August 27, 2002


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Arvind Lavakare

The EC's Gujarat Order

The Resettlement Bill of a private National Conference member was passed by the J&K assembly in 1981. However, the state governor withheld his assent because of some constitutional deficiencies in it pointed out by the Attorney General of India whom he had consulted, and instead returned it to the state government for reconsideration. The J&K assembly passed the bill once again and the state governor had willy nilly to sign his assent. In the interregnum, however, the President had referred the bill to the Supreme Court for its advisory opinion as provided for in Article 143 of the Constitution of India. That opinion came 19 years later, last year; its essence was: no comment because the bill had already become law.

Another such reference of the President of India was dated January 7, 1993. It sought the Supreme Court's opinion on 'Whether a Hindu temple or any Hindu religious structure exited prior to the construction of the Ram Janma Bhumi-Babri Masjid…' Some 20 months later, October 24, 1994, the apex court returned the reference unanswered -- for reasons that are not germane for the moment.

Going by the above instances, it wouldn't be surprising if the latest Presidential reference on the Election Commission's Order (with a capital 'O') -- citing its supremacy under Article 324 to defer the Gujarat state assembly polls for the sake of the 'little voter' -- elicits the apex court's opinion well after the lapse of the six-month deadline of October 6 by which the next state assembly is required to be in session under Article 174. Ergo: President's Rule in Gujarat from October 7. Ergo: the immediate victory of the EC's decision and demolition of Narendra Modi's hope. Ergo: celebrations in the Congress-Commie camp and sulking in the BJP Parivar. All of it temporary, maybe, but triumph and tears nonetheless.

The span of time which the Supreme Court takes to deliver its wisdom and expertise on the present Presidential reference affords an opportunity for the EC's poor dear 'little voter,' like yours truly, to himself resolve the constitutional tangle between Article 174 and Article 324.

Article 174 is relatively simple to decipher even for amateur analyst. Titled 'Sessions of the State legislature, prorogation and dissolution,' its essence is that 'six months shall not intervene between its last session and the date appointed for its sitting in the next session.'

Based on the above, the BJP's argument is: the last Gujarat assembly session was held on April 6, the next session therefore should be held before October 6, and since the assembly was dissolved by the governor, the Election Commission is duty-bound to hold elections in good time for the next assembly session to be held before October 6.

The Election Commission doesn't accept Article 174 as a constitutional command devoid of exceptions. Its 40-page report on the perceived conditions in Gujarat lists circumstances for one such exception as to why 'free and fair' polls are not possible for facilitating a Gujarat assembly session before October 6. It has therefore ordered deferment of elections till it reviews those circumstances some 12 weeks later. And it cites Article 324(1) as its authority to do that.

What exactly does Article 324(1) say? Here's what:
'The superintendence, direction and control of the preparation of the electoral rolls for, and conduct of, all elections to Parliament and to the Legislature of every State and of elections to the posts of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).'

A few facets of the above provision are noteworthy:

  • It is the 'preparation of electoral rolls …for all elections' over which the EC has the supreme authority.
  • It is the 'conduct of all elections' which is vested in the EC, and not 'whether to hold elections.' The deputy prime minister put it succinctly: 'The EC is to hold elections,' he said, 'not to withhold elections.'
  • The much touted 'free and fair' is missing in the constitutional provision.
  • The words 'Notwithstanding anything in this Constitution' are missing in the above provision.
  • The basic fact is of 'elections,' and the EC comes into play only as a sequel to that basic fact.

And who decides on that basic fact? You are free to answer while the Supreme Court hears what are called the submissions of learned counsels.

To help you, the EC's quintessential 'little voter,' in forming your own judgement, below are some excerpts from previous pronouncements of the apex court itself.

1. 'However wide the powers of the Election Commission relating to direction and control may be, its orders must be traceable to some existing law and cannot violate the provisions of any law including State Acts.' (Dhanoa v Union of India, AIR 1991 SC 1745)

2. 'Article 324 does not enable the Election Commission to exercise untrammelled powers. The Election Commission must trace its power either to the Constitution or the law made under Article 327 or Article 328. Otherwise, it would become imperium in imperio which no one is under our constitutional order.' (State Bank of India v Election Commission AIR 1995 SC 1078).

3. 'We assume that the powers of the Election Commission under Article 324 are plenary. But the question is, in the garb of conduct of elections, can the Election Commission usurp the power not vested in it?' (Ibid).

4. 'We direct that the Election Commission shall not withhold the elections to the legislative assemblies of Bihar and Orissa on the ground that the said Governments had failed to complete the process of issuance of photo identity cards by the deadline prescribed by it.' (Ram Dev Bhandari v Election Commission AIR 1995 SC 852).

5. 'The court construed Article 324 as conferring only executive, but not legislative, powers on the Election Commission. The court disagreed with the contention that the Election Commission gives complete power to the commission under Article 324 for the conduct of elections. The Constitution could never have intended to make the commission as an apex body in respect of matters relating to elections…when the commission submits a particular direction to the Government for approval (as required by rules), it is not open to the commission to go ahead with the implementation of that direction at 'its own sweet will', even though government approval is not given.' (Elucidation of judgement on A C Jose v. Sivam Pillai, AIR 1984 SC 921 by M P Jain on page 453 of his Indian Constitutional Law, Wadhwa And Company, Nagpur, Fourth Edition Reprint 2002).

An Indian in the USA cites a comparison that seems worth more than passing thought. When a particular body is given autonomy, he says, it is only given autonomy to function independently, without interference. For example, an IIT can decide how to function independently as an IIT, but it cannot turn itself into a casino and use its resources to run it. Similarly, the EC is to take care of the operational details of an election but it cannot be allowed to dismantle India's electoral system.

One is tempted to add QED to the above. But the EC's Order (with a capital 'O') on Gujarat has talked of the preservation of 'the multiethnic, multireligious and multilingual nature of the polity.' And who is that EC's poor dear 'little voter' to decide on such weighty issues?

Arvind Lavakare

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