Prime Minister Narendra Modi has, for the last six months, maintained a continuous refrain on the advantages of holding Lok Sabha and state Assembly elections simultaneously. As was to be expected, a number of newspapers and others are picking up this matter. It is unfortunate that the Election Commission of India should have gone along with this suggestion without even the minimum requirement of a public debate and 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.
The life of the present Lok Sabha expires in May 2019. Modi’s repeated emphasis on simultaneous elections is actuated by the realisation that the mood of exhilaration that he was able to create in the 2014 parliamentary elections is diminishing fast. The decade of 2004-2014 of the UPA regime had exposed so much scandal, that people were tired of the goody-goody but not visible Prime Minister Manmohan Singh because of the domination of the Gandhi family. The exposure by the Supreme Court of telecom and coal scandals made the BJP’s task easier. By itself, the BJP under leadership of someone other than Modi (helped fully by the RSS) may not have done that well. But Modi created a perception of strong and honest government in Gujarat, so much so that people were willing to ignore or even forget the 2002 riots. Such were the passions aroused by the RSS, that the country, which was already disgusted with the corruption and inefficiency of the UPA government—and accentuated by the split amongst various political parties—that Modi romped home with an overwhelming majority of seats in the Lok Sabha. However, now even the most ardent supporters of Modi are not ready to bet on the BJP winning the Lok Sabha elections of 2019 on its own. That is why the party is trying to work out a strategy to keep rival parties caught up with state Assembly elections, so as not to put combined pressure on him in the Lok Sabha elections.But this strategy is not Constitutionally possible. After the Emergency, the Constitution (44th Amendment) has provided in Article 83 and Article 172 that the Lok Sabha and the State Legislatures of shall continue for five years from the date appointed for their first meeting and no longer, making it Constitutionally not possible to hold simultaneous elections in May 2019.
Simultaneous elections will require extending the terms of the states of Chhattisgarh, Madhya Pradesh and Rajasthan by five months;Mizoram by six months; and Karnataka by 12 months, which is not Constitutionally possible.
This is because it will require extending the terms of the states of Chhattisgarh, Madhya Pradesh and Rajasthan by five months; Mizoram by six months; and Karnataka by 12 months, which is not Constitutionally possible. The terms of Haryana and Maharashtra could be curtailed by five months and Jharkhand by seven months as these states are BJP-ruled. The term of the government of NCT of Delhi will have to be curtailed by eight months, which it will not agree to.
Punjab and Uttar Pradesh must go to the polls in the next two months. Tamil Nadu, Bihar, Jammu and Kashmir, West Bengal and Kerala are ruled by Opposition parties. Their terms are up to 2021 and they will not agree to an early dissolution. However, the Central government’s term will expire in 2019 and cannot continue thereafter without holding fresh elections due by May that year. Assam can go to the polls in 2019, although due in 2021, as the state is BJP-ruled. But will BJP agree to curtail its term in a state where it has come to power for the first time?
If, however, Modi is keen on holding simultaneous elections, he can do so by dissolving Parliament in 2017 and then hold simultaneous polls by dissolving at the same time the BJP state Assemblies whose terms are not yet over as mentioned above.But a greater principle of democracy is involved in holding simultaneous polls for Parliament and state Assemblies, unless by fortuitous circumstances the five-year period of Parliament and state Assemblies coincide on their own. A contrived situation has implications against the basic structure of our Constitution. According to Supreme Court of India Article 1(1), India is a Union of States which means a federation of states. Our Constitution provides an exclusive List I, empowering the Central government, which alone can legislate on certain subjects on List-I in the Seventh Schedule. The states alone can legislate on List II, Parliament cannot. Both Centre and State can legislate on List III. State List II includes important subjects such as agriculture and law and order. On this, only states can legislate. The Centre does not have any jurisdiction. Obviously, voters have different aspects and priorities when voting for state Assemblies or Parliament. In 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.” Examples of other countries like the US and Europe would show that it is constitutionally recognised that the priorities and interests of states in day to day governance are emphasised differently. Thus in the US, a rather extreme position prevails that law and medical degrees of one state are not recognised in the rest of the states. As for elections, they have different laws in each state. They have separate laws for the election of the President, separate for Senate and House of Representatives and separate for various states. Of course this is an extreme example because possibly of the civil war history of the US. We, wisely, did not go so far. Also the priorities of the Centre and the states are different. The sooner the BJP relinquishes this idea of simultaneous elections, the better. This gives an unfair advantage to the national parties as against the state parties and disturbs the sentiment of voters that the government of an area concerned must be close to the people.
Justice Rajinder Sachar is a former Chief Justice of the High Court of Delhi.