Date:20/09/2002 URL: http://www.thehindu.com/2002/09/20/stories/2002092003220100.htm

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President's rule in Gujarat only option: Cong.

By J. Venkatesan

NEW DELHI Sept. 19. The Congress today maintained in the Supreme Court that the three-point Presidential reference was an ``exercise in futility'' as it would not serve any purpose. But at the same time, the party fully endorsed the Election Commission's stand that President's rule was the option in Gujarat after October 3.

Making his submissions before a five-judge Constitution Bench, comprising the Chief Justice B.N. Kirpal, Justice V.N. Khare, Justice K.G. Balakrishnan, Justice Ashok Bhan and Justice Arijit Pasayat, senior counsel, Kapil Sibal, said there was no express provision in the Constitution for fixing a limit for holding elections and more so in Article 174.

He said Article 324, which was not subject to any other provisions, was the heart and soul of democracy and if the Election Commission in an extraordinary situation felt that it could not hold free and fair elections within the six-month time-frame, it could defer the process beyond this.

Justifying the Commission's order, Mr. Sibal said polls could not be held in Gujarat before the October 3 deadline as the revised electoral rolls were rendered ``inoperable'' due to the post-Godhra incidents. As the Commission had indicated that the revised rolls would be ready only by October 15, it was justified in stating that polls could be held in November-December.

The Commission's finding that free and fair elections could not be held in Gujarat in the prevailing circumstances was a relevant factor. This, he said, was a relevant factor to come to the conclusion that there was breakdown of constitutional machinery in the State and Article 356 was the answer after October 3.

When the Bench asked Mr. Sibal whether the Commission could suggest imposition of President's rule, he said in this case the Commission did not say it could not hold elections for an indefinite period; it only said polls could be postponed to November-December and if Article 174 could not be complied with, President's rule could be imposed after October 3.

When the Bench wanted to know whether it was mandatory to impose President's rule in such situations, he answered in the affirmative.

Asserting that President's rule was the only option available in Gujarat, he said ``in Uttar Pradesh, you imposed President's rule when no party could muster strength to form the Government; in Bihar, you invoked Article 356 after the expiry of the five-year tenure. If there is any other party ruling in Gujarat you would have imposed President's rule long back''. At one stage, when Mr. Sibal was referring to the Commission's order, the Bench told him: ``We are not going to enter the political arena'' and said President's rule was not the answer for all situations.

When the Bench observed that ``our concern is this provision should not be misused'', Mr. Sibal shared the concern and said ``we have made a mockery of Article 356 and the caretaker Government''. The Bench quipped ``caretaker Government means taking care to come back''.

When Mr. Sibal said that there was a ``slant'' in the Presidential reference, the Solicitor-General, Harish Salve, took strong exception on the use of the word ``slant''.

The Bench reminded Mr. Sibal that the reference had been signed by the highest constitutional authority. Mr. Sibal said was not attributing any motive to the President, for whom he and his party had the highest regard.

Earlier, continuing his arguments for the second day today, the former Union Law Minister, Arun Jaitley, appearing for the BJP, contended that under Article 174 (1), there shall not be a gap of more than six months between two sessions of an Assembly, which might be the last session of one Assembly and the first session of another.

In any event the six-month time-limit should not be exceeded.

If the Commission were to defer elections to Parliament indefinitely, a situation might come when the Council of Ministers would be answerable only to the Rajya Sabha, which would mean that States would be indirectly governing the Centre and such a situation was dangerous for democracy.