membership of the same legislative body from two places is similarly
against the various constitutional provisions including Article 101 and 190
related with vacancies of seats in these legislative bodies along with Article
79, 80(1), 81(1), 168, 170(1) and 171(1) related with composition and full
strength of these legislative bodies, as explained in great details in the
writ petition. This is a matter of larger public interest.
Hence
this Writ Petition.
Lucknow
(Asok
Pande)
Dated- 22/03/2014 Counsel for Petitioners # 94154-65438
Dated- 22/03/2014 Counsel for Petitioners # 94154-65438
In the Hon’ble High Court of Judicature at Allahabad,
Lucknow Bench, Lucknow
Writ petition No- of 2014 (PIL-Civil)
1. Amitabh
Thakur, aged about 45 years, s/o Sri T N Thakur r/o 5/426, Viram Khand, Gomti
Nagar, Lucknow
2. Dr Nutan
Thakur, aged about 40 years, w/o Sri Amitabh Thakur r/o 5/426, Viram Khand,
Gomti Nagar, Lucknow-------- Petitioners
Versus
1. Union of India through Secretary, Ministry of Law
and Justice, Government of India, New Delhi
2. Election Commission of India through its Principal
Secretary, Nirwachan Sadan, Ashoka Road, New Delhi------ Respondents
Writ Petition under Article 226 of the
Constitution of India
To,
The Hon’ble Chief Justice and His other Hon’ble companion
Judges of the aforesaid Court:
The humble petition of the above named petitioner most
respectfully begs to submit as under:
1. That by
means of this petition, the petitioners are invoking the extra ordinary
jurisdiction of this Hon’ble Court vested with it through Article 226 of the
Constitution to file this Public Interest Litigation (PIL) with a prayer to
issue a writ in the nature of Mandamus thereby directing the respondents, Union
of India through Secretary, Ministry of Law and Justice and Election Commission
of India (ECI, for short) and all their instrumentalities not to give effects
to section 33(7) and section 70 of the Representation
of People’s Act, 1951 (RP Act of 1951, for short) and Rule 91 of the Conduct of Elections Rules, 1961 as being violative of various provisions of the Constitution of
India and to declare the same as Ultra-vires to these provisions of the
Constitution. The petitioners accordingly pray before this Hon’ble Court to
kindly issue a writ of mandamus to the Respondents to completely prohibit any
person from contesting at more than one place for the House of the People, the
Council of States, the Legislative Assembly of the States and the Legislative
Councils of States where they exist, when general elections/biennial elections
are held for these legislative bodies and when bye-elections for these
legislative bodies are held, in light of the various facts enumerated in this
PIL.
The petitioners declare that they have not
filed any other Writ petition before the Hon’ble Supreme Court and this Hon’ble
Court either at Allahabad or its Lucknow bench pertaining to the subject matter
and/ or for the relief prayed for in the instant writ petition. It is further
declared that in respect of the same subject, no caveat notice has been
received by the petitioners. They also declare that to the best of their
knowledge and their search, there is no pronouncement as regards the prayer
being presented through this Writ Petition either by the Hon’ble Supreme Court
or this Hon’ble Court
2.
That this is a Public Interest Litigation (PIL) being filed for stopping
persons from contesting elections at more than one place at one time for any of
the legislative bodies prescribed in the Constitution, in the interest of
Indian democracy and to end many ill-effects being caused because of this.
3.
That this being a PIL, in pursuance of Rule 1,
subrule (3A) of Chapter XXII of the Allahabad High Court Rules 1952 the
petitioner finds it relevant to present some facts regarding their own
credibility. The petitioner No 1, Amitabh Thakur is an IPS officer
also engaged in various social causes including the cause of transparency and
accountability in public life, including the Right to Information along with
issues related with Human Rights. He is filing this PIL purely in his personal
capacity. He
is a government servant but at the same time a responsible citizen of India and
he files this PIL owing his duty as an individual towards the public. To the best of his knowledge and reading of
the conduct rules applicable to him as an IPS officer, he understands that he
does not violate any of these rules but is only presenting a PIL where the
intervention of this Hon’ble Court would lead to much public benefit. Though not exactly required as per the
Conduct rules, he is also presenting the information as regards filing of this
PIL to his superior officers, for the sake of transparency. Petitioner No 2, Dr
Nutan Thakur, is wife of petitioner No 1 and is a well-known and nationally
recognized social activist who wants to genuinely and positively contribute to
the society in all possible ways. She works primarily in the field of transparency
and accountability in governance, Human Rights and assisting in the enforcement
of Rule of law. The petitioners have nothing against them so as to mar their
credibility in filing this PIL.
