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The Even-Handed opinion

The Even-Handed opinion

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 On second thoughts, the Commission had seen the error in its order and withdrawn the call to the Centre to impose President's rule in the State.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.
 


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