Constitutional validity doesn’t mean desirability, ex-CJI tells ONOE panel

Former Chief Justice of India Sanjiv Khanna has told a parliamentary committee scrutinising the simultaneous election Bill that the constitutional validity of a proposal in no way amounts to a pronouncement upon the desirability or necessity of its provisions.

In his written opinion to the committee, Khanna, however, said that arguments related to the dilution of the country's federal structure may be raised about the constitutional amendment Bill, as he listed various claims made for supporting and criticising the concept, sources said.

Most of the experts, who have shared their views with the committee headed by BJP MP PP Chaudhary, have rejected the charge that the proposals are unconstitutional, but have flagged some issues with the current provisions of the Bill.

Khanna, who is scheduled to interact with the committee on Tuesday, has joined a few other former CJIs in raising concerns over the extent of power given to the Election Commission in the Bill.

He said the Bill confers “unfettered discretion” on the EC in deciding that an Assembly poll cannot be conducted along with that of the Lok Sabha, and to make a recommendation to the President on these lines, the sources said.

“This clause will be open to question as violating and offending the basic structure of the Constitution on the ground of being arbitrary and offending Article 14 of the Constitution,” he is learnt to have said. Article 14 deals with equality before law.

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

Commenting on various arguments related to the Bill, he said the fact that simultaneous elections were held in 1951-52, 1957, 1962 and 1967, is a “coincidence”, certainly not an express or even an implied constitutional mandate.

Khanna highlighted that there was a difference between “merit review” and “judicial review”. When the Supreme Court or high courts uphold constitutional validity, it is a mere affirmation of the legislative power and that the amendment or the provision is not violative of the constitutional limitations, he said.

Before Khanna, ex-CJIs DY Chandrachud, J S Khehar, UU Lalit and Ranjan Gogoi have interacted with the committee members on various provisions of what is often referred to as “one nation one election” (ONOE) Bill.

The BJP and its allies have supported the Bill, asserting that it will boost growth by cutting down on expenditure caused by the relentless poll cycle. The Opposition has argued that it undermines democratic principles and weakens federal structure.