The matter being presented here is for
stopping persons from contesting elections at more than one place at one time for
any of the legislative bodies prescribed in the Constitution in the interest of
Indian democracy and to end many ill-effects being caused because of this.
In pursuance
of the above Rule, the petitioners state on oath that the public cause they are
seeking to espouse through this Writ Petition is for stopping persons from
contesting elections at more than one place at one time for any of the
legislative bodies prescribed in the Constitution, in the interest of Indian
democracy and to end many ill-effects being caused because of this. The
petitioners again put it on oath that they are not filing this PIL for any
ulterior motive save the stated one nor have they received a single penny through
any backdoor activity while filing this PIL. They state on oath that they has
no personal or private interest in the matter and as far as they know there is
no authoritative pronouncement by the Hon’ble Supreme Court or this Hon’ble
High Court on the specific questions raised here. They put it on oath that the result of the
Litigation will not lead to any undue gain to them or anyone associated with
them or any undue loss to any person, body of persons or to the State but would
result in better governance
4.
That coming to the matter of the PIL, Article
79 of the Constitution of India says-“Constitution of Parliament.- There shall
be a Parliament for the Union which shall consist of the President and two
Houses to be known respectively as the council of States and the House of the
People” while Article 80(1) says-“The Council of States shall consist of- (a)
twelve members to be nominated by the President in accordance with the
provisions of clause (3);and (b) not more than two hundred and
thirty-eight representatives of the States and of the Union territories” and
Article 81(1) says-“Subject to the provisions of Article 331 the House of the
People shall consist of (a) not more than five hundred and thirty members
chosen by direct election from territorial constituencies in the States,
and (b) not more than twenty members to represent the Union territories,
chosen in such manner as parliament may by law provide.”
5.
That similarly Article 168 says-“Constitution of Legislatures in
States.- (1) For every State there shall be a Legislature which shall consist
of the Governor, and (a) in the States of Bihar, Madhya Pradesh,
Maharashtra, Karnataka and Uttar Pradesh, two houses: (b) in other States,
one House. (2) Where there are two Houses of the Legislature of a State, one
shall be known as the Legislative Council and the other as the Legislative
Assembly, and where there is only one House, it shall be known as the
Legislative Assembly” while Article 170(1) says-“Subject to the provisions of
Article 333, the Legislative Assembly of each State shall consist of not more
than five hundred, and not less than sixty, members chosen by direct election
from territorial constituencies in the State” and Article 171(1) says-“The
total number of members in the Legislative Council of a State having such a
Council shall not exceed one-third of the total number of members in the Legislative
Assembly of that State: Provided that the total number of members in the
Legislative Council of a State shall in no case be less than forty.”
6.
That Article 101 says-“Vacation of seats.- (1) No person shall be
a member of both Houses of Parliament and provision shall be made by Parliament
by law for the vacation by a person who is chosen a member of both Houses of
his seat in one House or the other. (2) No person shall be a member both
of Parliament and of a House of the Legislature of a State and if a person is
chosen a member both of Parliament and of a House of the Legislature of a
State, then, at the expiration of such period as may be specified in rules made
by the President, that person’s seat in Parliament shall become vacant, unless
he has previously resigned his seat in the Legislature of the State. (3)
If a member of either House of Parliament- (a) becomes subject to any of
the disqualification's mentioned in clause (1) or clause (2) of Article 102,
or (b) resigns his seat by writing under his hand addressed to the
Chairman or the Speaker, as the as may be, and his resignation is accepted by
the chairman or the Speaker, as the case may be, his seat shall thereupon
become vacant: Provided that in the case of any resignation referred to in
sub-clause (b), if from information received or otherwise and after making such
inquiry as he thinks fit, the chairman or the Speaker, as the case may be, is
satisfied that such resignation is not voluntary or genuine, he shall not
accept such resignation. (4) If for a period of sixty days a member of either
House of Parliament is without permission of the House absent from all meetings
thereof, the House may declare his seat vacant: Provided that in
computing the said period of sixty days no account shall be taken of any period
during which the House is prorogued or is adjourned for more than four
consecutive days.”
