DEHRADUN: While whispers of various kinds are rife regarding Uttarakhand Chief Minister Tirath Singh Rawat's visit to Delhi to meet Bharatiya Janata Party's central leadership for by-elections, legal experts are divided on the situation.
Sources from the party told that most likely the CM was called to discuss his by-elections. Chief Minister who is MP from Pauri Lok Sabha seat was sworn in on March 10, 2021, has to enter the state assembly before September 10, 2021.
While no difference of opinion is there on the issue of CM's mandatory entry into the state assembly, whether by-elections can take place in the state has left legal experts divided.
Dr. Kartikey Hari Gupta, who holds a doctorate in law and practices in Uttarakhand Hugh Court as well as the Supreme Court told TNIE, "As per Article 164 (4) 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. For this six months’ limitation, the Constitution does not differentiate between a minister and a Chief Minister hence this six months’ election requirement equally applies on the CM of the state."
Gupta further added that Section 150 of the Representation of Peoples Act 1951, in case of a vacancy in state legislative assembly makes it mandatory fot the Election Commission to call upon the assembly constituency concerned to elect a person for the purpose of filling the vacancy.
"It is a mandatory statutory function and there is no unlimited discretion provided to the Election Commission for not holding an Election. For the abovementioned mandatory duty, the only limitation is u/s 151 (A) which was inserted by a later amendment in the year 1996," elaborated Dr. Gupta.
The tenure of the present legislative assembly of the state of Uttarakhand comes to an end in March 2022.
Presently, the remainder of the term of two vacant assembly seats- Gangotri and Haldwani.
In both the cases, as per provision (a) Section – 151 (A) time limitation shall not apply and as per the mandate of Section – 150, the Election Commission is statutorily duty-bound to hold Election on the two vacant seats already.
Interestingly, only one such precedent exists in the history of independent India, said Gupta.
"The Case of SR Chaudhury Vs State of Punjab, the Supreme Court of India has interpreted this Article by saying that if a Minister fails to be elected to the legislature within the period of six months, he ceases to be such Minister and cannot be reappointed as Minister during the life of the same Legislature unless he has been elected to that Legislature. In this case, reappointment has been declared illegal by the Supreme Court of India," added Gupta.
Commenting on the issue, Avtar Singh Rawat, a senior advocate of the Supreme Court who also practices in the Uttarakhand High Court said, "If the vacant seat has a tenure of less than a year, the section 151a of the Act unambiguously states that the vacancy to the legislative assembly can be filled only in a case where the vacancy has arisen prior to the expiry of one year."
Further elaborating on the situation, Rawat added, "As of today, there are no vacant constituencies in the state with over 12 months of duration. There seems to be no other way to dissolve the assembly and announce elections."