CONSTITUTIONAL ANALYSIS OF SIMULTANEOUS ELECTIONS – GAVIN PONNANNA

CONSTITUTIONAL ANALYSIS OF SIMULTANEOUS ELECTIONS – GAVIN PONNANNA

CONSTITUTIONAL ANALYSIS OF SIMULTANEOUS ELECTIONS WITH SPECIAL REFERENCE TO COOPERATIVE FEDERALISM

Author: Gavin Ponnanna

School Of Law Christ University

ISSN: 2581-8465

Abstract

The paper is a critical analysis of the Indian federal structure, which has some peculiar features are noted. Moreover, the concept of cooperative federalism and the importance of it in realizing the true potential Indian democratic system have been emphasized. However, the main aim of the paper is to critically analyze the proposed implementation of simultaneous election of national, state and local election and their implication on the federal structure of constitution has been discussed. The implication of the proposed amendment and validity of it are also been noted. However, the constitutional analysis of the policy is of immense importance as to it determines whether the proposed policy is against the spirit of constitutional law.

Indian constitution is a federal constitution which gives importance to cooperative federalism

Granville Austin made a remark on the Indian federalism as, “The (constitution) assembly, in fact, produced a new kind of federalism to meet India’s peculiar needs.”[1]

The federal form of governmental structure which came to be adopted after the independence in India is distinct set up, unlike any other country where the federal system prevails. The constitution defines India as the “union of the state” unlike other federal constitution which clearly incorporates the word federation in it. Federalism thus is the complex governmental mechanism that binds one political union with several autonomous, separate and distinct political entities or administrative units. Thus under this system of government, there are dual governments simultaneously working one at the federal or central level and other at all the state or provincial level both derive their power from the constitution. Hence, both are supreme in their particular field and operate in their sphere directly with the people.

The constitution clearly demarcates the sphere of action of union and state as well as the local governments by incorporating an elaborate scheme of distribution of legislative, administrative and financial powers between them. Hence they are bound to act within the area assigned to them and cannot go beyond their field to encroach into others domine.[2]

In the initial years of adoption of constitution, the dominant operative concept of federalism was competitive which highlights the competition and rivalry between the center and state. Thus the unitary nature of the Indian constitution and planned development led to strong central dominance this had much to do with politics as there was one single party which was ruling both in central as well as states. But, in late 1970 the situation changed as the weakening of dominance of center had started because the Congress party was marginalized and regional parties emerged which lead to coalition polities and this was a major factor for a shift in the relationship between central and state power distribution. Thus changing from single-party dominance to multi-party configuration which reinforces the changing nature federalism. By moving towards liberalization and decentralization which removed regional disputes.

However, co-operative federalism can be defined as the cooperation between the federal and regional government or interdependence relation with reference to schemes of development and administration in financial matters. These relations would help in the inter-governmental cooperation in ensuring uniform policy decision which would uphold the national public interest and prevent the clash, thus strengthening the parliamentary sovereignty and democracy. Thus such coordination between the state and the center government can be termed as co-operative federalism. The main object should be to utilize all the available resources of the governments at the different levels to coordinate in a way to work for the common good of the nation and the people living. Thus, avoiding the failure of policy and for the greater good of working of both the governments through the balance of power which is shared between these governments. In the opinion of Prof. Morris-Jones federalism in India is a concept of bargaining for federalism which is the character of Indian federalism needed throughout.

Hence, this form of constitutional co-operative federalism is unique in contemporary comparative politics of India. In a diverse country like India where there is multiplicity in culture, language, and ethnicity, only this kind of federalism can provide with the reconciliation of this internal diversity and bring about unity and uniformity in the governmental policies and decisions. This cooperation and coordination can only provide the stopover at the crossroads of aggression between antagonistic groups and achieve national integration.[3]

The emergence of the coalition government at the national level has strengthened the coordination between the national and regional political parties which in further has developed a good harmonious relation between the coalition partners both formal and informal interaction which has improved the inter-governmental relations. Thus, reflecting on policy decision making and implementation.

