Author: Editorial
Publication: The Free Press Journal
Date: October 30, 2002
URL: http://www.samachar.com/features/301002-editorial.html
The Supreme Court's advisory opinion
on the presidential reference has helped clear the air over Gujarat. Notwithstanding
the motivated noises made by a section of the secularist media, the apex
court has not fully upheld the stand of any of the players involved in
the drama leading to the above-mentioned reference to the court. Nor, for
that matter, has the court rejected outright in entirety the stand of any
of the players involved. In its reading of the relevant provisions of the
Constitution, predictably, the court has been even-handed.
Admittedly, the court has not agreed
with the contention of the Centre and the Gujarat Government that not more
than six months should lapse between two sittings of an elected Assembly.
The Narendra Modi Government had sought an early poll after he had dissolved
the State Assembly eight months before its scheduled term. He had contended
that the holding of the early poll had become mandatory since otherwise
Article 174(1), which mandates the six-month stipulation between two sittings
of the Assembly, would stand violated.
The Centre and the BJP both had
been in agreement with Modi over the reading of the said Article. Indeed,
till the court's clarificatory enunciation most observers had read Article
174(1) in similar light. But the court averred that the provision applied
only to a " live Assembly" and not to a " dissolved assembly." This novel
distinction would henceforth inform the interpretation of the said provision,
though in the last half a century of the working of the Constitution no
occasion had arisen to warrant such clarification by the apex court.
Again, the court rejected the gratuitous
recommendation of the Election Commission to the Centre to impose President's
rule in Gujarat. On second thoughts, the Commission had seen the error
in its order and withdrawn the call to the Centre to impose President's
rule in the State.
The argument advanced by the Commission
that Article 356 (imposition of Central rule) would come into effect upon
the infraction of Article 174 ( six-month gap between two sittings of the
House) did not find favour with the court. Nor did the court endorse the
Commission's view that Article 324 ( duty of the commission to hold free
and fair elections) was superior to Article 174.
The court clarified that "Article
174 (1) and Article 324 operate on different fields and neither Article
174 (1) is subject to Article 324 nor Article 324 is subject to Article
174 (1)." Further, the court maintained that the job of the Commission
was to hold free and fair elections under Article 324. " No efforts should
be spared by the Election Commission to hold timely elections," the court
said.
The court was not impressed by the
reason cited by the Commission to postpone the election in Gujarat. " Ordinarily
the law and order or public disorder should not be the occasion for postponing
the elections and it would be the duty and responsibility of all concerned
to render all assistance and cooperation to the Election Commission for
holding free and fair elections," the five-member Bench headed by the Chief
Justice B. N. Kripal observed.
The court noted that interested
politicians could create man-made problems such as public disorder to postpone
elections and therefore the Commission must strive to hold elections in
time in almost all cases, a view endorsed by Justice Arijit Passayat in
his separate opinion. It is significant that the Commission had refused
to hold elections in time citing the fall-out of the recent communal carnage
in the State.
The Commission rejected the argument
of the Congress Party and others that the imposition of President's rule
in Gujarat had become mandatory once the six month period from the date
of the last sitting of the Assembly had lapsed.
The SC opined that the solution
suggested by the EC is neither appropriate nor justified. In other words,
the Modi Government can continue in office even after the lapse of the
six month period since the last sitting of the State Assembly.
The EC order calling for President's
rule was misplaced, the court observed. Meanwhile, the Commission has ended
all speculation about the poll schedule in Gujarat by announcing its time-table
for the same within hours of the SC opinion.
However, the Commission again erred
in gratuitously soliciting the presence of diplomats to observe the coming
polls in Gujarat. The quite unnecessary mention of diplomatic observers
in Gujarat would evoke parallels with the situation in J and K.
The Commission overstepped its constitutional
brief yet again in this regard, especially when the task of allowing diplomats
to visit any part of the country other than the station where they are
normally located lies exclusively with the Ministry of External Affairs.
Not only politicians but high constitutional functionaries like the Election
Commissioners too must always exercise restraint both in word and action.
