Curb Election Commission powers in ONOE bill, say panel MPs

AList of lawmakers feature uttered the demand for the 1 Nation, One Election legislation to curb what they see as the excessive power the draft bestows upon the Election Commission of India (ECI), something that was highlighted by several jurists including former Chief Justices of India who appeared before the panel.The lawmakers have expressed an opinion that the Bommai judgement– which explicitly establishes Parliament’s role in approving dissolution of a state assembly– should be the cornerstone of the new legislation’s power to hold simultaneous polls by dissolving some state assemblies.To be sure, the Joint Committee headed by former Union minister PP Chaudhary is still examining the 129th Constitution amendment bill and a similar bill for Union Territories. The committee has been given an extension till the winter session of 2025 to submit its report. The MPs HT spoke to, said they have only suggested measures to fix what they see as a flaw.The issue pertains to a proposed Article in the Constitution amendment bill that allows ECI to recommend to the President of India to defer polls in any state. The new Article, 82A, says, “If the Election Commission is of the opinion that the elections to any Legislative Assembly cannot be conducted along with the general election to the House of the People, it may make a recommendation to the President, to declare by an order, that the election to that Legislative Assembly may be conducted at a later date.”Some lawmakers told HT that the joint committee led by Chaudhary may take its cue from the “Bommai judgement” of the Supreme Court and recommend the need for Parliament’s approval for deferring polls.MPs pointed out that the judgement said, “...Though the power of dissolving of the Legislative Assembly can be said to be implicit in clause (1) of Article 356, it must be held, having regard to the overall constitutional scheme that the President shall exercise it only after the Proclamation is approved by both Houses of Parliament under clause (3) and not before. Until such approval, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly under sub-clause (c) of clause (1). The dissolution of Legislative Assembly is not a matter of course. It should be resorted to only where it is found necessary for achieving the purposes of the Proclamation.”One MP told HT that “unless Parliament approves, the dissolution of any assembly does not withstand. Similarly, if EC recommends delay in election, which can effectively lead to President’s rule in some cases, the Parliament must give the final approval to the EC’s plan.”None of the MPs wished to be identified. The joint committee has 39 members in all, 27 from the Lok Sabha and 12 from the Rajya Sabha. Of this, 22 are from the NDA and 17 from other parties.Another MP argued that “EC can unilaterally curtail terms of assemblies or decide when to hold polls.”Currently, EC is the sole authority to decide the poll schedule but it can’t heavily curtail the five-year term of an assembly or delay polls.Among the jurists who appeared before the committee are former chief justices of India (CJIs) UU Lalit , Ranjan Gogoi, DY Chandrachud, and Saniv Khanna. Some of them, the MPs said highlighted the provision giving ECI “absolute power”. They added that Chandrachud suggested a few measures to curb this “absolute power” of the EC. He told the panel that t ECI can delay elections only if it can prove that issues related to national security or public law and order are at stake. He also said that any decision of ECI must be approved by both Houses of Parliament—a provision that would require further amendments in the Constitution-- and it can defer polls only for a fixed period. Former CJI Chandrachud didn’t respond to the query sent via WhatsApp.Former CJI Khanna, the members added, also underlined concerns about the election commission’s unbridled powers. In his submission t, he said Clause 5 of the proposed Article 82A (of the Constitution) confers unfettered discretion with the Election Commission to form an opinion that the elections to an assembly cannot be conducted along with the general elections of the House of People, they said. Former CJI Khanna declined to comment to maintain secrecy of panel’s proceeding.The clause says the poll panel can make a recommendation to the President to declare by an order that the election to that legislative assembly may be conducted at a later date.Khanna, the MPs said, pointed out that this clause will be open to question as violating and offending the basic structure of the Constitution on the ground of being arbitrary and offending Article 14 of the Constitution.The former CJI, who also referred to his own judgment in the electoral bonds case, has submitted that deferring of elections by ECI “may result in indirect President’s rule”. “He has said that it might be seen as the Union Government taking over the reins of the State Government. And this can be questionable judicially, as violating the federal structure,” the MPs said.Earlier, in an interview to a news agency, JPC chairman PP Chaudhary had said, “once synchronisation happens, the direct and indirect benefits are immense. The direct benefit is that the thousands of crores of Rupees that are spent, will be saved. Indirect profit of around 1.6% in the GDP will happen. “