But, in certain situations, the parliament becomes competent to legislate even if the matter to be dealt with by state exclusively and the process of the amendment which is not very rigid comes into importance. Constitution having a flexible mechanism proposes the structural technique to promote intergovernmental cooperation. On such issue which is highlighted here is of the simultaneous election where it is necessary for the union and states to realize the objective behind the policy and support for the greater good of the nation. However, the constitutional and administrative and other structure challenges would be discussed in brief. And the need for cooperative federalism, which is way out for the present problem.

The concept was first developed by the election commission of India in its annual report of 1983[4]which was mainly for the economic reason as enumerated in the report. And issues came to consideration by law commission of India in its 170th report which was titled as Reform of electoral laws in the year 1999. The issues came into political discussion and limelight with media attention only when one of the political parties(BJP) included the same in their election manifesto of 2014 where after this the government agencies have given an extensive reports on “one nation one vote”.

Simultaneous elections mean that the election to constitutional institutions that are the house of people and state assemblies take place in a synchronized manner. That is elections to both the institution would be conducted on the same day in the constituency however the citizen is given two votes, one for the MP seat and other for the MLA seat. However, noting that it is impossible for the election commission to conduct the election simultaneously though out India on the same day due to posity of the labor and another adequate mechanism which are to be discussed later. The appeal form is through the election being conducted in the phases. However, this concept is not completely new to India as it existed until 1969 general election however the sync was broken when the state government came to be dissolved much earlier than the term of the office for which they were elected. These are for various reasons such as no party would get the absolute majority, or sometimes the presidents’ rule was to be imposed when the constitutional machinery failed however this came to be a weapon in the hand of the central government which was used against the political competitors and rivals.[5]However, this is one of the areas where there should be a balance of power between the union and state and realize the spirit of cooperative federalism[6].

However, the main implication of resorting to the proposal would be analyzed with relation to constitutional and other laws relating to election and not go in detail with regard to implementation and financial feasibility.

In the constituent assembly debt, there is no direct discussion with regards to the simultaneous election, however, the reference is made to the dissolution of the legislature when there is no confidence passed against the ruling government. Thus Prof. Shibban Lal Saksena highlights that this would lead to no synchronize of the election.[7]

Some of the suggested constitutional amendments by the various reports[8]for the implementation of this policy are to be noted. The article 83 and 172 which prescribe the maximum duration of five years for the Lok Shaba and state assemblies from the first sitting of the house and would increase the term of loksabha not extending for a period not exceeding one tear at a time by the parliament by law and not extending in any case beyond a period of six months after the proclamation has ceased to operate. As the present provision provide for the sooner dissolution of the loksabha by the president. And in case of the state the power rest with the governor. And in special circumstances, the provision under Article 356 is invoked by the president with consultation of the governor. The other method through which the government may dissolve early is when there is a no confidence motion is moved against the government when the assembly loses confidence in the council of the minister[9] which is not a predicted move in fact and by the constitution.

whether simultaneous election would go against the principles of the constitution and the basic features of the constitution

The main component of this is democracy. As opinion by the Supreme Court “Democracy is a part of the basic structure of our Constitution, and rule of law and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority…[10]”. Themain aspects which would be highlighted aremulti-party system and parliamentary democracy[11]. As having more parties which means more candidates in an election which would result in the division of the vote share. And would mostly lead to hung parliament as members are divided among the parties which do not have the same ideology and wouldn’t come together for the greater good of the nation. However the proposal is that the member of the majority party would be appointed as the leader of the house which is also not feasible as the political party from which the member is appointed to power would not retain him in the post if he goes against the ideologies of the party or there would be other aspirants in party who may conspire to remove him for personal or political reason. This is a major defect in the present proposal by the government.

The other major concern is that it would be against the doctrine of the basic structure. This is not which legislature gave use but, a judicial innovation that could be termed as a tool in interpretation of the constitution. The doctrine came into being through the celebrated case KesavanandaBharati V. State Of Kerala[12] which highlighted as to what would include under the basic structure. And whether a particular feature would form a part of the basic structure would have to be decided by constitutional court interpretation of the relevant constitutional provisions in question[13].

