Eminent jurists remain split on ONOP proposal
The 39-member panel is examining the Constitution (129th Amendment) Bill and the Union Territories Laws (Amendment) Bill and is scheduled to complete its report by the first day of the last week of the 2025 budget session.
Senior advocate Harish Salve on Monday backed the Union government’s proposal to hold simultaneous state and national elections but warned against the unrestricted power of the Election Commission as proposed in the Constitution amendment bill, people aware of developments said.
Salve interacted with the joint parliamentary committee looking into the two bills that aim to usher in simultaneous elections. Former Delhi high court chief justice, justice AP Shah, however, opposed the idea of simultaneous elections and called it an attack on India’s federal structure, the people cited above added.
Salve argued that things change with time and cited the example of how eminent jurist Nani Palkhiwala was opposed to the idea of the anti-defection law, but over time, it was proved that the law was required.
But the eminent lawyer expressed serious concern over the power given in the proposed law to ECI, under the new, proposed Article 82A that allows the poll body to decide whether elections can be conducted or not, and also suggest President’s Rule.
Salve, according to functionaries aware of the details, questioned how ECI could be given power to decide against conducting an election. On March 11, former CJI Ranjan Gogoi had voiced similar concerns, and said ECI was given “excessive power” through the contentious new article.
In the Constitutional amendment bill, a new Article 82A was added, and clause (5) of that article said, “If the Election Commission is of the opinion that the elections to any legislative assembly cannot be conducted along with the general election to the House of the People, it may make a recommendation to the President, to declare by an order, that the election to that legislative assembly may be conducted at a later date.”
The 39-member panel is examining the Constitution (129th Amendment) Bill and the Union Territories Laws (Amendment) Bill – which aim to usher in simultaneous polls in India – and is scheduled to complete its report by the first day of the last week of the 2025 budget session.
According to functionaries present in the meeting, justice Shah was a vocal critic of the proposal – colloquially called one nation, one election – and said it would be difficult to pin accountability for a government that gets elected for the remainder of the term. As per the proposal, if a government does not complete a full five years and elections have to be held again, then the term of the new government will be for the remainder of the five years and not for the full five years. Justice Shah was opposed to this provision and said there was no precedent in any country in the world where the government gets elected only for the remainder of the term.
Justice Shah maintained that the proposed amendment was a violation of the basic structure of the Constitution and that the bill will not stand the scrutiny of law, said the functionaries cited above. Shah also argued that cutting short the tenure of an assembly went against the spirit of the Kesavananda Bharati verdict that outlined the basic structure of the Constitution.
The former Delhi high court chief justice maintained that re-election for the remaining term of the House if the government falls — as against a poll to constitute a new assembly–– will give voters a “half choice” and it will lead to catastrophic results.
