Unsafe remedy

The majority of political parties reject the Law Commission’s proposal to hold simultaneous elections to the Lok Sabha and the State Assemblies on the grounds that it negates the principles of federalism and is anti-democratic.

February 1967: The election information centre in Delhi, opened by the Indian Posts and Telegraphs Department to give the latest party position in the Lok Sabha and Assembly elections. A total of 40 operators handled calls from telephone users.

AMID the recent debate and controversy that pitched the Delhi government against the Centre over issues of domain and authority and which was settled by a Supreme Court order, the stage was set for another confrontation with the Central government showing a keen interest to push the concept of simultaneous Lok Sabha and Assembly elections. This has sharply divided parties and public opinion. The latest move began with the Law Commission releasing a draft working paper and inviting political parties for a two-day national consultation meant to evolve a consensus on holding simultaneous elections.

The push for simultaneous elections came from various fronts, although it was the Bharatiya Janata Party (BJP) that floated the original idea. The party promised to take the concept through in its election manifestoes in 2009 and 2014. The NITI Aayog, the “premier think tank of the Government of India”, too, pursued it. A 2015 Parliamentary Standing Committee report pointed out that the imposition of the model code during Assembly elections, which were held frequently, impeded development work. And there were the common arguments of “stable” governments and the high public expenditure incurred during elections.

The Law Commission’s understanding has been more or less driven by a political compulsion to formulate a legal framework for simultaneous elections. The only problem is that there has been no consensus on this, although the law panel does suggest ways to achieve a consensus in order to make the constitutional amendments.

Arguing that simultaneous elections were held in the past, and driven by the logic of “stable” governments being a desirable feature, the law panel proposed major amendments to the Constitution and the Representation of the People Act, 1951, and also to the rules of procedure of the Lok Sabha and the Assemblies. These included suggestions that the leader of the House be elected analogous to the election of the Speaker in order to provide stability, after mid-term elections the term of the Lok Sabha or an Assembly would only be for the remaining period of its term and not for another five years, and the government seek a ratification from all State governments in order to prevent or avoid the proposed amendments from being legally challenged.

According to the summary of the draft working paper, simultaneous elections were held until 1967. Following the dissolution of certain State Assemblies in 1968 and 1969 and the Lok Sabha in 1970, this process was disrupted. Interestingly, the draft does not include local body elections in the framework for simultaneous elections on the plea that it is a State subject. In fact, the idea originally emanated from the Election Commission in 1983 and it was taken forward by the 170th report of the Law Commission and the 79th Parliamentary Standing Committee report in 2015.

Meanwhile, the NITI Aayog prepared a paper in January 2017 titled “Analysis of Simultaneous Elections: what, why and how”. The recommendations in the Law Commission’s proposal clearly set the pace for major amendments in the Constitution. The narrative that there should be a stable government at all costs seems to be the underlying motif, which incidentally has been more or less what the BJP has also been saying. The dissolution of the Lok Sabha or State Assemblies would, it says, “disturb the conduct of simultaneous elections”.

The law panel has cited examples of simultaneous elections held elsewhere in the world, chiefly South Africa, Sweden and Belgium. It suggests that as an alternative to the premature dissolution of the House, the members, while moving a no-confidence motion, may move an option for forming an alternative government. It cites the example of Germany where this system prevails.

Secondly, it moots the idea of tweaking the Tenth Schedule (Anti-Defection Law) in the eventuality of a hung Parliament or Assembly so that a stable government is formed. It also refers to the Parliamentary Standing Committee formula of holding elections in two phases, in 2019 and 2024, which would eventually mean that the term of some State Assemblies would get extended or curtailed in the process.

The proposals have not gone down well with the majority of political parties, with some of them arguing that it was a violation of the federal principle and urging that the panel should address other pending electoral reforms instead of taking up the present proposal. The National Democratic Alliance (NDA) constituents have by and large supported the proposal.

The political parties that have disagreed have expressed grave concern over the possible breach of the federal principle as envisaged in India’s constitutional democracy in the BJP-led NDA government’s move to push a consensus on holding simultaneous elections.

Nine political parties have opposed it while four have supported the draft proposal put forth by the Law Commission at its two-day consultation on July 7-8 to seek the views of seven national parties and 59 State parties.

While Prime Minister Narendra Modi has repeatedly articulated the need for simultaneous elections to limit and save election expenditure, the move gained momentum early this year after President Ram Nath Kovind supported and endorsed it. On April 17, the Law Commission took a decision to seek the opinion of a wide spectrum of stakeholders. It discussed a draft working paper prepared by it titled “Simultaneous Elections—Constitutional and Legal Perspectives”, and put it out in the public domain with a deadline of May 8 for responses. Most of the political parties did not respond to the draft.

In 2016, the Law Commission produced a working paper on the feasibility of holding simultaneous elections. Its efforts then to solicit reaction had a lukewarm response. The latest exercise met with an even more categorical refusal to accept the simultaneous elections principle, federalism being one of the reasons for the rejection.

The political parties that had turned down the proposal include the Left parties, the Janata Dal (Secular), the Bahujan Samaj Party, the Trinamool Congress, the Dravida Munnetra Kazhagam, the Telugu Desam Party, the Aam Aadmi Party and the BJP’s ally, the Goa Forward Party. The parties that supported the proposal include the Shiromani Akali Dal (SAD), the Telangana Rashtra Samiti (TRS), the Samajwadi Party (S.P.) and the All India Anna Dravida Munnetra Kazhagam (AIADMK).

