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|September 5, 2002||
Subhash C Kashyap
The Gujarat deadlock
While analysing the current controversies in regard to the Gujarat election, we have to consider the matter objectively and give the highest priority to democratic principles, the Constitution and the laws of the land. These are binding on all individuals and institutions including the Election Commission. The powers of every authority or institution are only those as defined and delimited by the Constitution.
In constitutional theory and under democratic norms, elections are a necessary concomitant of any representative polity. In fact, it seems very strange that anyone should be arguing against holding early polls and seeking the mandate of the people. Whenever due, elections must be held at the earliest. In Nehru's words, any delay in holding elections is 'exceedingly unfortunate.' When postponement of elections was once suggested due to certain difficulties, India's first prime minister said: 'The elections will be held, whatever happens. We are a mature people and can carry on with our Constitution and our democratic working and at the same time tackle serious problems.'
In parliamentary polity, it is well established that choosing the time of general elections is the exclusive prerogative of the government. Also, it is an executive function. The timing of its choice may give some advantage to the ruling party but it is recognised as entirely legitimate.
In the instant case, elections in Gujarat became due immediately after the dissolution of the assembly. Under Section 15(1) of the Representation of the People Act 1951, inter alia, general election 'shall' be held 'on its dissolution' which would mean it is obligatory to hold elections at the earliest on dissolution of the assembly. There can be no justification for the state not having its assembly of elected representatives and a government responsible to them. Even where perfect conditions do not prevail, it is better to have the best possible elections than no elections at all. The Election Commission is entitled to ask for additional staff, forces and facilities necessary for ensuring as free and fair elections as possible. Our Election Commission has held general elections in much worse situations including those where less than 10 or hardly 3 or 4 per cent of the electorate voted. Also, it can and has made arrangements for votes being cast by displaced people residing in camps for years within and outside their state.
The Election Commission is for the 'conduct' of elections. All powers under Article 324 are for holding elections and not for preventing or arbitrarily delaying them. There is no mention in Article 324 or anywhere else in the Constitution of the Commission having any powers to determine the timing of elections.
Article 174 has no direct relevance to the matter of election or Constitution of a new House. Under Article 164, ministers cannot hold office for more than six months without being members of the legislature. Thus, the caretaker Modi government cannot continue beyond six months from the date of dissolution. President's rule may be forced on Gujarat if elections are not held even by December.
Section 15(2) of the Representation of the People Act lays down that dates for election shall be recommended by the Election Commission 'in accordance with the provisions of this Act and of the rules and orders made thereunder.' It is obvious that this is a very limited power and in its exercise the Election Commission is bound by the law and the rules. Precise dates only have to be suggested by the Commission within the broad time-frame preferred by the government.
The absurdity of assuming that the Commission has the power to postpone elections for any length of time becomes obvious if we think of Lok Sabha. If no elections are held to Lok Sabha for more than six months after its dissolution, the result may be chaos and derailment of democracy because there is no provision for President's rule at the Union level.
The Commission cannot take over the functions of the governors and the President and decide when and where President's rule should be imposed. The Commission cannot convert itself into an investigatory or inquiry commission sitting in judgement over the executive functions of the government and to go so far as to suggest how the government should function.
The reference to the Supreme Court is for its advisory opinion under Article 143 to have the scope and ambit of the Commission's powers clarified. The reference, however, could be better worded. Also, it is doubtful whether harping on Article 174 is going to help. The case could be based on more relevant and fundamental grounds. Also, one can only hope it would be possible for the court to hold necessary hearings and formulate its advice within a tight timeframe if it has to impact the present impasse.
If Parliament was clear about its objective of having early elections and had the will and courage to see it through, the clear option was to issue a Presidential ordinance enabling the completion of Gujarat elections before the next session of Parliament. The governor could also achieve the objective by an ordinance under Article 213.
The writer is former secretary general of the Lok Sabha and a member of the Constitution Review Committee.
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