After the Election Commission declared that conditions in Gujarat were not right for holding elections, the National Democratic Alliance government, within which the BJP is the largest party, made a Presidential reference to the Supreme Court for advice on the Commission's decision.
The Supreme Court on August 20 received the Presidential reference that has three questions:
Third, whether it is obliged to carry out the mandate of Article 174 by drawing upon the requisite resources of the state and the Centre to ensure free and fair elections.
Article 174 of the Constitution states that not more than six months should lapse between the last day of an assembly session and the first day of the next session. The Gujarat assembly was last prorogued on April 6. Thus, as per Article 174, it should start its next session on October 6, 2002. Gujarat Chief Minister Narendra Modi had recommended dissolution of the state assembly on July 19 and asked for early polls.
On the other hand, Article 324 lays down the powers of the Election Commission to hold free and fair elections in the country. Specifically, Article 324, Clause 1(4) states: 'If the Election Commission is of the opinion that having regard to the disturbed conditions of a State or a part of it, free or fair elections cannot be held it may postpone the elections, for a reasonable period, only distinguished from cancelling an election altogether.'
The Election Commission, after visiting Gujarat, had rejected the BJP leaders' argument, saying conditions in the state were not ripe for elections since many members of the minority community continued to live in refugee camps.
In its 40-page order on the election to the Gujarat assembly, Chief Election Commissioner J M Lyngdoh along with Election Commissioners J S Krishnamurthy and B B Tandon declared, 'The constitutional mandate given to the Election Commission under Article 324 of the Constitution is to hold free and fair elections to the legislative bodies. And in the Commission's considered view, if a free and fair election cannot be held to a legislative body at a given point of time because of extraordinary circumstances then prevailing, Article 174 must yield to Article 324 in the interest of genuine democracy and purity of elections.'
The BJP was outraged at the Commission's verdict. Former law minister and BJP general secretary Arun Jaitley, a well-known lawyer in Delhi, thundered that the Commission order on Gujarat was a misinterpretation of Constitutional provisions.
"The BJP is of the opinion that the Election Commission order disregards the primacy of the Constitutional mandate of Article 174. The Election Commission order states that it is acting under Article 324, but in doing so it (the Commission) is unable to comply with the mandate of Article 174. Its order under Article 324 is an executive order. The powers under Article 324 can never be exercised in derogation of a statutory provision," said Jaitley.
The BJP's confrontation with the Commission had Prime Minister Atal Bihari Vajpayee worried. He summoned an emergency meeting of his Cabinet on August 18, where it was decided to refer the issue to the President, who eventually signed it and after which the Presidential reference was sent to the Supreme Court for advice under Article 143 of the Constitution.
Article 143 (1) of the Constitution states: 'If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that is it expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that court for consideration and the court may, after such hearing as it thinks fit, report to the President its opinion thereon.'
Legal opinion on the issue is divided. Constitutional expert and former Lok Sabha Secretary General Subhash C Kashyap, who was on the Committee to Review the Working of the Constitution, backs the government's position. "What happened in Gujarat has nothing to do with Constitutional niceties. The Election Commission definitely exceeded its jurisdiction or authority in deferring election for a long period in regard to imposition of President's rule and sitting on judgment over the executive functions of the government."
Interestingly, Kashyap was of the opinion that the government had erred in seeking elections under Article 174, and should instead have asked that Article 324, which he says "does not contain a single word about the Election Commission having the power to postpone, delay or fix the date of elections," be read with Articles 327 and 328.
"These articles give power to the Union and state legislatures to make laws in regard to all matters connected with elections and these laws are naturally binding on everyone, including the Election Commission. Under this article, Parliament passed the Representation of People's Act, 1951, and Section 15 of the Act provides for governors to issue a notification for the elections to the state assembly on the recommendation of the Election Commission. This is the only place where a reference to the Election Commission's powers in regard to fixing the date is mentioned. The same section, however, categorically mentions inter alia that elections shall be held on the dissolution of the assembly, which means they have to be held as soon as possible on dissolution," said Kashyap.
He felt that democratic principles demand elections at the earliest, not the continuation of a government not elected by the people. "In a parliamentary system, it is well established that the government has the prerogative of choosing the date of elections and even though that may give an advantage the ruling party, it is considered absolutely legitimate," he added.
Not all agree with Kashyap or Jaitley's views. Constitutional lawyer Shanti Bhushan is one such expert. "Article 174 has nothing to do with elections. It only requires that more than six months should elapse between two sessions of the assembly. On the other hand, Article 324 is concerned only with elections and it gives the power to the Election Commission to take all decisions in regard to elections," he said.
Bhushan pointed out that the Commission's main function is to hold free and fair elections in which every voter is able to cast his or her vote without fear and without any practical difficulties in regard to electoral rolls and identity cards. He added that the Commission team in Gujarat felt the element of fear among the people was still very high and that elections at this stage might actually harm the fragile peace in the state.
He rejected claims that Article 174 would be violated if elections were not held in time. "The Election Commission had to point out in dealing with this argument that such a situation has occurred several times before and the answer has always been to deal with the problem by the imposition of President's rule and, therefore, there is no constitutional difficulty in holding elections in December," he said.
Abhishek Singhvi, a well-known lawyer in Delhi, backed Bhushan's contentions. "Legally, Article 174 may not apply to a dissolved assembly at all. Secondly, assuming if it does apply, it will be rather overridden by Article 324 that gives the power to the Election Commission to decide how, when, and in what manner to hold elections. If Article 174 is to be applied, then the Commission would have no power on how to hold elections and the very purpose of creating an independent Election Commission under the Constitution would be lost.
"As regards the interpretation that the Commission has recommended imposition of Article 356, I would say it is not a recommendation or a direction at all. The Commission knows it is not the authority to declare President's rule and it has not done so," Singhvi said.
A nine-member Election Commission team led by Deputy Commissioners A N Jha and R Mendiratta spent five days in Gujarat in early August and met non-governmental organisations and social workers involved in providing relief and rehabilitation to victims of the communal riots. This team indicated that law and order in the state was much too abnormal to merit any consideration for holding an election.
The BJP leadership is apprehensive that if the election is delayed, it may not be possible to cash in on the pro-BJP sentiment that seems to have washed over many Hindus, the overwhelmingly majority community in the state.
The Gujarat riots
The Gujarat Elections 2002
Gujarat news homepage
Design: Uday Kuckian