Prime Minister Narendra Modi has for last 6 months kept a continuous refrain for holding simultaneously Lok Sabha and State Assembly polls and the supposed advantages that would flow from it. As was to be expected number of newspapers and persons are picking up this matter. It is unfortunate that Election Commission of India and Niti Aayog should have gone along with this suggestion without even the minimum constitutional requirement of a public debate and seminars – and more unforgivably without discussions of the matter with other major political parties and the State governments.
In order to have a worthwhile debate, it is necessary to know the legal and factual situation at present. The present life of Lok Sabha expires in May 2019. Modi’s repeated emphasis on simultaneous poll is actuated by the realization that the mood of exhilaration that he was able to create in 2014 Parliamentary poll is diminishing very fast. The background situation from 2004-2014 of UPA regime had exposed so much scandals both financial and administrative that people were sick of goody but not visible prime Minister Manmohan Singh because of the domination of Indira Gandhi family.
The exposure by the Supreme Court of telecom and Coal scandals had made BJP task easier. By itself BJP under the leadership of other than Modi (helped fully by RSS) may not have done that well. But Modi had created an illusion of strong and honest government in Gujarat that people were willing to ignore or even forget one of the worst periods under Modi, namely the state supported mass slaughter of Muslims in 2001.
Such was the communal passion aroused by RSS, that the country which was already disgusted with the corruption and inefficiency of UPA government and also heightened by the split amongst the various political parties, that Modi romped home with overwhelming majority of seat in Lok Sabha but with just 31% of votes – of course greatly helped and boosted by corporate funding.
That illusion has now been exposed. Even ardent supporters of Modi now do not place hundred percent bet on Modi winning Lok Sabha polls in 2019 - that is why the effort of Modi to work out a strategy so as to keep his rivals also caught up with State Assembly polls so as not to put combined pressure on him in Lok Sabha polls.
But this strategy of Modi is not constitutionally possible. After the Emergency, the Constitution (44th Amendment) has provided in Article 83 and Article 172 of the Constitution that Lok Sabha and State Legislatures of the State shall continue for five years from the date appointed for its first meeting and no longer. Thus the factual situation at present will show that it is constitutionally not possible to hold simultaneous polls in May 2019.
This is because it would require to extend the term of sates like Chhattisgarh, Madhya Pradesh and Rajasthan (by 5 months), Mizoram (by 6 months) and Karnataka (by 12 months), which is not constitutionally possible. Of course, the terms of Haryana and Maharashtra (by 5 months), Jharkhand (by 7 month), excepting NCT of Delhi (by 8 months), could be curtailed, as these states are BJP government, but Delhi would not agree. Punjab and UP have already gone to polls.
Obviously, no one can expect Tamil Nadu, Bihar, J&K, West Bengal and Kerala, all ruled by opposition parties, to agree whose terms are up to 2021. Assam can go to polls in 2019, though it is due in 2021, as it is BJP-ruled; but will Modi agree to curtail its term where BJP has for the first time come to power? Non-BJP states like Tamil Nadu and West Bengal, whose terms expires by 2021, will never agree to curtail their period terms.
The Central government whose terms would expire by 2019 cannot continue thereafter without holding fresh elections due in May 2019. If however Modi is so keen on holding simultaneous polls even with some states, he can hold it along by dissolving Parliament in 2017 and then hold simultaneous polls by dissolving also at the same time BJP Sate Assemblies whose terms are not yet over as mentioned above.
If Modi is not willing, why is he trying to cover his government failure by conjuring up these illusory undemocratic solutions? But a greater principle of democracy is involved in simultaneous polls of parliament and state assemblies, unless by fortuitous circumstances the five year period of Parliament and State Assemblies happen to coincide on its own.
This contrived situation, trying to be brought up by Modi, has very dangerous implication and against the basic structure of our constitution which is impermissible. According to the Supreme Court of India, Article 1(1), India is a Union of States which means a federation of States. Our constitution specifically provides exclusive List-I, empowering the Central government, which alone can legislate on certain subjects in list-I in Seventh Schedule. The States alone can legislate List-II, Parliament cannot. Both Centre and States can legislate in List-III.
