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|August 23, 2002||
The Rediff Interview/T N Seshan
The Election Commission's rejection of the Gujarat government's demand for an early election has resulted in a nationwide debate on the interpretation of Article 174, 324 and 356 of the Constitution.
Article 174 regarding sessions of state legislatures says: 'six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.' The main criticism revolves around the application of Article 174, that it could run against the spirit of Article 324 which gives absolute powers to the Election Commission to decide on the timing of holding an election after considering all aspects.
Since the Gujarat assembly last met on April 6, 2002, the six month period ends on October 5, 2002. If a new assembly is not constituted before the date, it could pave the way for President's rule under Article 356.
While the debate continues, President A P J Abdul Kalam forwarded the government’s recommendation to the Supreme Court. Now it is for the Supreme Court to decide who is right -- the Election Commission that ruled out an early election or the Gujarat government.
Meanwhile in Chennai, home to former chief election commissioner T N Seshan Tamil Nadu Chief Minister J Jayalalithaa remarked that things were going smoothly till Seshan came along and spoilt it all. She also said it was he who was responsible for ‘injecting an overdose of activism into the poll panel.’
When Shobha Warrier contacted Seshan for an interview, his response was an outright 'No' but he finally agreed after much persuasion. His aggressive mood during the meeting was quite understandable as the morning papers had published reports on Jayalalithaa's tirade against him. After blaming the media for writing “unadulterated rubbish” he spoke about the current impasse.
Before you took over as chief election commissioner, nobody in India knew that the Election Commission had so much power at its disposal but today, the chief minister of Tamil Nadu is of the opinion that things were going smoothly in the pre-Seshan era, and it was you who spoilt it all…
No comment. I refuse to comment on this.
She said you were responsible for the overdose of activism in the poll panel.
I don’t understand the word, and I don’t have a reaction.
The Election Commission has said that the situation in Gujarat is not conducive for elections. It also said Article 174 of the Constitution cannot be read in isolation; it has to be read along with Article 324. The argument of the BJP is that it is contradictory.
I will tell you the complete story, and I don’t want you to interrupt me. The Gujarat assembly’s normal schedule ends sometime February next year. Article 174 of the Constitution which is now being read and talked by everybody says that not more than six months should be there between the two sessions of the assembly.
In the normal course, the responsibility of the Election Commission is to hold the elections so that the new assembly can meet in time. In my view, the provision was a healthy one. The responsibility of the Election Commission is in Article 324-329 . It is mentioned that the Election Commission shall be responsible for holding free and fair elections.
As far as I can see, the question whether the situation on the ground is consistent with holding of a free and fair election is entirely within the powers and ambit of the Election Commission. It is not with the political parties in the state or at the Centre. It is not at the courts. The Constitution has devised the Election Commission as the mechanism to decide whether elections can be held free and fair.
Please let me interrupt and ask a question. The Gujarat state assembly was dissolved at the recommendation of the chief minister, and the state government has decided to go to the polls. The question asked by the Bharatiya Janata Party is, can the Election Commission overrule the state government’s decision to hold elections?
How can you say that the state has decided? The state cannot decide. It has the power to dissolve (the assembly) and it dissolves. But the state cannot decide when the election is going to be held. The decision to hold the election on a date is totally and hundred percent under the Election Commission, and not 99.9%. It is 100%.
What does the relevant section say? The governor shall issue the notification on the date notified by the Election Commission. Nothing else.
Does that mean the state has absolutely no say in deciding on the elections?
No, no. In Constitutional matters, when you state the opposite, it doesn’t become true! The state has a say. They can say, we are having a plague or cholera or floods or earthquake. So we can’t have elections. But they can’t say, ‘We are very nice. So, please hold the elections.’ They can say so, and the Election Commission is bound to listen to them but the Commission is not bound to accept their advice. The situation must be understood.
But they can’t say they can hold elections on date x, date y and date z. That is not the responsibility or within the authority of the central or the state governments.
Now, let me continue my narration.
So, the responsibility to determine whether the conditions are consistent to hold free and fair elections is totally with the Election Commission. What has risen in the present case is a question whether the constitutional requirement that the assembly shall meet within six months overrides the Election Commission’s authority to decide whether the conditions on the ground are appropriate for holding of an election or not.
On the fact itself, there is a dispute. The central and state governments say the conditions are satisfactory and the people who have gone to relief camps have gone back. But the Election Commission which has visited the camps came to the conclusion that the condition is not appropriate.
What about Article 174?
