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Centre to refer EC decision on Gujarat polls to President

By Vinay Kumar

NEW DELHI AUG. 18. Responding to the Election Commission's firm no to early Assembly polls in Gujarat, the Union Cabinet today decided to make a Presidential reference to seek the Supreme Court's opinion on the EC's interpretation of Article 174 of the Constitution under which there should not be a gap of more than six months between two Assembly sessions.

The Presidential reference would be made under Article 143, which provides for the advisory jurisdiction of the apex court. The court's opinion will be sought on whether the EC could recommend imposition of President's rule in a State where it felt polls could not be held, the Information and Broadcasting Minister, Sushma Swaraj, told a press conference here while briefing reporters on the Cabinet decision.

The Presidential reference seeking the opinion of the apex court would cover interpretations of three crucial constitutional provisions — Articles 174, 324 and 356.

"Is Article 174 of the Constitution mandatory? All other questions flow from this and deserve clarifications. These questions go much beyond Gujarat. A reference will be made to the President who will forward it to the Supreme Court for advice,'' Ms. Swaraj said.

The decision came at the extraordinary meeting of the Union Cabinet this morning, which was also attended by the Solicitor-General, Harish Salve, and the additional Solicitor-General as special invitees. It is learnt that many Ministers felt that the Commission had transgressed its jurisdiction while suggesting that Gujarat be brought under Article 356 and were inclined to take a confrontationist attitude. However, the Prime Minister, Atal Behari Vajpayee, felt that a balanced view should be taken and a confrontation with the Commission should be avoided, sources indicated.

The EC's decision had raised several important questions which were bound to have far-reaching consequences. "Though the decision of the Commission was in respect of Gujarat, very crucial Constitutional questions have been raised by it,'' Ms. Swaraj said.

First and foremost was the primacy of Article 174. "Is it mandatory? This is being asked. This provision says that there should not be a gap of more than six months between two sittings of the Assembly. The Gujarat Assembly last met on April 6, 2002, and the six-month period expires on October 6, 2002. Before that polls should be held and a new Assembly should be constituted.''

`Question mark over democracy'

The EC had said Article 174 (1) was mandatory and it was so in the case of the Lok Sabha also. "This puts a question mark over Indian democracy. The Commission said that this provision cannot be read in isolation and must yield to Article 324 which provides for supervision, control and conduct of polls by the Election Commission,'' she said.

The Cabinet, she said, held detailed discussions on the entire gamut of Constitutional questions raised by the poll panel. "On the one hand, the Commission is saying Article 174 is mandatory, on the other the panel is saying that it must yield to Article 324. This is contradictory,'' she said.

On the Commission's suggestion for imposing President's rule in Gujarat, Ms. Swaraj said there was a pre-requisite for it, which said that there should be a breakdown of the constitutional machinery. "If for any reason the Commission cannot hold polls, can it suggest imposition of Article 356. In the Bommai case, the judiciary went a step further and said that Central rule must be ratified by Parliament. What is the use of Parliament's ratification if the Commission can recommend imposition of President's rule in a State? This gives rise to yet another Constitutional crisis,'' she added.

Asked about the time frame for Supreme Court's opinion, she said the urgency flowed from the Presidential reference itself. The reference was being drafted and it could take a day or two to be sent to the President.

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