The Hindu : Conducting elections

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Friday, Aug 30, 2002

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Conducting elections

By M.P. Singh

If the Election Commission gives cogent reasons for its inability to hold the polls on the dates suggested by the Executive, the latter has no choice but to honour the decision.

THE GUJARAT elections controversy, which is now before the Supreme Court for its opinion, was avoidable. The Executive in the State and at the Centre as well as different political parties may have different perceptions of the situation, but the Constitution entrusts the task of conducting elections to the Election Commission (E.C.). In the performance of its task, the E.C. must act according to law. In case it fails to, appropriate remedy may be sought. The supreme law of the land, i.e. the Constitution, requires that not more than six months must lapse between the end of one session and the beginning of another session of the Legislative Assembly (Article 174). Accordingly, the next session of the Gujarat Assembly must be held before October 3 because the last session ended on April 3.

Admittedly much against the wishes of the political parties in the Opposition, the public as well as various other bodies, including the National Human Rights Commission, the Gujarat Government, in consultation with its national leadership heading the coalition at the Centre, sought a premature dissolution of the Assembly allegedly to make a fortune out of the misfortune of the State. The Gujarat Governor could have constitutionally refused dissolution in such a situation. But, as the press reports show, he is as much in a hurry to hold elections as the Government, citing the six months' requirement in Article 174. Going by its constitutional obligation and practice, but also in view of special situation in Gujarat, the E.C. sent a team of its officials followed by a visit by the entire three-member Commission to decide about the time frame for the elections. In a well-reasoned and detailed decision, the E.C. concluded that elections in Gujarat could not be held before the end of November. The requirement of six months between two sessions of the Assembly, it suggested, could be overcome by President's rule for a while in the State.

Although the matter concerned the State of Gujarat, the Centre took special interest and got it referred to the Supreme Court. Though the text of the reference gives the impression of involving several issues, the primary issue is about the power to determine the date of elections: in case of differences between the Executive and the E.C. who should have the final say?

The history and background of the constitutional provisions on elections as well as their interpretation and application since the commencement of the Constitution support the E.C. In pre-Constitution days, the Executive had a monopoly over the elections. Realising the weaknesses of that arrangement and the importance of elections to the future of India, the Constitution makers proceeded to include the provisions for free and fair elections among the fundamental rights. Perceiving technical difficulties in doing so, they finally devoted a full separate part of the Constitution, Part XV comprising Articles 324 to 329, to them.

Much before the final formulation of the provisions in Part XV, Ambedkar expressed the unanimity of the Constitution makers in this regard: "In order that elections may be free in the real sense of the word, they shall be taken out of the hands of the Government of the day, and that they should be conducted by an independent body which we may here call an Election Commission." The courts have consistently held that, subject to the provisions of the Constitution and any law made in virtue of it, the E.C. is fully competent to take any decisions with respect to the conduct of elections. Even in matters concerning the former Chief Election Commissioner, T.N. Seshan, the Supreme Court did not in any way dilute the position of the E.C., though of course it diluted the position of the Chief within the Commission. On the issue of determination of the dates of elections, the Court has clearly held: "The conduct of elections is in the hands of the Election Commission which has the power of superintendence, direction and control of elections vested in it as per Article 324 of the Constitution. Consequently, if the Election Commission is of the opinion that having regard to the disturbed conditions of a State or a part thereof, free and fair elections could not be held it may postpone the same." (Digvijay Mote v. Union of India, 1993, 4 SCC, 175, 178). This was a public interest matter challenging the postponement of elections in Assam and Jammu and Kashmir where presumably no difference of opinion existed between the Executive and the E.C.

The Gujarat case may be the first one of such difference. The only other provision the Executive seems to be relying upon to support its claim is section 15 of the Representation of the People Act, 1951, which requires the Governor to notify such date or dates of election "as may be recommended by the Election Commission". Unambiguously, it provides for the dates of election to be determined by the E.C. and not by the Executive. The Executive has no choice in the matter but to accept the recommendation of the E.C. or at the most express its difficulties about any particular date or dates. The E.C. may take into account those difficulties and agree to change the dates, but the Executive cannot dictate the dates to it. Like any constitutional functionary, the E.C. cannot arbitrarily fix or refuse to fix the dates of elections. But if it gives cogent reasons for its inability to hold elections on the dates suggested by the Executive, the latter has no choice but to honour the decision.

Although the six months requirement in Article 174 is salutary and must be adhered to, arguably it may not apply in case of dissolution. If, suppose the Gujarat Assembly was dissolved on September 19 or thereabouts instead of July 19, how could the requirement of Article 174 have been met. We can argue that in that case the Assembly should have not been dissolved and if dissolved, President's rule was the only solution. But the argument of President's rule fails in the case of the Lok Sabha which, like State Assemblies, must also satisfy the six months requirement (Article 85). The constitutional requirement cannot be met in that case unless adequate precautions are taken to allow dissolution only when sufficient time is available for holding elections and for the meeting of the newly constituted Lok Sabha. If for any reason either such precaution is not taken or in spite of such precaution for any reason elections are not held in time for satisfying the constitutional requirement, what do we do? The law does not expect to perform impossible acts. Accordingly, Articles 85 and 174 cannot be expected to demand impossible performance. That caution needs to be observed in their interpretation and application.

Democracy is a basic feature of our Constitution and free and fair elections are a condition for democracy. The basic structure of the Constitution is to be preserved not only against constitutional amendments but also against Executive acts. The Supreme Court in the S.R. Bommai Case (1993) held that if a State Executive acts against the basic structure of the Constitution, a case for President's rule in the State is made out. The Gujarat Government seems to have made out a case for President's rule not for one but for two reasons. First, it is insisting on early elections irrespective of their fairness. Second, its post-Godhra performance, including the recent allegations of communal bias by the Chief Minister, Narendra Modi, against the Chief Election Commissioner violate the basic feature of secularism, which justified President's rule in several States in the Bommai Case.

The reference to the Supreme Court may or may not settle the issue forever. It has, however, removed a controversy from the political to the legal arena. The Court may or may not decide it in time for holding elections in Gujarat in conformity with the requirement of Article 174, but an unseemly controversy has subsided for the time being. Let us admire the foresight of our Constitution makers for giving us a Constitution under which we can resolve all our disputes through the rule of law.

(The writer is Professor of Law, University of Delhi.)

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