The Hindu : `EC must not be compelled to hold polls'

Online edition of India's National Newspaper
Thursday, Sep 26, 2002

National

National

`EC must not be compelled to hold polls'

By J. Venkatesan

NEW DELHI SEPT. 25. The Supreme Court should not issue any direction to compel holding of Assembly elections in Gujarat in November-December as agreed to by the commission if the law and order situation in the State does not improve following Tuesday's militant attack on Akshardham temple in Gandhinagar, said counsel Ram Jethmalani.

Appearing for Bihar, the former Union Law Minister, Mr. Jethmalani told a five-Judge Bench, comprising the Chief Justice B.N. Kirpal, Justice V.N. Khare, Justice K.G. Balakrishnan, Justice Ashok Bhan and Justice Arijit Pasayat, that "Godhra had been repeated" in Gujarat and the promise of the commission to hold elections in November-December was "void" as that assessment made in August had no relevance now. Mr. Jethmalani had a dig at the BJP and the Centre and said their stand for an early poll in the State after the commission had found that the situation was not conducive to holding "free and fair polls" was "based on the belief that any sham Assembly is better than no Assembly". He maintained that Article 174 applied only to an existing Assembly and not to a dissolved one. Further, Article 174 imposed a mandate only on the Governor, which meant that the Government, and it was not concerned with the commission.

He also said that holding of free and fair elections being a basic feature of the Constitution, Article 174 must yield to Article 324. "An Assembly, which is the end product of an unfree and unfair election, is a fraud on the Constitution." The power under Article 356 did include the power to suspend the operation of Article 174. "But the commission there is only one relevant criterion: `will the elections be free and fair under the prevailing circumstances' and it can ignore every other consideration." He said if such situations recurred and the commission felt that free and fair elections could not be held, it was at liberty to postpone the elections even if it meant that the Assembly could not be reconstituted even after six months of its dissolution. And its promise to hold elections in November had to be treated only as a prediction of future conditions.

Earlier, appearing for Madhya Pradesh, senior counsel, K. Parasaran submitted that when the requirement of six months period could not be satisfied for a good reason that a free, fair and fearless and impartial election could not be held, then, President's rule, under Article 356, must be resorted to. If, on the facts and circumstances of a given case, there would be a hiatus caused between the period of the dissolution of a Legislative Assembly and the constitution of a new Assembly, then the law would excuse the same.

`No fault in reference'

When senior counsel for Karnataka, P.P. Rao, submitted that it was a fit case for returning the reference as the questions were framed on an erroneous assumption, the Bench said: "they were physically and bodily lifted from the commission's order. We do not find fault with the reference".

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

National