New Delhi: Uttarakhand Chief Minister Tirath Singh Rawat does not have much time left to get elected to the state assembly, to be able to continue at the helm.
Tirath Rawat, who replaced Trivendra Singh Rawat as chief minister of the hill state on 10 March, is the Lok Sabha MP from Pauri Garhwal. He is yet to resign.
But to continue as chief minister, he will have to resign from the Lok Sabha and get elected to the state vidhan sabha.
According to the Constitution, leaders who are not members of the legislature can be appointed as ministers but they will have to secure legislative membership within six months of being sworn in, or lose the position.
Tirath Rawat’s deadline ends on 10 September.
But there are several hurdles. For one, Uttarakhand does not have a legislative council, for which there is an indirect election and direct appointment by the governor. It is the route that Maharashtra Chief Minister Uddhav Thackeray, who took oath in November 2019, opted for last year.
That leaves direct elections as the only way out for Tirath Rawat. The chief minister has two options on this front — bypolls are due at the assembly seats of Gangotri and Haldwani, which have been lying vacant since April and June this year, respectively.
But given the Covid situation, the Election Commission may be reluctant to hold the elections. The poll body had already faced flak for holding the Bengal assembly elections and the panchayat polls in UP amid the second Covid-19 wave.
To compound matters, prospects for a bypoll are complicated by a caveat in the Representation of the People Act, which stipulates that bypolls for a seat should be held if the incumbent elected has at least a year’s tenure to serve.
Assembly elections in Uttarakhand are less than a year away — the term of the current assembly, elected in 2017, will expire on 23 March 2022.
Experts in Indian election law, however, had earlier told ThePrint that the caveat is unlikely to prove a hurdle since it is mandatory under law for a chief minister to be an elected leader. They had pointed out that it had been done before, in Odisha in 1999.
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Election Commission’s dilemma
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”.
In 2020, two Madhya Pradesh cabinet ministers, Tulasiram Silawat and Govind Singh Rajput, had to resign after they failed to get elected to the state assembly. The two men were among the Congress defectors who had switched over to the BJP along with Jyotiraditya Scindia. They were re-inducted into the cabinet after they won bypolls in November.
Sources in the EC said another problem in holding bypolls in Uttarakhand is that the poll body will have to hold elections at 25 other assembly seats, three parliamentary constituencies and one Rajya Sabha seat, all of which have been withheld due to the pandemic.
Six of the vacant seats are in Uttar Pradesh where assembly elections are due, along with Uttarakhand, in 2022.
“You can’t justify holding byelection in one state and not holding them in another,” the source said. “Many factors have to be taken into account before the bypolls are held in Uttarakhand. Deliberations have not yet started.”
S.K. Mendiratta, who served as a legal adviser to the EC for five decades, said the commission needs “only 28 days to conduct an election after notification and that it can be held easily in two months’ time”.
“The EC can even club bypoll elections with assembly elections through powers given to it under Article 151,” he said.
P.D.T. Achari, former secretary general of the Lok Sabha, said it is up to the EC now to hold the polls. “It all depends on the EC to hold the by-elections but the rules are clear — any minister can’t take another oath to bypass 164 (4) as Supreme Court has struck down a case of a Congress minister, who had taken two oaths after the expiry of the six-month term, in a 2001 ruling.”
The Congress leader was Tej Parkash Singh, who was appointed as a minister in Punjab in 1995. He resigned at the end of the six-month period, and was reappointed in 1996 without getting elected to the state assembly. This was struck down by the Supreme Court in 2001.
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The BJP’s catch-22 situation
All of this has put the BJP in a piquant situation. The party had removed Trivendra Singh Rawat due to growing discontent against him.
It is now in danger of having to replace Tirath Singh Rawat due to the constitutional requirements.
“The central leadership is aware of the situation and the Constitutional requirement. There is still time to take a decision on this matter as the Election Commission conducted elections peacefully while maintaining social distancing protocols in Bihar and West Bengal,” a BJP leader said. “Only 28 days are required to conduct an election and complete the process.”
A senior BJP leader, however, admitted that the Covid situation was the real concern.
“It is not the Election Commission but the prevailing Covid situation that will be a deciding factor on whether the elections will be held,” the BJP leader said. “When the Bengal assembly elections and the UP panchayat polls were held, the EC was severely criticised; so, not only the government but even the commission will be careful to conduct elections only if the situation normalises.”
He added: “Changing the chief minister (again) has its own political risks but a final call will be taken in mid-July as there are still 70 days left.”
Former Uttarakhand BJP president Ajay Bhatt told ThePrint that the party is ready for the bypolls. “The party is ready for the elections as our preparations are underway in both seats,” he said. “The chief minister can contest from any of the two vacant seats but the EC has to first notify the elections.”
(Edited by Arun Prashanth)