By Arun Pratap Singh
Dehradun, 22 Jun: With less than a year left for the term of the Uttarakhand Assembly to end, a question mark has risen over the possibility of him contesting the Assembly bypoll in order to continue as Chief Minister beyond 9 September, when he shall be completing his first six months in the post.
There are valid reasons behind the question mark being raised by the Congress leadership as well as a section of the media. However, the BJP’s state leadership looks confident about tiding over the impending crisis.
It may be recalled that anyone appointed as minister or chief minister in a state should be a member of the state assembly (or the state legislative council wherever it exists) or must get elected to the state assembly within a period of six months from the period of assuming charge under Section 164 (4) of the Representation of the People Act, 1951. Similarly, anyone appointed as minister in the Union Government should be a member of the Lok Sabha or Rajya Sabha or must get elected as a member of parliament within a period of six months from the date of assuming charge.
Tirath Singh took over as the Chief Minister of Uttarakhand on 10 March and will complete six months in office on 9 September. In order to continue as Chief Minister beyond September, he needs to get elected to the state assembly before 9 September. While there is one vacancy in the Gangotri assembly seat caused due to death of incumbent MLA Gopal Singh Rawat due to Covid on 23 April, 2021, the fact remains that the seat too felt vacant within a period of one year for the term of the state assembly to end. In fact, yet another vacancy in the state legislature was created due to the death of Leader of the Opposition Indira Hridayesh (Haldwani).
Usually, the by-elections are not declared or held by the Election Commission of India if the assembly has less than one year of its term left. Herein lies the reason behind the question mark being raised by the Opposition. There is a convention followed by the Election Commission that it does not declare by-election on seats where the term of the legislature concerned remains less than a year.
The Opposition is citing the provisions of Section 151(a) to claim that the bypolls can’t be held now as less than one year of the term of the state assembly is left. Terming it a constitutional crisis, PCC Chief Pritam Singh has in very clear terms stated that Tirath Singh Rawat has lost the opportunity to contest the bypoll and continue as CM beyond September. He claims that a constitutional crisis is bound to arise due to this as the CM will not be able to contest the bypoll and continue as CM.
It may further be recalled that a bypoll was recently held for the Salt Assembly seat in District Almora, which was won by the BJP candidate Mahesh Jeena quite comfortably. It is being asked if it would not have been better that Tirath Singh Rawat had contested this bypoll and become MLA. Why did Tirath Singh Rawat not contest this seat is a matter of debate but it can’t be denied that it would have been safer and without controversy had Rawat chosen to contest from this seat and become a member of the House. Was the party complacent or did it fail to consider the fact that conventionally bypolls are not declared if the remaining term of the state legislature is less than one year?
What exactly is the provision in this respect? The Representation of the People Act, 1951, mentions that the time limit for filling vacancies referred to in sections 147, 149, 150 and 151 — notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:
Provided that nothing contained in this section shall apply if—
(a) the remainder of the term of a member in relation to a vacancy is less than one year; or
(b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the by-election within the said period.
It is clear that the focus of this provision is to ensure that there is no vacancy remaining beyond a period of six months and that the Election Commission is bound to hold the by-polls within six months of occurrence of the vacancy unless of course if either the remainder of the term of the member to be elected is less than one year or the Election Commission decides and certifies in concurrence with the Union Government that it is unable to hold elections in view of a special reason. A deeper reading of the provision would reveal that the Election Commission has not been barred from holding a bypoll to a seat in a legislature the remainder of the term of which is less than a year. The convention says the elections are best avoided though there is no specific rule barring the Election Commission from holding the election if it chooses to declare it. This correspondent recalls that, in 2016, such a situation arose in Uttarakhand when some members had been disqualified. The case was heard in the Supreme Court and, then, the Court or the Election Commission did not decide on holding the elections on the same ground that little term was left. However, the Election Commission had then made it clear that it was a convention not to hold polls under such circumstances but it would hold the elections if the Supreme Court chose to order them. The Supreme Court did not do so and the Election Commission did not announce it, but it should be remembered that there was no demand from any quarter to hold the elections.
Speaking to Garhwal Post, BJP State General Secretary Suresh Bhatt admitted that, conventionally, the polls are usually avoided under such circumstances, but there is no law that prevents holding of such a bypoll. He said that the BJP was hopeful of contesting the by-poll and added that there would be no constitutional crisis. BJP State President Madan Kaushik, too, claimed that the bypolls would be held and that CM Rawat would contest. It is up to the Election Commission when to hold the election. Elections are usually held within 6 months of the vacancy and, besides the fact that there are two vacancies in the state legislature, several other MLAs are also willing to vacate their seats for the CM to contest, he claimed.
In the likelihood of the Election Commission declaring the bypoll, there is little chance that it would be challenged in the Court. This is because the rules clearly make it a prerogative of the Election Commission to hold or not to hold election for a seat if the remainder of the term of the House is less than one year. However, no one can deny that the decision would result in a political controversy.
