The Hindu : Gujarat and the E.C. decision

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Tuesday, Sep 03, 2002

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Gujarat and the E.C. decision

By Sanjay Kumar

in the post-riot situation, the electoral rolls needed revision. Many people have not been able to return to their old localities.

WHILE FIXING September 17 as the date for the commencement of hearing on the Presidential reference, the Supreme Court also reiterated that there would be no constitutional crisis if the Assembly elections in Gujarat were held in November or December. This is what the Election Commission had suggested a couple of weeks back after assessing whether free and fair polls were possible before October 6. Now, the E.C.'s legitimacy in the eyes of the people will increase manifold. Even before this, the trust shown in this institution was far greater than in most others in the country.

The findings of the survey conducted by the Centre for the Study of Developing Societies (CSDS) in 1996 suggest that nearly 46 per cent of the people had a great deal of faith in the E.C., while another 31 per cent had some faith in it. The respondents belonged to different social communities. The Judiciary was ranked a close second to the E.C. For, 42 per cent had a great deal of faith in the Judiciary and another 34 per cent had some faith in it. Except for these two institutions, most of the others have been rated poorly (those with a great deal of faith in police 13 per cent, in Government officials 17 per cent, in elected representatives 20 per cent) by the people.

The case with regard to holding Assembly elections in Gujarat is more than a tussle between the BJP and the E.C. First, it was not the individual decision of the Chief Election Commissioner, J.M. Lyngodh, not to hold elections before October but the unanimous verdict decision of the three-member Commission. The decision was taken after visits to Gujarat by a nine-member E.C. team by the three Election Commissioners.

The Gujarat Assembly was prematurely dissolved by the Chief Minister, Narendra Modi, on July 19 in exercise of the powers under Article 174(2)(b) of the Constitution. After the dissolution, the State Government and the BJP demanded early elections saying the new Assembly had to be constituted before October 6 as under Article 174(1) of the Constitution there should not be a gap of more than six months between two meetings of the House.

Time and again, the BJP has been claiming that the law and order situation in Gujarat is normal and quite conducive to holding free and fair elections. On the other hand, large numbers of representatives from other political parties and eminent personages from different walks of life have urged the E.C. not to hold the elections since the whole atmosphere in the State after the riots was not conducive for them.

Some put forward the claim that the six months clause applies only to the same House and that, hence, the E.C. is not constitutionally bound to hold elections within the stipulated time. The Commission examined the provisions of the Article 174(1) and said they should not be read in isolation, but along with Article 324 of the Constitution. Under the provisions of Article 324, the power of superintendence, direction and control of the preparation of the electoral rolls for, and conduct of elections to Parliament and State Assemblies is vested with the Election Commission of India.

The E.C. emphasised that, under such constitutional provisions, elections meant free and fair elections and not merely a ritual to be held after every five years or so. In a situation where holding free and fair elections is not possible because of extraordinary circumstances, then Article 324 will get precedence over Article 174(1) in the interests of democracy.

While there is no dispute over the E.C. being the sole authority for deciding the dates for holding elections to either Parliament or a State assembly, the recent controversy, which became the subject of a Presidential Reference, is about whether the E.C. is justified in not holding elections to the Gujarat Assembly before October? The first E.C. team, which visited 12 of the 25 districts of the State, observed that the electoral rolls had become very defective due to large-scale displacement of the people because of riots. Large numbers of people had not returned to their homes out of fear and because the houses had been totally demolished, damaged or burnt. The law and order situation was not conducive for their return either.

Thus, in the post-riot situation, the electoral rolls needed revision. Many people have not been able to return to their old localities, where their names are registered as voters. If the electoral rolls were not revised, a large number of eligible voters would not have been able to exercise their franchise. At the same time, it would have given an opportunity to unscrupulous elements to cast bogus votes in their name. Electoral rolls are the basic tool for conducting free and fair elections and the E.C. has set a time schedule for updating them. Is it unfair to postpone elections in order to first update the electoral rolls?

The State Government in one of its reports claimed that the law and order situation was all right and that only 12 of the 25 districts were affected by riots. Another of its reports said a scheme to provide free rations was being run in 20 of the 25 districts, which the Government had classified as riot-affected areas. The scheme was aimed at benefiting nearly 27 lakh people in these districts. Two reports of the Government contradict one another. The E.C. took note of this discrepancy and on the ground found that far more towns and localities had been affected by the riots compared to what the State Government had claimed. The E.C. found that a large number of people are still living in refugee camps, unwilling to return home fearing for their lives.

The situation still remains far from normal. It is true that there has not been major violence in the past couple of months, but a fear psychosis still prevails in the mind of the displaced people from the minority community. Under such considerations, the E.C. unanimously came to the conclusion that it could not conduct free and fair polls in the State immediately. It reiterated that every vote was valuable and that every voter should be allowed to exercise his franchise.

The BJP has been very upset by this decision of the E.C. and asked for a Presidential Reference on this issue. The five-judge Constitution Bench of the Supreme Court hearing the Presidential reference had issued notice to the Commission, all the State Governments and the six recognized political parties. The issues referred are: can the E.C. use its powers under Article 324 to override Article 174(1)? Is the E.C. bound to carry out the mandate of Article 174 by drawing upon all the requisite resources of the Union and the State Governments to ensure free and fair elections? Can the E.C. frame an election schedule on the premise that if Article 174 were violated, the constitutional remedy would lie in Article 356, that is President's rule?

With the Supreme Court's expressing its inability to give an opinion on the Presidential reference by October 2, it is clear that the election process will not be completed before October 6.

(The writer is Associate Fellow, Centre for the Study of Developing Societies, New Delhi.)

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