Simultaneous polls: do States have a say?

Source– The post is based on the article “Simultaneous polls: do States have a say?” published in “The Indian Express” on 20th September 2023.

Syllabus: GS3- Indian Polity

News– The Union government on September 2 set up a committee under the leadership of the former President of India Ram Nath Kovind to look into the feasibility of simultaneous polls to State Assemblies and the Lok Sabha.

What are three distinct methods outlined in Article 368 for making amendments in the constitution?

Simple majority- The amendments are made through a simple majority of members present and voting in each House of Parliament. These provisions are exempt from the scope of Article 368.

Examples of such provisions include amendments related to Article 4 (pertaining to changes in the organization of States), Article 169 (concerning the abolition or creation of Legislative Councils in States).

Special majority-  This entails the presence and affirmative vote of at least two-thirds of the members in each House of Parliament, along with the support of a majority of the total membership in each House.

Special majority and ratification by states- It necessitates both a ‘special majority’ and the ratification by at least one-half of the State legislatures.

What are the entrenched provisions of the constitution?

The constitutional provisions that necessitate ratification for their amendment are explicitly detailed in Article 368(2). They primarily relate to the federal structure of the Constitution.

1 .Any alteration in the provisions concerning the election of the President of India (Article 54 and 55).

2. Any modification in the scope of executive authority vested in the Union or State governments (Article 73 and 162).
3. Changes in the provisions governing the Union judiciary or the High Courts (Articles 124–147 and 214–231).
4. Amendments affecting the distribution of legislative and administrative powers between the
5. Union and the States (Article 245 to 255).
6. Modifications to any of the Lists outlined in the Seventh Schedule.
7. Alterations to the representation of the States in Parliament (Article 82).
8. Amendments to Article 368 itself.

What were the debates in the Constituent Assembly regarding ‘entrenched provisions’?

B.R. Ambedkar supported the idea of requiring State ratification for the amendment of specific constitutional provisions. It ensures that the core federal structure of the Constitution remains intact.

Dr. Ambedkar, was not in favour of allowing the Central Parliament to amend articles related to administrative, legislative, financial, and the executive powers of the provinces, without granting any voice to the provinces or States.

He cautioned that allowing all constitutional amendments through a simple majority vote would undermine the principle of the separation of powers.

Can a constitutional amendment be struck down if not ratified?

Kihoto Hollohan versus Zachillhu (1992)– A challenge was made to the constitutional validity of the Tenth Schedule of the Constitution, which was introduced by the Constitution (Fifty-second Amendment) Act, 1985.

The challenge was based on the argument that the amendment had not been ratified by the States. The Tenth Schedule included a provision, Paragraph 7. It sought to exclude the jurisdiction of all courts.

The amendment brought about changes in the jurisdiction of the Supreme Court and the High Courts. This aspect required ratification by half of the States.

A Constitution Bench of the Supreme Court upheld the overall validity of the Tenth Schedule but declared Paragraph 7 invalid due to the lack of ratification.

Union of India versus Rajendra N. Shah– The Supreme Court ruled against certain provisions of the Constitution (97th Amendment) Act, 2011. The amendment had introduced Part IX B into the Constitution to regulate co-operative societies.

The Court unanimously determined that this amendment should have been ratified by at least half of the State legislatures, since it dealt with a subject that fell under the exclusive authority of the States.

What is the viewpoint of the Law Commission?

In August 2018, the Law Commission of India, headed by Justice B. S. Chauhan, issued a preliminary report. It stated that holding simultaneous elections is not feasible within the current framework of the Constitution.

The Commission emphasised that a constitutional amendment of this nature would need ratification from at least 50% of the States.

What is the viewpoint of experts on amendments proposed by the Law Commission?

According to P.D.T Achary , for simultaneous elections to occur, all existing State Assemblies, which currently have varying tenures, would need to be dissolved.

This could happen through two methods: either the ruling government in a State voluntarily recommends dissolution, or there is a breakdown of constitutional machinery.

However, the latter scenario is unlikely to occur for all States simultaneously.

Only remaining option is for the Union government to amend Article 172. It states that every legislative Assembly of every State shall continue for five years from its first meeting unless dissolved earlier.

P.D.T Achary states that amending this provision to synchronise State elections with Lok Sabha polls cannot be achieved without infringing upon the federal structure of the Constitution.