Simultaneous Elections – Breaking Down the Legal Implications
The concept ‘Simultaneous Elections’ has been deliberated upon with great intensity for its execution by the government. This idea proposes to conduct the elections of all the tiers of government in a synchronized and coordinated fashion. India being the largest democracy in the world and in a constant election mode, this concept being pondered upon in a serious manner should not give one a sense of bewilderment. This paper aims to evaluate seminal legal implications regarding simultaneous elections. The most crucial aspect that the authors have incorporated in this paper is the solution to the legal hurdles that have become apparent with the idea of executing simultaneous elections. The most indispensable point that has been stressed upon is that this notion does not shake the roots of free and fair elections and is in consonance with the doctrine of basic structure.
SIMULTANEOUS ELECTIONS –NEED OF THE HOUR
Simultaneous elections are defined as structuring the cycle of Indian elections in a way that Lok Sabha (House of People) elections and that of Vidhan Sabha (State Assemblies) are synchronized collectively, where a voter will have to vote for both in a single day.[i] The Law Commission of India in its 170th Report which was published in the year 1999 has given many thoughtful considerations for reforming the election laws in the country. India witnessed simultaneous elections right after the Independence. However, there was dissolution of certain state assemblies in the year 1968 and 1969 followed by the dissolution of Lok Sabha in the year 1970.
It is pertinent to note that our country is constantly in an election mode. As a result, the perception of conducting synchronized elections in India has been an issue of contention in contemporary times. Simultaneous elections will give a sigh of relief to the exchequer of the government. The imposition of model code of conduct also restricts the developmental activities of the government. The parties are constantly engaged in their election campaigns thus hampering their accountability towards the people of this country who voted for them in the first place. These issues makes this legal implications of holding simultaneous elections an indispensable part of the discussion.
THE LEGAL ISSUES IN IMPLEMENTING SIMULTANEOUS ELECTIONS: A CRITICAL ANALYSIS
It is apposite to examine if simultaneous elections fall within the purview of legal and constitutional framework of the country. In order to synchronize elections of the House of People and State Assemblies, one of the most plausible options is to curtail or extend the term of state assemblies. Our Constitution provides that maximum duration of the Lok Sabha and State Assemblies is of five years from the date of their first meeting unless sooner dissolved.[ii] The term of five years can be extended by imposing President’s rule by virtue of Article 356 of The Constitution of India.[iii] Also due to the presence of the term ‘unless sooner dissolved’ in the respective articles, the term of the state assemblies can also be curtailed.[iv] If the term of state assemblies is to be synchronized with the House of people, enhancing or extending the term of certain state assemblies is inevitable. Although, this can curtail or extend the term of state assemblies, it will be feasible and practical to amend the relevant provisions of Constitution exclusively for the purpose of smooth functioning of simultaneous elections.
As Article 172 of the Constitution of India deals with the duration of State Legislatures, an amendment in this article can be incorporated in order to curtail or extend the term of the state assemblies. Although we have constitutional remedies for extending and curtailing the term of the state assemblies as mentioned above, an amendment for curtailing or extending the duration of the state assemblies in Article 172 is a feasible and a better option than imposing state emergency or dissolving constituencies. A draft of the clause 3 of Article 172 as per the rational of the authors can be read as follows:
“Article 172(3) – The Parliament may curtail or extend the duration of State Legislatures for the span it deems necessary, in order to facilitate the synchronization of elections of state legislatures with the House of People”. Parliament will be endowed with this responsibility of curtailing and extending the duration when Article 246(2) is read with entry 72 of the Union List in the Seventh Schedule.
