New Delhi: The Uttarakhand Congress has warned of an impending “constitutional crisis” in the hill state as Tirath Singh Rawat, who was sworn in as Chief Minister this March, is not a member of the legislative assembly yet.
Leaders who are not members of the legislature can be appointed as ministers but the Constitution requires them to secure legislative membership within six months of being sworn in, or lose the position.
Rawat, who was a BJP MP from the state when he was picked as Chief Minister, needs to get elected as an MLA by September through a bypoll.
However, the prospects for a bypoll have been 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 — and the Congress has said the provisions of the Representation of People Act do not allow for bypolls to be held in such a situation.
“The state is heading towards a constitutional crisis. CM Tirath Singh Rawat’s six-month tenure ends on 10 September, the BJP will have no option but to name a new chief minister,” Former Congress MLA and state minister Nav Bharat said Monday to The Times of India.
While the BJP has called the Congress’ information “half-baked”, experts in Indian election law say the caveat is unlikely to prove a hurdle since it is mandatory under law for a chief minister to be an elected leader. They also point out that it has been done before, in Odisha in 1999.
Why does CM need to be elected through a bypoll?
Rawat, a BJP MP from the Pauri Garhwal Lok Sabha constituency, was appointed as the CM in March this year. He replaced Trivendra Singh Rawat, who had been facing stiff opposition from MLAs within the Uttarakhand BJP.
Tirath Singh Rawat needs to become a Member of the Legislative Assembly (MLA) to continue in the post beyond six months of his appointment as CM. Under 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 states with a bicameral legislature — that is, states with a lower house (legislative assembly) and an upper house (legislative council) — the minister can retain the post by getting elected through the legislative council, which has an indirect election.
That is what Maharashtra Chief Minister Uddhav Thackeray, sworn in November 2019, did last year.
But Uttarakhand has a unicameral legislature, that is, it has only one house — the assembly, which means Rawat has to get elected as an MLA to continue as CM after 10 September.
Rawat can do this by getting elected through bypolls for the assembly seats of Gangotri and Haldwani, which have been lying vacant since April and June this year, respectively.
The one-year hurdle
According to Section 151A of the Representation of the People Act, the Election Commission (EC) is mandated to fill vacancies in the Houses of Parliament and state legislatures through by-elections within six months of a seat getting vacant. Therefore, the by-elections to Gangotri and Haldwani can take place any time before October and December this year.
But there is a caveat to this rule.
Section 151A of the Representation of the People Act states that vacancies in the assembly have to be filled within six months “provided that the remainder of the term of a member in relation to a vacancy is one year or more”.
Election within 6 months only route for CM to stay in office
Experts familiar with Indian election laws said the one-year threshold for bypolls is more for administrative convenience than a rule set in stone.
“There is no exception to the rule that a CM has to be elected,” said a senior former Election Commission (EC) functionary who requested anonymity.
“The provision that a bypoll need not be conducted in a state if the assembly elections are just a year away is more for administrative convenience… It is not a rule set in stone if there is a possibility of a constitutional impasse such as the requirement of a CM being elected to remain a CM,” the former official added. “There is no other provision to remaining CM apart from being elected.”
S.K. Mendiratta, who served as legal adviser to the EC for 50 years, agreed. “The EC is completely in a position to hold by-elections even if assembly elections are less than a year away,” he said. “In fact, there have been cases in the past where such a situation has occurred, and the EC decided to hold by-elections.”
As an example, Mendiratta recounted the case of former Odisha CM Giridhar Gamang, who was elected as a Lok Sabha MP in 1998, but chosen as the CM of Odisha in 1999. Assembly elections in the state were due to be held in 2000 — less than a year from his appointment — but he was elected as an MLA through a by-election in 1999 itself.