The Hindu : 'Returning reference will be retrograde step'

Online edition of India's National Newspaper
Friday, Sep 27, 2002

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National

'Returning reference will be retrograde step'

By J. Venkatesan

NEW DELHI SEPT. 26. The Centre today maintained before the Supreme Court that returning the Presidential reference (on Gujarat elections) unanswered would be a retrograde step.

Replying to various counsel who urged the court to return the reference unanswered, the Solicitor-General, Harish Salve, told a five-Judge Bench headed by the Chief Justice, B.N. Kirpal, that the court should not entertain such submissions.

He told the Bench, which included Justice V.N. Khare, Justice K.G. Balakrishnan, Justice Ashok Bhan and Justice Arijit Pasayat, that a salutary purpose might be served by answering the reference.

Further, by enunciation of correct principles of laws the Election Commission could set right its course if it was found that it had acted on an erroneous premise of the law.

He said Article 174 did not prescribe a schedule for elections.

That however did not suggest that the absence of any express provision laying down a schedule for elections would suggest that the power of the Commission was untrammelled and that it could delay the elections albeit for good reasons.

He said the interpretation that Article 174 did not apply to a dissolved Assembly but only to a prorogued Assembly was misconceived.

It applied to both current and dissolved Assemblies, viz. the last session of an Assembly and the first session of the new one.

On the question of imposition of Article 356, Mr. Salve said it was the prerogative of the President and the Parliament and the Commission had no role to play. Invoking of Article 356 was not the answer to every infraction of a constitutional functionary.

Earlier, appearing for the CPI (M) and the West Bengal Government, senior counsel, Rajeev Dhavan, said the reference was nothing but a "disguised appeal" against the Commission's order and was a result of the political dispute regarding holding of early elections.

He urged the court to return the reference.

He said the BJP, faced with the discomfiture and consequence that the Chief Minister of Gujarat had to go after six months of the last sitting of the Assembly, influenced the ruling alliance to prefer a Presidential reference..

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