However, the Supreme Court has made a free and fair election as an essential postulate of democracy, which is to form the basic structure of the constitution[14]. And this would include the improprieties, malpractices and unfair means. Democracy in a country can be protected only when the periodical elections are held and in accordance with the mandate of the people is represented. The will of the people is reflected in the election this may be based on the candidate or party who’s ideology which may appeal to the individual. However, this is possible when there is a universal adult franchise, where each citizen of this country is given the right to vote.

In the India it is not true that the will of the citizens are always represented. Even if a party may emerge as the majority party in the election, sometimes they wouldn’t be able to form the government as they may be hit by the coalition which may take place among the parties to keep the majority party out of power. This may also happen even when the party obtains highest vote share than the coalition combined. Democracy postulates that there should be periodical election, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representative. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated. Thus, one can conclude here that there is no bar on holding elections and that the elections are fair, no discrimination being made in any sense. The elections are not being rigged, not manipulated. Universal Adult franchise is being practiced here, and no voter is denied the right to vote on any grounds. However, the amendment shall increase the voting percentage as the elections to the Parliament and the State Legislative Assemblies shall take place simultaneously and this ensures a larger role by the people in electing their representatives. This is nothing but cherishing the principles of democracy.

In a democracy the determination of the right policies to be pursued can only be determined by a majority vote cast at election and then by a majority of the elected representatives in the legislature. Democracy proceeds on the faith in the capacity to elect their representatives, and faith in the representatives to represent the people. The argument that the Constitution of India could be subverted or destroyed might have a hortative appeal but it is not supportable by the actual experience in our country or in any country. The two basic postulates in democracy are faith in human reason and faith in Human nature. [15]

There is no higher faith than faith in the democratic process. Democracy on adult suffrage is a great experiment in our country. The roots of our democracy are in the country and faith in the common man. Our Constitution, in its preamble, has envisaged the establishment of a democratic sovereign republic. Democracy proceeds on the basic assumption that the representatives of the people in Parliament will reflect the will of the people and that they will not exercise their powers to betray the people or abuse the trust and confidence reposed in them by the people.[16]

The right to vote which is enshrined in the constitution[17], is only a constitutional mandate[18] or a common or a civil law right and has not yet made a fundamental right[19]. Thus giving the right to participate in the electoral process, which may either through contesting the election or through expressing his will and voting in favour of a candidate. However, the right to contest in an election is also considered constitutional right[20] and not a fundamental right thus it is also in the nature of the legal right. However, all these rights are also statutory as they are enshrined in the Representation of the People Act of 1951.

Dicey calls it a political contrivance for a body of States which desires a Union but not unity. Federalism, therefore, is a concept that unites separate States into a Union without sacrificing their own fundamental political integrity[21].

In the constitutional assembly debt it has been made clear as to the nature of federalism that is to be adopted in India as rightly said by Dr. B R Ambedkar “…the country and the people may be divided into different States for convenience of administration…”[22]

Indian constitution did not incorporate the principle of absolute federalism as in the case of the U.S constitution thus Indian constitution is not characterized as a traditional federal constitution. And the word federal is nowhere to be found in the constitution.[23] Thus it is often referred as quasi-federal which do not have any set rule or guidelines to determine but, it would be a mixture of a federal and unitary form of government. This common interest is to be shared by both the central and state to bring a coextensive in executive and administrative functions.[24]

The discussion on the issue was to address the fundamental problem of frequent elections and dismissal of the government due to lack of majority, financial expenses increase when there are frequent elections, the legislator has the tendency to defect after the elections to support another party to form the government thus election malpractice and horse trading may increase. The frequent elections would lead to numerous other problem such as the imposition of model code of conduct during the elections would lead to huge economic losses to the state, the expenditure incurred on conducting the elections are huge, non feasibility for the administrative agencies who conduct elections such for people who are deputed to elections which include the security forces, the election campaign would disturb the public life and also increase the expenditure or spending of political parties and if the government are changing frequently the policies and legislation of the previous outgoing government cannot be implemented this may be for ideological reasons or otherwise. Thus this method of simultaneous elections would be the potential solution for the above problems.

