Explained: Is EC empowered to delay Bihar elections due to Covid-19?

The Election Commission (EC) is mandated under law to hold elections at any time within six months before the five-year term of the Lok Sabha or Legislative Assembly expires.

The polls are timed in a way that the new Assembly or Lok Sabha is in place on the day of the dissolution of the outgoing House. For instance, in the case of Bihar, the EC should normally conduct Legislative Assembly elections before the end of its time on November 29. In the case of early dissolution, EC has to ensure, as far as possible, a new Lok Sabha or Assembly is in place within six months of the dissolution.

An election once called usually proceeds as per schedule. However, in some exceptional cases, the process can be postponed or even scrapped after its announcement under extraordinary circumstances.

Under Section 153 of the Representation of the People Act, the poll panel can “extend the time” for completing an election, but such extension should not go beyond the date of the normal dissolution of the Lok Sabha or the Assembly. In 1991, the Commission, under this provision read with Article 324 of the Constitution, postponed the ongoing parliamentary elections for three weeks after Rajiv Gandhi’s assassination during his campaign in Tamil Nadu.

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As recently as March this year, elections to 18 Rajya Sabha seats were postponed by the Commission due to the COVID19 pandemic.

So can EC postpone elections in Bihar under Section 153 of the RP Act?

Powers under Section 153 can be exercised only after an election schedule has been notified. If the EC wants to postpone Bihar elections, it will have to be done through its extraordinary powers under Article 324.

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The Commission will have to inform the government of its inability to hold polls on time. The government and the President will then decide the future course — to impose President’s Rule or allow the incumbent Chief Minister to continue for six months.

Under what circumstances can the EC decide to postpone an election?

There is no specific legal provision that specifies the circumstances under which elections can be deferred, according to EC’s former legal advisor SK Mendiratta. “Law and order, natural calamities like earthquake and floods, or any other compelling circumstances that are beyond EC’s control would be guiding factors for the Commission to take a decision in the matter,” he told The Indian Express. The decision on postponement is usually made after taking inputs from the ground and the central and state governments.