From UPSC perspective, the following things are important :
Prelims level : Dual Mandate, Due Constitution notification
Mains level : Read the attached story
- The first session of the 17th Lok Sabha will commence very soon.
- Some of MPs who won in the elections were elected from more than one constituency; some were already members of either Rajya Sabha or the legislature of a state.
- These MPs are obligated vacate one of their seats.
Why vacate the seat?
- Under section 33 of the RPA, 1951, a person is allowed to contest polls, whether a general election, more than one by-elections or biennial elections, from a maximum of two seats.
- Before this law, candidates could run in any number of constituencies.
- If candidates win both seats, they must vacate one within 10 days, triggering a by-election, as stated under section 70 of the Act.
- Under the Constitution, an individual cannot simultaneously be a member of either Houses of Parliament (or a state legislature), or both Parliament and a state legislature, or represent more than one seat in a House.
Procedures and timelines for effect
I. Lok Sabha and Rajya Sabha
Article 101(1) of the Constitution read with Section 68(1) of The Representation of the People Act, 1951says:
- If a person is elected simultaneously to both Rajya Sabha and Lok Sabha, and if he has not yet taken his seat in either House, he can choose, within 10 days from the later of the dates on which he is chosen to those Houses, of which he would like to be a member.
- The member must intimate his choice in writing to the Secretary to the ECI within the 10-day window, failing which his seat in Rajya Sabha will fall vacant at the end of this period [Sec 68(2), RPA 1951].
- The choice, once intimated, is final. [Sec 68(3), RPA, 1951]
- No such option is, however, available to a person who is already a member of one House and has contested the election for membership of the other House.
- So, if a sitting Rajya Sabha member contests and wins a Lok Sabha election, his seat in the Upper House becomes automatically vacant on the date he is declared elected to Lok Sabha.
- The same applies to a Lok Sabha member who contests an election to Rajya Sabha. [Sec 69 read with Sec 67A, RPA 1951]
II. Elected on two Lok Sabha seats
- There is no one in this category in the new Lok Sabha. Under Sec 33(7) of RPA, 1951, an individual can contest from two parliamentary constituencies.
- But, if elected from both, he has to resign one seat within 14 days of the declaration of the result, failing which both his seats shall fall vacant. [Sec 70, RPA, 1951 read with Rule 91 of the Conduct of Elections Rules, 1961]
III. State Assembly and Lok Sabha
- Article 101(2) of the Constitution along with Rule 2 of the Prohibition of Simultaneous Membership Rules, 1950, made by the President under this Article says:
- Members of state legislatures who have been elected to Lok Sabha must resign their seats within 14 days “from the date of publication in the Gazette of India or in the Official Gazette of the State, whichever is later.
- Failing this their seats in Lok Sabha shall automatically fall vacant.
*** What is ‘Due Constitution’ notification by ECI?
- Sec 67 of the RPA, 1951, says that “the returning officer shall report the (election) result to the appropriate authority and the Election Commission.
- The authority shall cause to publish in the Official Gazette the declarations containing the names of the elected candidates.
- Sec 73 of the Act provides that the ECI shall publish in the gazette the names of all elected members in a notification, called ‘Due Constitution’ notification, whereafter Lok Sabha shall be deemed to be duly constituted.