New Delhi: The high-powered panel led by former President Ram Nath Kovind Thursday submitted its report on the feasibility of “One Nation, One Election” to President Droupadi Murmu, suggesting a host of constitutional amendments in support of the idea.
According to the panel, none of the suggested amendments would impact the federal structure or impeach the basic structure doctrine that limits Parliament’s power to amend the Constitution.
The panel has suggested two main amendment bills — one to facilitate simultaneous Parliament and state assembly elections and the other to hold municipal body and panchayat polls together. Thereafter, as per the panel’s advice, consequential amendments should be introduced to various provisions that deal with Union Territories with assemblies.
Besides, the report also contemplates addition of new provisions to existing Articles.
The panel led by Kovind included Union Home Minister Amit Shah, former leader of the Opposition in the Rajya Sabha Ghulam Nabi Azad, former Lok Sabha Secretary General Subhash C. Kashyap, former chairman of the 15th Finance Commission N.K. Singh, senior advocate Harish Salve and former chief vigilance commissioner Sanjay Kothari.
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‘Full term’ & ‘unexpired term’
The notable amendment proposed is with regard to the duration of the elected body of representatives at various levels, in case it dissolves before the completion of the “full term”, which the report says would be a fixed five-year period. It introduces an “unexpired term” for the elected body.
The definition for “unexpired term” or a short term would be added to Articles 83 and 172 that pertain to duration of the Parliament or the House of People and state assemblies, including those in Union Territories (UT).
According to the panel, an “unexpired term” would be the period that is left for an elected body to complete its fixed term, in case it gets dissolved due to compelling circumstances without finishing its five-year tenure. Fixed term would be for five years, the duration of which will begin from the appointed day of the elected body, the panel said in its report.
It added that upon dissolution of the House or state assembly, fresh elections would be conducted to elect a new government, which, it said, would only function for the “unexpired term” or “short term”.
This House or Assembly shall, however, not be a continuation of the previous House or Assembly.
“The concept of a shorter term in the event of a mid-term election as proposed may be a deterrent to destabilise Governments before the completion of their term of five year,” said the report.
Article 82A (1)
The panel has also listed out new provisions that need to be added to the Constitution, particularly Article 82, which would empower the President to notify the appointed date after the general election is held.
The proposed provision – Article 82A (1) – says that the President may by notification issued on the date of the first sitting of the House of the People after general election, bring into force the provision of this Article, and that date of the notification shall be called the Appointed date.
If this Article becomes a part of the Constitution in the new session of the Parliament to be constituted soon after the 2024 general elections, the President would have the jurisdiction to notify the appointed date that will decipher the full term for the House as well as the state assemblies.
This Article will enable the transitionary process to have simultaneous Lok Sabha and assembly elections in 2029.
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‘Stable majorities, political instability’
The panel brushed aside concerns that simultaneous elections would infringe upon the right of citizens to select their representatives. Rather, it said, “It ensures that the government remains continually responsive to the legislative body, reflecting the people’s will.”
“Sometimes, the electoral process based on first past the post system of elections fails to provide stable majorities and sometimes the political instability despite numbers creates a situation in which the House has to be dissolved sooner than five years,” the eight-member panel said in its report.
Articles 327, 328 & 368
In terms of the panel’s report the amendments to be introduced through the first amendment bill and the one regarding UTs would not require ratification by half of the states. The panel has invoked Article 327 of the Constitution to reason this out.
It says that “subject to the provisions” of the Constitution, “Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State…”
This power extends to preparation of electoral rolls, delimitation of constitution, amongst others.
To further justify its argument, the panel has taken shelter of Article 368 that confers upon Parliament the power to amend the Constitution as well as set out the procedure of such amendments. The only limitation on this power is that Parliament cannot alter the basic structure, else its plenary.
Notably, the Constitution devolves the state assemblies with the jurisdiction to enact laws to all the matters relating to elections in states. This is under Article 328. Yet, the panel feels that amendment to allow simultaneous polls for the Parliament and state assemblies would not need ratification of the states nor would it be against the concept of federalism.
