CHANDIGARH:Surpassing predictions of all Exit Polls, the Aam Aadmi Party (AAP) led by its Chief Ministerial candidate Bhagwant Mann has won a whopping 92 out of 117 Assembly seats in Punjab Assembly General Elections polling for which was conducted on Feb 20.
AAP Vote Share is 42% whereas Cong party has got merely 23% votes and only 18 seats which would however entitle the grand old party to get status of principal opposition party in 16th Punjab State Assembly. The SAD has got 3 while BJP has got 2 seats.
Only this Monday on March 7, the Election Commission of India (ECI) announced the schedule for biennial elections to 13 Rajya Sabha (RS) seats from 6 States including 5 seats from Punjab which are going to fall vacant in coming April.
The 6 years term of 5 RS MPs from Punjab viz. Partap Singh Bajwa, SS Dhindsa, SS Dullo, Naresh Gujral and Shwait Malik who got elected in March, 2016 by then 14th Punjab Assembly is due to complete on 9 April 2022.
The notification for aforementioned elections would be issued on March 14 and the last date for making nominations would be till March 21. The scrutiny would be March 22 and last date for withdrawal of candidatures is March 24. The Polling and Counting would be done on 31st March and the election process would be completed by 2nd April.
Meanwhile, an Advocate at Punjab and Haryana High Court, Hemant Kumar, asserts that the term of the outgoing or in other words the current 15th Punjab Legislative Assembly as constituted in March, 2017 and whose first meeting was convened on 24 March 2017 is until 23 March 2022 as per Article 172 of Constitution of India.
On the other hand after completion of counting on Mar 10, the ECI would issue the Statutory Notification in respect of all 117 newly elected Members (MLAs) of 16th Punjab Assembly under Section 73 of Representation of People (RP) Act, 1951 on or after 11 March 2022.
Now amidst all this, the interesting but significant legal question which arises is that which of the two i.e. either the outgoing 15th Punjab Assembly or else newly constituted 16th Assembly would be the actual Electoral College for election of 5 RS seats from the State of Punjab ? The Press Note issued by the ECI on 7 March relating to declaration of Poll Schedule however is completely silent in this regard.
Hemant legally asserts that as per Section 73(b) of RP Act, 1951, the issue of notification of 16th Punjab Assembly would not affect the duration of the outgoing 15th Assembly whose 5 years duration is until 23 March 2022 provided it is not dissolved earlier by the State Governor albeit on the recommendation of outgoing Channi Cabinet.
However, the tradition prevailing has been that after the ruling party or alliance suffers defeat at the hustings, its leader (read CM) convenes Cabinet meeting after which he tenders resignation and recommends to the Governor the immediate dissolution of Assembly notwithstanding its remaining duration which is usually a matter of days.
5 years ago, then CM Parkash Singh Badal after facing debacle in 15th Punjab Assembly Elections also recommended to then Governor VPS Badnore the dissolution of erstwhile 14th Assembly on 12 March 2017 although its duration was till 18 March 2017. Now it would be interesting to watch if outgoing CM Channi would follow suit and recommend to Governor BL Purohit the dissolution of 15th Assembly whose 5 years normal duration otherwise is till 23rd March 2022.
Meanwhile, Hemant says that that since the nomination process for election to 5 RS seats from Punjab is schedule to begin from March 14 and continue till March 21 and scrutiny would be also done on March 22 and during this exercise, the outgoing 15th Punjab Assembly would be in existence although if not sooner dissolved, hence members (MLAs) of this very Assembly should have the legal right to elect 5 RS MPs from Punjab.
Hemant cited an instance pertaining to April, 2021 wherein during Biennial Elections to 3 Rajya Sabha Elections from the State of Kerala, members of outgoing Kerala Assembly and not upcoming new Assembly were allowed to vote after the intervention of Kerala High Court. The ECI after announcing the Poll Schedule in time had however stayed the Election process at the behest of the Union Law Ministry then.
He says that as per current composition of 15th Punjab Assembly, the ruling Congress party might be able to possibly win 4 or perhaps all 5 Rajya Sabha seats from the State of Punjab for which elections are to be held separately for 3 seats and 2 seats since these seats belong to different biennial cycles as per mention in ECI's Poll Schedule.
Hemant reveals that such separate elections for 3 and 2 Rajya Sabha seats from State of Punjab seats has been happening since the year 1992. Actually due to President's Rule in Punjab from June, 1987 to Feb, 1992, Rajya Sabha biennail polls could not be held in the year 1988 and 1990, hence 3 and 2 seats from that years got carried forward to 1992 and this has been occurring till date.
Be that as it may, since the strength of Congress party in outgoing 15th Assembly is effectively 70 plus and there seems to be no possibility of a joint or consensus candidate by two main opposition parties AAP and SAD, it is highly likely that they both these parties might not field a candidate due to lack of their numbers and in that event, the number of vacant seats to be filled (5 in break up of 3 and 2) and candidates fielded by Congress may be equal and thus there would be no need for polling and all five Congress fiedled candidates can be declared elected on the last day of withdrawal of candidatures by Returning Officer.
However, in the event of newly constituted 16th Punjab Vidhan Sabha is allowed to participate in such election, then all 5 RS seats would go to AAP considering its tally of 92 in the House.
There are two more Rajya Sabha MPs from State of Punjab but their six years tenure is till July, 2022, hence election process would be declared by ECI in May-June 2022.
Pertinent that in the last 6 years i.e. since 2016, there has been no Rajya Sabha (Biennial) Election from the State of Punjab. Thus the members of the outgoing 15th Punjab Assembly have not elected even a single Rajya Sabha member i.e. during its till date tenure of about five years which is completing on 23 March 2022.