With the text of the 129th constitution amendment Bill, commonly called as One Nation One Election Bill now out in the public domain, it is important to take a closer look at the fine print of this legislation, which has the potential to change the basic foundation of the country’s parliamentary democracy.
Now, strong views are being expressed for and against this big move by the Bharatiya Janata Party-led National Democratic Alliance (BJP-led NDA) government. The Narendra Modi government will require 364 MPs to get this constitution amendment Bill passed in Lok Sabha, and in case this hurdle is passed, then the numbers battle will shift to Rajya Sabha. That, however, appears to be some years away. Since the government has finally gone ahead to introduce this political hot potato, it might have a plan on how to get the necessary numbers as and when it decides to go ahead after the joint parliamentary committee (JPC) to which the Bill has been referred, gives its recommendations.
First things first, a plain reading of this Bill makes one thing abundantly clear – the BJP’s major plank of One Nation One Election (ONOE) is not going to be a reality anytime soon. Further, many provisions of this Bill raise a question on whether the parliament has the legislative competence to pass such an Act, which will then require ratification from at least half of the states.
Also read: Priyanka Gandhi Vadra, Supriya Sule on ‘One Nation, One Election’ House Panel Headed by BJP MP
Why do I say that this ONOE is a few years away? The Bill proposes to add a new provision in the constitution in Article 82. The proposed new provision reads:
“The President may by a public notification issued on the date of the first sitting of the House of the People after a general election, bring into force the provision of this article, and that date of the notification shall be called the appointed date.”
The above-mentioned provision makes it clear that ONOE if passed by both the Houses of parliament by two-thirds of MPs present and voting and which cannot be less than the halfway mark in both Houses, can earliest be notified after the next Lok Sabha elections, which further means that it can earliest be implemented for the second Lok Sabha election from today.
What, however, is even more important than implementation is the point that is this Bill legally tenable. Some provisions clearly appear to be in contradiction with the existing constitutional provisions. Let us look at some of the new provisions which appear constitutionally suspect:
- Proposed Article 82 A(2) states that notwithstanding anything in Articles 83 and 172, elections of state assemblies will take place with the Lok Sabha, once the new ONOE law is implemented. This provision appears to be ultra vires of the constitution since it violates the principle of federalism which has been declared part of the basic structure of the constitution in many of its landmark judgements. The state assemblies are not subservient to the parliament and without altering existing provisions of Articles 83 and 172, and adding new provisions in Article 82 of the constitution, the new Bill seems to be creating contradictions within the constitution. The five-year term of state assemblies can’t be curtailed according to the existing constitution of India.
- Proposed Articles 82 A (5,6 &7) are aimed at giving powers to the Election Commission (EC) on deciding when to hold state assembly elections and also to give EC the powers to determine the tenure of assemblies. The powers of the EC proposed in this new Article contradict the mandate of the EC as provided in Article 324 of the constitution. As mentioned above, state assemblies are not a subservient part of the parliament, as this Bill states, therefore curtailing their tenures is beyond the powers of the parliament. The constitution lays down the tenure of state assemblies for five years – with the provision of mid-term elections if a government falls or is dismissed, but existing provisions of the Constitution do not allow holding elections for the remaining period of the tenure. Therefore, the EC cannot override the federal powers of the constitution. The EC has no power in the constitution to decide the tenure of state assemblies.
- New provisions added to Articles 83 and 172 as fresh amendments through this Bill, run contrary to the existing provisions already mentioned in these Articles. Either existing provisions of these two Articles need to be deleted or fresh ones need to be dropped to keep Articles 83 and 172 legally tenable.
There is no doubt that holding simultaneous elections for the Lok Sabha and state assemblies is not something which the Modi government has suddenly brought about. Till 1967, India witnessed simultaneous elections and following that, due to a variety of reasons, including the creation of new states and dismissal of state governments by the Centre, this chain was broken since five-year tenure till date has been considered to be sacrosanct according to the constitution.
Over the past decades, there have been successive attempts by expert bodies, including the Law Commission to come up with a feasible and acceptable proposal for holding simultaneous polls. Some of the ideas mooted for consensus in the past included extending the tenures of those state assemblies which would not coincide with the Lok Sabha, bringing harmony for going ahead with simultaneous polls. No unanimity, however, could be reached.
The Modi government formed a high-powered committee, headed by former President Ram Nath Kovind and the current Bill is a product of the report presented by the Kovind committee.
The Bill in its current shape, however, appears to have fallen short on several counts and suffers from legal infirmities and points to a lack of widespread consultation before the Bill drafting was done.
The silver lining is that the Bill has been referred to a joint committee. Would it be too much to hope that the committee can come up with a constitutionally acceptable draft that can evolve political consensus? Seems unlikely, though.
Nagendar Sharma is the executive editor of Earshot.in – India’s first Dolby-enabled multilingual podcasting platform. He has formerly worked for BBC World Service and Hindustan Times. He also served as media advisor to the Delhi chief minister.
