The Unconstitutionality of 129th Constitutional Amendment Bill , 'One Nation, One Election'

Earlier this year in September 18, 2024, Union Cabinet had accepted the recommendations of the High-Level Committee [“Committee”], headed by former President Ram Nath Kovind, that had proposed simultaneous elections to the Lok Sabha and State Assemblies as the first step, and municipal and panchayat polls within 100 days of the general election in the next phase. What remains to be seen is can this monumental shift withstand the ultimate test of constitutional scrutiny?

This article avoids delving into the political dimensions of the proposal and instead focuses solely on evaluating the Committee's recommendations through the lens of constitutional principles that have long upheld the foundation of our democracy. We avoid discussing the economical benefits of conducting Simultaneous Elections, which is referred to by the Committee as 'One Nation, One Election', ['ONOE' hereinafter].

The only focus of this article is on key constitutional questions: Is Parliament empowered to make these amendments? Are the proposals in line with constitutional principles, or do they undermine the Basic Structure of democracy, particularly Federalism and Parliamentary Democracy?To understand whether the proposed exercise will be constitutional or not, we must first understand the meaning of ONOE. The Committee defines ONOE as: “The expression 'simultaneous election' shall mean general elections held for constituting the House of People and all the Legislative Assemblies together.” To begin with, the Committee has undermined the whole process, being reluctant to include/mention the elections to the third-tier of our democracy- our Panchayats & Municipalities- to its definition of simultaneous elections. The exclusion of the third tier- Panchayats and Municipalities- from the Committee's definition of 'Simultaneous Elections' dilutes the core essence of ONOE. Without encompassing all three tiers, the proposal falls short of aligning with the very letter and spirit of its stated aims and objectives- to have ONOE in India.

Proposed Constitutional Amendments:

The Report in its roadmap to conduct ONOE has examined reports, conducted dialogues & deliberated on issues and concluded that in order to save the excessive expenditure on elections, India must have a ONOE model in its constitution. However, the Bill, for holding ONOE, follows the recommendations of the Committee & recommends 15 amendments to the Constitution to be carried out through two Amendment Bills. The first Bill will amend the Constitution to deal with the transition to a simultaneous election system, and the procedure for fresh elections to Lok Sabha or a state Assembly before the expiration of their stipulated five-year term. The second Bill seeks to deal with configuring elections in Union Territories of Delhi & Jammu, Kashmir & Ladakh.

Proponents of ONOE argue that implementing ONOE would reduce the financial burden of frequent elections. However, this perceived efficiency comes at the cost of undermining key democratic structures. In this article, we argue that there are fundamentally 4 problems with the Amendments, firstly, it grants excessive discretion to ECI & President. Secondly, it obliterates a 5-year term guaranteed to directly elected legislatures. Thirdly, the Committee concludes that the proposed amendments would not require ratification of State Assemblies. And lastly, the proposals grant an unreasonable primacy to the House of People over the State Assemblies. For proper understanding of the readers, the arguments are divided into two parts- each discussing the 2 out of the 4 problems enumerated above. In this part, we will discuss the first two problems.

Excessive Discretion To Constitutional Bodies

The proposed amended Art. 82A, sub-art. (1) is exactly similar to what was proposed by the Committee. It empowers the President to issue a notification on the date, to be called 'appointed date', of first sitting of the House of People after general elections, whereby the proposed Art. 82A can be brought into force. The problematic aspect of this proposal is the centralisation of this power unto the office of President, which can create imbalance in the federal fabric of our democracy. Under the scheme of our Constitution, the President shall always act on the aid & advice of the Council of Ministers. When ONOE tends to change the elections of the country entirely, the voices of all the stake-holders, such as Legislative Assemblies & local bodies, must be considered.

Another issue that may arise is if in case a hung House is formed after the General elections, & the President administers the oath of the Office of Prime Minister to an MP who does not enjoy the confidence of the House, even then ONOE can be stipulated by exercising power under proposed Article 82A (1) or even if it's a hung House, the President without seeking the aid and advice of the Council of Ministers can take a decision whether or not to make the notification under Article 82A (1).