7.
That Article 190 says-“Vacation of seats.- (1) No person shall be
a member of both Houses of the legislature of a State and provision shall be
made by the Legislature of the State by law for the vacation by a person who is
chosen a member of both Houses of his seat in one House or the other. (2)
No person shall be a member of the legislatures of two or more States specified
in the First Schedule and if a person is chosen a member of the Legislatures of
two or more such States, then, at the expiration of such period as may be
specified in rules made by the President, that person’s seat in the
Legislatures of all such States shall become vacant, unless he has previously
resigned his seat in the Legislatures of all but one of the States. (3) If
a member of a House of the Legislature of a State- (a) becomes subject to
any of the disqualifications mentioned in clause (1) or clause (2) of Article
191; or (b) resigns his seat by writing under his hand addressed to the
Speaker or the Chairman, as the case may be, and his resignation is accepted by
th Speaker or the Chairman, as the case may be, his seat shall thereupon
becomes vacant:Provided that in the case of any resignation referred to in
sub-clause (b), if from information received or otherwise and after making such
inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is
satisfied that such resignation is not voluntary or genuine, he shall not
accept such resignation. (4) If for a period of sixty days a member of a
House of the Legislature of a State is without permission of the House absent
from all meetings thereof, the House may declare his seat vacant: Provided
that in computing the said period of sixty days no account shall be taken of
any period during which the House is prorogued or is adjourned for more than
four consecutive days”
8.
That the Representation of Peoples Act, 1950 (RP Act of 1950, for
short) is an Act for among
other things to provide the allocation of seats in, and the delimitation of
constituencies for the purpose of election to, the House of the People and the
Legislatures of States etc.
9.
That section 3 of the RP Act of 1950 is about allocation
of seats in the House of the People which
says-“The allocation of seats to the States in the House of the People and the
number of seats, if any, to be reserved for the Scheduled Castes and for the
Scheduled Tribes of each State shall be as shown in the First Schedule. As per
section 4(2) of this Act-“All the seats in the House of the People
allotted to the States under section 3 shall be seats to be filled by persons
chosen by direct election from parliamentary constituencies in the States.” Section
7(1) of this Act says-“Total number of seats in
Legislative Assemblies and Assembly Constituencies.—Subject to the provisions of sub-sections (1A), (1B) and (1C), the total
number of seats] in the Legislative Assembly of each State specified in the
Second Schedule, to be filled by persons chosen by direct election from
Assembly Constituencies, and the number of seats, if any, to be reserved for
the Scheduled Castes and for the Scheduled Tribes of the State, shall be as
shown in that Schedule” while section 7(2) says-“Every assembly constituency referred to in
sub-section (1) or sub-section (1A) shall be a single-member constituency”. Section 10 of this Act says-“The
allocation of seats in the Legislative Councils of the States having such
Councils shall be as shown in the Third Schedule”
10.
That the Representation of Peoples Act 1951 (RP Act of 1951, for
short) was promulgated among other things as an Act to provide for the conduct of elections of the
Houses of Parliament and to the House or Houses of the Legislature of each
State, the qualifications and disqualifications for membership of those Houses
etc
11.
That sub-section 7
in section 33 was inserted in the RP Act of 1951 through the Act No 21 of 1996
which says-“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
12.
That section 70 of
the RP Act of 1951 says-“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 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
13.
That there are the
Conduct of Elections Rules,1961 (the Rules,
for short) where Rule 91 says-“Resignation of seats in case of election to more
seats than one in a House.—(1) The time within
which a person may resign all but one of the seats in either House of
Parliament or in the House or either House of the Legislature of a State, to
which he has been elected shall be— (a) fourteen days from the date of his election under
section 67A; or (b) where the dates of his election are different in
respect of different seats, fourteen days from the last of those dates. (2) Such resignation
shall be addressed— (a) to the Speaker or the Chairman of the House concerned;
or (b) whether the
office of the Speaker or Chairman is for the time being vacant or is, or is
deemed to be, in abeyance, to the Deputy Speaker or the Deputy Chairman of the
House concerned; or (c) where the post of the Deputy Speaker or Deputy Chairman
is also for the time being vacant or is, deemed to be, in abeyance, to the
Election Commission. (3) Where the resignation has been addressed to the
Election Commission under sub-rule (2) the Election Commission shall, as soon as may be after
the receipt of the resignation, send a copy thereof to the Secretary of the
House concerned”
14.
