According to the convention, by-elections are not conducted in states if less than a year of their tenure is left. But the law lays down that elections be conducted within six months of a vacancy and it is now up to the Supreme Court to take a call on Uttarakhand.
While the fate of the Harish Rawat government in Uttarakhand has been decided by the trust vote that took place on May 10, the nine Congress rebel legislators appear to have lost much politically in the bargain. Not only did their voice go unheard against their own government on the floor of the House on March 18, when they sided with the BJP in opposing the Appropriation Bill, in the hope that it would bring down the Rawat government, but they were also subsequently disqualified and not allowed to vote in the floor test by the Supreme Court.
As all the other legislators in the House will in all probability resume their work soon, the only hope left now for these nine disqualified MLAs is of an early by-election. According to experts, it is up to the Supreme Court to decide on a by-election as less than a year remains for the term of the Uttarakhand Assembly to expire but as per the convention, the Election Commission may not conduct the polls now.
What the law says
Explaining the law, former Chief Election Commissioner (CEC) T. S. Krishnamurthy said, “While the law is that election[s] should be held whenever there is a vacancy, normally the rule we follow is that if less than one year is left we do not conduct a by-election.”
In the current context of Uttarakhand, Krishnamurthy said, “The convention is that if less than one year is left, then we do not conduct a by-election but if the Supreme Court orders the election then we will have to have it. The Supreme Court can give the order. I am not saying it should. Constitutionally, elections should be held within six months of a vacancy.”
On the reason why such late elections are usually avoided by the Commission, he said that normally six months or one year does not make much of a difference. “But in the context of the confidence of the legislators in the House hanging in the balance, if the Supreme Court says to conduct the elections again, then the Commission will have no choice but to conduct the elections.”
Krishnamurthy said while the election process itself takes about 90 days, an additional one month is needed for preparations. However, when it comes to the stability of the Uttarakhand government, another aspect which would have a bearing on it would be that two votes of confidence cannot take place in less than six months. “That again is a procedure, not a law,” said the former CEC.
The law governing the conduct of by-elections is Section 151(A) of the Representation of the People Act 1951, which lays down the time limit for filling vacancies and states that “notwithstanding anything contained in section 147, section 149, section 150 and section 151, a by-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.”
Election Commission and by-elections
Another former CEC N. Gopalaswami talking about Uttarakhand said, “If there is less than one year, the Commission has the option not to conduct by-elections in a state.” Incidentally, it was the leader of the rebel group Vijay Bahuguna, who had first become chief minister when the Congress government was formed in the state on March 13, 2012. He was removed from the post by the party on January 31, 2014.
On how this one-year norm came about, Gopalaswami said the Election Commission has been given the power to conduct elections within six months prior to the completion of the term of a House. So from six months prior to the end of the Uttarakhand Assembly’s term, the Commission can conduct the elections any time for it.
“Six months is the Commission’s mandate. The Commission has the power under the law. There is a reason for it. The Commission cannot for any reason go over this period. So the election process has to be completed before the end of the term. If that does not happen, the Commission would be remiss or can be hauled up for contempt of the constitution.”
He said since a window of six months has been given to it, the Commission cannot give the excuse that we did not have enough time to complete the election process on time. However, in the six month window, he said, normally efforts are made to not have the polls in the earlier part but to complete the process within 15 to 30 days of the latter part of this window when the term is about to come to an end.
Similar situations in the past
Incidentally, the issue of by-elections has come up several times in the past as well. The developments of Uttarakhand are somewhat similar to those of Andhra Pradesh in 2013, where by-elections were not held when 15 MLAs – nine from Congress and six from the opposition Telugu Desam Party (TDP) – were disqualified by the speaker under the anti-defection law.
All the disqualified members there had switched over to Y. S. Jagan Mohan Reddy’s Yuvajana, Shramika, Rythu (YSR) Congress Party. In Andhra Pradesh too, the Congress government had remained in power after the disqualification as the halfway mark in the 294-member house had come down from 147 to 139 and the party had 146 members.
Their disqualification had become a matter of debate with the opposition alleging that while their supposed violations of the whip had taken place long ago, they were disqualified when less than a year remained for the end of the tenure of the Assembly, so that there were no fresh by-elections. The state went for fresh assembly elections in 2014 after it had been bifurcated into Andhra Pradesh and Telangana.