The proposed amendments also vest the ECI with a power under proposed Article 82A (5), which corresponds to proposed Art. 82A (4) by the Committee. If ECI is of the opinion that elections to any Assembly cannot be conducted at the time of General Elections, it may make a recommendation to the President, who may then declare by an Order that election to that Assembly may be conducted at a later date. Not only this proposal gives wide discretion to interfere with Assembly elections, it has potential of step-motherly behavior towards State Assemblies where the party in power, in Centre, is not confident to face its opposition in that particular State.

The proposed Article lacks clarity on what this 'opinion' of ECI is based on, effectively allowing subjective decisions to defer elections. There are 3 more problems with this proposal- firstly, it directly impinges upon the federal model, whereby States will have no say if ECI forms the said opinion. The party in power, in Centre, has an undue-advantage, a sort of an upper edge, as the President, who acts on the aid and advice of Council of Ministers, is the final authority once ECI has opined to defer the elections, in the States where the opposition party is confident to seek public mandate.

Secondly, there is a peculiar primacy to the House of People in these proposals as the proposed sub-article does not grant ECI the power to form similar opinions whereby if elections to the House of People cannot be conducted at the time of the General Elections, they may be deferred too. It presumptuous that the Assemblies have monopoly to the times where elections cannot be conducted at the time of General Elections, hence calling for deferment by the President.

Lastly, the 5-year term guaranteed to the confident House by Art. 172(1) has been obliterated by the proposed Art. 82A, sub-art. (4) read with sub-art. (6)- whereby once the Presidential order of deferment under Art. 82A (5) is made, whenever the new Assembly is elected on the future date, it shall not have a full 5-year term but it will expire with the full term of the House of People, thus, mathematically reduced to have a term less than 5-years. By centralizing power in the hands of the President and the ECI, ONOE threatens to tilt the balance away from the federal structure and toward a more centralized form of governance.

Having analyzed the discretion given to constitutional bodies, let us now turn to the second major issue: the compromise of the five-year term.

Five-Year Term Compromised

(i) Amendment proposals for the term of Parliament

Proposed Art. 82A, sub-art. (1), which corresponds to Art. 82A(1) of the Committee's Report, empowers the President to issue notification to bring into force the provisions of the Article on the date, which it calls 'appointed day'. The Report classified the term of directly elected legislature into 2 categories- full term & unexpired term. The former is the term provided in the present Art. 83(2)- which guarantees a full five-year term to the confident House. However, the latter means that if the House of People is dissolved sooner (i.e. before expiry of the full term) the period between the date of dissolution & 'full term' is unexpired term.

Proposed Art. 83(5) stipulates that where the House of People is dissolved sooner than the expiry of its full term, the next House of People constituted pursuant thereto, it shall not continue for complete 5 year term, but in fact for a period equal to the unexpired term, i.e. full term (5-years) minus term completed by the dissolved House since General Elections.

(ii) Amendment proposals for Legislative Assemblies

Corresponding provisions as above are sought to be proposed to tweak the terms of Legislative Assemblies. Proposed Art. 172, sub-art. (4) stipulates that in case an Assembly dissolves sooner (i.e. before completing full-term), a new Assembly will be constituted. However, this newly constituted Assembly will only be constituted for a period equal to unexpired term, which mathematically will always be less than 5 years.

Proposed Art. 82A, sub-art. (2) proposes that once the President under proposed Art. 82A, sub-art. (1) notifies to bring into force the provisions of proposed Art. 82A, all State Assemblies, constituted in any general election held after such date, shall come to an end on the expiry of the full term of the House of People. This Article not only obliterates the guaranteed term of 5-years under present Art. 172(1), but it also legitimizes authorisation of forced proclamation of emergency provisions for mandatory dissolutions in order to sync the terms of all the Assemblies with the Parliament.

Proposed Art. 82A, sub-art. (6) states that once elections are deferred under Art. 82A, sub-art. (4), the new term of such Assembly shall also be not 5-years as it too shall dissolve (come to an end) on the date the full term of the House of People expires.

Is There A Basic Feature To 5-Year Term?