That the
contention of the petitioners is that sections 33(7) and 70 of the RP Act of
1951 and Rule 91 of the Rules are ultra-vires to many provisions of the
Constitution
15.
That to begin
with, Article 79
of the Constitution of India is about constitution of Parliament consisting of
the President and two Houses- the council of States and the House of the
People. Article 80(1) fixes the total number of members in the Council of States
and Article 81(1) fixes the total number of members in the House of the People.
Similarly, Article 168 is about the constitution of Legislatures in States
consisting of the Governor and Legislative Assembly with Legislative
Council in some cases. Article 170(1) prescribes a number for the Legislative
Assembly of each State and Article 171(1) prescribes the total number of
members in the Legislative Council of a State.
16.
That section 4(2), 7(1), 7(2) and
10 of the RP Act of 1950 fix the total number of seats in the House of the
People, the Legislative Assembly and the Legislative Council of each State.
17.
That from the
above constitutional and statutory provisions, it is clear that the House of
People, the Council of States, the Legislative Assembly of each State and the Legislative Council of each State is
constituted by its members whose numbers and composition are fixed through the
above mentioned legal provisions.
18.
That it is also obvious that the House of People, the Council of States, the Legislative
Assembly of each State and the Legislative
Council of each State shall be considered to be complete in the true sense of
the word only when the maximum number of members allotted or fixed for each of
them is actually chosen. Thus, the ideal situation demands and warrants that
all the seats of the House of People, the Council of States, the Legislative
Assembly of each State and the Legislative
Council of each State get actually filled and there is no vacancy left in each of them.
19.
That the obvious meaning of the above provisions of the
constitution is that Parliament of the Union is complete only when it consists
of the President and two Houses. The Council of States and the House of the
People are complete in the true sense of the word only when its ongoing
strength at a given point of time is the maximum number of members prescribed
and hence the Parliament is complete in the true sense of the word when both
the Council of States and the House of the People are completely filled and no
membership seat is vacant. So is the situation with Legislatures in States. It
kindly needs to be noted here that such words are not written in the
Constitution at any place. Again each of these legislative bodies are often
vacant by a few numbers so that the full strength of membership is seldom
achieved. It is also well understood that a few vacancies in these legislative
bodies do not affect the law making and/or any other powers and authority in
any adverse manner in any way. Hence, the legislative bodies are competent to
legislate and formulate laws and to undertake all other constitutional and
statutory obligations, duties and functions even if they have a few vacancies
in them. But this does not mean that the Constitution ever intended such
vacancies to exist even without a substantial reason. Death of a member, his
resigning from the legislative body, his getting disqualified to continue as a
member of the legislative body for any of the statutory reasons are the
situations that will certainly lead to vacancy in the seats in the concerned
legislative bodies. They are natural, personal and/or legal situations leading
to membership of the legislative body getting vacated. But the constitution always
envisaged a situation where all the seats will get filled up simultaneously.
20.
That the fact that the constitution always intended that all the
seats of legislative bodies got filled up simultaneously at one time and in one
go can be seen and understood from the fact that it specially uses the word
General Election at many places including Article 87(1) (regarding joint
session of the President), Article 176(1) (regarding joint session of the
Legislative Assembly), Article 324(4) (regarding general election to the House
of the People and to the Legislative Assembly of each State, and each biennial
election to the Legislative Council of each State having such Council) and
Article 356 (regarding the holding of general elections in Emergency under
Article 356)
21.
That the words “General Elections” are further used innumerably in
RP Act of 1951 where Part III is specifically about all kinds of General
Elections so that section 12 is regarding Notification
for biennial election to the Council of States, section 14 is regarding
Notification for general election to the House of the People, section 15 is
regarding Notification for general election to a State Legislative Assembly and
section 16 is regarding Notification for general election to a State
Legislative Council
22.
