Context: Recently constituted committee under the leadership of former President Ram Nath Kovind to examine and recommend if the constitutional amendments for simultaneous elections would require ratification by the States.
Provisions that may demand amendment of constitution for simultaneous election
Simultaneous elections will need at least five constitutional amendments. The articles that would require amending are:
- Article 83 (2): It says the Lok Sabha’s term should not exceed five years, but it may be dissolved sooner.
- Article 85 (2) (b): A dissolution ends the very life of the existing House, and a new House is constituted after general elections.
- Article 172 (1): A state assembly, unless sooner dissolved, shall continue for five years
- Article 174 (2) (b): The Governor has the power to dissolve the assembly on the aid and advice of the cabinet. Governor can apply his mind when the advice comes from a Chief Minister whose majority is in doubt.
- Article 356: Imposition of President’s Rule in states.
Law Commission draft report on Simultaneous Election (2018)
The Law Commission of India chaired by Justice B. S. Chauhan provide the following:
- It suggested that simultaneous elections would require amendments to various constitutional provisions, the Representation of the People’s Act 1951, and the Rules of Procedure of Lok Sabha and State Assemblies.
- The Commission highlighted that a constitutional amendment to this effect must receive ratification from at least 50% of the States.
Amendment Process Mentioned in the Constitution
Most of the constitution can be amended through a simple majority of those present and voting in each House of Parliament. Some examples include amendments contemplated in:
- Article 4: changes related to the organisation of States.
- Article 169: abolition or creation of Legislative Councils in States
- Schedule VI: provisions for the administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram. Etc.
Amendment under Article 368
Under Article 368 Constitution provide for two kinds of amendments
- Article 368(1): For amending the provision like Fundamental Rights just ‘Special majority’ (not less than two-thirds of the members are present and voting in each House of Parliament as well as a majority of the total membership of each House) is needed.
- Article 368(2): For amendment under this article both a ‘special majority’ and ratification by at least one-half of the State legislatures is required. These are commonly referred to as ‘entrenched provisions’ and are as follows:
- if there is a change in the provisions regarding elections to the post of the President of India (Article 54 and 55).
- if there is a change in the extent of the executive power of the Union or the State governments (Article 73 and 162).
- if there is any change in the provisions regarding the Union judiciary or the High Courts (Articles 124–147 and 214–231).
- if the distribution of legislative and administrative powers between the Union and the States is affected (Article 245 to 255).
- if any of the Lists in the Seventh Schedule is affected.
- if the representation of the States in Parliament is changed (Article 82).
- if Article 368 itself is amended.
Constitutional Perspective about the ratification by the states
- Federal Structure: Dr. B.R Ambedkar was in favour of the ratification by States for the amendment of certain constitutional provisions to ensure that the federal structure of the Constitution remains fundamentally unaltered.
- Principle of separation of Power: Dr. Ambedkar cautioned that permitting all constitutional amendments to take place by a simple majority would defeat the principle of separation of powers among the three organs of the State.
Need of State Ratification: Supreme Court Cases
Kihoto Hollohan versus Zachillhu (1992): The Anti-Defection case
- In this case the constitutional validity of the Constitution (Fifty-second Amendment) Act, 1985 was challenged on the grounds that the amendment was not ratified by the States.
- Though the Tenth Schedule was to deal with defection, it also seems to oust the jurisdiction of all courts by virtue of Paragraph 7.
- The amendment brought about changes with respect to the jurisdiction of the Supreme Court and the High Courts one of the provisions that require ratification by half of the States.
- A Constitution Bench of the Supreme Court upheld the validity of the Tenth Schedule but declared Paragraph 7 of the Schedule invalid for want of ratification.
Union of India versus Rajendra N. Shah (2021)
- in this case SC struck down provisions of the Constitution (97th Amendment) Act, 2011 to the extent that it introduced Part IX B in the Constitution to deal with co-operative societies.
- The Court unanimously held that the amendment required ratification by at least one-half of the State legislatures as per Article 368(2) of the Constitution, since it dealt with an exclusive State subject of the Seventh Schedule.
- The majority judgment invoked the doctrine of severability to make Part IXB operative only insofar as it concerns multi-State cooperative societies.