Context:
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Citing “constitutional crisis”, Uttarakhand Chief Minister Tirath Singh Rawat submitted his resignation to Governor due to uncertainty over his election to the state assembly within the stipulated six-month constitutional deadline.
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According to Article 164 of the Constitution and Section 151A of the Representation of the People Act 1951, UK Chief Minister had six months to become a member of the Uttarakhand Assembly in order to continue in the post.
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The term of the Uttarakhand Assembly will end in less than a year, in March 2022, which has complicated the constitutional crisis in the state. It is leading to speculations on whether the Election Commission (EC) can hold by-polls in such a situation.
Constitutional position
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Article 164(4) of the Constitution allows a non-legislator to occupy a post in the council of ministers, including the office of the chief minister, only for six months. If he doesn’t get elected within this period, the Constitution says he “ceases to be a minister”.
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Section 151-A of the Representation of the People Act 1951 states that a “a bye-election for filling any vacancy…shall be held within a period of six months from the date of the occurrence of the vacancy”. However, there are two exceptions in this section.
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Exception 1: A by-poll need not be held, if the remainder of the term of a member in relation to a vacancy is less than one year;
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Exception 2: A by-poll need not be held the Election Commission in consultation with the Central Government certifies that it is difficult to hold the by-election within the said period.
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Can ECI hold by-polls (elections) in this case?
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The Uttarakhand Assembly term ends in March 2022, leaving general elections in the state less than a year away. This makes the exception to Section 151A applicable to this situation, leaving it up to the EC to take a call.
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In a 2019 judgment, the Bombay High Court had accepted the position that the application of the exception under Section 151A makes the power of the ECI to hold such elections to fill a vacancy as “discretionary”. In other words, it is not mandatory for the bypolls to be held for filling a casual vacancy within six months if the exception under Section 151A applies.
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Election Commission of India (ECI) has held bye-election in appropriate cases in the past, even when the vacancy was available for less than a year, or even less than six months.
Has the EC ever certified that an election cannot be held?
For filling vacant seats, the EC could cite the less-than-one-year rule and club the bypolls with the Assembly elections. In the past, this has been done, including in Jammu and Kashmir. However, in situations concerning the Chief Minister’s election, the EC has traditionally preferred to hold a bypoll.