Daily Editorial Analysis

Simultaneous polls, do States have a say? (GS Paper 2, Polity and Governance)

Why in news?

• The Union government recently set up a committee under the leadership of the former President of India Ram Nath Kovind to look into the feasibility of simultaneous polls to State Assemblies and the Lok Sabha.
• The eight-member High-Level Committee is set to examine the ‘one nation, one election’ idea and make recommendations for holding simultaneous elections in the country.
• The Law Ministry has outlined seven terms of reference for the panel, one of them is to examine and recommend if the constitutional amendments required to facilitate simultaneous elections would require ratification by the States.

Which Articles deal with the process of amendment?

• Article 368 governs the process of amending the Constitution. Constitutional amendments can take place through three different procedures.
• The first is through a simple majority of those present and voting in each House of Parliament. That is, some provisions in the Constitution can be amended in the same way ordinary legislations are passed; it does not require a specific quorum.
• Such provisions are excluded from the purview of Article 368, thereby creating a separate category. 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), and para 21(2)13 of Schedule VI (provisions for the administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram), among others.
• For amending provisions not within the first category, Article 368 stipulates that they can be effected by a prescribed ‘special majority,’ wherein not less than two-thirds of the members are present and voting in each House of Parliament as well as by a majority of the total membership of each House. 
• Although this requirement may be deemed as applicable only to the final voting stage, the Lok Sabha Rules prescribe adherence to it at all effective stages of the Bill

1. for adoption of the motion that the Bill be taken into consideration;
2. that the Bill as reported by the Select/Joint Committee be taken into consideration in case a Bill has been referred to a Committee; for adoption of each clause or schedule, or clause or schedule as amended, of a Bill; or
3. that the Bill or the Bill as amended, as the case may be, be passed.

• A third category requires both a ‘special majority’ and ratification by at least one-half of the State legislatures. No specific time limit for ratification by the State legislatures has been specified but resolutions ratifying the proposed amendment should be passed before the Bill is presented to the President for his assent.

Which amendments require ratification by States?

• The constitutional provisions that require ratification in order to be amended are specifically listed in the proviso to Article 368(2) and pertain to the federal structure of the Constitution.
• They are commonly referred to as ‘entrenched provisions’ and are as follows

1. if there is a change in the provisions regarding elections to the post of the President of India (Article 54 and 55);
2. if there is a change in the extent of the executive power of the Union or the State governments (Article 73 and 162);
3. if there is any change in the provisions regarding the Union judiciary or the High Courts. (Articles 124–147 and 214–231);
4. if the distribution of legislative and administrative powers between the Union and the States is affected (Article 245 to 255);
5. if any of the Lists in the Seventh Schedule is affected;
6. if the representation of the States in Parliament is changed (Article 82); and if Article 368 itself is amended.

• For instance, the Constitution (One Hundred and First Amendment) Act, 2016, which introduced the Goods and Services Tax regime was ratified by more than half of the State legislatures before receiving the President’s assent on September 8, 2016.

Can a constitutional amendment be struck down if not ratified?

• In Kihoto Hollohan versus Zachillhu (1992) popularly known as the Anti-Defection case, the constitutional validity of the Tenth Schedule of the Constitution inserted by 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 purported 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.
• On July 20, 2021, the Supreme Court in Union of India versus Rajendra N. Shah 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 per Entry 32 in List II 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.

Can a State rescind its ratification?

• There is no specific mention of it in the Constitution nor have courts in India dealt with this before.
• Moreover, since the prevailing constitutional practice makes ratification by at least half of all the States sufficient for compliance without requiring all States to consent, such a situation is unlikely to arise.
• In the U.S., Article V, which is the corresponding provision in the U.S. Constitution, has been interpreted to mean that once a State has agreed to an amendment and communicated it to the Secretary of State, it cannot rescind its ratification.
• However, the U.S. Supreme Court in Chandler versus Wise (1939) held that a State can ratify an amendment even if it has rejected it previously.

What has the Law Commission said?

• In August 2018, the Law Commission of India, chaired by Justice B. S. Chauhan, released a draft report stipulating that simultaneous elections are not feasible within the existing framework of the Constitution.
• It suggested that appropriate amendments have to be brought about in the Constitution, the Representation of the People’s Act 1951, and the Rules of Procedure of Lok Sabha and State Assemblies before such a poll is conducted. Notably, the Commission highlighted that a constitutional amendment to this effect must receive ratification from at least 50% of the States.
• However, experts have cautioned that bringing about such amendments as recommended by the Law Commission is not possible without infringing upon the federal structure of the Constitution.