�Constitutional Hindrances For The Conduct Of The Simultaneous Elections� (By � Priyanshi Sharda)

“Constitutional Hindrances For The Conduct Of The Simultaneous Elections”

Authored  By – Priyanshi Sharda

The Northcap University, Gurugram

5th year Law Student

Index

ABSTRACT
Introduction
Necessity for simultaneous elections
Existing Provisions
Constitutional issues relating to simultaneous election
Basic structure
Federalism
Attack on democracy 
Conclusion
Bibliography

Abstract

Elections are conducting every year is one the basic principle of democracy. The free and fair elections is the basic structure of the constitution. People of India elects their representatives at centre, state and local bodies which has given birth to the federal structure of India. There are many circumstances that centre, state and local bodies have different political parties ruling which makes Indian the most intensive democracy of the world and also has over this year changed to participative democracy. India being a subcontinent, so there will chance of frequent elections in the country which has increased the burden of election commission of India.

Then, simultaneous elections came to be seen as an option to resolve such frequency of election in the country as simultaneous elections means holding all kind of elections together. This paper only assumes that holding elections at centre and state together as elections of local bodies is the subject under state list and union cannot encroach upon except in extraordinary situation. This paper analysis the desirability and feasibility of conducting these elections. The major questions paper analysis is the legality of simultaneous elections. Since, free and fair elections is the basic structure of the constitution, so it is important to examine whether these elections will pass the test of basic structure of the constitution. Further, for deep analysis for this paper it has also been examined whether such elections will affect the cooperative federalism of the country as holding elections together for centre and state will have affect in formulation of manifestos as they will include more issues relating to national than centre. In the latter part this paper has analysed the pros and cons of such election and have given the recommendation on the issues of simultaneous elections which will be faced during implementation taking into consideration of various reports like Election Commission of India, Law commission report, Parliamentary committee and NITI Aayog.

Keywords – Elections, Democracy, Simultaneous Elections, Lok Sabha Elections, One Nation Election, feasibility and desirability of the conduct of the election.

Introduction
Election process is one of major objective which shows the level of democracy in the country and in India which is one of the largest democracy of the world, elections are no less than any festival in our country. This democratic value which empowers people towards the path of good governance. Indian governance is divided into three tiers which is at centre, state and local self-governance agencies and therefore makes India more intensively democratic country and which also has transitioned Indian Democracy to participative democracy. So, such agencies having elections in the country at all levels of the country keeps the people of India busy throughout the year which may in turn affects the development of the country and also incurs lot of expenditure of political parties.

The concept of One Nation One Election in simple terms is know as ‘simultaneous election’ which means elections of all the three tiers of the Indian constitutional institutions (namely Lok Sabha (House of People), State Assemblies and Local bodies) taking place together simultaneously in the country. This means, that a voter will use its right to vote for electing members to the three-tiers of the Government on the same day[1].

The elections of the panchayats and Municipalities are concerned, their numbers are too large and also elections of local self-government is a state subject and therefore responsibility of the respective state election commission as per our constitution. Hence, this makes it extremely challenging, to synchronise and make parallel arrangement of local government election’s schedules with that of the other constitutional institutions.[2]

Simultaneous Elections is not a novel concept as these were being there in practice till year 1967. The general elections of Lok Sabha and State assemblies were held simultaneously in 1952,1957,1962 and 1967. This practice got distorted because of premature dissolution of some of the state assemblies and even Lok Sabha like that of seventh, twelfth and thirteenth sessions of Lok Sabha which dissolved prematurely.

Necessity For Simultaneously Elections
The Hon'ble Prime Minister Mr. Narendra Modi supporting the need to conduct simultaneous election has said,

“With some elections or the other throughout the year, normal activities of the government come to a standstill because of code of conduct. This is an idea the political leadership should think of, If Political Parties collectively think we can change it…. The Election Commission can also put in their idea and efforts on holding the polls together and that will be highly beneficial.”[3]

Even various reports it has recommended to resume the practices of conducting simultaneous elections again in India. Justice BP Jeevan Reddy, chairman of fifteenth law commission, has started in its report on election reforms,

“We must go back to the situation where the elections to Lok Sabha and all the legislative assemblies are held at once.”[4]

The main arguments given in support of such elections is the huge amount incurred in conducting elections in the present system. Association For Democratic Reforms also mentions that collectively for the Lok Sabha election held in 2004,2009 and 2014 political parties had spent of Rs. 2355.35 cr in one of their current report [5] and such expenses would be incurred less in case of the simultaneous elections such money will be used from development of the country. 

