Uttarakhand is gazing at a possible constitutional crisis, with time expiring for Chief Minister Tirath Singh Rawat to get elected for the Legislative Assembly. Rawat, sworn in March this year as an unexpected pick of the BJP state legislature party, has until September to get elected as a MLA in a bypoll. With the pandemic ravaging, vulnerability beats whether a bypoll can be held inside that time span, and over the legitimate and political ramifications if it’s not held.
As per Article 164 (4) of the Constitution, “a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister”. Thus, to proceed as Chief Minister, Rawat must be chosen as a MLA before September 10.
Rawat, who replaced Trivendra Singh Rawat as the Chief Minister, was elected for Lok Sabha from Garhwal in 2019. He has not yet left Lok Sabha and stays the Garhwal MP, as per the Lok Sabha site.
As per the BJP sources the central leadership has been in discussion with legitimate and constitutional experts. “One suggestion that came up is that the party can pick someone else for the top post as there are restrictions on the same person returning to the post,” a BJP leader said.
“Both the Election Commission and the government are careful after the criticism during recent Assembly elections. So holding an election is possible only after the situation becomes normal,” a senior BJP leader said.
In April last year, the Maharashtra government was in the same situation, requiring Chief Minister Uddhav Thackeray to be chosen for the state assembly. The pandemic had left holding a bypoll dubious. Thackeray at first attempted to get himself nominated to the Legislative Council utilizing a provision that permits the Governor to nominate 12 individuals, however the move was slowed down by Governor Bhagat Singh Koshyari. The crisis was at the end settled with Thackeray getting himself elected as a Member of the Legislative Council.
But Maharashtra has bicameral system and Uttarakhand council is unicameral and has no Upper House. This leaves BJP with no alternative other than challenging a bypoll if it aims to retain Rawat as the chief minister.
There have additionally been occurrences in the past when a minister has resigned for a day and been named once more, expanding the constitutional deadline by an additional a half year. In September 1995, Punjab Congress leader Tej Parkash Singh, then, at that point not a MLA, was delegated a minister. In March 1996, prior to he could get elected inside a half year, he resigned and was named a minister again during the term of a similar governing body.
At the point when the appointment was tested, the Punjab and Haryana High Court quashed the petition however the Supreme Court held that Singh’s second appointment “without getting elected in the meanwhile was improper, undemocratic, invalid and unconstitutional”. The choice, although, was just a scholastic exercise as it came in 2001, well after the Assembly had finished its term.
An caveat in the Representation of the People Act, 1951, adds another angle to the crisis. Section 151A permits two exemptions for holding a bypoll to fulfill the prerequisite in Article 164(4) of the Constitution. It’s anything but a bypoll need not be held 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.
The term of the current Uttarakhand Assembly, which started in March 2017, has not exactly a year to end.
Both these alternatives would imply that Rawat would need to be replaced.
For filling empty seats, the EC could refer to the short of what one-year rule and club the bypolls with the Assembly polls. Previously, the condition on difficulty of holding a polls has been invoked, remembering for Jammu and Kashmir. Nonetheless, in circumstances concerning the Chief Minister’s election, the EC has customarily liked to hold a bypoll.
As indicated by a senior EC official, the board has not yet taken a view on holding the byelection in Uttarakhand as it is watching the Covid-19 circumstance.
If the EC and the Centre plan to avoid holding bypoll due to Covid-19 situation, it’s anything but a point of reference for West Bengal Chief Minister Mamata Banerjee, who lost her Assembly polls from Nandigram and should be elected within six months.