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President's rule only option in Gujarat: EC

By J. Venkatesan

NEW DELHI Sept. 18. Even as the Election Commission today urged the Supreme Court to return the three-point Presidential reference unanswered as they were hypothetical questions, it stuck to its stand that imposition of President's rule in Gujarat after October 3 was the only option available as Article 174 (1) could not be complied with.

Continuing his submissions before a five-Judge Bench headed by the Chief Justice, B.N. Kirpal, senior counsel for the Commission, K.K. Venugopal argued that the question of interpretation of Article 174 did not form part of the reference as the President had proceeded on the premise that the provision would apply not only to an existing Assembly but also to a dissolved one.Giving several precedents, counsel said the court could not traverse beyond the scope of the reference and should refrain from answering the reference, particularly when there was an error in it.

The Bench, which included Justice V.N. Khare, Justice K.G. Balakrishnan, Justice Ashok Bhan and Justice Arijit Pasayat, observed, "Whether we accept the President's premise or not, we have to give reasons one way or the other. Returning the reference unanswered will not solve the problem''.

However, Mr. Venugopal said that in the preamble to the reference, the President had said that under Article 174 (1), elections in Gujarat had to be held and a new Assembly put in place by October 3 as the Assembly was last convened on April 3.

The only doubt in the President's mind was that after the dissolution of the Assembly on July 19, whether the EC was bound to hold elections before October 3, irrespective of the fact whether free and fair elections could be ensured or not.

When the Bench asked Mr. Venugopal whether the Commission could postpone elections indefinitely for one reason or the other, he said the EC, being a constitutional authority, was expected to exercise its function independently and hold a free and fair election.But if the Commission exercised its function arbitrarily or in a malafide manner, political parties would rush to court, and the court would then correct the situation, he said.But in the case of Gujarat, the Commission had not postponed elections indefinitely. The electoral rolls would be ready by October 15 and the elections would be held during November/December, he said. The question was not really whether Article 174 was subject to the decision of the Commission under Article 324, but whether it was subject to the constitutional mandate of holding a free and fair election, which was the basic feature of the Constitution. When counsel maintained that both the Articles must work in harmony, the Bench quipped "they (the two Articles) are made for each other''.

Regarding the second point in the reference, Mr. Venugopal was of the view that if for some reasons, Article 174 (1) could not be complied with, the Constitution had provided a "safety valve'' in the form of Article 356 and President's rule was the answer.

The Bench told counsel that after the `Bommai case', the resolution regarding imposition of President's rule had to be ratified by Parliament, but given the present situation, such a ratification was not possible. But Mr. Venugopal maintained, "why should not Parliament understand its responsibility and resort to President's rule and the Commission will hold elections thereafter''.

When the Bench asked what would be the position if such a situation arose in Parliament, he said as the Council of States (Rajya Sabha) continued to exist, the Prime Minister and other Ministers were accountable to it, but it was not the same situation regarding the States.

"That is why the role of the States has to be taken over by the Centre by invoking Article 356,'' he said.

He also refuted the Solicitor-General, Harish Salve's argument that if Article 174 (1) could not be complied with, a caretaker government could continue in office for six months from the date of dissolution of the Assembly by virtue of Article 164 (4).

Mr. Venugopal said Article 164 (4) would apply only for individual Ministers to enable them to get elected in an existing Assembly and not to the Council of Ministers of a dissolved Assembly.

Further, a Chief Minister who dissolved the Assembly prematurely when he felt that he was losing the confidence of the people could not remain as caretaker Chief Minister beyond the period contemplated under Article 174 (1) and thereafter President's rule was the solution.

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