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Mainstream, VOL LV No 6 New Delhi January 28, 2017

Simultaneous Parliament and State Assembly Polls Strike at the Root of Federalism

Tuesday 31 January 2017, by Rajindar Sachar

Prime Minister Modi has for the last six months kept up a continuous refrain for simultaneously holding Lok Sabha and State Assembly polls and the supposed advantages that would flow from it. As was to be expected, a number of newspapers and newspersons are picking up this matter. It is unfortunate that the Election Commission of India and Niti Ayog should have gone along with this suggestion without even the minimum constitutional requ-irement of a public debate and seminars—and more unforgivably without discussion 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 the Lok Sabha expires in May 2019. Modi’s repeated emphasis on simultaneous polls is actuated by the realisation that the mood of exhilaration that he was able to create in the 2014 parliamentary poll is diminishing very fast. The background situation from 2004-2014 of the UPA regime had exposed so many scandals, both financial and adminis-trative, that people were sick of the goody but not visible Prime Minister Manmohan Singh because of the domination of the Indira Gandhi family. The exposure by the Supreme Court of telecom and coal scandals had made the BJP’s task easier. By itself the BJP under the leadership of none other than Modi (helped fully by the RSS) may not have done that well. But Modi had created an illusion of a 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 2002. Such was the communal passion aroused by the RSS that in the country, which was already disgusted with the corruption and inefficiency of the UPA Government and also heightened by the split amongst the various political parties, Modi romped home with an overwhelming majority of seats in the Lok Sabha but with just 31 per cent of votes—of course greatly helped and boosted by corporate funding.

That illusion has now been exposed. Even ardent supporters of Modi at present do not place hundred per cent bet on Modi winning the Lok Sabha polls in 2019—that is why the effort of Modi to work out a strategy so as to keep his rivals caught up with State Assembly polls in order to avoid combined pressure on him in the 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 the Lok Sabha and 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 simul-taneous polls in May 2019.

This is because it would require to extend the term of the States Chhattisgarh, Madhya Pradesh and Rajasthan (by five months), Mizoram (by six months) and Karnataka (by 12 months) which is constitutionally not possible. Of course, the terms of Haryana and Maharashtra (by five months), Jharkhand (by seven months) excepting NCT Delhi (by eight months) could be curtailed as these States have BJP governments, but Delhi would not agree.

Punjab, UP are going to polls two months—obviously no one can expect Tamil Nadu, Bihar, J&K, West Bengal and Kerala, all under the rule of Opposition parties, to agree as their terms are upto 2021. Assam can go to polls in 2019 though those are due in 2021 as it is run by a BJP Government—would Modi agree to curtail the term in a State where the BJP has for the first time come to power?

Non-BJP States like Tamil Nadu, West Bengal whose terms expire by 2021, will never agree to curtail their terms. The Central Government, whose term 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 them by dissolving Parliament in 2017 and then holding simultaneous polls by also dissolving at same time the State Assemblies where the BJP enjoys a majority and whose terms are not yet over as mentioned above. If Modi is not willing, why is he trying cover his government’s 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. This contrived situation, being sought to be brought about by Modi, has very dangerous implications and is against the basic structure of our Constitution that is impermissible. According to the Supreme Court of India, Article 1(1) defines India as a Union of States which means a federation of States.

Our Constitution specifically provides an exclusive List—I empowering the Central Government which alone can legislate on certain subjects in List-I in the Seventh Schedule. The States alone can legislate in List-II—Parliament cannot. Both the Centre and States can legislate in List-III. The State List-II includes very important subjects like agriculture, law and order et al. on which only the State can legislate and the Centre has no jurisdiction. Obviously voters have different aspects, priorities when voting for State Assemblies and 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 decentralisation which is the core of our constitutional jurisprudence.

Examples of other countries like the USA and Europe would also show that it is constitu-tionally recognised that the priorities and interests of the State in day-to-day-governance are emphasised differently. Thus in the USA a rather extreme position prevails that law and medical degrees of one State are not even recognised in the rest of the States. As for elections, they have different laws in each State. They have separate laws for the President’s election and separate for those of the Senate and House of Representatives and also separate for various States. Of course, this is an extreme example borne possibly by the history the USA had experienced.

We wisely did not go so far. Also the distinction between the priorities of the Centre and States are different. The sooner Modi relinquishes this idea of simultaneous polls the better. This gives unfair advantage to national parties as against the State parties and distorts the sentiment of voters that the government be close to the people of the area concerned.

The author, a retired Chief Justice of the Delhi High Court, was the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1 [at] vsnl.net / rsachar23 [at] bol.net.in