That section 12
says-“Notification for biennial election
to the Council of States. —For
the purpose of filling the seats of members of the Council of States retiring
on the expiration of their term of office the President shall, by one or more
notifications published in the Gazette of India on such date or dates as may be
recommended by the Election Commission, call upon the elected members of the
Legislative Assembly or, as the case may be, the members of the electoral
college, of each State concerned to elect members in accordance with the
provisions of this Act and of the rules and orders made thereunder :Provided
that no notification under this section shall be issued more than three months
prior to the date on which the term of office of the retiring members is due to
expire”, section 14
says-“Notification for general election to the House of the People. —(1) A
general election shall be held for the purpose of constituting a new House of
the People on the expiration of the duration of the existing House or on its
dissolution.(2) For the said purpose the President
shall, by one or more notifications published in the Gazette of India on such
date or dates as may be recommended by the Election Commission, call upon all
parliamentary constituencies to elect members in accordance with the provisions
of this Act and of the rules and orders made thereunder: Provided that where a
general election is held otherwise than on the dissolution of the existing
House of the People, no such notification shall be issued at any time earlier
than six months prior to the date on which the duration of that House would
expire under the provisions of clause (2) of
article 83”, section 15
says-“Notification for general election to a State Legislative Assembly. —(1) A
general election shall be held for the purpose of constituting a new
Legislative Assembly on the expiration of the duration of the existing Assembly
or on its dissolution. (2) For the said purpose, the Governor or
Administrator, as the case may be shall by one or more notifications published
in the Official Gazette of the State on such date or dates as may be
recommended by the Election Commission, call upon all Assembly constituencies
in the State to elect members in accordance with the provisions of this Act and
of the rules and orders made thereunder: Provided that where a general election
is held otherwise than on the dissolution of the existing Legislative Assembly,
no such notification shall be issued at any time earlier than six months prior
to the date on which the duration of that Assembly would expire under the
provisions of clause (1), of article 172 or under the
provisions of section 5 of the Government of Union Territories Act, 1963 (20 of
1963), as the case may be” and section 16 says-“Notification for biennial election to a State
Legislative Council. —For
the purpose of filling the seats of members of the Legislative Council of a
State retiring on the expiration of their term of office, the Governor shall,
by one or more notifications published in the Official Gazette of the State on
such date or dates as may be recommended by the Election Commission call upon
the members of the Legislative Assembly of the State and all the Council
constituencies concerned to elect members in accordance with the provisions of this
Act and of the rules and orders made thereunder: Provided that no notification
under this section shall be issued more than three months prior to the date on
which the term of office of the retiring members is due to expire”
23.
That
the time period prescribed in each of the cases along with the fact that
General and/or biennial elections are prescribed in each of these legislative
bodies make it amply clear that the constitution makers and the initial law
makers of this Nation always intended that all the seats of these legislative
bodies got filled simultaneously and no vacancy in these seats arose due to any
of the reasons except that prescribed in the Constitution.
24.
That
such reasons prescribed in the Constitution which lead to any kind of vacancy
of seats in these legislative bodies are either natural- death of a member,
personal-resignation on personal reasons or statutory-getting disqualified to
continue as a member for various reasons or being absent beyond a given time
period.
25.
That
the fact that reasonable time periods like three and six months for holding
elections before expiry of the date of the membership has been prescribed makes
it even more apparent that the Constitution and initial law makers were very
serious about maintaining the complete number so that the membership of these
legislative bodies remained full and no artificial vacancy arose at any time
26.
That
any kind of such vacancy arising have been dealt with squarely in Article 101 titled
“vacation of seats” related with cases when a person becomes a member of both
Houses of Parliament, or he becomes a member both of Parliament and of a House
of the Legislature of a State. The modality to deal with any such situation
leading to any kind of vacancies has been clearly prescribed. Similarly,
Article 190 about vacation of seats when a person becomes a member of both
Houses of the legislature of a State or a member of the legislatures of two or
more States specified in the First Schedule talks of other such kinds of
vacancies and the modalities to deal with them.
27.
That but the Constitution nowhere provides for any such situation
where vacancies would arise due to a person contesting elections for any of
these legislative bodies from two or more places and after winning the seat at
more than one place, he shall resign from the other places, thereby creating
any kind of vacancy in the concerned legislative body.
28.
