K B Jandial
After the Supreme Court’s refusal to go into the constitutional validity of J&K Governor’s sudden dissolution of State Assembly on 21 November, 2018 and more recently, the State coming under President’s Rule, first time after 1996, the demand for early elections to reconstitute Legislative Assembly is becoming louder day by day. Intriguingly, this demand was vehemently raised by those political parties which boycotted the recently concluded Municipal election, on flimsy ground of Centre’s stand on controversial Article 35A which stood challenged before the Apex Court four years ago. Interestingly, this issue is not even talked about by these parties today and rightly so as elections and legal challenge to a special provision, is two separate issues.
Straight Talk
Nobody can undermine the urgent need of restoration of the highest forum of democracy at State level. While the political interference free Governor’s Rule in J&K has been hailed as most efficient, effective and progressive with many pending and long desirous issues settled and new direction accorded to the administration at every level but still it cannot be a substitute to a people’s Government in a democratic country like India.
Even though no firm date has yet been indicated by the Election Commission of India for holding election to the Assembly, National Conference has taken lead in putting the party into election mode. Its supremo, Dr. Farooq Abdullah, conscious of Jammu’s growing anger on perpetual discrimination, has made the most significant political move by announcing Regional Councils for all the three distinct regions of State. Inputs of its Provincial President, Devinder Rana in this announcement are quite obvious. Faced with continuing rebellion and desertion PDP is also trying to find its feet to steer the ‘sunken’ ship. But it would be novice to write off PDP with its soft separatism gradually becoming focal point for some of the voters in Kashmir. Sajjad Lone is another serious player who is aiming high in the forthcoming election after he failed to garner enough MLAs to become the Chief Minister. Its people’s Conference is also extending its tentacles having thrown his hat in electoral arena. Congress is in upbeat mood following 3-0 win in the semi-final elections to 2019 Lok Sabha poll. BJP is too trying to gear up for the next fierce battle after failing to deliver much to Jammu and form Govt in the State with defections and breaking up parties despite their “own Governor”. Capturing most of the Municipal bodies and impressive majority in Jammu Municipal Corporation is enough for them to remain complacent about its ‘intact following’ despite perception of poor governance in the last PDP led alliance Govt. Jammu based Panthers is another political outfit fully charged for election despite poor show in Municipal elections. Every party is almost in election mode but the question that haunts everyone is when the Assembly elections are?
If press reports based on credible sources are to be believed the issue of holding elections- earliest could be along with the Lok Sabha Poll i.e. before 31 May, 2019, is still wide open. The Election Commission of India is expected to take the call on J&K Elections in the first week of January. The previous Chief Election Commissioner, O P Rawat on his superannuation, had said on November 22, 2018 that the SC has fixed the outer limit of six month from the date of dissolution of the Assembly by the Governor. This rule has been applied by the ECI recently in Telengana where the CM K. Chandrasekhara Rao had sought fresh mandate even before the expiry of the life of the Assembly. What did the Apex Court say on this issue?
The ECI had been following a practice of holding election to the dissolved State Legislative Assemblies within six months from the date of the last session of the dissolved Assembly, taking cue from the mandate from the Article 174 (1) of the Constitution of India (corresponding provision is section 53 of J&K Constitution) which speaks for holding two sessions of the State Assembly within a gap of period not beyond six months. The legal issue arose in Gujarat where the Assembly was dissolved on 19.02.2002 on the advice of the State Govt when its life was to expire on 18.03.2003. Since the last sitting of the dissolved Assembly was held on 3rd April, 2002, the ECI found itself unable to hold election within six months due to unfavorable law and order situation.