Like there can be only one Prime Minister^[1], one President^[2], one Governor^[3] & one Chief Minister^[4] each for the States, we argue that Constituent Assembly in its sacred wisdom has impliedly affixed a 5-year term for all elected constitutional posts- which post-Keshvananda Bharati can neither be increased or decreased by the Parliament even if Parliament has the support of all the political parties & State Legislative Assemblies as it now forms a part of basic-feature of the Constitution.

The Doctrine of Basic Structure acknowledges that, under Article 368, Parliament has the power to amend the Constitution, but this power has inherent limitations. Hence, even if Parliament has power to amend constitution, it cannot amend “the Constitution” i.e. its Basic Structure. Inorder to keep a majoritarian Parliament in constitutional leash, this Doctrine has been criticized by some- as an idea fanned from judicial over-activism- some although do argue that this judgment saved the Constitution & this country.

If the Parliament is allowed to amend the Basic Structure by adjusting term limits, what is next? Will fundamental rights be subject to change based on convenience? The Basic Structure doctrine acts as a constitutional firewall, preventing such encroachments.

If Parliament is given the power to amend the 5-year term, it will directly hamper the parliamentary form of democracy, federalism & democracy in general. With the experiences of monarchy of the British empire, the Constituent Assembly decided that a five year term is the most suitable period for both the elected government to perform its functions as well as the voters, the people of India, to judge their elected representatives & their performances.

If a 5-year term is not recognised as a part of Basic Structure, the implications can be that Parliament can in its wisdom any time increase or decrease the term as it pleases. It can simply decrease the term of 5 years if opposition parties form majority in some States & can increase its term according to its will just to avoid the elections if it is not confident.

There is a school of thought, known as the Originalists, who tend to interpret the Constitution in the way it was actuallydrafted by the founding fathers & mothers. In India, the Apex Court has time and again stated that our Constitution is a living document hence, the Originalists have been outcast from interpreting the Constitution of India. Their definition of Constitution is criticized citing that it unjustly restricts the interpretation of the constitution. While this criticism leveled at Originalists is partly correct, we however, should not outrightly reject it.

The Constitution of India is not just a document that provides for the fundamental rights of its people, it also caters to define and elaborate the institutions forming the part of its governance- the definition of living document should definitely be extended to the fundamental rights part of it. However, the part of the Constitution which deals with institutions & the State (as defined in Art. 12), the 'living document' definition ought not to be extended to it.

Post-Keshvananda Bharati, the law of the land is that Parliament cannot touch the basic features of the Constitution such as Parliamentary Democracy, Democracy in general, Independence of Judiciary, Federalism, etc. Keshvananda Bharati case is the Apex Court's adoption of the Originalists' argument that the Constitution has to be interpreted as per the time it was enacted. As we mentioned before, we partly accept and reiterate that the provisions of the Constitution that deal with the authorities, State (as defined in Art. 12) & other institutions ought to be understood & interpreted the way they were envisaged when they were enacted.

As the nation debates the viability of ONOE, we must ask ourselves: Are we willing to compromise the very constitutional framework that has safeguarded our democracy for decades? If we do not recognise the 5-year term forming part of the basic feature of the Constitution, majoritarian Parliament can supplant and interfere with the term promised to the State Assemblies. Not just that, if the Parliament is granted power to tweak this 5-year term, they can increase their own term- exactly like what Putin did in Russia- as per their will in order to avoid facing the elections thus, ending the democratic values of our Constitution.

In conclusion, regardless of the government's intentions, the ONOE proposal, as it stands, is unconstitutional under the current constitutional framework and parliamentary system. The amendments needed to facilitate ONOE would dismantle the Basic Structure, undermining both democracy and federalism. In fact, any amendments to tune the Constitution in line with the Committee's vision of ONOE, will lead to carnage of the basic features of our Constitution- which has till date protected the democracy in India & rule of law.

Even if the Parliament unanimously approves to amend the Constitution in order to facilitate ONOE, it is bound to get struck down by the Apex Court, as it indirectly legitimizes the usage of Emergency provisions by obstructing the working of State governments. Such proposals pose a serious risk to the principle of Federalism enshrined in the Constitution.

The author is a Law Clerk-cum-Research Associate at Supreme Court of India.Views are personal.