This is because the amendments contemplated intend to alter “only the tenure of the House of the People and State Legislative Assemblies”.
Delineating the two principles recognised in the Constitution over elections, the panel report points out that Articles 83 and 172 provide that the term of the House and Assembly respectively shall continue for “five years from the date appointed for its first meeting and no longer”.
The second principle, it said, is that the period of five years is not sacrosanct. The President may dissolve the House of the People or the state assembly sooner, although this power has to be exercised like all constitutional powers, in accordance with the letter and spirit of the Constitution.
“For the most, it is the inability of a government to enjoy the confidence for the period of five years that results in a premature dissolution of the House,” the report said.
It further added: “The only change is that in the event of a mid-term dissolution, the term of the reconstituted legislature shall be for a period less than five years, which is for the remaining unexpired period of the original term of five years.”
While all the consequences of a mid-term dissolution would follow as though it is a dissolution after the full term, only the term of the reconstituted legislature would be curtailed. This change in the tenure does not in any manner affect the basic structure of the Constitution, it noted.
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‘In no manner impairs’ federalism
The panel dwelled upon the character of federalism practised in India and explored the division of powers between the Centre and states, as stated in the Constitution.
It concluded that the suggestion to alter the tenure of the House/legislative assembly in “no manner impairs” federalism, for the same rules would apply to the Parliament as they apply to the State Legislative Assemblies.
“Indian federalism is not based on geographical considerations but instead relies on systematic and structural principles that interconnect various provisions of the Constitution. Simultaneous elections do not impinge upon federalism,” the panel said in its report.
It quoted a speech that Dr B.R. Ambedkar made in the Constituent Assembly to highlight that India – as a federation – was not a result of the agreement between states and Union. Ambedkar had in that speech maintained that no state has the right to “secede from the federation”.
According to the panel, federalism as a constitutional concept means the “existence of two or more units of governance one of which is Federal and the other regional,” with the latter including states or provinces.
There are many types of federalism – ranging from dual sovereignty (as in the United States) to the Indian model, where, according to the panel, “there is clearly a bias in favour of the Union”.
It went on to add that though the states’ legislative power is defined in the Constitution, it is subject to encroachment by parliamentary legislation and the power to amend the Constitution vests in the Parliament, except in some areas. Ratification by the states is not needed unless it is explicit in the Article that is listed out for amendment, the panel submitted.
The report further said that by creating the rule of a full term and an unexpired term for the constitution of the Parliament and state assemblies, Parliament is not infringing on any of the principles enumerated in Article 327 that relate to making provision for elections in the House of the People and state legislatures.
What experts say
Constitutional experts ThePrint spoke to offered divergent views on the report. Senior advocate Gopal Sankaranarayanan said the recommendations did not offend the basic structure doctrine, or federalism.
However, he felt the entire issue has been looked at with a narrow lens, without considering the larger implications. In his view, corresponding amendments have to be made to other Articles, including Article 356, that deals with President’s rule.
According to senior advocate Sunil Fernandes, Article 368 — that prescribes the procedure for Parliament to amend the Constitution — outlines the areas in which ratification is required by states. This does not mention Section 172 that talks about the tenure of a state assembly. Hence, in his opinion the amendments cited in the report may not require ratification by states.
But Fernandes strongly feels that the proposal of ‘one nation, one election’ betrays the principle of federalism and basic structure doctrine.
“It dilutes the tenure given to a state assembly, which is sought to be artificially curtailed by this move,” he said.
The panel has, however, recommended ratification of amendments by the state assemblies that relate to its proposal to hold simultaneous elections for municipalities, panchayats along with general elections for the Parliament and state legislatures (Article 324A) and preparation of the electoral roll by the Election Commission of India in consultation with the State Election Commission for the polls to local bodies (Article 325).
The consequential amendments mentioned in the panel are to modify those Articles that relate to the functioning of Delhi, Puducherry and J&K assemblies.
(Edited by Amrtansh Arora)
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