The Chairman of the Law Commission of India, former judge of the Supreme Court, Justice (retd.) B S Chauhan believes that the biggest legal challenge in holding simultaneous elections is the need for major constitutional amendments. He said he was still grappling with the vexed issue of the Tenth Schedule, containing the anti-defection law, which can’t be made redundant to give assemblies or Parliament a fixed full-term.
Speaking to The Indian Express, Justice Chauhan said the reference from Law Ministry to start working on points of law over a proposal for ‘simultaneous elections’ came to him “a few days ago”. But he emphasised that “we have been working on this as an academic exercise ever since Law Day on November 25, 2017, when the Prime Minister brought this up in his speech as the way forward.”
Chauhan said that “we have not gone into the desirability of the exercise… That would be for politicians and others to decide; we are just trying to sort out the legal aspects… About four constitutional amendments and then amendments to the RPA (Representation of the People Act) would be needed too.”
Justice Chauhan said holding simultaneous polls would cost a lot of money to the public exchequer and would be a huge exercise. Suggesting that it would need an overhaul of Election Commission, he said the number of EVMs required would be “three to four times of what we have” as results can only be counted after all the polls have been held.
The biggest hurdle, as per Justice Chauhan, however, are Constitutional amendments required, including dilution of the Tenth Schedule, which prevents members of the legislature from violating party whips. “In case of a hung house, when we propose that the leader of the House could be elected by diluting the idea of whips, the tenth schedule that ensures no defections would have to be diluted, so MPs and MLAs can choose the leader. This would have to be as a one-time exception. But the problem is, what about at times later for the passage of the Budget and other crucial bills? What should be done with the Tenth Schedule then?,” he asked.
The second major aspect flagged by Justice Chauhan is “constructive Confidence Motion, as in the case of Germany, where no-confidence motions must be accompanied by proposals for an alternative government. But this would need major changes in the law.”
With all these proposed changes looking at “stable governments” everywhere and elections only once in five years, does he believe the Constitution needs fundamental overhaul? Justice Chauhan replied, “I believe we have the best Constitution in the world that borrows from best practices everywhere. What it needs is proper execution… We don’t need to change it.”
Earlier this week, the Law Commission made public its draft working paper on options around simultaneous elections and has invited comments by May 8. Justice Chauhan’s term as Chairman of Law Commission ends in August. By then, he hopes to submit his final report on this question. “This will not be possible by 2019. But even if by 2040, the country should start thinking about it,” he argued.
Speaking on Uniform Civil Code, the other issue Law Commission had been looking at, Justice Chauhan said “now that triple talaq, nikah halala and polygamy are things the Supreme Court is seized of, we have stopped working on it. Also, the other hurdle for moving towards a Uniform Civil Code is Schedule VI, and large parts of the country where completely different laws prevail and Articles 370 (a to i) which make deciding on a Uniform Law very difficult… We now want to look at Christian and Parsi law for instance and Hindu law too, where lacunae are there on inheritance, marriage, adoption etc and suggest a few changes, to bring them in accordance with the Constitution.”