The 129th Constitution Amendment Bill and its Probable Impact on India’s Democratic Framework

Eesha Shrotriya & Shantanu Pachauri

Eesha Shrotriya is an Assistant Professor at the School of Law, RV University
Shantanu Pachauri is an Assistant Professor at the School of Law, RV University

1.     Background

In 2024, India elected its third consecutive majoritarian government, whose term lasts until 2029. Over the past decade, democratic institutions have faced growing challenges, with concerns over their resilience and independence. The credibility of the Election Commission has been declining, reflecting broader threats to electoral integrity. Issues like partisan appointments, election timing biases, and opaque electoral funding have raised doubts about the fairness of the process. The BJP has leveraged constitutional gaps to its advantage, compromising electoral integrity.

The 129th Constitution Amendment Bill, 2024 (‘the Bill’), recently introduced in Parliament, seeks to amend Articles 83, 172, and 327 and adds Article 82A to the Constitution to facilitate simultaneous elections. It addresses some of the issues with the earlier models proposed by the NITI Aayog and Law Commission, which we examined in a previous post. It does not prescribe problematic stability-seeking mechanisms like fixed-term tenures, constructive vote of no confidence, and President’s rule to sustain simultaneous elections. However, it creates a different set of issues. In this article, we explore the constitutional and democratic implications of this Bill, emphasizing its potential impact on federalism, electoral accountability, and the balance of power.

2.     Proposed Framework

The Bill provides for the following framework for the introduction and sustenance of simultaneous elections:

(a)   The President may issue a notification on the date of the first sitting of the Lok Sabha after a general election (the ‘appointed date’). The terms of all the State Assemblies constituted after this date will expire with the expiry of the full term of the Lok Sabha. This will synchronize the terms of all the State Assemblies with the term of the Lok Sabha.

(b)  If the Lok Sabha or the State Assembly is dissolved before the expiry of their full five-year term, ‘mid-term elections’ will be conducted for that assembly. The newly elected assembly will be in continuation of the earlier dissolved assembly and will continue only for the remainder of the term.

(c)   If the ECI thinks that the elections to any State Assembly cannot be conducted simultaneously with the Lok Sabha elections, it may make a recommendation to the President to declare that the election to that State Assembly can be conducted at a later date.

3.     Effect on Constitutional Values

Bill curtailing the powers of the States without their ratification

The Indian Parliament’s power to amend the Constitution is not absolute and is subject to procedural and substantive safeguards. In Kesavananda Bharati v. State of Kerala, the Supreme Court established a substantive limitation, holding that a constitutional amendment is valid only if it does not damage the basic structure of the Constitution. Procedurally, the proviso to Article 368(2) requires ratification by at least half of the states, in addition to a special majority in Parliament, for amending certain enumerated articles. These provisions primarily govern the relationship between the Centre and the states and uphold the federal structure.

The Bill does not directly amend any of these enumerated articles and has therefore not been presented for state ratification. However, as will be discussed later, this amendment will significantly impact the federal structure of governance. In Union of India v. Rajendra N. Shah, the Supreme Court clarified that the “change” in the proviso to Article 368(2) includes not only direct alterations, like modifying the language of an Article, but also “changes in effect,” where a modification indirectly but significantly impacts the essence of a provision.

Considering the intent of the Constitution’s framers, it is evident that the ratification requirement was included in Article 368 to safeguard the autonomy of states and the federal structure. Should we not extend this requirement to cases where an amendment clearly, even if not explicitly, impacts the federal structure of the country? This loophole enables the ruling party to bypass states entirely in implementing significant changes, thereby undermining the democratic process.

Excessive and arbitrary discretionary powers to the President and the ECI

The Bill empowers the President to decide the ‘appointed date’ and to defer elections to any State Assembly on the recommendations of the ECI. This poses a concern as the President acts on the advice of the Union Government’s Council of Ministers, effectively shifting the balance of power in favour of the Centre. Moreover, the independence of the ECI is already in question, with frequent accusations of bias. Since the Bill does not specify the circumstances under which state elections can be deferred, it is very likely that such deferment will be used by the Centre to gain political advantage over competing parties. Strangely, this power applies only to deferring state elections, not Lok Sabha elections. It is hard to envision circumstances that would warrant delaying State Assembly elections whilst proceeding with Lok Sabha elections. If the situation in a particular state renders elections for State Assembly constituencies unfeasible, it is unclear how the same conditions would allow for Lok Sabha constituencies in that state to conduct elections. This approach unfairly prioritizes the Lok Sabha elections, thereby undermining the federal spirit of the Constitution. Granting unchecked powers to these institutions effectively legitimizes a mechanism inherently prone to abuse.