That as stated above Articles 102 and 190 of the Constitution are
specifically about vacation of seats where every possible situation for
vacation of seats has been envisaged, including resignation, disqualification
and being absent for a certain given period, other than the situation where a
person is chosen for more than one of these legislative bodies. But these
Articles do not talk at all about vacation of seats when a person gets elected
from two or more places in the same legislative body.
29.
That the language of Article 102 and 190 of the Constitution of
India are such that they are exclusive in nature and not inclusive. This fact
can be easily understood from the fact that Article 101 is titled “Vacation of
seats” and then starts enumerating all the possible situations it envisages and
permits for vacation of seats. Thus the Article goes through Clause(1) about no
person being a member of both Houses of Parliament, clause (2) about no person
shall be a member both of Parliament and of a House of the Legislature of a
State, clause (3)(a) about subject to any of the disqualification's mentioned
in clause (1) or clause (2) of Article 102, clause 3(b) about resigning his
seat and clause (4) about not attending the House of Parliament for a period of
sixty days
30.
That each of the Clauses provided in Article 102 are mutually
exclusive of each other and talk of completely different situations and
eventualities. One of them is about being member of both the Houses of
Parliament, other is about being member of House of Parliament and House of
State legislature, the third is about being disqualified, the forth is about
resignation and the fifth is about being absent. The wide range and mutual
exclusiveness of these clauses and situations make it very apparent that whatever
possible, permissible and intended situations for vacations of seats was
envisaged by the Constitution makers in House of Parliament were presented
here.
31.
That thus except death, which no law of the land can control and
which is beyond every human being’s purview (including that of the Constitution
makers), all other situations where the constitution makers intended and
permitted vacancy of seats has been narrated in Article 102.
32.
That exclusiveness of the various situations for vacancy of seats
makes it very obvious that there could not have been any other possible way of
vacancy of seats, least of them the situation where a person will contest from
two or more places and get elected from these places to the same legislative
body, so as to later vacate the seat. Such kind of vacation of seats in the
Houses of Parliament is not permitted as per the Constitution and hence any
such provision is bound to be treated as being ultra vires to the Constitution
33.
That even resignation under Clause (3)(b) of Article 101 is only
for a member of a House of the Parliament who has already been the member for
some time and not for some who just got elected and even before taking oath of
the membership he is forced to resign because of the other legal provisions. This
fact can be established from the fact that the Article has a Proviso which says
that in the case of any resignation referred to in sub-clause (b), if from
information received or otherwise and after making such inquiry as he thinks
fit, the Speaker or the Chairman, is satisfied that such resignation is not
voluntary or genuine, he shall not accept such resignation. It is quite obvious
that any resignation due to getting elected a member of the same House from
more than one place can never be treated as being voluntary. Any such
resignation is never voluntary and if at all, it is only a forced resignation
which is being offered by the member because of the legal compulsions and
because the RP Act of 1951 mandates that he is not permitted to hold membership
from two different places.
34.
That any resignation under Article 101 is permitted and can only
be accepted when it is voluntary and hence this resignation due to coercive
legal compulsions is not a resignation under Article 101 of the Constitution
35.
That exactly similar situations exist for vacation of seats in
Houses of the legislature of a State where again Article 190 envisages and
permits five modes of vacation of seats which are similar in nature to that in
Article 102, but none of these provisions/situations allow vacation of seats
because of a person contesting and getting elected from more than one seats for
these state legislative bodies.
36.
That though the Constitution never says so but any reasonable
analysis will make one understand that the Constitution never intended to
permit any such kind of vacancy of seats due to multiple contest and multiple
wins because it fully understood its repercussions.
37.
That it is pretty obvious from the above discussion that though
the Constitution does not prohibit or limit any of the authority and power of
the various legislative bodies due to vacancies of seats and it does envisage
and permit some forms of vacancies, but the fact that it insists upon General
or biennial elections for these legislative bodies much in advance where
simultaneous elections would be held for all the seats of these legislative
bodies makes it quite apparent that the Constitution permits any kind of
vacancy only in the rarest of the rare circumstances and wants the legislative
bodies to be full up to its maximum permissible number at all possible times,
except a few exceptions arising in Article 101 and 190 and arising out of death
of a member
38.
