The much anticipated Constitution One Hundred and Twenty-Ninth Amendment Bill, 2024 (hereafter referred to as "First Bill") and 'The Union Territories Laws (Amendment) Bill, 2024(hereafter referred to as Second Bill) formally introduced in the Lok Sabha by the current Law Minister, propose mechanism for conducting "simultaneous elections" at the Union and State level now await a Joint Parliamentary Committee discussion.

The bills that propose 18 amendments in all, were drafted by a nine member high level committee under the leadership of former President Ram Nath Kovind, after due deliberation suggested in it's extensive report that it has the potential to boost India's GDP and entail a manifold reduction in election costs.

Further frequent imposition of the model code of conduct hamper, efficient implementation of policies, schemes, and projects by slowing down the administrative machinery, prioritising the conduct of elections. Excessive election campaigning, often results into polarisation, thereby widening the cultural and religious gaps presses on the imperative need for One Nation One Election.

This article shall examine the constitutionality of the proposed bills without delving much into the political aspects. India has elections to elect members to the Lok Sabha legislative assemblies, rural and urban councils as well as elections for local governance. In case of resignation, death or disqualification of representatives at either level by elections are conducted to fill such vacant posts. Initially, the first four general elections, namely the 1952, 19,57, 1962 and 1967 were simultaneous elections, however, due to dissolution of Lok Sabha as well as legislative assemblies on various occasions at different times disrupted the cycle of holding polls simultaneously making it impossible to continue with simultaneous elections. Let us first understand in brief the provisions related to election in the Indian constitution.

Article 327 Power of Parliament to make provision with respect to elections to Legislatures

Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in Connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

Accordingly, the Parliament enacted the following acts:

1. Representation of Peoples Act, 1950: Provides for allocation of seats to Lok Sabha, legislative assemblies, and legislative councils. It provides for the appointment of the Chief Election Commissioner, DEO, ERO. It also provides for the preparation of electoral rolls for assembly and Parliamentary constituencies, manner of seats in the Rajya Sabha, and more.
    
2. Representation of Peoples Act, 1951: This act provides for qualifications for membership of Rajya Sabha, Lok Sabha, legislative council, and legislative assembly. It also provides for disqualification from membership of the legislature on conviction for certain offences as given under Section 8 of the Act, dismissal for corruption or disloyalty under Section 9, or failure to lodge an account of election expenses and so on. Section 75A seeks declaration of assets and liabilities within 90 days from oath-taking, whereas Section 123 defines corrupt practices like bribery, influencing voters, inciting religious sentiment, booth capturing, etc.
    
3. Delimitation Commission Act, 1952: Provides for re-adjustment of seats, delimitation, and reservation of territorial constituencies and other related matters.
    
4. The Presidential and Vice-President Election Act, 1952: Provides for the conduct of presidential and vice-presidential elections and the mechanism for the settlement of any dispute arising out of such elections.
    

Article 328: Power of Legislature of a State to make provision with respect to elections to such Legislature

Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.

Article 329: Bar to interference by courts in electoral matters

1. The validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court.
2. No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.

Article 82 Readjustment after each census

Upon the completion of each census, the allocation of seats in the House of the People to the States and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine:

Provided that such readjustment shall not affect representation in the House of the People until the dissolution of the then existing House:

Provided further that such readjustment shall take effect from such date as President may, by order, specify and until such readjustment takes effect, any election to the House may be held on the basis of the territorial constituencies existing before such readjustment:

Provided also that until the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to readjust:

1. allocation of seats in the House of the People to the States as readjusted on the basis of the 1971 census; and
2. division of each State into territorial constituencies as may be readjusted on the basis of the 2001 census, under this article.

Thus, it provides for readjustment of territorial constituencies after each census but such adjustment shall not affect representation in the house of people until the dissolution of existing house, thereby guaranteeing a fixed term.

Article 83 Duration of Houses of Parliament

1. The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.
    
2. The House of the People, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period offive years shall operate as a dissolution of the House:
   Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. Thereby providing the duration of houses of Parliament. It states that the house of the people shall not be subject to dissolution, unless five years from the date appointed for its first meeting and no longer than that, again, providing security of term to Lok Sabha.

Article 172 Duration of State Legislatures

• Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer, and the expiration of the said period of five years shall operate as a dissolution of the Assembly:
  • Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.
     
• The Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.
   

Article 324: Superintendence, Direction, and Control of Elections

1. The superintendence, direction, and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
2. The Election Commission shall consist of:
   • The Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix.
   • The appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
3. When any other Election Commissioner is so appointed, the Chief Election Commissioner shall act as the Chairman of the Election Commission.
4. Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint, after consultation with the Election Commission, such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1).
5. Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
   • Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court, and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.
   • Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
6. The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1).

