NEEDLEPOINT: Himachal election announcement flawed, constitutionally

By Amba Charan Vashishth

It is immaterial whether the Election Commission announcement for holding elections about five months earlier than due has been welcomed or not by the people and political parties in Himachal Pradesh. The point at issue is whether it is as per the word and spirit of the law and the Constitution.

It is true that three tribal assembly constituencies are very vital to the formation of a government with just a 68-member house. Results in these constituencies could make or break a government that generally takes precedence to the poll in these constituencies because for the last over 39 years elections have, perhaps, been held together with the rest of the State only once in 1977, because these constituencies remain snowbound in February-March when polling generally takes place in the rest of the State.

Equally true is the fact that declaration of results in the rest of the State and formation of a government prior to polling in these three tribal seats influences the free will of the voters who later turn to vote, with just a few exceptions, for the party in power. But that is too trivial a ground to prepone elections in the whole State.

The present Himachal Pradesh Vidhan Sabha was constituted on March 6, 2003 and as such a new Vidhan Sabha has to be in position on or before March 5, 2008. Similarly, the elections to these three tribal constituencies were completed in the end of May 2003 and their term was co-terminus with the life of the HP assembly. Now, as a result of EC announcement, the term of these three tribal constituencies will stand further curtailed by five months.

Normally, elections to Parliament or State assemblies can be preponed only on the recommendation of the government in power by dissolving the present House. This is because the house of the people is elected by the electors for a term of five years and no authority other than the President or the State governor is empowered to order elections earlier than due without dissolving the existing house.

It is not understood what interpretation has the Election Commission made of Section 15 of the Representation of the People Act, 1951 which provides: (1) A general election shall be held for the purpose of constituting a new Legislative Assembly on the expiration of the duration of the existing Assembly or on its dissolution….

Provided that where a general 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 date on which the duration of that Assembly would expire under the provisions of clause (1), of article 172 3 …(which provides: Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for the first meeting and no longer and the expiration of the said period of five years shall operative as a dissolution of the Assembly”.)

An interpretation of these provisions of the Constitution and Section 15 the Representation of the People Act, 1951 clearly means that although the Commission is within its rights to issue a notification for election at any time not earlier than six months prior to the date on which the duration of that Assembly is to expire, yet completion of election ”before 31.12.2007” will mean that the tenure of the existing Vidhan Sabha which, under the provisions of Article 172, was to” continue for five years from the date appointed for the first meeting” has been curtailed by more than two months. The Election Commission under no authority of law has the power to reduce the tenure of Parliament or a State assembly by even a single day.

That the Commission was aware of its infirmity and that is why it fixed the date of counting of votes as 28.12.07, nine days after the polling was to be over in the State on 19-12-2007. There is no justification for putting off the counting in a State for no justifiable reason, except that the Commission was trying not to further curtail the term of the present Vidhan by another week.

It will be a great travesty of law and the Constitution, if the present Vidhan Sabha was allowed to function beyond 31-12-2007 because once the new Vidhan Sabha is constituted, the old one automatically stands dissolved.

The Election Commission needs to ponder. ***