The Hindu : The Supreme Court reference

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Friday, Aug 23, 2002

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The Supreme Court reference

By Rajeev Dhavan

The Supreme Court should not feel pressured by the BJP's urgency. Having undermined democracy, the BJP should not be allowed to undermine the patient wisdom of the rule of law.

THE BJP as a political party is vitally interested in the Gujarat elections. But, when it rules India, the BJP cannot place its party political interests above the nation's interests. The Union Government's powers cannot be abused for the benefit of a political party. As a party, the BJP had made its submissions to the Election Commission. The E.C. disagreed. Now, the BJP is using its power to obtain the Supreme Court's advisory opinion as an appeal mechanism against the E.C.'s decision. Why? This is only because the E.C. had the constitutional courage to disagree with the party in power. The matter could have lain there. But, the BJP's electoral stakes are too high. Rather than provide a healing touch to Gujarat, the BJP wants to exploit the situation. Its allies are silent. They betray constitutional indiscipline and lack real constitutional courage.

On August 16, 2002, the E.C. wrote a detailed order in which it accepted that normally elections should be held in six months — unless there were compelling reasons to the contrary. In fact, the E.C rightly reminds the BJP that while imposing President's Rule in Goa on February 10, 1999, the six months rule (in Article 174) was specifically suspended. On that date, the BJP was in power. But, it had a different strategy for Goa from Gujarat. The E.C. wants the Constitution to be read as a whole — to subserve the interest of the voter and democracy. Citing the Supreme Court, the E.C. referred to the Seshan (1995), Gill (1978) and Trivedi (1986) cases to reinforce this simple point. In the Haryana (1984) and Assam (1993) cases, the Supreme Court gave the ultimate power to determine when a free and fair election can take place to the E.C. after it has consulted the States. No doubt, the State's assessment is important, but not final. It would be constitutionally abominable if such a decision was left to the ruling party in the State. Our Constitution made the dramatic change from the pre-1950 British state control of elections to an independent Election Commission. Why? To ensure that the running, timing and conduct of elections and making election rolls was given to an independent constitutional authority not politicians in power. This is, and must be, surely beyond dispute.

What the E.C. found in its visits to Gujarat of July 31 to August 4 and August 9-11, 2002, was alarming. This was in addition to the vast amount of evidence already in the public domain. The Gujarat Government simultaneously argued that only 12 out of Gujarat's 25 districts were affected even though rations were being distributed in 20 riot-stricken areas. Clearly 80 per cent of Gujarat's districts remain administratively unstable. R.B. Sreekumar of the Gujarat Police officially told the Commission that out of the 182 constituencies in Gujarat, 154 were affected by riots (including 151 towns and 993 villages and 284 out of 464 police stations). Of the 121 relief camps, all but eight have been shut down. The people have dispersed, but not dared to go home. On August 3, 2002, the State's Secretary, Administration, told the E.C. that "... neither the Revenue Department nor the Collectorate have any system to track down the inmates of the camps once they have left without returning to their home". While there is disquiet, will they return to cast their votes? The law and order situation remains precarious. On July 12, 2002, when the rath yatra took place, 14,821 police were deployed in one area. Do we want elections under armed guard? No doubt, the State Government and the police say the situation is normal. But, this is belied by their own statements, and the truth.

The Municipal elections due in February 2002 were deferred till after the monsoon because of riots. On June 12, 2002, the State Government deferred elections in a large number of panchayats and districts till October 11, 2002, because of the monsoon. Drought and water were also a reason for postponing elections in 2000 and 2001. Elections were held in 1,677 panchayats in April 2002. But, the State Government gave Rs.60,000 in 620 such elections to ensure they were not contested! Busy with riots, rain and drought, the administration is not ready for elections. The electoral rolls are not ready. The E.C. has given a specific direction that objections will be heard till September 18, 2002. Issuing identity cards will start on October 1 during revision. Should Gujarat have elections with incomplete rolls and a missing electorate under conditions of persecutory instability? The E.C. does not think so. It is right.

References to the Supreme Court should not be made lightly. The Advisory References are a British legacy. But, it is a unique constitutional mechanism if used responsibly. Of the 10 references, the first was the Delhi Reference (1951) on rule making powers of the Government. The rest dealt with serious crises such as the Kerala Education Bill Crisis (1958), and the Uttar Pradesh High Court-Assembly stand-off (1965), the Cauvery imbroglio (1993), federal questions on the customs tax power of the Union over the States (1963) or the territorial integrity of India as in the Berubari Reference (1960). The President's Election Reference (1974) was necessary because Gujarat Assembly members were not available to vote due to President's Rule. But, an element of opportunism had crept into later References including the pre-emptive reference on Special Courts (1979) which was directed against Indira Gandhi, the Judges Reference (1998) to contain Justice Punchhi and the Babri Masjid reference (1993) to resolve a problem that the then Prime Minister, Narasimha Rao, had created and which the Supreme Court refused to answer. The Gujarat Election Reference (2002) is an overtly opportunistic reference by a political party in power to achieve electoral gains.

The present crisis was created by the BJP when the Chief Minister, Narendra Modi, dissolved the Gujarat Assembly on July 15, 2002, when he should have recalled it. The Assembly would have continued; and Mr. Modi would have been accountable to it. But, he did not want that. President's Rule would have made Gujarat answerable to the Union Parliament. But, the BJP did not want that. Now we have three questions. The first question is about the E.C.'s power to decide on free and fair elections after the six months (under Article 174) have expired. But, the E.C. has already accepted the BJP's view that the six months rule will normally apply as a norm but not absolutely where free and fair elections are not possible. The E.C. still plans to hold elections within the five-year term which ends March 2003. The E.C.'s stance is constitutionally bonafide and plausible enough to be gracefully accepted. The Supreme Court does not have to be roped in to resolve the BJP's squabble.

The third question asks if the E.C. can use its resources and forces to hold elections before the six-month period. This is an invitation to invite the army and police to superintend the electoral process. This is a frightening thought we have been spared so far. The second question about President's Rule is an unfair question. The E.C. has not asked for President's Rule, but simply shown that it was imposed by the BJP Government in Goa.

Having created this crisis, the BJP has no qualms about exacerbating it — albeit by threatening the E.C. by this reference. The President's Election reference (1974) was answered between April 30 and June 5, 1974. But, the law reports show that each State was issued notice and assisted the Court; as in other references. The Supreme Court should not feel pressured by the BJP's urgency. Having undermined democracy, the BJP should not be allowed to undermine the patient wisdom of the rule of law.

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