Let us now analyze the amendments proposed by the two bills, their feasibility and outcome, weighing it on a constitutional scale.

The First Bill
This bill proposes 15 amendments to the Constitution relying on Article 327 mainly the words, "Parliament may from time to time by law make provision with respect to all matters relating to, or in Connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State " and Article 328 mainly the words " in so far as provision in that behalf is not made by Parliament ".

Most important of all is Clause (2) of the bill that seeks the insertion of new Article 82A clause (1) that is:
"The President may by a public notification issued on the date of the first sitting of the House of the People after a general election, bring into force the provision of this article, and that date of the notification shall be called the appointed date." read along with clause (7) of the same that is,:
"The Election Commission shall at the time of notifying the election to Legislative Assembly under this article declares the date on which the full term of the Legislative Assembly shall come to an end." It therefore provides for a general election to the Lok Sabha and all state legislative assembly simultaneously on an appointed date, where the term of the latter shall end with that of the former thereby curtailing their full term to align with Lok Sabha.

The proposed Article 82A (5) empowers Election Commission to recommend postponing a state assemblies election when not feasible or the President may issue an order for that state assemblies election to be conducted separately as and when they please. Amendment to Article 83, that proposes to insert clauses (3), (4), (5), (6) and (7), after existing clause (2) define unexpired term, mid term and general elections stating pursuant to dissolution of Lok Sabha term election shall take place and the newly constituted lower house shall be constituted only for the remaining period which means the new Lok Sabha formed will not be a continuation of the dissolved house, providing the same for state assembly through amendment in Article 172, most importantly the newly proposed clause (5) to the same which is as:
"The Legislative Assembly constituted under clause (4) shall not be a continuation of the previous State Legislative Assembly and all the consequences of dissolution shall apply to the State Legislative Assembly referred to in clause (3).".

The Second Bill
The bill proposes to amend Government of Union Territories Act 1963, Government of the National Capital Territory of Delhi Act,1991 and Jammu and Kashmir Reorganisation Act,2019 providing adjustment to enable synchronised elections simultaneously in these territories.

We do accrue benefits from One Nation One Election, but significant concerns emerge from a constitutional perspective, the excessive discretion given to the ECI shall lead to centralisation of power and imbalance in federal fabric of the country. The Constitution provides that the President must act on the aid and advice of council of ministers, but this bill does not voice their opinion and interests, further appointment of election date for the state assemblies by the President hamper federalism, given that states have no say in the ECI decisions.

Excluding municipal corporation shall do away with state ratification which again is a blow on federalism and in case of hung house, the term shall be decided by the ECI which has been given excessive discretion to defer elections for as long as it please. It also undermines the basic structure of the Constitution as the five-year term of Lok Sabha can't be altered as was held in the historic constitutional bench judgement in the Kesavananda Bharti case, as guaranteed by article 172, clause(1) and Article 83 clause (5) which stand obliterated by insertion of proposed article 82A that leads to forced mandatory dissolution.

It hampers Parliamentary democracy, federalism, and eventually ends democracy as it leads to marginalisation of regional parties as national parties can mute the voice of those at the state levels. It would lead to reduction of accountability of political leadership, as is the case in frequent elections. It raises concerns regarding federalism as the bill way for frequent position of article 356, undermining the principle of free and fair elections as synchronised.

Moreover, India is a Parliamentary democracy where the ruling party needs majority in the house, the Lok Sabha and legislative assembly may be dissolved prematurely by those in power to seek an early Election. Frequent elections ensure accountability and serve as an effective feedback mechanism for the government in power that keeps it on its toes to ensure its win in the next election, simultaneous elections would result in voters, conflating national and state issues.

The proposed bills in the lower houses at the state and Union levels shall lapse with expiry of the legislative assemblies and would even lead to difficult administration and efficient implementation of policies. India being a multi-lingual and multi-religious federal country of sub continental proportions, each state has its own specific set of issues, needs and responsibilities towards the people. Conducting simultaneous elections would cause over shadowing of regional issues by national issues, obliterating the federal spirit, which is one of the basic structure of the Constitution.

Amid chaos and lack of consensus among political parties, the possible way forward in light of the Law Commission Report(1999) read along with the Law Commission Draft Report, 2018, provides a middle ground, recommending- that the inevitable bye-elections of various states to be clubbed and conducted together; to encourage members to realign and form alternate governments instead of pushing for premature dissolution of the house; to conduct the Lok Sabha elections in one cycle and all State assembly elections in another cycle. These will ensure objectives of One Nation One Election are achieved without compromising on the democratic principles and federal structure of the country.