However, as the coin has two faces the proposed system has also two faces that are considered as advantages and disadvantages. One of the main advantages is that the system would help in saving cost and time which are spent by the election commission as well as the parties and the candidates who are contesting for the elections. This huge amount of the money is spent on the election campaigning which could be saved when they have to campaign only once. And the citizen who excise the right to vote also save cost and time as they can vote for both governments on the same day simultaneously in the same place.

Major infrastructure development and change in policies may take place when the government is going for the polls. Thus having appeasement towards a section of the people in order to create a vote bank and thus divide the society based on different factors such as caste, religion, community etc., in order to get the popular support from these groups. Thus reducing the election procedure would in turn give much time to work on policy and vote for the best interest of the nation. This would also reduce the divisive politics as political campaigns on thus lines had to be reduced because of paucity of time and reduction of time for campaign as the elections would take place only once in five years and thus campaign would most likely to be development driven and focus on national issues.

However, there are some disadvantages which are to be note hereafter in a country as vast as India it would not be an easy task of implementation where we may have a shortage of administrative staff and another resource which are needed to conduct the elections. Which may lead to less care and would be an incentive for corruption. The increase in the spending by the political parties as they are contesting both the elections which means they would pay more as the voter has two votes. The enthusiasm among the party worker would go down as the elections would take place once in five years and in this interval of time they may loss interest in politics or they may feel that ideology would not matter as there needs to be corporation among the parties to run the government for next five years no matter the may or may not get the majority. Checks and balance system would reduce as they are no election conducted in the hole of India to express the will of the people regarding their work as the government in power in centre or the state.  And the interaction of the politician and party with the citizen would reduce as there wouldn’t be any election in the near future until the full term of the house is finished. The national parties would have leverage as the citizens could be driven by national issue and they having a small number in all the states may start dominating over the regional parties and thus would negative the state interest. People would confuse the administrative policies and ideological affiliations of these parties.

However, the implementation would be difficult as the policy would be dissolving the many state government and extending while synchronizing the implementation for the first time. The various regional parties which are ruling in the state may feel that injustice is meted out to them when they are aligned with the opposition in the national politics. This also would lead to favoritism to the national parties as the voters may be presumed to vote based on the national issues as negating the purpose of having the regional party. And the opposite may also occur when there is a grave issue in the state in which the regional party has taken the better stance, giving importance to regional issue. And India citizens may vote for the same party irrespective of the reason attached as to voting them[25].  Which is estimated to be 77% by IDFC institute.

The NitiAayog in its report has mentioned how many state assembly elections took place after the national election within two years starting with May 2014 which is about 15 states.

The constitution has enshrined the power of conducting an election to election commission of India that is to supervise, direct and control elections to the offices of both the houses of parliament and state legislatures[26]. And election commission is a constitutional body that has a great independent role to play in protecting democracy.

The other important aspect which needs to be focused on is that the proposed method of implementation would violate the constitutional mandate under schedule ten which is anti-defection law. Thus there is a suitable amendment required to maintain the government for the full term.

Conclusion:

The concept of cooperative federalism according to Corwin’s definition with regard to the United States context as “the National Government and the States are mutually complementary parts of a single governmental mechanism all of whose powers are intended to realize the current purposes of government”.[27] Thus the government need to realize collaborative aspect and formulate policies and laws accordingly.

