Wednesday, Aug 21, 2002
Wednesday, Aug 21, 2002 |
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By J. Venkatesan
According to Registry sources, the reference would be placed before the Chief Justice, B.N. Kirpal, for the constitution of a Bench and fixing a date for hearing the matter. Article 143 envisages that ``if at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the court may, after such hearing as it thinks fit, report to the President its opinion thereon''. The three questions are: Does Article 174 of the Constitution yield to Article 324, viz., whether the time-frame provided in Article 174 would be subject to the decision of the Election Commission under Article 324 to hold Assembly elections; Can the Election Commission frame a schedule for elections to an Assembly on the premise that any infraction of the mandate under Article 174 would be remedied by resorting to Article 356 by the President; Is the Election Commission bound by the mandate of Article 174 by drawing upon all the requisite resources of the Union and the State to ensure free and fair elections. Under Article 174, there should not be a gap of more than six months between two sessions of a State Assembly. And it is the BJP's argument that as the last Gujarat Assembly session was held on April 6, the next session should be held before October 6 and the Election Commission is duty-bound to hold elections before that. The court has been asked to interpret this Article as different views have been expressed by constitutional experts, with some saying that Article 174 will apply in all situations and some expressing the view that it will apply only to an existing Assembly and not to a dissolved one. Under Article 324, the Election Commission is vested with absolute powers of superintendence, conduct and control of elections. Therefore, the issue before the Supreme Court would be, whether an executive order passed by the Commission under Article 324 (to defer the polls till November-December) would have overriding powers in derogation of Article 174. In the Government's perception, the Commission's order (in paragraph 11) that ``the non-observance of the provisions of Article 174 (1)... would mean that the government of the State cannot be carried on in accordance with the provisions of the Constitution within the meaning of Article 356 (1) of the Constitution and the President would then step in,'' was the most objectionable part of the 40-page order. Government sources said the Union Cabinet did not have any objection to the Commission's own assessment of the law and order situation. But when the Commission in its order had accepted that Article 174 had to be complied with, it went overboard in suggesting that Article 174 must yield to Article 324. The Cabinet was of the view that instead of taking a confrontationist attitude a dignified procedure of clearing the legal doubts should be undertaken and so it unanimously decided to seek the opinion of the Supreme Court on the issues involved. It was felt that what had happened in Gujarat should not become a precedent and the Supreme Court should clarify the position, sources added.
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