State List-II includes very important subjects like agriculture, law and order … on which only state can legislate and Centre has no jurisdiction. Obviously voters have different aspects, priorities when voting for State Assemblies or Parliament. In the Delhi laws Act, the Supreme Court of India (1951) specifically held: “The State legislature under our Constitution is not a delegate of the union parliament. Both legislatures derive powers from the same Constitution. Within its appointed sphere, the State Legislature has plenary powers”.
Modi wants to deny this strategic advantage of States and weaken decentralization which is the core of our constitutional jurisprudence. Examples of other countries like USA and Europe would also show that it is constitutionally recognized that the priorities and interests of State in day-to-day governance are emphasized differently. Thus, in USA, a rather extreme position prevails, that law and medical degrees of one state are not even recognized in the rest of the states.
As far elections, they have different laws in each state. They have separate laws for poll for President’s election and separate laws for Senate and House of representatives, and also separate for various states. Of course this is an extreme example borne possibly of history of USA which had Civil War. We wisely did not go so far.
Also the distinction between the priorities of Centre and the states are different. The sooner Modi relinquishes this idea of simultaneous poll it is better. This gives unfair advantage to national parties as against state parties and distorts the sentiment of voters that government be close to the people of area concerned.
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*Veteran lawyer, former chief justice, Delhi High Court. Source: PUCL Bulletin (February 2017)
The Central government whose terms would expire by 2019 cannot continue thereafter without holding fresh elections due in May 2019. If however Modi is so keen on holding simultaneous polls even with some states, he can hold it along by dissolving Parliament in 2017 and then hold simultaneous polls by dissolving also at the same time BJP Sate Assemblies whose terms are not yet over as mentioned above.
If Modi is not willing, why is he trying to cover his government failure by conjuring up these illusory undemocratic solutions? But a greater principle of democracy is involved in simultaneous polls of parliament and state assemblies, unless by fortuitous circumstances the five year period of Parliament and State Assemblies happen to coincide on its own.
This contrived situation, trying to be brought up by Modi, has very dangerous implication and against the basic structure of our constitution which is impermissible. According to the Supreme Court of India, Article 1(1), India is a Union of States which means a federation of States. Our constitution specifically provides exclusive List-I, empowering the Central government, which alone can legislate on certain subjects in list-I in Seventh Schedule. The States alone can legislate List-II, Parliament cannot. Both Centre and States can legislate in List-III.
State List-II includes very important subjects like agriculture, law and order … on which only state can legislate and Centre has no jurisdiction. Obviously voters have different aspects, priorities when voting for State Assemblies or Parliament. In the Delhi laws Act, the Supreme Court of India (1951) specifically held: “The State legislature under our Constitution is not a delegate of the union parliament. Both legislatures derive powers from the same Constitution. Within its appointed sphere, the State Legislature has plenary powers”.
Modi wants to deny this strategic advantage of States and weaken decentralization which is the core of our constitutional jurisprudence. Examples of other countries like USA and Europe would also show that it is constitutionally recognized that the priorities and interests of State in day-to-day governance are emphasized differently. Thus, in USA, a rather extreme position prevails, that law and medical degrees of one state are not even recognized in the rest of the states.
As far elections, they have different laws in each state. They have separate laws for poll for President’s election and separate laws for Senate and House of representatives, and also separate for various states. Of course this is an extreme example borne possibly of history of USA which had Civil War. We wisely did not go so far.
Also the distinction between the priorities of Centre and the states are different. The sooner Modi relinquishes this idea of simultaneous poll it is better. This gives unfair advantage to national parties as against state parties and distorts the sentiment of voters that government be close to the people of area concerned.
--
*Veteran lawyer, former chief justice, Delhi High Court. Source: PUCL Bulletin (February 2017)
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