It is in this context, the then President of India Abdul Kalam exercising power under Clause (1) of Article 143 sought the opinion of the Supreme Court on 19th August, 2002 on three important issues including consequences of not holding elections to reconstitute the prematurely dissolved Assembly within six months. After hearing all stakeholders including ECI, GoI and political parties, the Apex Court on 28th October, 2002 gave its opinion to the President. It opined that “the provisions contained in Article 174 are meant for a living and existing Legislative Assembly and not to a dissolved Legislative Assembly”. It also observed that “we have looked into the provisions of the Constitution of India, but we do not find any provision expressly providing for any period of limitation for constituting a fresh Legislative Assembly on the premature dissolution of the previous Legislative Assembly. On our interpretation of Article 174(1), we have already held that it does not provide for any period of limitation for holding elections within six months from the date of last sitting of the session of the dissolved Assembly”. But simultaneously, it observed that “Section 15 of the Representation of the People Act, 1951 provides that general election is required to be held for the purpose of constituting a new Legislative Assembly on the expiration of duration of the existing Assembly or on its dissolution”. The proviso to Sub-section (2) of Section 15 of the Act provides that where an election is held otherwise than on the dissolution of the existing Legislative Assembly, no such notification shall be issued at any time earlier than six months prior to the dates on which the duration of that Assembly would expire under the provision of Clause (1) of Article 172.
It replied to the Presidential reference in the following manner:
1) Article 174(1) of the Constitution relates to an existing, live and functional Legislative Assembly and not to a dissolved Assembly.
2) The provision in Article 174(1) that six months shall not intervene between its last sitting in one session and the date appointed for its sitting in the next session is mandatory and relates to the frequencies of the sessions of a live and existing Legislative Assembly and does not provide for any period of limitation for holding fresh elections for constituting Legislative Assembly on premature dissolution of the Assembly.
3) Neither under the Constitution nor under the Representation of the People Act, any period of limitation has been prescribed for holding election for constituting Legislative Assembly after premature dissolution of the existing one. However, in view of the scheme of the Constitution and the Representation of the People Act, the elections should be held within six months for constituting Legislative Assembly from the date of dissolution of the Legislative Assembly.
4) Under the Constitution, the power to frame the calendar or schedule for elections for constituting Legislative Assembly is within the exclusive domain of the Election Commission and such a power is not subject to any law either made by Parliament or State Legislature.
This is now a settled law on holding elections to the State Assemblies. Going by the spirit of the PRA and other relevant rules and regulation, there is no prescribed time frame fixed for holding election to the dissolved Assembly but it is desirable to hold election within six months from the date of premature dissolution of the house. The Apex Court also held that there cannot be any limitation on the powers of the ECI for preparing calendar for elections. It had unfettered power to decide the dates of election in consultation with the Govt.
The most important factor for framing the schedule for elections is the availability of the security forces and ECI objective assessment of the ground situation congenial for holding free and fair election.
It is in this context, the ECI would take a call on holding election to the State Assembly soon. The views of the State authorities and MHA are also taken into the account. Recently, the ECI had to rescind the notification for the LS by-election from Anantnag Constituency due to unfavorable security situation in South Kashmir. While militancy has been a great threat to the democratic process but still this process was never allowed to be impeded since 1996. Reigning militancy should not be a ground for deferring the election. If despite boycott by NC and PDP, Governor Administration could successfully conduct incident-free Civic Bodies elections followed by Panchayat elections with as high as 76 percent polling in Panchayat election including 39 % in Kashmir valley, there is no ground to delay the Assembly election on the ground of militancy in the State.
With Modi Govt and BJP strongly pushing the idea of One Nation-One Poll (ONOP), there could not be a better opportunity to test this concept by holding simultaneous poll for Assembly and Lok Sabha in J&K. There are other States like Andhra Pradesh, Arunachal Pradesh, Haryana, Odisha and Sikkim where Assemblies are completing their life around April to August, 2019 to go in for simultaneous election with Lok Sabha. There are some plausible impediments in simultaneous poll like availability of EVMs and protection to large numbers of contestants from militants in militancy torn J&K.
While speaking on the statutory resolution on President Rule in J&K in Lok Sabha, Union Home Minister made a commitment to extend all possible assistance to ECI to hold early election to J&K Assembly, which no one has reason to doubt. Hopefully, MHA and Governor’s Administration would be able to overcome these impediments and other obstructions and go in for simultaneous elections for Assembly and Lok Sabha in J&K. It will also meet the spirit of SC’s constitutional opinion on Presidential reference on holding election for premature dissolved Assembly within six months from the date of dissolution of the Assembly which is 21 May, 2019. If not done, political motives would be attributed to Modi Govt and Governor Administration.
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