Uttarakhand is staring at a possible constitutional crisis, with time running out for Chief Minister Tirath Singh Rawat to get elected to the Legislative Assembly. Rawat, sworn in on March 10 as a surprise pick of the BJP state legislature party, has until September 10 to get elected as an MLA in a bypoll. But with the pandemic raging, uncertainty prevails over whether a bypoll can be held within that time-frame, and over the legal and political implications if it is not held.
What does the law say?
According to Article 164 (4) of the Constitution, “a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister”. So, to continue as Chief Minister, Rawat has to be elected as an MLA before September 10.
Rawat, who replaced Trivendra Singh Rawat as the Chief Minister, was elected to Lok Sabha from Garhwal in 2019. He has not yet resigned from Lok Sabha and remains the Garhwal MP, according to the Lok Sabha website.
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What are the options before the BJP?
BJP sources said the central leadership has been in discussion with legal and constitutional experts. “One suggestion that came up is that the party can pick someone else for the top post as there are restrictions on the same person returning to the post,” said a BJP leader.
“Both the Election Commission and the government are careful after the criticism during recent Assembly elections. So holding an election is possible only after the situation becomes normal,” said a senior BJP leader.
Has such a situation happened before?
In April last year, the Maharashtra government was in a similar situation, requiring Chief Minister Uddhav Thackeray to be elected to the state legislature. The pandemic had left holding a bypoll uncertain. Thackeray initially tried to get himself nominated to the Legislative Council using a provision that allows the Governor to nominate 12 members, but the move was stalled by Governor Bhagat Singh Koshyari. The crisis was eventually resolved with Thackeray getting himself elected as a Member of the Legislative Council.
Unlike Maharashtra, the Uttarakhand legislature is unicameral and has no Upper House. This leaves BJP with no option other than contesting a bypoll if it intends to retain Rawat as CM.
There have also been instances in the past when a minister has resigned for a day and been appointed again, extending the constitutional deadline by another six months. In September 1995, Punjab Congress leader Tej Parkash Singh, then not an MLA, was appointed a minister. In March 1996, before he could get elected within six months, he resigned and was appointed a minister again during the term of the same legislature.
When the appointment was challenged, the Punjab and Haryana High Court dismissed the plea but the Supreme Court held that Singh’s second appointment “without getting elected in the meanwhile was improper, undemocratic, invalid and unconstitutional”. The decision, however, was only an academic exercise as it came in 2001, well after the Assembly had completed its term.
Does the law contemplate a scenario where it is impossible to hold a poll?
A caveat in the Representation of the People Act, 1951, adds another dimension to the crisis. Section 151A allows two exceptions to holding a bypoll to satisfy the requirement in Article 164(4) of the Constitution. It states a bypoll need not be held if (a) the remainder of the term of a member in relation to a vacancy is less than one year; or (b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the by-election within the said period.
The term of the current Uttarakhand Assembly, which began in March 2017, has less than a year to expire.
Both these options would mean that Rawat would have to be replaced.
Has the EC ever certified that an election cannot be held?
For filling vacant seats, the EC could cite the less-than-one-year rule and club the bypolls with the Assembly elections. In the past, the clause on impossibility of holding an election has been invoked, including in Jammu and Kashmir. However, in situations concerning the Chief Minister’s election, the EC has traditionally preferred to hold a bypoll.
According to a senior EC official, the panel has not yet taken a view on holding the byelection in Uttarakhand as it is watching the Covid-19 situation.
If the EC and the Centre decide that holding a bypoll can be avoided given the Covid situation, it could set a precedent for West Bengal Chief Minister Mamata Banerjee, who lost her Assembly election from Nandigram and needs to be elected within six months.
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