Question mark over Tirath Singh Rawat’s assembly by-poll

By Arun Pratap Singh

Dehradun, 22 Jun: With less than a year left for the term of Uttarakhand Assembly to end, question mark is being raised over the possibility of him contesting the Assembly by-poll in order to continue as Chief Minister beyond 9 September when he shall be completing his first six months as CM.  There are valid reasons behind the question mark being raised by Congress leadership as well as a section of the media.  However, the BJP’s state leadership looks confident to tide over the impending crisis.

It may be recalled that anyone appointed as minister or chief minister in a state should ideally 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 as a minister or chief minister as provided under Section 164 (4) of the Representation of the People Act, 1951. Similarly, anyone appointed as minister in Union Government should ideally be a member of 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 as a minister.  Tirath Singh took over as the chief minister of Uttarakhand on 10 March and would be completing six months on 9 September. In order to continue as Chief Minister of Uttarakhand beyond September, he needs to get elected to the state assembly before9 September. While there is one vacancy i.e. in 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 death of the 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 the term left. Herein lies the reason behind the question mark being raised by the Opposition as well as a section of the media.  There is a convention followed by the Election Commission that it does not declare byelection on seats where the term of the legislature concerned remains lesser than one 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 period of the term of the state assembly is left. Describing it a constitutional crisis, PCC Chief Pritam Singh has in very clear terms stated that Tirath Singh Rawat had lost an opportunity to contest the bypoll and continue as CM beyond September now. He goes on to claim that a constitutional crisis is bound to accrue due to this as the CM will not be able to contest by-poll and continue as CM.

It may further be recalled Assembly Bypolls were recently held on Salt Assembly seat in District Almora which had been won by the BJP candidate Mahesh Jeena comfortably. The question is being raised had it not been better had Tirath Singh Rawat contested this bypoll and become MLA. Now 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 poll 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 lesser than one year?

Now let us see what exactly the provision is in this respect! Representation of the People Act, 1951 mentions that 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 any special reason.  A deeper reading of the provision would reveal that the Election Commission has not been barred from holding by-poll to a seat in a legislature the remainder of the term of which is less than an 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 where some members had been disqualified. The case was heard in 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 the polls. Of course the Supreme Court did not order and the Election Commission did not also declare but it should be remembered that there was no demand from any quarters to hold the elections.

Speaking to Garhwal Post, BJP State General Secretary Suresh Bhatt admitted that conventionally the polls were usually avoided under such circumstances, there was no law that prevented holding of such 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 the by-poll adding of course that it was up to the Election Commission on when to hold the election.  Elections were usually held within 6 months of the vacancy and besides the fact that there were two vacancies in the state legislature, several other MLAs were also willing to vacate their seats for the CM to contest, he claimed.

While in the likelihood of the Election Commission declaring the bypoll, there was little chance that it would be challenged in the Court as the rules clearly make it a prerogative of the Election Commission to hold elections or not to hold on a seat if the remainder of the term of the House is lesser than one year. However, no one can deny that the decision would result in a political controversy.

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