DOCTRINE OF BASIC STRUCTURE
The Doctrine of Basic Structure was propounded in the case of Kesavananda Bharathi v. State of Kerala[v] holding that basic features of the Constitution are non-amenable under Article 368.[vi] Some examples of basic foundation and structure of the Constitution laid down in this case are Secular character of the Constitution, Federal Character of the Constitution, Republican and Democratic form of Government etc.[vii] These features, if altered by an amendment would rob the Constitution of India of its identity.[viii]
The apex court recognized federalism as a basic feature of the constitution. A federal system of government signifies there is a division of power between the Central and State Government, in contrast to the unitary system of government.[ix] It provides states with their own fundamental political integrity. However, in the case of S.R Bommai v. Union of India[x], Supreme Court held that Constitution of India is ‘quasi-federal’ as it is a blend of the federal and unitary elements. It is broadly based on federal form of government with a tilt towards the Union.[xi] The Constitution of India is federal in form but unitary in spirit. The most pivotal view that has been demonstrated by the Supreme Court regarding Federalism is:
“It presents the combination of a federal structure with unitary features, yet India is not a Federal State in the traditional sense of term.”[xii]
Parliamentary form of government emanates from the concept of federalism and has also been recognized as basic feature of constitution in the case of Kihoto Hollohan v. Zachillhu.[xiii] The amendment proposes to curtail or extend the term of state assemblies on the discretion of the Parliament. This will deny them their tenure of five years which is the essence of Parliamentary form of government that is the denial of their separate existence. Article 355 corroborates the concept of ‘quasi federalism’. The amendment to facilitate simultaneous elections confers power to the parliament thus endorsing to its ‘quasi federal’ structure. In addition to this, the Parliament also procures power by virtue of Article 246(1) read with entry 72 of the Union List which gives constitutional power to the Parliament to legislate on elections. The amendment will thus, not alter any entry in the three lists of the seventh schedule and won’t interfere with the legislative competence of the union and states.[xiv]
PROPOSED MODEL FOR SYNCHRONIZATION OF ELECTIONS
With the culmination of 2019 Lok Sabha polls, the potential simultaneous elections can be implemented in 2024 Lok Sabha polls assuming the government does not dissolve which is highly unlikely with the robust BJP government at the Centre. It is essential to curtail or extend the terms of state assemblies in order to synchronize the elections of the state assemblies with the House of People. This has to be done in two phases as extension or curtailment of a fairly large tenure for example more than 24 months is also not desirable.
The concept of two-phase needs to be given due thought because it will be grave injustice to the state assemblies whose terms need to be curtailed significantly. Similarly, the duration of certain state assemblies will need to be given an extension of 24 months which is also not acceptable. For example, the next state assembly elections of Tamil Nadu are in the month of June 2021. The government formed will have its regime till June 2026. If elections are to be synchronized in April-May 2024 Lok Sabha polls the tenure will have to be curtailed by a notable 24 months. In the case of Punjab, next elections are due in March 2022. As a result, their term will get a substantial increase of 26 months. This will invite strong criticism from political parties.
As far as the remaining states and union territories are concerned their terms can curtailed and extended in an equitable manner and can be organized mid 2024 polls i.e. during November-December 2026. The terms of these state assemblies should only be kept till the next general polls i.e. the 2029 Lok Sabha polls. This will ensure that in 2029 Lok Sabha polls the elections of all the state assemblies and union territories will be completely synchronized. One more clause will need to be incorporated in the Article 172 for facilitating the synchronization of the elections of state assemblies to be held in November-December 2026 and extend only till April-May 2029. This is potentially a viable and optimal way for synchronizing the terms of all state assemblies. Although some states have to sacrifice their term for 2.5 years, this will not infringe with the principle of Federalism as per the arguments laid down by the authors with regards to Federalism.
Although the current electoral system of the country is not completely in ruins, it is the moral obligation of the government in power to implement a potentially better framework which help the country in long run. The authors strongly opine that amends in the legal and constitutional provision is in consonance with the basic framework of the Constitution. Simultaneous elections will help the political parties to shift from constant election mode and focus better on their prime developmental activities for the respective states or the nation.
All said and done, the most vital thing that needs to be done now is to increase the awareness regarding the subject matter and create significant consensus among key stakeholders. Wider acceptance of the subject won’t hinder upon the efficacy of the idea. Thus, future prospects should emphasize that the individuals who have the power to bring amends in the framework of the current electoral system such as intellectuals from the legal field, government officials, think tanks should express the intent and start slogging on all the requisites for implementation of simultaneous elections and revive the masqueraded face of efficient electoral system.
ENDNOTES [i] Simultaneous elections in India, DRISHTI IAS, June 27, 2018, https://www.drishtiias.com/daily-updates/daily-news-editorials/simultaneous-elections-in-india. [ii] INDIA CONST, arts. 83, 172. [iii] Id. [iv] Id. [v] Kesavananda Bharathi v. State of Kerala, AIR 1973 SC 1461 (India). [vi] M.P. Jain, Indian Constitutional Law, (LexisNexis, 8th ed, 2018). [vii] Id. [viii] H.M. Seervai, Constitutional Law of India, (Universal Law Publishing - An imprint of LexisNexis, Gurgaon, 4th ed., 2015). [ix] W.F. Allison (ed.), A.V Dicey The Law of the Constitution (OUP Oxford, 1st ed.,2013). [x] S.R Bommai v. Union of India, AIR 1994 SC 1918 (India). [xi] Kuldip Nayar v. Union of India, AIR 2006 SC 3127 (India). [xii] Ganga Ram Moolchandani v. State of Rajasthan, AIR 2001 SC 2616 (India). [xiii] Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412 (India). [xiv] Supra note 3 at 113.
ABOUT THE AUTHOR
This blog has been authored by Parth Malviya and Gaurangi Sharma, both 4th Year B.A., LL.B. (Hons.) students at Maharashtra National Law University, Nagpur.
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