Is CM's assembly by-election a constitutional crises ? What does the law says ?

The question looming large on everyone’s mind is whether CM Tirath Singh Rawat will become an MLA or will the BJP will name a new CM as the opposition is insisting

Is CM's assembly by-election a constitutional crises ? What does the law says ?

Ever since the opposition started attacking the government over the CM’s by-election, the question looming large on everyone’s mind is whether CM Tirath Singh Rawat can become an MLA or will the BJP will name a new CM after completion of the 6 months tenure of the current CM as the opposition is insisting.

It is to note here that at present, two assembly seats – Gangotri and Haldwani — are lying vacant. Gangotri seat fell vacant on April 22 after the demise of BJP legislator Gopal Rawat while Congress MLA from Haldwani, Indira Hridayesh passed away this month on 13th June. Poll analysts had predicted that Tirath Rawat was likely to contest from Gangotri. Gangotri is an important constituency for both Congress and the BJP as there is a widespread belief in Uttarakhand that the party winning here forms the government. The term of the current Uttarkhand assembly elected in 2017 will expire on 23 March 2022 and the next assembly elections are expected by February 2022.

CM Rawat is currently an MP, in case he gets elected as an MLA till Sept 10, as is mandated by law, then he will have to resign from his Garhwal Lok Sabha constituency within 14 days of getting elected.No member can keep membership of 2 houses for more than 14 days.

What does the law say

Section 151A of the Representation of the People Act, 1951 mandates the Election Commission to fill the casual vacancies in the Houses of Parliament and State Legislatures through bye-elections within six months from the date of occurrence of the vacancy, provided that the remainder of the term of a member concerning a vacancy is one year or more.

      Section 151A of the Representation of the People Act, 1951 is reproduced below

151A. Time limit for filling vacancies referred to in sections 147, 149, 150  and 151.—Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy: Provided that nothing contained in this section shall apply 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 bye-election within the said period.

Experts opinion

According to legislative matters’ expert Shruti Saklani, "Pandemic of this magnitude is happening for the first time in our country so there is no judgment on the after effects of the same on an election”.As of now the next assembly elections are scheduled for February next year. According to her, Article 164 (4) of the Constitution of India provides that 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 the said period cease to be a Minister. This clause [originally taken from Section 10 (2) of the Government of India Act, 1935], provides that there is no bar for anyone who is not a member of Legislature to become a minister.  In "S. R. Chaudhuri Vs State Of Punjab", (2001) 7 SCC 126 and "Ashok Pandey Vs. Km Mayawati", AIR 2007 SC 2259] , the Supreme court held that if an individual concerned is not able to get elected to the legislature within the grace period of six consecutive months, he shall cease to be a Minister.

Thus, the constitutional position in relation to appointment of a Minister which includes Chief Minister is clear that even a non-member of Legislature can be appointed as Minister/Chief Minister but only for a continuous period of 6 months. Within 6 months, a non-member has to become a member of the House. 
These precedents make it clear that there is no embargo in appointing a person who is not a member of the Legislature as the Chief Minister of the State. Though technically and legally, one can fairly argue that there is no difference between a non-member (who did not contest the election at all) and a non-member (who contested and lost the election), the question still remains whether it is ethical or moral to appoint a person who lost the election as Chief Minister?

What is the opposition saying

Opposition is asking for the cancellation of by-election as the time remains to the assembly elections is lesser than a year. According to Nav Prabhat, who was transport minister in the Harish Rawat government “ The state is heading towards a constitutional crisis. CM Tirath Singh Rawat’s six-month tenure ends on September 10, BJP will have no option but to name a new chief chief minister,”

Government Defence

But government spokesperson and Uttarakhand agriculture minister Subodh Uniyal asserted that Congress was trying to mislead the people of Uttarakhand through half-cooked information. “The section of the Representation of the People Act is related to the election and it states that election for a vacant seat must be carried out within six months. But in matters, where the by-election is in less than a year from the state polls, it is the discretionary power of the Election Commission to take a call.”

Ground reality

As per the reports published in Dainik Hindusthan Dehradun, Election Commission needs to send M-3 EVMs to Gangotri in case the by-elections to be held there. Old M-2 EVMs are no longer in use. Officials' training and election process will also take at least a month of preparations but till now Election Commission has not shown any sight of preparedness.

Could it have been averted?

The question remains when the government and the BJP were aware of the constitutional norms, why wouldn’t an MLA is been asked to be the CM. Political experts are questioning the technicality of the selection process especially during the time of a pandemic like this, asking if the situation could have been averted? Were the election for a Lok sabha and a Vidhan Sabha seat necessary when the state government is struggling to pay salaries of its employees in various departments during this pandemic?