The first session of the 17th Lok Sabha will commence on June 17, and Rajya Sabha is scheduled to meet on June 20. Some of those 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 must vacate one of their seats — because under the Constitution, an individual cannot simultaneously be a member of both Houses of Parliament (or a state legislature), or both Parliament and a state legislature, or represent more than one seat in a House.
What are the procedures and timelines for effecting this?
Lok Sabha and Rajya Sabha
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, the House of which he would like to be a member. [Article 101(1) of the Constitution read with Section 68(1) of The Representation of the People Act, 1951]
The member must intimate his choice in writing to the Secretary to the Election Commission of India (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]
At least five winners of the Lok Sabha elections — Amit Shah (BJP, Gandhinagar), Ravi Shankar Prasad (BJP, Patna Sahib), Smriti Irani (BJP, Amethi), Kanimozhi (DMK, Thoothukkudi), and Anubhav Mohanty (BJD, Kendrapara) — ceased automatically to be members of Rajya Sabha on May 23, the date on which they were declared elected. Legally or technically speaking, however, they became members of the Lower House only on May 25 — when the ECI issued the ‘Due Constitution’ notification for the new Lok Sabha under Sec 73 of the RPA 1951.
These MPs were, therefore, not members of any House for a day — May 24.
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]
State Assembly and Lok Sabha
Under Article 101(2) of the Constitution (read with Rule 2 of the Prohibition of Simultaneous Membership Rules, 1950, made by the President under this Article) 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, of the declaration that he has been so chosen”, failing which their seats in Lok Sabha shall automatically fall vacant.
There is some confusion about the “date of publication… of the declaration” in the gazette.
Sec 67 of the RPA, 1951, says that “the returning officer shall report the (election) result to the appropriate authority and the Election Commission,… and the appropriate authority shall cause to be published in the Official Gazette the declarations containing the names of the elected candidates”.
However, 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.
The ECI issued the ‘Due Constitution’ notification on May 25; therefore, members of state legislatures who have been elected to Lok Sabha must resign their seats within 14 days of that date, i.e., on or before June 8. The late Gurcharan Singh Tohra chose to retain his seat in the Punjab legislative Assembly despite having been elected to Lok Sabha in 1999, whereupon his seat in Lok Sabha was declared vacant.
(S K Mendiratta served with the Election Commission of India for more than 53 years)