The BJP and the Congress did not take part in the two-day consultations called by the Commission. While the BJP’s stand has been clear, the Congress, while agreeing to the idea, maintained that it would consult other opposition parties before taking a final decision. It did not welcome the idea, when it was first mooted in 2016.

The Law Commission’s working paper suggested holding elections in two phases, beginning in 2019, and proposed the amendment of the Constitution and the Representation of the People Act in order to shorten or extend the term of the State Assemblies.

The Communist Party of India (Marxist) sent its response on July 4 averring that the “consideration of the proposal for simultaneous elections goes well beyond the ambit of law reform and would entail major amendments in the Indian Constitution which would run both against the letter and spirit of the Constitution”. It stated that the proposal was “inherently anti-democratic” and “negates the principles of federalism which is a fundamental feature of our Constitution”.

The basic objection was that the proposal was “fundamentally anti-democratic” and “strikes at the root of the parliamentary democratic system as ordained in the Constitution”, stated the CPI (M) letter, even as the party recused itself from a personal interaction at the Law Commission.

Articles 83(2) and 172(1), it said, specified that the term of the Lok Sabha and the Assembly would be five years “unless sooner dissolved”, emphasising that the Constitution did not provide for a fixed term for either the Lok Sabha or the Assembly. Secondly, it pointed out that in case a government lost the confidence of the legislature, it was bound to resign; if no alternative government could be formed, the House would be dissolved and a mid-term election held. In such a scenario, “any attempt to prolong the life of the Lok Sabha or legislature will not only be unconstitutional but anti-democratic. It is the will of the people through their elected representatives that must prevail.”

Thirdly, responding to the panel’s proposal in the draft paper that a no-confidence motion against the government should be followed by a confidence motion to elect a leader of the House, the Left party said that this circumscribed the right of the legislators to vote out a government by making it conditional on their electing a new government.

The right of elected legislators and members of the Lok Sabha to vote out any government cannot be circumscribed, nor can the right of a ruling party, which has a stable majority in the House, to recommend dissolution of the House and hold an early election, be curtailed, it held.

NITI Aayog paper criticised

The CPI(M) criticised the suggestion of a January 2017 NITI Aayog discussion paper on a proposal to amend the Constitution that if the Lok Sabha was dissolved before its full term with the remainder of the term not too long, a provision could be made for the President of India to carry out the administration of the country on the aid and advice of a Council of Ministers appointed by him or her until the constitution of the next House.

The Left party came down heavily on the other suggestion of the NITI Aayog paper, which said that if the remaining period was long, then the election would be held only for the remaining period and the term of the House would be only for that period. This defeated the very purpose of “simultaneous elections” as Lok Sabha elections would be held frequently, the CPI(M) said. Most of the parties that have objected to simultaneous elections opine that it was nothing but an opportunity to extend Central rule at will, especially proposals relating to Governor’s Rule in the eventuality of a mid-term dissolution of any Assembly.

Citing the example of the dismissal of the elected government in Kerala in 1959, it pointed out that the arbitrary misuse of Article 356 resulted in many State Assembly elections getting “detached” from the national elections. It said that all the proposals reflected “a disregard for the federal principle and the rights of States”. India, it said, “is a vast country with myriad diversities and only a federal set-up can sustain political democracy. Having elections in States at different times is one aspect of the federal system.”

Autocracy

G. Devarajan, national secretary of the All India Forward Bloc (AIFB), who appeared before the Law Commission, said in his representation that the move would lead to “autocracy”; that it was against the time-tested principle of federalism.

“Elections are the opportunities for the people to review the performance of the government of the day. If ‘fixed term’ government be established, the people will be deprived of a democratic right, which is against the concept of republic, where citizens are the supreme in decision making process,” the AIFB said, while making it clear that it was not averse to electoral reforms. The law panel proposal “diluted the spirit of the Representation of the People Act, 1951, and would lead to political and administrative corruption”, it said. It also argued that in a fixed term government would “hamper the voice of the opposition”.

Danish Ali, secretary general of the Janata Dal (Secular), told the panel that the idea was “against federal democracy” and that if the Law Commission was interested in electoral reforms, it could implement previous law panel reports on such reforms and then move on to simultaneous elections. Most of the regional parties opposing the proposal felt that it would favour the party at the Centre and they would forfeit the right to project local and regional issues.

Aimed at weakening regional parties

In a statement issued on July 4, TDP leader Yanamala Ramakrishnudu said the move was aimed at weakening regional parties and their leaders. No national party was in a position to form the government at the Centre, he stated, adding that earlier it was the goods and services tax and the terms of reference of the 15th Finance Commission and now it was simultaneous elections, which were all moves to damage regional parties. He likened the BJP to a “political whale”, a big fish eating the smaller fish. The party in its deposition to the law panel said the proposal was “incompatible with the Constitution” and impractical as well. Many observers believe that the push for simultaneous elections in 2019 is motivated to benefit the ruling party at the Centre which faces probable anti-incumbency sentiment. The arguments about election expenditure are superfluous as there has been little effort, even legislative, to curb the election expenditure and political funding of individual political parties.

Under the electoral bond scheme, the identity of the donor will be protected. The government also legalised receiving political funds from Indian subsidiaries of multinational corporations by making amendments to the Foreign Contribution Regulation Act in the Finance Bill. These are the larger and more pressing questions that need to be addressed more urgently than the holding of simultaneous elections. It is little wonder then that political parties have been unconvinced of the inherent merit of simultaneous elections and the multifarious ways resorted to by the government to evolve a consensus on this.