Csaba Nikolenyi, a Montreal based professor at Concordia University studying India elections, published a paper in publication of Political Studies Associations. He used the most basic of all the formulas to calculate voter's motivation, among others, and drew the conclusion that separate elections in India are preventing more people from participating in democratic process because participation of voters shows the strength of democracy.[6]

The reasons given above can actually motivates us and make us inclined towards the simultaneous elections but still the questions of feasibility that if the ruling government is not able to complete its full tenure, then all the other constitutional institutions will be dissolved and elections will take place again to fulfil the motive of simultaneous elections of all at the same time.

III. Existing Provisions

While contemplating simultaneous elections of Lok Sabha and the State legislative assemblies, a closer analysis of prevailing provisions of the constitution and other statutes which governs the conduct of the Elections like that of Representative People’s Act, 1951, etc. It is a well settled point that the present situation in the country gives numerous choices to the voter with respect to his choice of representative. Even than with respect to simultaneous elections we need to do a comprehensive study of the constitutional and statutory provisions will give more clue - 

Constitutional Provisions –
Article 83 and Article 172 of the Constitution of India prescribes maximum duration of five years for House of the People and State legislative assemblies respectively unless sooner dissolved. It provides an extension of 1 year only during emergency.
Articles 85(1) and 174(1) of the Constitution states the sessions, prorogation and dissolution of Parliament and State Assemblies.
Articles 75 (3) and Article 164 (2) provides that, council of ministers shall be collectively responsible to Lok Sabha and State legislative Assemblies respectively. 
The council of ministers should enjoy the confidence of the majority of the members of the house to enjoy the power.[7]

Articles 113 and 203 prescribes the process of estimates. The evaluation for the future outflow out of the Consolidated Fund of India / Consolidated Fund of the State, needs to be laid before by Parliament / State Legislative Assembly to vote, and failure to pass the same will lead to end of the terms of Council of Ministers, thus paving the way for change of Government.
The tenth schedule to the constitution provides for the conditions of the disqualification of a member of the house/ assembly on ground of defection.

Article 243U talks about elections, duration of municipalities and their dissolution.
 Part XV of the Constitution deals with elections. Article 324 stipulates superintendence, direction and control of elections.[8]
Part XVIII, deals with emergency provisions and conduct of Lok Sabha and State Legislative Assemblies during this period.  

Representation of the People Act, 1951
Following are sections of the said Act which are relevant with respect to the conduct of elections –

Sections 14 and 15 of the Act provides for the notification of general elections to Lok Sabha and State Legislative Assemblies.
Part IX deals with bye-elections of Lok Sabha and State Legislative Assemblies.
Other Statutes
Rule 198 of the Rules of Procedure and Conduct of Business in Lok Sabha specifies the admissibility and procedure with regard to a motion of no-confidence to be introduced in the House of the People.[9]
The commission deals with local bodies prevalent in various states.

IV. Constitutional Issues Relating To Simultaneous Elections

Simultaneous election is not only a legal issue but also an issue relating to desirability and practicability of conducting elections simultaneously. The issues related to the disqualification feasibility of elections simultaneously in India are as follow –

Do simultaneous elections violate the basic structure of the Indian constitution?
Whether violates sprit of federalism of Indian constitution?
Whether it is an assault on Indian democracy?
To understand better we need to analytically deal with each of the issues given above –

Do simultaneous elections violate the basic structure of the Indian constitution?
The concept of Basic structure doctrine is not mentioned in Constitution of India rather is a judicial innovation. Basic Structure doctrine has given coherence and durability to a constitution as it has some intrinsic force in it. Parliament cannot amend the basic structure and also cannot violate the basic structure doctrine in process of enactment of any law.