Therefore, there is disharmony in interpreting Articles 174 and 324. The Election Commission says our Article 324 is superior. So, we are not bound. And, they went on to say, what happens when the six months period gets over? Please impose President’s rule – I haven’t seen the original order, I wish I could have seen the original order.
Can the Election Commission suggest President’s rule?
Look, if you can’t go this side of the road because of a traffic jam, I can suggest to you that you can go that side. I am not directing you to go that side. I am not saying, ‘you can’t go.’ I am saying you can take the other side.
I don’t know the exact language in which the suggestion has been made. If they have said, please impose President’s rule, it is beyond their competence. They have no authority to say so.
But if they have said don’t say there is no alternative. There’s an alternative. Under Article 356, if the governor is convinced that the constitutional machinery cannot be carried out in the manner in which the state government wanted it to be carried out, he can recommend to the President, and he can take a decision and then go to Parliament to get it approved.
If they have said, there’s an alternative, they are perfectly within their limits to say so. But I don’t know the exact language used by them.
Until I see the Commission’s verdict, I will not comment any further on it.
The ruling party has referred the matter to the President and…
Look, now the President has referred it to the Supreme Court and the Supreme Court has fixed the hearing for Monday.
Now, what everybody including the media can do is to shut up and wait for what the Supreme Court has to say. Therefore, any organisation which has the country’s interest at heart must keep quiet, wait for the Supreme Court’s decision.
The BJP calls the Election Commission an agent of the Congress.
I don’t know. If they said so, it’s in bad taste.
The party also says the language used by…
If the Election Commission used bad language against the officials, it’s in bad taste. My answer is, nobody should use bad language. If Mr Chief Election Commissioner used harsh language, bad language, this language or that language against Gujarat officials -- I don’t know anything about that -- my only comment is nobody should use bad language. It has nothing to do with the Chief Election Commissioner or the President of India or the prime minister of India.
The government, the BJP etc are making all kinds of statements saying that the Election Commission is prejudiced; it is a Congress agent etc. You are asking, is that correct? The same answer. Nobody should use bad language. You may not agree with the Election Commission but you don’t therefore say this or that against the Election Commission.
What kind of implications will the Election Commission and the government's locking horns, have on…
Nothing. All this is in the imagination and dictionary of newspaper correspondents. War path! Confrontation!
But they are not talking in a friendly language…
This is nothing. When two people use good language, it is nice. When they use bad language and argue, it is not nice. That’s all.
Is it good for democracy to have the government and the Election Commission…
Listen… Why democracy? Even in a dictatorship, it is bad to use bad language. You switch on the radio, and you hear, ‘confrontation between the government and the Election Commission’ building up! The newspapers also write the same thing. Rubbish! Don’t use such language! The media is doing a disastrous job.
There is a disagreement but there is also a methodology of resolving it which has been adopted by the government. The Supreme Court will decide who is right.
The Election Commission said the situation is not conducive for elections in Gujarat but they are ready to hold elections in Jammu and Kashmir.
Anybody who brings up Kashmir in the context of Gujarat is a traitor.
Because everybody knows what is happening in Kashmir. We are trying to get the situation to normal by holding an election. There are problems in Kashmir. Many people are chased out of their homes and they are in many parts of India or in camps in Jammu. Everybody knows this. Despite all this, as one way of putting balm on a wound, we are trying to hold elections. So, anybody who brings up Kashmir in the same voice as Gujarat is a traitor and Musharraf’s man. Only Musharraf’s men will compare Gujarat with Kashmir; nobody else.
Now you newspaper people can do a good service to the country by shutting up and keeping silent.
Why do you feel it is not good to have a debate on what is going on in the country?
Because this country has set up a legal method for resolving this conflict. The Supreme Court will now say how to interpret Article 174 and 324 harmoniously. Assorted amateurs of various kinds should not comment, discuss it and argue it.
In a democracy, we can discuss and argue, can’t we?
This is not democracy. Legal matters are not democratic.
About holding elections…
We are not discussing elections. We are discussing a specific subject. Is 174 more binding or 324 more binding? This is the subject. This is not a matter of democracy and taking votes. This is an interpretation of the law in the Constitution. And, that is best done by the Supreme Court judges and not by the newspapers, not by media, not by television channels, not by rediff, not by political people, not by officials…
The only people who can talk now are the Supreme Court judges. They can listen to whatever they want to, and after that, when they talk, all of us should keep silent and listen to them. Indian democracy would best be served by everybody like you observing silence!
Design: Dominic Xavier
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