Monday, Aug 26, 2002
Monday, Aug 26, 2002 |
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By Neena Vyas
The Election Commission had indicated that it was exercising its powers under Article 324 of the Constitution under which it was bound to ascertain whether conditions on the ground were suitable for free and fair elections. While the Opposition parties welcomed the Commission's decision, the Government concluded that the Election Commission had violated Article 174, which mandated that not more than six months should elapse between one Assembly session and another, as delayed polls would mean that the new Assembly would not be able to meet before October 6 when the six-month deadline would end. The Bharatiya Janata Party and the National Democratic Alliance dispensation at the Centre were especially irritated by the Election Commission's reference in its report to Article 356 of the Constitution (under which the Centre can impose President's rule on a State, in this instance on Gujarat, to get over the constitutional crisis after October 6). The arguments on both sides of the political divide have been heard by the public time and again on television and in the print media. And these will now be made before the Bench, to be headed by the Chief Justice, B. N. Kirpal, with Justice V. N. Khare, Justice K. G. Balakrishnan, Justice Ashok Bhan and Justice Arijit Pasayat as other members. The Solicitor-General, Harish Salve, will represent the Centre and the court registry has already issued notices to both Mr. Salve and the Attorney-General, Soli Sorabjee, while the former Additional Solicitor-General, Abhishek Singhvi, is expected to represent the main Opposition party, the Congress. The CPI (M) may have top guns like Fali Nariman and Ashok Desai to represent them in this matter. The main points in the presidential reference relate to three Articles of the Constitution — 174, 324 and 356. Can the Election Commission use its powers under Article 324 to override Article 174? Can it frame an election schedule on the premise that if Article 174 is violated, the constitutional remedy would lie in Article 356, that is, imposition of President's rule? Senior leaders in both the BJP and the Government have indicated that they are appalled by the Commission's orders because it would virtually force Parliament to impose President's rule in Gujarat after October 6, and that it will set a "bad precedent,'' which must be clarified (and avoided). However, the Opposition parties have said that the BJP is bent upon using the communal card for electoral advantage, that the Election Commission is right in that the situation in Gujarat is not conducive for elections, and finally that Article 174 does not take away from the Commission the powers to decide the election schedule in a manner that ensures that the elections are free and fair. Dr. Singhvi has been arguing that Article 174 (1) does not apply when an Assembly has been dissolved (as is the case in Gujarat). Or that, assuming it does (without conceding this), the Article in no way impinges upon the power of the Election Commission under Article 324. And finally, that the Commission neither suggested nor recommended the use of Article 356.
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