The term basic structure was first time used in case of Kesavananda Bharati & Ors. V. State of Kerela & Anr.,[10] wherein Supreme court held that Basic structure includes:

The supremacy of the Constitution.
Republican and Democratic form of government and Sovereign country.
Secular and federal structure of the constitution
Demarcation of powers between Legislature, Judiciary and Executive.
Basic rights of Part III and the mandates to built the welfare state in part IV
Unity and Integrity of the nation
Schedule VII of the constitution of India which includes distribution of powers among centre and state through Union List, State list and Concurrent list is the part of basic structure. So, parliament can make laws under this but cannot violate doctrine of basic structure.

In pursuant to Article 327 read with entry 72 of Union list which empowers Parliament to make laws for all matters related to the elections of either house of parliament as well as state assemblies. In case Parliament has made no law in this respect then the respective states have power to make any provision related to all matters relating to elections of both houses of state legislature as given under entry 37 read with Article 328.

One of the major issues of simultaneous election is that whether it affects the basic structure of the constitution and if it violates then to what extent parliament powers are restricted for amending laws related to elections under basic structure doctrine.

Examining whether simultaneous elections are in violation of free and fair elections or not –

In Election case, Hon'ble Supreme Court clearly held that free and fair election and democracy are part of basic structure[11]. It is well understood from the above case that any attack on free and fair elections is an assault on democracy. In other words, any attempt of Parliament making law in violation of fair and free elections will be in violation of basic structure.

Simultaneous elections emphasised only on conducting of elections for Lok Sabha and all state assemblies at a fixed time.[12] So, the way elections will be conducted in free and fair manner is not affected. Such election will only fix the timings of conducting the elections. In order to achieve objective of fair and free election constitution has set up an election commission, a body autonomous and made efforts to keep the institution isolated from all political pressure and executive influence.

Simultaneous election is not violating the provisions of election commission which has been envisaged in the Constitution of India under Article 345 of the constitution of India. Thus, simultaneous elections will not affect the fair and free elections as advocated in the Election case[13]

It is well settled point that right to vote and the right to contest election are not fundamental rights. Such rights have taken birth from the interpretation of provisions by the apex court and therefore is a constitutional right and also provisions of the Representation of People Act, 1951, makes them statutory rights. The foregoing discussion leads to the further conclusion that given their placement in the Constitutional scheme and their objects and purposes; these rights are not included in the “basic structure” of the Constitution.[14]

Amendments in the constitution to include simultaneous elections in the constitutional scheme
It would be important for the Parliament for the matter of the conduct of the election at the same time and to bring all state assemblies and Lok Sabha in a synchronised manner through either to expand the tenure of some state assemblies or reduce the tenure of other state assemblies amendments are required.

So, there would be amendments in Article 83(2) and 172(1) which currently talks about the tenure of Lok Sabha and state assemblies respectively which is 5 years from the day of appointment of its firsts meeting. It can be extendable for 1 year in times of emergency.

So, the question is that if Parliament alters the tenure of such state assemblies to achieve the objective of simultaneous election as discussed, will it affect the basic structure of the constitution?

 It can be viewed that such provisions can be of temporary nature just to make efforts just to put all legislatures and Lok Sabha at same place for simultaneous elections. Since, basic structure is decided from case to case so it is difficult to say that such temporary provisions will not violate the basic structure doctrine. [15]

Hence, it can be concluded that in case of above two provisions are concerned then simultaneous elections may pass the above tests. Democracy and federalism are also part of basic structure which means that it has to pass the test of basic structure doctrine, simultaneous elections have to pass the test of federalism and democracy.

Whether violates sprit of federalism of Indian constitution?
India being a federal structure has always been a debatable topic. The substance for the federal arrangement of India was laid down in the Government of India Act, 1935, which provided the separation of law-making powers between the Union and the States, which was afterwards adopted in the Constitution of India as three lists under the Seventh Schedule.[16]

According to Wheare, the Indian Constitution is ‘quasi federal’ and not ‘strictly federal’.