That on the contrary, the permission given in the RP Act of 1951
for any person to contest from two places simultaneously goes against the very
foundations of this philosophy. Section 33(7) of the RP Act of 1950 permits an
individual to contest from two places for the same legislative body. What this
means is that if there are 543 seats in the House of the People, this legal
provision gives a very reasonable, plausible and conceivable possibility of 271
persons contesting from 2 seats each and winning from all these seats. The
result will naturally be that instead of 543 members, the House of People will actually
get only 272 members. 271 members will resign from the other seat, creating a
vacancy of 271 seats. This will lead to a further election for 271 seats. Here
again the actually possibility of 136 persons getting election for these 271
seats cannot be wiped out. This leads to a vacancy of 135 seats. If the same
trend continues, the next set of elections will lead to 68 persons actually
occupying these 135 seats, leading to creation of a fresh vacancy of 67 seats.
The next set of elections will yield 34 members of House of People and 33 seats
will remain vacant. This situation can mathematically go on for perpetuity and
would form what is called in mathematics as a Geometric series/progression where
the number of vacant seats will go on as being ½ of total, ¼ of total, 1/8 of
total, 1/16 of total, 1/32 of total, 1/64 of total and so on. If the House of the
People is considered with 543 members, a vacancy of at least 01 seat in the
above mentioned situation will always mathematically remain at least till the 8th
such election. The Constitution of India
does not state all these facts in so many words but there is a very strong
possibility that the way it did not talk of vacancies arising due to a person
getting elected from two seats in the same legislative body must have been to avoid
the above-mentioned situations
39.
That it is again not very difficult to see that such a possibility
is not only mathematically and legally possible but is also quite practically
feasible. India certainly has such political leaders in very large numbers who
have pan-Indian or pan-State charm, influence and abilities so as to win from
two or even more seats.
40.
That thus mathematically, legally and practically the permission
granted through section 33(7) of the RP Act of 1951 is not only against the
Constitutional provisions, it is extremely ruinous to the nation and this seems
to be the reason why the Constitution makers never thought of or permitted
vacancies of that nature to arise at any time.
41.
That hence
sub-section 7 in section 33 presented above which permits/allows contesting in
a general election to the House of the People (whether or not held
simultaneously from all Parliamentary constituencies) or to the Legislative
Assembly of a State (whether or not held simultaneously from all Assembly constituencies),
a biennial election to the Legislative Council of a State and a biennial
election to the Council of States or bye-elections to the House of the People, Legislative
Assembly, Council of States and Legislative Council of a State having such Council
which are held simultaneously, from two such seat/constituencies is against the
various provisions of the Constitution of India, including that stated in
Article 101 and 190, along with Article 79, 80(1), 81(1), 168, 170(1) and
171(1), as explained in above Paras
42.
That it also kindly needs to be noted that even such a provision
restricting elections from two places was introduced through the Act No 21 of
1996 and before this the respondents had been permitting a person to contest
from any number of seats, which was nothing short of committing a democratic
hara-kiri and when the respondents realized this fact, they introduced section
33(7) of the RP Act of 1951
43.
That but even section 33(7) of the RP Act of 1951 is against the
constitutional provisions and needs to be declared ultra vires accordingly, in
the interest of democracy, democratic functioning and larger public interest
44.
That the public interest involved in this issue is not difficult
to understand at all. The first is that this legal provision provides ways for
artificially creating vacancies in various legislative bodies. The second is
that it deprives a place of its elected representative for a definite period
because of his resignation due to multiple election. The third is the cost
involved in conducting the elections again and again, without any reasonable
reason. In sum, the matter relates not only with the basic democratic fabric of
the Nation, it also costs the Nation a lot of money, time and energy.
45.
That since section 33(7) of the RP Act of 1951 is itself
ultra-vires, hence section 70 of this
Act as regards vacation of seat after election
to more than one seat in either House of Parliament or in the House or either
House of the legislature of a State
itself loses any meaning and becomes ultra-vires simultaneously
46.
That similarly Rule 91 of the Conduct of
Elections Rules,1961 about resignation of seats in case of
election to more seats than one in a House also
loses its meaning and becomes ultra vires
47.
That as described above, it is amply
clear that this is a matter having much larger public interest and is a PIL in
the true sense of the word. Hence, the petitioners
bring this matter for consideration before this Hon’ble Court in the interest
of justice, for the sake of larger public good, as explained in great details
in this PIL and hence the two petitioners, in this matter of wide public
importance and public concern, approach before this Hon’ble Court, being left
with no other option than to approach it with this PIL to ask for certain
prayers because of the reasons being stated among the Grounds as enumerated
below.
