Electoral reforms are a hot topic of discussion in India, especially with the introduction of One Nation One Election Bill in Parliament, currently under consideration by the Joint Parliamentary Committee. This is an opportune time to consider other potential electoral reforms such as the practice of sitting legislators contesting for another legislative office, whether at the national or state level.
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The background
The Constitution and multiple laws allow a sitting legislator to contest for another office and retain one if victorious. Primarily, three scenarios arise in this context. First, a candidate cannot become a Member of Parliament under Article 101(1) with Section 69 of the Representation of Peoples Act, 1951 mandating vacation of one seat, if won. Second, Article 101(2) and the Prohibition of Simultaneous Membership Rules, 1950, require a legislator to vacate a seat within 14 days of the election result, if elected to another legislature. Third, the Prohibition of Simultaneous Membership Rules mandates an MLA resign from one assembly within 10 days if elected to multiple state legislative assemblies.
These constitutional provisions have been frequently used and misused by candidates. For instance, three sitting Rajya Sabha members who were ministers contested for Lok Sabha, and from Kerala alone, five sitting MLAs contested the 2024 general elections, with two of them winning the elections. The ratio of sitting MLAs/MPs contesting for another house and getting elected is not minuscule. When a person is elected to two houses, it creates a vacancy that must be filled by a bye-election under Section 151A of the Representation of Peoples Act 1951 within six months from the date of occurrence of the vacancy, necessitating frequent bye-elections. The question is, are the bye-elections effectuated by sitting legislators vacating seats worth it? Should sitting legislators be allowed to contest another election?
Elections are costly affairs. The Election Commission spent Rs 3,870.3 crore for conducting the 2014 Lok Sabha elections. In the 2024 general elections, with an average six per cent inflation rate, the ECI would have spent Rs 6,931 crore, Rs 13 crore for each Lok Sabha seat. This expenditure pales in comparison to Rs 1.35 lakh crore spent by political parties for the 2024 general elections as per the Centre for Media Studies’ estimates. The cost issue is even more prominent in assembly elections where sitting legislators often seek parliamentary seats.
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A sitting legislator contests another election primarily for political expediency. For instance, nine MLAs including five sitting ministers in Punjab contested for Lok Sabha in 2024. While this enhances the possibility of getting elected, it may not serve the interest of the public. It also constitutes a breach of trust of the public to not represent them for a full five-year term. Moreover, the resultant bye-election causes the unnecessary hardship of having to vote again.
This also results in the “parachuting” of sitting legislators into other constituencies. This erodes the advantages of a popular leader representing a seat due to a lack of ground connection and knowledge, fuelling public discontent. This results in lower voter turnout due to public apathy in bye-elections. Furthermore, this disregards the aspirations of local leaders causing organisational disruptions in the party.
Finally, the Model Code of Conduct is enforced in the whole district during both Assembly bye-elections and Lok Sabha bye-elections, preventing timely policy implementation and governance bottlenecks. Project delays and cost overruns have a lingering effect too.
This practice does, however, have constitutional safeguards. The Supreme Court of India in Kuldeep Nayar vs Union of India has held the right to be elected along with the right to vote as a constitutional right, allowing a sitting legislator to represent any people statutorily unless it is restrained by law. Secondly, in the top-heavy federal system, the election of a powerful state leader could bring in resources, justifying the resignation from an assembly seat for Parliament. However, the cons of contesting for another seat overwhelm the advantages.
This is not unique to India though. Many countries allow the sitting legislators to contest for another office. For instance, Canada allows a sitting parliamentarian to contest for a provincial legislative body. On election, his seat in the parliament becomes vacant. Canada does not allow a sitting state legislator to contest for a seat in the House of Commons under the Parliament of Canada Act. Similarly, Australia does not allow a sitting member to become a member of another house. To represent in another house, one must first resign from the current chamber. Italy also does not allow one to contest for Senate and Chamber of Deputies simultaneously.
The proposed ONOE can reduce motivations for political expediency due to simultaneous elections. However, the efficacy of ONOE in reducing multi-level contests will depend on its perfect functioning. If midterm elections become frequent, ONOE will be ineffective.
Secondly, drawing from other countries, India can make it mandatory to resign from the sitting legislature before filing a nomination for another election. To make it more deterrent, the additional cost of conducting a bye-election must be recouped from the legislator, serving as a restraint on them.
Thirdly, Article 101 of the Constitution and the Representation of Peoples Act can be amended to restrict sitting legislators from contesting from other constituencies and paradropping of candidates. This would uphold the core democratic principle of contesting elections from the constituency one intends to represent.
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A better solution would be to introduce a cooling period immediately after the election and before the dissolution of the legislature. Such a step can prevent sitting legislators from contesting another election happening in close quarters. Similarly, in case of a dissolution date less than one year, a legislator should be barred from contesting from another constituency, saving resources from an election within six months under Section 151A of the RP Act.
The issue of sitting members contesting for other offices is a low-hanging yet important matter of reform. Small reforms will go a long way toward strengthening parliamentary democracy in India. What is required, however, is political will and consensus across parties.
Dash is assistant professor at the Institute of Rural Management Anand (IRMA), and Panda is a PhD scholar in Political Science at the University of Hyderabad