Dicey[17] calls it – “a political contrivance for a body of States which desires a Union but not unity. Federalism, therefore, is a concept which unites separate States into a Union without sacrificing their own fundamental political integrity”[18].

Dr. K.M Munshi, a distinguished jurist, portrayed Indian Federation as “a quasi-federal union invested with several important features of a unitary government.”[19]

The Indian Constitution has a two-fold system of governance which consists of union government and state government which was created by the union government post-independence, through

State Reorganisation Act; and distributed powers among each other. This supremacy of the constitution has always been safeguarded by the higher courts.[20]

In the Constituent Assembly, while presenting the Draft Constitution, Dr. B R Ambedkar said: “The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation and that the Federation not being the result of an agreement, no State has the right to secede from it. The federation is a Union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source.[21]”

However, he further explained the limitation of the federalism envisaged in the Constitution by stating that “when we say that the Constitution is a Federal Constitution it means this, that the provinces are as sovereign in their field which is left to them by the Constitution as the Centre is in the field which is assigned to it.’’[22]

Federalism is the basic structure of the constitution has been declared in the case of S.R. Bommai V. Union of India[23].

In case of State of West Bengal v. Union of India[24], the Supreme court apprehended that constitution of India has not propounded any principle of absolute federalism. The States have taken power from the Union only because as territory was big and for ease administration the powers were decentralised. The court drew the characteristics which has highlighted the fact that Indian Constitution is not a ‘Traditional Federal Constitution’.[25] This is because our states don’t have their own federal constitution and Union can alone alter the constitution and constituents states have no power to alter it.

In State of Karnataka V. Union of India [26], The Supreme court held that our constitution not only has features of a ‘pragmatic federalism’ which, while distributing legislative power among states and union has more powers in hands of union which gives strongly unitary features.

The Apex court Government of NCT of Delhi v. Union of India & Anr[27], held that states under Indian constitution is not carved as separate entities but is carved out the Union and therefore has observed the spirit of ‘collaborative federalism’ which requires coordination among states and union to adopt cooperative/ collaborative federalism.

Since, federal structure is the part of the constitution and is added in the basic structure because of cases some of which stated above. It means Parliament has restricted power to violate unique federal features of the constitution as is included in the basic structure of the constitution. While it does not give the impression that simultaneous elections will affect the federal structure of the constitution. Though, it will affect the federal structure in long run. It is opined by many experts that it is suspected that if simultaneous elections are brought into action, then the parties will rule by the same party both the levels which however will supress the regional parties. This is because manifestos will be made by the state government which previously would include regional issues but during simultaneous elections the manifestos would not include much of local and regional issues as both manifestos will be drafted at the same time. Moreover, voters also not be able to distinguish between national and regional issues. It is further supported by the study conducted by IDFC institute that “on average there is a 77 percent chance that the Indian voter will vote for the same party for both the State and centre when elections are held simultaneously.”[28]

Simultaneous elections are not a new concept, it has already been in practice till 1967 but was broken because of premature dissolution of state assembly or Lok Sabha. This was not planned though rather historical in nature. In these many years of Independence Day there are lot of political parties and such multiple political parties, simultaneous elections would be very impractical.

If simultaneous elections will have same differences as stated above in a long run, it is against the spirit of cooperative federalism as centralisation power in the hand of one party is not good federalism as a whole and violates the basic structure of the constitution. 

Whether such elections are assault on democracy?
The democratic set-up of the country has always been recognised as a basic feature of the Constitution, along with other features like Supremacy of the Constitution, Rule of law, Separation of powers, Power of Judicial Review under Articles 32, 226 and 227 etc.[29]

In democracy, it is will of the people who elects their representatives in form of government of India. “Voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue”[30]

In Kihoto Hollohan V. Zachilhu[31], court restated its views on democracy and elections in the following words “Democracy is a part of the basic structure of our Constitution; and rule of law and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority....[32]”

Election provides citizens to judge the functioning of the government. Such rights are exercised after 5 year for Lok Sabha and Vidhan Sabha unless dissolved. These are routes of democracy. Simultaneous elections would mean using such will of the people for only two times in 5-year term even if these elections are held in two phases. The major point is that elections after so long would distort the relationship of people and their representatives and therefore we can say that frequent elections keep the bond alive between representatives and will of the people. While in present system since elections are conducted many times are therefore, we are at better position to held government responsible for its actions.