48.
That the
petitioner’s photograph and Identity proof has been enclosed along with.
GROUNDS
(1)
Because section 33(7) of the Representation
of Peoples Act 1951 permits a person to contest from two places for the House
of the People, the Council of States, the Legislative Assembly of the States
and the Legislative Councils of States where they exist, when general
elections/biennial elections and bye-elections for these legislative bodies are
held.
(2)
Because this provision was inserted through Act No 21 of 1996.
(3)
Because before this the respondents had been permitting a person
to contest from any number of seats.
(4)
Because the previous situation before 1996 was completely against
the various Constitutional provisions
(5)
Because even the present permission to contest and hence win and
occupy membership of the same legislative body from two places is similarly
against the various constitutional provisions including Article 101 and 190
related with vacancies of seats in these legislative bodies along with Article
79, 80(1), 81(1), 168, 170(1) and 171(1) related with composition and full
strength of these legislative bodies, as explained in great
details in the writ petition
(6)
Because this is a matter of larger
public interest related with the entire democratic fabric
PRAYER
Wherefore,
it is most respectfully prayed that this Hon’ble Court may be pleased to-
a.
to kindly issue a Writ in the nature of Mandamus thereby directing
the respondents, Union of India through Secretary, Ministry of Law and Justice
and Election Commission of India and all their instrumentalities not to give
effects to section 33(7) and section 70 of the Representation of People’s Act, 1951 (RP Act of
1951, for short) and Rule 91 of the Conduct of Elections Rules, 1961 as being
violative of various provisions of the Constitution of India and to declare the
same as Ultra-vires to these provisions of the Constitution
b.
to kindly issue a writ of
mandamus to the Respondents to completely prohibit any person from contesting
at more than one place for the House of the People, the Council of States, the
Legislative Assembly of the States and the Legislative Councils of States where
they exist, when general elections/biennial elections are held for these
legislative bodies and when bye-elections for these legislative bodies are
held, as have been presently permitted in section 33(7) of the RP Act of 1951
c.
to pass any other order or directions for
larger public interest which this Hon’ble Court may deems fit and proper in the
facts and circumstance of the present case.
Lucknow
(Asok
Pande)
Dated- 22/03/2014 Counsel for Petitioners # 94154-65438
Dated- 22/03/2014 Counsel for Petitioners # 94154-65438
In the
Hon’ble High Court of Judicature at Allahabad, Lucknow Bench, Lucknow
Writ petition No- of 2014 (PIL-Civil)
Amitabh Thakur and another Petitioners
Versus
Union of India and another Respondents
AFFIDAVIT
I, Nutan
Thakur, aged about 40 years, w/o Sri Amitabh Thakur r/o 5/426, Viram Khand,
Gomti Nagar, Lucknow, religion Hinduism, education- P Hd, D Litt profession-
social activism, the deponent, do hereby solemnly affirm and state on oath as
under-
1. That the
deponent is petitioner No 2 in the above noted petition and as such she is
fully conversant with the facts and circumstances of the case, deposed to hereunder.
She has also been authorized by petitioner No 1 to depose this affidavit before
this Hon’ble Court.
2. That the
contents of the paragraphs of
the Writ petition are true to my personal knowledge, based on documents and
records and believed
to be true or are based on legal advice.
3. That the
Annexure No NONE is the true copy of their original.
Place Lucknow (Nutan
Thakur)
Date-
22/03/2014 Deponent
VERIFICATION
I, the deponent above named, do hereby verify
that the contents of paragraphs 1 to 3 above this Affidavit are true and
correct to my knowledge and belief. No part of it is false and nothing material
has been concealed. So, help me God
Signed and verified this the day of 2014 at Lucknow
Deponent
Identification
I identify the deponent, on the basis of
records produced before me, who has signed before me.
Advocate
Solemnly affirmed me on at am/pm by the
deponent Nutan Thakur, who has been identified by Sri clerk to Sri ,
Advocate, high court, Lucknow Bench, Lucknow
I have satisfied myself by examining the
deponent that she understands the contents of this Affidavit which have been
read over and explained to her by me
Oath
Commissioner
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