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There are safeguards against the ruling party pressing for early dissolution of the Lok Sabha for reasons of political expediency but their effectiveness ultimately depends on the sagacity and integrity of the president and prime minister.

There has been considerable discussion about whether or not the Lok Sabha elections will be held in April-May 2019 as scheduled. The common perception appears to be that the Narendra Modi government may advance the Lok Sabha polls to the end of 2018 to coincide with the assembly elections slated for the states of Chhattisgarh, Madhya Pradesh and Rajasthan.

The speculation surrounding the timing of the 2019 general elections has once again brought to the fore important issues concerning a premature dissolution of the Lok Sabha (as also state legislative assemblies). The constitution provides for the Lok Sabha and every state legislative assembly to have a term of five years, unless sooner dissolved by the president or the governor, as applicable. The circumstances in which such a dissolution may occur might vary, though past experience indicates political instability to be a major factor, and additionally in the case of states, the use, or rather misuse, of President’s Rule.

If one considers the 16 Lok Sabha elections since Independence, almost half have been held prematurely, mostly due to the fall of the government and a lack of viable alternatives. The first instance of an incumbent government, however, seeking premature dissolution took place in 1970 during the term of the Fourth Lok Sabha. Following the split in the Congress party in 1969, the then Indira Gandhi government no longer commanded a majority in parliament and had to depend on outside support of various parties to push through its reforms agenda. It was against this background that Indira Gandhi reportedly decided to recommend dissolution of the House one year ahead of time and to seek a fresh mandate from the people to implement what she viewed to be socialist programmes and policies.

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By contrast, in 2004, the BJP-led coalition government recommended early dissolution of the Lok Sabha despite enjoying a secure majority and with no apparent need to make an appeal to the electorate before the completion of its term. This move was widely seen as an attempt by the BJP to gain electoral advantage by capitalising on its recent successes in assembly polls as well as the feel-good factor prevailing in the country. It is a different matter that these expectations of the BJP were altogether belied with the Congress instead coming to power.

Aside from the disastrous consequences for the BJP, such a move set a dangerous precedent for majority governments to time elections to suit perceived party political interests. News reports suggest that the proposal to bring forward the 2019 general elections, too, is motivated by similar interests: to prevent any negative momentum against the ruling dispensation from taking hold; to limit the time available to the opposition to unite and consolidate its position; to counter any anti-incumbency in BJP-ruled states by combining them with the Lok Sabha polls, thereby relegating local issues to the background. If partisan considerations were to indeed dictate the timing of elections in this manner, would it not be contrary to the scheme of the constitution?

It is true that the constitution provides the flexibility for the Lok Sabha to be dissolved ahead of the expiry of its tenure. Surely, however, this option is to be exercised judiciously and sparingly only to meet certain exigencies, and not arbitrarily according to the whims and fancies of the political party in power. As a matter of fact, the constitution itself contains certain checks and balances to counter such arbitrary use of power, to which reference may now be made.

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Firstly, the power to dissolve the Lok Sabha lies with the president. Generally speaking, the president is bound by the advice of the council of ministers while discharging his/her functions. Nonetheless, in a few exceptional situations, the president may exercise discretionary power to ‘preserve, protect and defend’ the constitution.

The president may accordingly disregard the advice to dissolve the Lok Sabha by a government that has lost the confidence of the House and explore alternatives for government formation. Arguably, such advice by a majority government may also be overlooked, if no justification is given by it for cutting short the (constitutionally mandated) term of the Lok Sabha and triggering early elections. This view is supported by the observations of the Supreme Court made as far back as in 1974 (Samsher Singh) that the dissolution of the House must be ‘compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory’.

In the instant case, it would be difficult for the government with its strong parliamentary support to cite such circumstances or make such an assertion to justify any recommendation to prematurely dissolve the House.

Secondly, it is the Election Commission of India (EC), envisaged as an independent constitutional authority, which has been entrusted with the task of conducting elections at the national and state levels. As such, it falls within the exclusive purview of the EC to determine the schedule for fresh elections. It has been settled by the Supreme Court that this includes the power to postpone elections. For example, when the Gujarat assembly was prematurely (and controversially) dissolved in 2002, the EC chose to defer elections till the conditions in the state were conducive for holding free and fair elections.

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Similarly, if the current Lok Sabha is prematurely dissolved notwithstanding the constitutional impropriety of such act, the EC would be within its rights to decline to hold early elections on the grounds that it denies a level playing field to the opposition, besides undermining the federal principle and the importance of state elections. The government would also not be able to rely, as an alternate course of action, on the statutory provision that enables elections to be notified six months prior to their being due – such a move being the prerogative of the EC.

Thirdly, it flows from the constitutional scheme that any premature dissolution of the Lok Sabha for partisan or extraneous considerations is subject to judicial review and may be challenged before the court. In other words, should the president accede to any advice of the government for premature dissolution of the Lok Sabha where an appeal to the electorate is not ‘necessitous’, it may be called into question by the Supreme Court as being inconsistent with the letter and spirit of the constitution.

Thus, the constitution does contemplate that the Lok Sabha (or a state legislative assembly) be prematurely dissolved only for cogent and justifiable reasons aimed at restoring parliamentary democracy. This would also help reduce the frequency of elections, bringing with it benefits associated with simultaneous Parliament and assembly elections so vociferously advocated by the present regime.

Be that as it may, these constitutional checks and balances were seemingly ineffective against the 2004 premature dissolution of the Lok Sabha. This merely underscores the reality that the efficacy of these safeguards ultimately depends on the sagacity and integrity of the concerned constitutional authorities. #KhabarLive