Therefore, simultaneous election would be threat to democracy as it will reduce the number of many regional and local parties of the state and also because the will of the people would be experimented on filtered basis. In other words, people may not elect the regional government at state level because they will however will not get fair chance to participate in the elections. Another reason is that elections would be held after a good amount interval at both the levels of the government which would break the relationship of the people and their representative and the accountability and responsibility of representative which are among the major qualities for them would also distort in the eyes of the people.

V. Conclusion

Even if the political party consensus together to formulate these elections but then a big question of feasibility arises. This problem feasibility of implementing this kind of elections has become more difficult in India because of the presence of multiple regional parties of the state. This paper strongly disagrees with the fact that India is ready for ‘One Nation one Election’ as it is impractical to implement such policies as it is changing the heart of democracy and indeed is an attack on democracy. These elections are a big fraud on multiple regional parties as to when there will be same elections for centre and state the focus of manifestos will be more on national issues rather than state or regional issues. This can happen if the elections are held in two phases but do not answer all questions of desirability related to simultaneous elections. Such elections should be implemented only after keeping such points in mind and these drawbacks needs to be minimised thorough various suggestions like such these elections would not take place in the existing framework, so it is important that some necessary limited amendments are passed. One of the necessary amendments need to make under Article 172 of the constitution, so that there will be synchronising the elections in the country. The proposed constitutional amendment doesn’t include ratification of states as it does not come under purview of Proviso to clause (2) of Article 368 but is suggested to take confirmation by not less than one-half of States as an abundant caution. One of the major suggestions by Law Commission Report, 2018 34 is about the concept of ‘constructive vote of no confidence’ should be adopted as on the lines of Germany. There would be a majority in favour of the prospective successor which acts a pre-condition before invoking no-confidence motion against the present government. This will restrict the scope of Opposition to dismiss the government on their will and will not necessitates elections before the government end its term. In case of Hung assembly, all efforts should be made by the President or Governor to put back that party who enjoys support on the floor of the constitutional institutions, giving the opportunity to the largest party in consideration of their pre – poll and post – poll alliances. If no government is able to form then Governor/President should make effort to meet an all-party meeting to remove stalemate and come to some consensus. If above options fails and mid-term election become inevitable then the duration of the house and new elections should for the remaining period so that alignment with other institutions would not break.

 There should be some amendments to be made to include simultaneous elections in the constitution of India among those the most essential is there should be addition as the proviso to Articles 83 (2) and 172 (1) of the constitution, so that house/ assembly does not dissolve and disrupts the cycle of simultaneous elections. The Law commission report 2018 recommends that house if dissolved due to some reasons before expiration, then the mid-term elections should be held only for residue of the period.

In case of Budgetary defeat, the Law Commission Report, 2018 suggested that an effort should be made to arrive at the some of the mutual agreement to avoid midterm elections. The commission recommended that members should in case of disqualification on the ground of defection under the tenth schedule, the speaker or chairman should be given a specific period of not more than 6 months from date of raising issue on the floor of house/assembly to decide these issues. In the democratic government people are among those who are powerful, they elect their representatives. The simultaneous elections are very complex to set up during the ongoing structure of the country. We need to make several amendments to the constitution, train staff at a good speed for conducting such elections. Election Commissioner and State Election Commissioner need to be vigilant during such elections as they not only will train staff but have to recruit good number of staff for crowd management as well. Such elections are defaming the intention of the constitution-makers who wanted to keep the structure of the country federal but such elections would snatch the powers from the centre and state would become a mere agent of centre and would try to implement only what centre wants. As, we have already seen that there is about 77% chance that people would select the representatives from same political party at both levels which is very much affecting the main essence of federal democratic principles of the country. We have discussed above certain tests related to basic structure doctrine and we can conclude that it is highly affecting the cooperative federal structure of the country and which results in attacking the democracy of the country.

VI. Bibliography

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