Constitutional law

Citing “constitutional crisis”, Uttarakhand Chief Minister Tirath Singh Rawat submitted his resignation to Governor Baby Rani Maurya.

Tirath Singh Rawat's resignation has led to questions on whether EC can hold bypolls in the time before Uttarakhand's next polls. Experts explain why there is no legal bar.

With the Uttarakhand Assembly term ending in less than a year, in March 2022, it has complicated the constitutional crisis in the state, leading to conjectures on whether the Election Commission (EC) can hold bypolls in such a situation.

According to experts and courts, the Election Commission is not mandated to hold the by-elections within six months in such situations but may still choose to do so. However, courts have in the past set aside such decisions by the poll body, citing the short term that this leaves incoming candidates with.

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”.

Section 151A of the Representation of the People Act 1951 reiterates this position, saying 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, the proviso to this section says that this mandate won’t apply “if the remainder of the term of a member in relation to a vacancy is less than one year”.

There are two vacant assembly seats in Uttarakhand — Gangotri and Haldwani. 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.

Regards,

Anaita Vas