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EC should not hold up polls, says Jaitley

By J. Venkatesan

NEW DELHI Sept. 18. The jurisdiction of the Election Commission under Article 324 of the Constitution could not override the legislative mandate to hold elections within the time frame under Article 174 (1), the former Union Law Minister, Arun Jaitley, argued in the Supreme Court hearing the Presidential reference on Gujarat.

Appearing for the BJP, Mr. Jaitley contended before a Bench headed by the Chief Justice, B.N. Kirpal, that the role of the Election Commission was only to "hold and not hold up the elections''. He said the Commission's directions under Article 324 including the framing of the timetable for the polls must supplement and not substitute the statutory provisions.

Further, while it was true that holding of free and fair elections was the basic feature of the Constitution, holding of timely elections was also a basic feature. Therefore, the powers under Article 324 must be used objectively and the Commission could not exercise that function on the premise that other Constitutional provisions must yield to Article 324, he said.

Mr. Jaitley maintained that the Constitution itself had provided for exceptions when elections could not be held and except in those circumstances, elections could not be postponed. He will continue his arguments tomorrow.

Earlier, the Additional Solicitor-General, Kirit Rawal, appearing for Gujarat, faulted the Commission for not taking any remedial measures to hold elections in the State after it found that the ground situation was not conducive for holding free and fair elections.

He said that if, for some reason, elections could not be held in a particular area or constituency, it could not be the reason for postponing the elections in the entire State. Merely because there was some deficiency, the entire democratic process had been given up.

Mr. Rawal pointed out how elections were being held in Jammu and Kashmir now and had been held in the past in Punjab and Assam, where only a negligible percentage of the voters had exercised their franchise. He said every endeavour should have been made by the Commission to marshal the various resources to make holding of elections possible.

He also disagreed with the Commission's plea for returning the reference, saying that hypothetical questions could be raised by the President and the court had answered them in the past. Holding of mid-term elections was a part of democracy. "Here is a Chief Minister who wants to face the people and is seeking a fresh mandate. He is not running away. Then why should the Commission shy away from holding the elections'', Mr. Rawal asked.

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