It is to be noted that developmental process of the nation can be achieved not only by the federal government acting alone or by the federal government shaping provincial behavior through the exercise of its power, thus collaboration and sacrifice of the power is to be made by both the government to achieve the national interest. Thus they are expected to act collective on these national issues. The concepts and aspirations of our Constitution makers were different from those in American or Australia. Our Constitution could not certainly be said to embody Dr. K. C. Where’s notion of “Federalism” where “The general and regional governments of a country shall be independent each of the other within its sphere.” Mr. Austin thought that our system, it, it could be called federal, could be described as “cooperative federalism”.[28]Thus the government should take it to consider the national interest along with the constitutional frames objective of having such a system and thus realize the spirit of constitutional law and bring in the fair policy in elections.


[1] Granville Austin, The Indian Constitution: Corner stone of a Nation (Bombay: Oxford University Press, 1966), p.186.

[2]M.pjain, indian constitutional law, (EditorsChelameswar  J. &Seshadri Naidu  J. , 8th ed.,2018)

[3] V Mishra, Cooperative Federalism In India: Contests and Contradictions, (Feb. 22, 2019, 10:04 AM), https://iasscore.in/pdf/yojna/5.%20Cooperative%20Federalism%20In%20India.pdf

[4] Election Commission of India, First Annual Report (April, 1984) (Feb. 22, 2019, 10:04 AM), http://eci.nic.in/eci_main/eci_publications/books/genr/First%20Annual%20Repor t-83.pdf 

[5] Failure of Constitutional Machinery in the States: A Historical Survey, (Feb. 22, 2019, 10:04 AM), http://14.139.60.114:8080/jspui/bitstream/123456789/704/10/Failure%20of%20Constitutional%20Machinery%20in%20the%20States_A%20Historical%20Survey.pdf

[6]National Commission To Review The Working Of The Constitution , (Feb. 22, 2019, 10:04 AM), http://legalaffairs.gov.in/sites/default/files/Article%20356%20of%20the%20Constitution.pdf

[7] 7Constituent Assembly Debates, Vol. VIII, 15th June 1949 (Feb. 22, 2019, 10:04 AM),  http://eci.nic.in/eci_main/eci_publications/books/miscell/Debate_in_Constituen t_Assembly_On_Elections.pdf.

[8]Id. 6.

[9]INDIAN CONST. art.75 (3) & 164(2).

[10]KihotoHollohan v. Zachilhu, AIR 1993 SC 412

[11]KuldipNayar v. Union of India (UOI) and Ors., AIR 2006 SC 3127

[12]KesavanandaBharati&Ors. v. State of Kerala &Anr., AIR 1973 SC 1461

[13]Minerva Mills Ltd. &Ors. v. Union of India &Ors., AIR 1980 SC 1789

[14] Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299

[15] A.N Ray J., at para 990, KesavanandaBharatiSripadagalavaru v State of Kerala, AIR 1973 SC 1461

[16] K.K. Mathew J., at para 1727, supra note 15

[17]INDIAN CONST. art. 326.

[18]Rajbala&Ors.v. State of Haryana &Ors. AIR 2016 SC 33

[19] Government of NCT of Delhi v. Union of India &Anr., (2018) 8 SCALE 72

[20] K. Krishna Murthy (Dr.) &Ors. v. Union of India &Anr., (2010) 7 SCC 202

[21]A. V. Dicey, Law of the Constitution (London, 1927).

[22]Motion re. Draft Constitution, 4th November 1948; Constituent Assembly Debates Official Report, Vol. VII Reprinted by LokSabha Secretariat, New Delhi, Sixth Reprint, 2014

[23] State of West Bengal v. Union of India, AIR 1963 SC 1241

[24] S. R. Bommai v. Union of India AIR 1994 SC 1918 :

[25]Praveen Chakravarty, Nudging the voter in one direction?, THE HINDU , April 06, 2016 http://www.thehindu.com/opinion/op-ed/state-assembly-elections-nudging-the-voter-in-onedirection/article8438114.ece

[26]INDIAN CONST. art. 324.

[27] Edward S. Corwin, The Passing of Dual Federalism, 36 VA.L. REV. 1, 4 (1950)

[28]Mr. Granville Austin, The Indian Constitution- Cornerstone, of a Nation ,page 186

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