Possible down-ballot effect

Simultaneous elections often result in a down-ballot effect, significantly increasing the likelihood of voters supporting the same party at both national and state levels. Research suggests a 77% probability that voters in India back the same party in state and central elections. The representation of regional parties is already decreasing in the country. Such elections result in national parties and issues dominating the electoral debate and taking it away from the regional parties.

This is even more problematic because, as discussed above, the balance is already tilted towards the central government. Additionally, the presence of the same parties at the central and state level is not ideal from a governance perspective. When there is existing evidence of increasing personalisation of politics and elections, simultaneous elections might increase the probability of voting on the basis of the influence and charisma of a popular national leader, even in state elections. A healthy and robust federal democracy thrives on a multiplicity of ideas, ideologies, and policies, as their homogeneity hinders efficient governance and accountability.

Possibility of imposition of the President’s Rule in case of dissolution

In case of premature dissolution of any State Assembly, the Bill does not provide for the imposition of the President’s Rule or ‘other temporary arrangements’, as previously recommended by the NITI Aayog. Instead, it proposes the conduct of mid-term elections in such circumstances. The newly elected assembly will act in continuation of the earlier dissolved assembly and will serve for the remainder of the term. However, the Bill does not address situations in which a State Assembly or the Lok Sabha is dissolved shortly before the scheduled election cycle. In such cases, would mid-term elections be conducted to constitute an assembly for an exceptionally short tenure? If so, this would lead to frequent elections, thereby undermining the stated objective of the Bill. Conversely, avoiding mid-term elections in such scenarios would likely necessitate the imposition of President’s Rule, which will violate the principles of federalism.

Terms of several State Assemblies severely curtailed

The Bill creates a framework wherein certain State Assemblies may have a significantly curtailed tenure. The next Lok Sabha will be elected for a period from 2029 to 2034. If the Bill is passed, all the State Assemblies constituted during this period will have a tenure which ends in 2034. This ensures that the tenure of State Assemblies is not retrospectively curtailed, as previously recommended by the NITI Aayog. However, it introduces a new concern. In 2033, elections to six State Assemblies are scheduled, which would then have a one-year term, until 2034. Similarly, five State Assemblies constituted in 2032 would have a tenure of merely two years. Such short tenures raise questions about the implications for accountability and governance.

Deferring State Assembly elections will also raise similar issues. If simultaneous elections are conducted in 2034 but the State Assembly’s elections are postponed, its new term may be less than five years, ending in 2039 to align with the cycle. Similarly, in the event of the Lok Sabha’s premature dissolution, mid-term elections would be conducted, and the newly elected Lok Sabha will also terminate in 2039, to align with the cycle. This provision fails to account for instances where the Lok Sabha is dissolved close to the end of its term. In such a case, the newly elected Lok Sabha would have an unreasonably short tenure, potentially less than a year. Thus, the Bill does not fully eliminate the possibility of extremely short tenures, which is unsuitable for ensuring sufficient accountability from the elected representatives.

Conclusion

The proposed framework raises profound constitutional, administrative, and democratic challenges. While the purported objectives of administrative efficiency and cost reduction are laudable, they must not come at the expense of fundamental constitutional values such as federalism, accountability, and the separation of powers. The discretionary powers granted to the President and the ECI, coupled with the potential dilution of regional representation and democratic diversity, underscore the risks of a homogenized political landscape. As India continues to navigate the complexities of its democratic evolution, it is imperative that legislative reforms prioritize inclusivity, constitutional fidelity, and institutional integrity. The Bill, in its current form, risks undermining these principles.

Eesha Shrotriya is an Assistant Professor at the School of Law, RV University.

Shantanu Pachauri is an Assistant Professor at the School of Law, RV University.

Suggested Citation: Eesha Shrotriya and Shantanu Pachauri, ‘The 129th Constitution Amendment Bill and its Probable Impact on India’s Democratic Framework’ IACL-AIDC Blog (4 March 2025) The 129th Constitution Amendment Bill and its Probable Impact on India’s Democratic Framework — IACL-IADC Blog