The Hindu : Gujarat imbroglio

Online edition of India's National Newspaper
Saturday, Aug 24, 2002

Opinion

Opinion - News Analysis

Gujarat imbroglio — some reflections

By V.R. Krishna Iyer

The Gujarat imbroglio brings to mind Dr. Ambedkar's pensive caution about the Constitution: I feel that it is workable, it is flexible and it is strong enough to hold the country together both in peace time and in war time. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is, that Man was vile.

In the rapidly unedifying scenario in Gujarat, we have a political contretemps where constitutional functionaries are in avoidable operational conflict. The Election Commission has the plenary jurisdiction to decide on free and fair elections. After making a careful study and acting within its powers, the Commission has come to the conclusion that the conditions in the State warrant a date for the polls beyond early October. This decision being within Article 324 is prima facie valid. But a jurally bizarre impossible situation has been created by the astute action of the Chief Minister, with a majority in the House, to advise a pliant Governor to accept his hasty resignation and dissolve the Assembly. This having been accomplished, a conundrum confrontation has sprung up because of Article 174 which lays down that six months shall not intervene between its (House) last sitting in one session and the date for its first sitting in the next session. This six months span — a parliamentary parameter — is the maximum gap between two sittings of the House and inevitably the House having been dissolved, the newly-elected House has to become functional by October — an impossible feat since the Election Commission declines to hold Election within the period. The only obvious constitutional solution would be to bridge the gap by the imposition of President's rule by proclamation under Article 356. Such a proclamation must have constitutional foundation on the score "that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution''. The Central Cabinet, on whose advice alone the President can act, is politically hesitant to exercise the powers under Article 356. There was perhaps political, communal mileage and vantage in hasty hustings, the very motive for the dissolution of the House. But the Commission, after an on-the-spot study conscientiously, was not in a mood to agree. Surely, if the six months rule is mandatory, a gap without a Ministry and a

House would arise. This means that the obligatory provision under Article 174 will not be fulfilled. (Article 164 (4) which insists on Ministers being members of the Legislature within six months also may cause a headache.) In short, a breakdown of the Constitution would arise and the President would be obligated to impose President's rule under Article 356 unless the dubious argument of a `dead' House sound. The escape route proposed by the Union Cabinet is to refer the implication of Article 174 and the interpretation of the six months rule to the Supreme Court under Article 143 for its advisory opinion. The Supreme Court may possibly hold either that the six months rule does not apply to the situation where the House has been dissolved and a new House has not come into existence or that the six months span is a constitutionally inviolable mandate even in cases where the House has been dissolved. In the latter event, constitutional governance compels Presidential proclamation. Taking a realistic view of the functional limitation of the Supreme Court (adopting its usual hearing procedure) it may find it hard to produce a `blitz' verdict within the brief time available. Subject to wiser counsel or sharper strategy, constitutional pragmatism and statesmanly prudence would constrain the Central Cabinet to impose President's rule for a short break to facilitate fair but early polls by the Commission. Is this not without precedents? This alternative, however, would defeat the Modi Ministry being in office while the poll process is under way.

Another factor must be noticed. The Supreme Court may not agree to give an advisory opinion and, in any case, may not be hustled into a judgment. No one can speculate. My point is that if the six months were to be counted from the last session, the court opinion possibly may not be forthcoming before time runs out. It is a high risk to take since the Apex Court's verdict may be a guessing game. The safest course, therefore, is to save the constitutional order by a Presidential proclamation.

What is the fundamental idea of the six months' rule? It is the very foundation of Democracy. Responsible Government is a basic feature. The Governor, if allowed to rule by himself alone, will be a Constitutional autocrat. Article 163 mandates that his Government must be aided and advised by Ministers who, in turn, must be answerable to the Legislature elected on adult franchise. Sans Ministers, parliamentarism stands paralysed. Sans an elected House, Ministers become monarchs. Sans elections, constitutional accountability to the Legislature is absent. So the cornerstone of democracy is periodic poll process. If franchise is fundamental, legislatures a basic structure of the Constitution, Article 174 inviolably mandates elections within six months. Of course, Article 356 is a reserve power where for the rarest of rare cases, parliamentary control has to take the place of the State legislature. Hold elections as early as fair political weather prevails and people have a free option to ballot without fear.

From news reports it is seen that the Commission, realising the crisis consequent on its postponing the elections, has tendered gratuitous constitutional advice recommending President's rule. But this otiose excess does not detract from the substantive decision to adjourn the polls which is within his jurisdiction. Now that the whole matter has gone to the court, the correct jurisprudence will be declared. We are governed by the Constitution but the Constitution is what the judges say it is — provided they choose to make an advisory pronouncement. The advisory wisdom of the Supreme Court has been invoked. But advisory opinions are optional. That is the marginal gamble of Article 143. Moreover, the Court takes time while October is round the corner. True, the Election Commission must have considered, with holistic vision, Article 174 and the six months imperative. If by commanding all the resources of the State and the Centre the poll process could have been worked, not to do so would be arbitrary dereliction and therefore unconstitutional. But if by no reasonable measure a fair election, without a fraud on people's franchise, could be held — this is an objective assessment — then the President must avert a breakdown using Article 356. Arbitrary power and the rule of the Constitution are antagonistic and incompatible forces. Now that the Court is in session, let us abide by the light of its binding verdict, "according to the oaths and consciences of the justices and their best understanding of the laws' commands''. The hour is late. The issue is grave. A creative court and judicial statesmen are the last constitutional refuge.

Printer friendly page
Send this article to Friends by E-Mail

Opinion

Stories in this Section

The President and the poll ordinance

Coca-Cola and the capital market

Bt cotton — bitter harvest

Playing into the Sangh's hands

Gujarat imbroglio — some reflections

Leadership changes in Beijing