The Hindu : The Gujarat elections

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Friday, Aug 09, 2002

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The Gujarat elections

By Rajeev Dhavan

The six months rule was intended to apply to a `live' legislature so that a party in power ensured that the House met at least twice a year. It was not intended to apply to a `dead' or dissolved House.

THERE IS no end to Gujarat's misery. It has been hit by both natural and human earthquakes. Following the massacre at Godhra in February and the carnage that followed, it seemed as if a lawless Government led by Narendra Modi was prepared to shake the very foundation of Indian secularism. Mr. Modi did not resign. President's Rule was not imposed on Gujarat. The Assembly of that State was not recalled. Mr. Modi became answerable to neither democracy nor the rule of law.

In July 2002, Mr. Modi advised a pliant Governor to dissolve the Assembly. Artful lawyers on behalf of the BJP — such as Arun Jaitley — immediately rushed to the Election Commission to advise that under Article 174 of the Constitution there should not be a gap of more than six months between two sessions of an Assembly (the sixth months rule). This was legal sophistry to support a political ruse. The BJP wanted a quick election to rouse and distort Hindu sentiment. Earlier on July 4, it had planned a continuous Rath Yatra. But this was stopped by the timely intervention of the National Human Rights Commission. The Yatra or rally on July 12 was heavily guarded; and could have seen Gujarat erupt into flames. But, Mr. Modi felt that he would gain electorally by calling an immediate election. The six months rule was invoked to convert a communal conflagration into electoral victory.

But, for his pliancy, the Governor should have refused to dissolve the House. There is no right to dissolution. If Mr. Modi was concerned about democracy, all he had to do was to call the House, not dissolve it. In its Report of 1988, the Sarkaria Commission rightly instances cases of refusal of dissolution by Governors. Indeed, Gujarat needed its existing Assembly.

Elaborating on parliamentary custom, the Halsbury Law of England rightly points out that if (a) there is a viable Parliament able to do its job; (b) a Government (or its alternative) has stability and (c) an election would be detrimental to the nation, a dissolution of the House should be refused. In Gujarat, Mr. Modi has a majority assuring stability. An immediate election was not good for the State which was not ready for it. The granting of Mr. Modi's demand for dissolution was a political conspiracy by a biased Governor. The Assembly need not have been dissolved.

The elections to the second Lok Sabha were in March 1957, but Parliament was dissolved only on April 14, 1957. Likewise, the second Lok Sabha was dissolved on March 31, 1962, after the elections to the third Lok Sabha in February 1962. A similar pattern existed for the third Lok Sabha yielding to the fourth in February-March 1967. This happens constantly in our legislatures. The BJP's theory that more than six months must not lapse between an old dissolved legislature and a new `to-be-elected' legislature under the five-year-term rule in Article 172 is not correct. The very fact that the two legislatures can co-exist shows that the six months rule (Article 174) does not control the `term' rule in Article 172. In fact, the Draft Constitution of 1948 applied the sixth months rule to dissolved legislatures but abandoned this strategy in the final text of 1950. Both an Allahabad High Court decision of 1987 and a Kerala decision of 1965 confirm that the two legislatures can co-exist and need not be arranged in tandem. The six months rule was intended to apply to a `live' legislature so that a party in power ensured that the House met at least twice a year. It was not intended to apply to a `dead' or dissolved House. Indeed, if the Gujarat Assembly had been dissolved in September in the sixth month after it met in April, could the elections have been held in a few days to ensure that six months did not elapse from April when the dissolved legislature last met? This simply could not have happened.

The timing for an election is left to the Election Commission, which under Article 324 is given the constitutional power and duty to provide "superintendence, direction and control" to the preparation of the rolls and `conduct' of the elections. The Supreme Court has construed these words widely — no less in a recent case in 2000. In the photo-identity cards case (1995) while the Court insisted that the elections be held within 5 years, it made clear that it was for the Election Commission to take such steps to "ensure a free and fair poll". While it was made clear in the Electronic Machines case (1984) that the Commission was bound by electoral laws made by Parliament, in Sadiq Ali's case (1972) it was hinted that even Parliament cannot prevent the Commission from fulfilling its constitutional role of ensuring free and fair elections.

The question remains: what is the time schedule within which an election should be held after the dissolution of a House? On this, the Constitution is silent. Within the outside limit of five years, elections should take place soon after an Assembly is dissolved. But, the timing and schedule of an election is left to the Election Commission. But, unless `free and fair' elections take place there is little point in permitting the subversion of democracy. First, the Election Commission must prepare an electoral roll which, when finalised, cannot — according to the Supreme Court — be challenged once the election process has begun. In Gujarat, there is a very serious need to ensure that the rolls be reviewed and revived. Second, the Election Commission must act fairly and reasonably — as the Supreme Court made clear through Justice Krishna Iyer's judgment in the famous Gill case (1978) — as also later in the Madras Loudspeaker Use (1994) and other cases. Third, it is for the Election Commission to decide when the elections can be fairly and expeditiously conducted within the five-year limit. This was made abundantly clear by the Supreme Court in the Haryana and Punjab case (1984) which required the Commission to consult State Governments and others to take its own independent view. In particular, the Court observed: "The situation of law and order in Punjab and, to some extent, Haryana is, in fact, so notorious that it would be naive to hold that the Election Commission is not aware of it". This applies no less poignantly to Gujarat today. Likewise in the Assam Election case (1993), while requiring fairness in its procedure, the Court observed that if the Commission "is of the opinion that having regard to the disturbed conditions of a State or a part thereof, free and fair elections could not be held, it may postpone the same".

Due to "unsettled conditions", the elections in Assam and Jammu and Kashmir were deemed to be validly postponed. In Gujarat, unsettled conditions exist. The electoral rolls need revision. For security reasons, those in the camps have to stay there, even though Mr. Modi is hell bent on closing the camps which will make Muslims and others vulnerable. To call elections by September would be to invite communalist politicians to set fire to what is already a fragile tinderbox and to take advantage of their own wrongs.

The Election Commission has rightly exercised its option to review the situation independently; and, perforce, listen to the views and assessments of all concerned before making its own decision. An election which is not free and fair is no election at all. But the BJP would rather have an unfair election to exploit the conditions which it has created and sustained. It has sown the seeds of disturbance. It wants to reap the whirlwind. Between it and the abuse of democracy, stands the Election Commission.

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