Tuesday, Oct 29, 2002
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By J. Venkatesan
A five-Judge Bench headed by the Chief Justice, B.N. Kirpal, giving its advisory opinion on the three-point Presidential reference, held that Article 174 (1) would not apply to a `dissolved Assembly' "whose life has come to an end and ceased to exist. Further, Article 174 (1) neither relates to elections nor does it provide any outer limit for holding elections for constituting the Legislative Assembly". The Bench, which included Justice V.N. Khare, Justice K.G. Balakrishnan, Justice Ashok Bhan and Justice Arijit Pasayat, held that the holding of elections "is in the exclusive domain of the Election Commission under Article 324 of the Constitution". Speaking for the Chief Justice, himself and Mr. Justice Ashok Bhan, Mr. Justice Khare said: "this was evident from Sections 14 and 15 of the Representation of the People Act (RPA) which provide that the President or the Governor shall fix the date for holding elections on the recommendations of the Election Commission.'' Answering the reference, whether Article 174 would yield to Article 324, the Bench in its 159-page opinion said that "Article 174 (1) and Article 324 operate on different fields and neither Article 174 (1) is subject to Article 324 nor Article 324 is subject to Article 174 (1)''. The Bench referred to the contention of the Centre, one of the political parties and one of the States, that in the absence of any period provided either in the Constitution or in the RPA, the Election Commission might not hold elections at all and in that event it would be the end of democracy. Answering this contention, the Bench said that "on the premature dissolution of an Assembly, the Election Commission is required to initiate immediate steps for holding elections for constituting the Assembly on the first occasion and, in any case, within six months from the date of premature dissolution of the Assembly". On the Election Commission's August 16 order (rejecting the BJP's demand for holding early polls) that the President would step in under Article 356, if Article 174 (1) was not complied with, the Bench said, "we find that it was misplaced". But in view of the clarification given by the Election Commission that the (August 16) decision was taken without reference to Article 356, the Bench said: "The question of applicability of Article 356 on the infraction of Article 174 loses much of its substance and, therefore, application of Article 356 is not required to be gone into". The Bench said that in view of its opinion that Article 174 (1) was inapplicable to a dissolved Assembly, "the question that the Election Commission is required to carry out the mandate of Article 174 (1) does not arise". Regarding the third question, the Bench said that "under Article 324, it is the duty and responsibility of the Election Commission to hold free and fair elections at the earliest. No efforts should be spared by the Election Commission to hold timely elections". In an obvious reference to the Commission's decision to postpone elections in Gujarat citing law and order situation in the State, the Bench said that "ordinarily the law and order or public disorder should not be the occasion for postponing the elections and it would be the duty and responsibility of all concerned to render all assistance and cooperation to the Election Commission for holding free and fair elections". In his separate but concurring opinion, Mr. Justice Pasayat said the consequential fallout of not holding elections for a long time was the functioning of a caretaker government, which was contrary to the principles of responsible government. Therefore, even in the case of premature dissolution, the Election Commission must hold elections in time so that a responsible government was in office. He said that "reasons for deferring elections should be relatable to acts of God and normally not acts of man. Myriad reasons may be there for not holding elections,'' and "situations may be created by interested persons to see that elections do not take place and the caretaker government continue in office". He said that "any man-made attempt to obstruct free and fair election is antithesis to democratic norms and should be overcome by garnering resources from the intended sources and by holding the elections within the six-month period". In his separate opinion, Mr. Justice Balakrishnan did not agree with the Election Commission's view that Article 356 should be imposed in a State if Article 174 (1) could not be complied with. He said: "I do not think that the solution suggested by the Commission is appropriate or justified. Article 356 is an independent power to be exercised very rarely and this power is hedged in ever so many constitutional limitations".
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