Uttarakhand’s Constitutional Crisis
Uttarakhand is staring at a possible constitutional crisis, with time running out for Chief Minister to get elected to the Legislative Assembly.
But with the pandemic raging, uncertainty prevails over whether a bypoll can be held within that time-frame, and over the legal and political implications if it is not held.
What does the law say?
- According to 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”.
Has such a situation happened before?
- In April 2020, the Maharashtra government was in a similar situation, requiring Chief Minister to be elected to the state legislature.
- The crisis was eventually resolved with CM getting himself elected as a Member of the Legislative Council.
- Unlike Maharashtra, the Uttarakhand legislature is unicameral and has no Upper House.
- There have also been instances in the past when a minister has resigned for a day and been appointed again, extending the constitutional deadline by another six months.
Does the law contemplate a scenario where it is impossible to hold a poll?
- A caveat in the Representation of the People Act, 1951, adds another dimension to the crisis.
- Section 151A allows two exceptions to holding a bypoll to satisfy the requirement in Article 164(4) of the Constitution.
- It states 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.
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, the clause on impossibility of holding an election has been invoked, including in Jammu and Kashmir.
- However, in situations concerning the Chief Minister’s election, the EC has traditionally preferred to hold a bypoll.
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