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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