Too much power to EC? Former CJI Sanjiv Khanna finds fault with 'One Nation, One Election' provision

New Delhi: Former Chief Justice of India (CJI) Sanjiv Khanna has found fault with a provision in the ‘One Nation, One Election’ (ONOE) Bill that provides “unfettered discretion” to the Election Commission to decide on postponing Assembly elections, saying it will open to questions of violating the basic structure doctrine and Article 14.

In his submission to the Joint Parliamentary Committee scrutinising the Bills, he said the postponement of elections by the EC might result in “indirect” President’s rule, which, “in other words”, is the taking over of the reins of the state government by the union government. Sources said Justice Khanna felt that this “will be questionable judicially, as violating” the federal structure.

Earlier, former Chief Justices of India U U Lalit, D Y Chandrachud and J S Khehar, among others, had flagged concerns over the provision in the Constitution (129th Amendment) Bill, 2024, that allows the EC to unilaterally recommend to the President on not holding an election to a state Assembly along with other polls to be held simultaneously.

According to Justice Khanna, sources said, the provision gives “unfettered discretion” to the EC and the clause “will open to question as violating and offending the basic structure of the Constitution on the ground of being arbitrary and offending to Article 14 of the Constitution”.

“Postponement of elections by the Election Commission may result in indirect President’s rule—in other words, the Union Government taking over the reins of the State Government. This will be questionable judicially, as violating the federal structure envisaged by the Constitution,” he added.

Justice Khanna said the Bill “does not directly abridge or downsize” the principle of the elected political executive remaining in power as long as it enjoys the confidence of the House.

However, sources said he warned that it “may have an indirect impact and effect if the government falls, as the newly elected Assembly will not have a fixed tenure of five years as presently prevalent, but a restricted tenure with the next scheduled simultaneous polls for the Lok Sabha and Assemblies”.

“In case there are premature dissolutions of the House of People and/or the State Legislative Assemblies, the number of elections as per the proposal will increase. However, this would not be true in case the legislatures continue for the full term,” he added.

On Tuesday, the Lok Sabha extended the tenure of the ONOE panel headed by senior BJP MP P P Choudhary till the last week of the Winter Session.

The 39-member multi-party panel examining The Constitution (129th Amendment) Bill, 2024, and the Union Territories Laws (Amendment) Bill, 2024, providing for simultaneous polls, held its first meeting on January 8 this year. The Bills were introduced on December 17 in the Lok Sabha last year and sent to the JPC for further scrutiny.

The panel had also got an extension in the Budget Session.