Author: Arvind Lavakare
Publication: Rediff on Net
Date: September 4, 2002
URL: http://www.rediff.com/news/2002/sep/04arvind.htm
The Supreme Court has expressed
its inability to give an opinion by October 2 on the Presidential reference
on the Election Commission's decision to delay the election in Gujarat.
The new state assembly will therefore not be able to meet before October
6 as required by the six-month period stipulation under Article 174(1).
The Government of India, having
taken the oath to uphold the Constitution of India, will therefore have
to impose President's rule under the otherwise detested Article 356 to
keep the sanctity of Article 174(1). The Congress, et al, will therefore
be happy, deliriously happy. And all because the EC put out its order cleverly.
In the third sentence of paragraph
9 of its order dated August 16, 2002, on the election to the Gujarat legislative
assembly, the commission says: 'Article 324, which is not subject to the
provisions of any other Article of the Constitution, including Article
174(1), vests the superintendence, direction, and control, inter alia,
of the preparation of electoral rolls for, and conduct of, elections to
Parliament and State Legislatures in the Election Commission.'
Unlike in Articles 329, 368, 369,
370, and some more, the words, 'Notwithstanding anything in the Constitution...',
do not at all occur in Article 324. Therefore, it does not reign supreme
over any other article. On the other hand, the mandate of Article 174(1)
that 'six months shall not intervene' between the sessions of a House of
legislature is not subject to the provision of Article 324 or any other
article of the Constitution as the EC would have us believe. Anyone can
verify that dual affirmation with the Constitution of India published by
the Union ministry of law in July 1999 or with P M Bakshi's publication
of March 2002.
Further, Article 324 does not contain
the words "inter alia" introduced in the EC's Order. A plain reading of
clause (1) of that Article makes it clear that the two separate functions
vested in the EC are:
i. the superintendence, direction
and control of the preparation of electoral rolls and
ii. the conduct of elections.
Next, there's para 11 of that 40-page
Order. On the basis of resolutions of the UN and some other international
organisations cited on earlier pages, it says, 'Thus, the Constitutional
mandate given to the Election Commission under Article 324 is to hold free
and fair elections to the legislative bodies.'
Article 324 does not actually contain
those three words 'free and fair.' Our Constitution does not define 'elections.'
The only Parliamentary law that deals with the actual conduct of elections
is the Representation of People Act, 1951 (as amended in 1999). And that
law defines 'election' simply as 'an election to fill a seat or seats in
either House of Parliament or in either House of the Legislature of a State.'
No prefix there to 'election,' be it noted.
No, don't get it wrong. Elections
in any constitutional pronouncement are meant to be 'free and fair;' it
is axiomatic. To think otherwise is like saying 'a male man.' But what
really is a 'free and fair' election? Commonsense dictates that it is one
where --
1. The electorate is publicly informed
adequately in advance of the coming election.
2. Every individual lawfully eligible
to contest is in fact allowed to contest.
3. Every lawfully accepted contestant
is given an election symbol as per law.
4. Every contestant has the freedom
to campaign without fear but within the law.
5. Every eligible voter has the
freedom to vote or not to vote.
6. Non-eligible voters are denied
the ballot paper.
7. Every vote is counted (or cancelled)
as per rules laid down.
8. Every victorious contestant
is officially declared in time as elected.
9. Every defeated contestant is
allowed to appeal against the result as per law.
For fulfilling the above parameters
to the maximum humanly possible extent, the EC has the entire required
machinery at its command under Article 324. That's how it has been conducting
past polls in Bihar and elsewhere. And is it fair that because an estimated
15,000 people in all have temporarily emigrated or are living in refugee
camps, you should deprive 25-odd million others of their democratic right
to elect their representatives within the constitutional time span? So
was the EC telling us the whole truth when it concluded that 'it is presently
not in a position to conduct a free and fair election' in Gujarat state?
(Para 53 of its Order).
In support of its decision to defer
the Gujarat polls that would result in the assembly session being convened
beyond the constitutional six-month period, the EC has proclaimed its supremacy
in deciding the timing of an election. It has done so by citing a law of
Parliament and a Supreme Court judgment. Let's look at both of these.
In para 14 of its Order, the EC
says: 'Parliament has expressly provided that it is the Election Commission
which is to decide about the timing of a general election in a State. Section
15 of the Representation of the People Act 1951 stipulates that the Governor
shall call upon the Assembly Constituencies in the State to elect a new
Assembly on such date or dates as may be recommended by the Election Commission.'
(EC's emphasis).
The above contention gives the impression
that Section 15 of the 1951 law contains only what's been quoted above.
The truth is otherwise. What the EC has cited is really clause (2) of the
Representation of the People Act. And what does the concealed clause (1)
of that Section say? 'A general election shall be held for the purpose
of constituting a new Legislative Assembly on the expiration of the duration
of the existing Assembly or its dissolution.' Note, 'A general election
shall be held...' The last Gujarat assembly session was on April 6 this
year; the Governor dissolved the assembly on July 19. Therefore, general
elections shall be held for enabling the next assembly session to be convened
before October 6 (as per Article 174(1).
By skipping clause (1) of Section
15 of the relevant Act, the EC confined itself to clause (2) of that Section.
And what's more, it excludes quoting the first four words of that clause.
Those crucial words are quote 'For the said purpose...' and then goes on
to leave the recommendation of the dates of election to the EC. Section
15(1) of the 1951 Act read with Article 174(1) makes it abundantly clear
that the EC's freedom to fix election dates under Section 15(2) is restricted
to a period within those six months required for a new session of a House
of a Legislature.
The EC also defends its deferment
of the Gujarat polls by referring to a Supreme Court judgment. Para 12
of its Order says: 'There cannot be two opinions that under the Constitution,
it is the Election Commission, and this Commission alone, which is empowered
to decide as to when an election, that is, a free and fair election, can
be held. Any doubt on this aspect will stand dispelled by the following
observation of the Constitution Bench of the Supreme Court in the case
of Election Commission v State of Haryana (AIR 1984 SC 1406).' It then
proceeds to cite the two excerpts below from that judgment:
'The Government of Haryana is undoubtedly
in the best position to assess the situation of law and order within its
jurisdiction and under its control. But the ultimate decision as to whether
it is possible and expedient to hold the elections at any given time must
rest with the Election Commission.
'The fixing of the dates of polling
is a matter for the informed judgement of the Election Commission consistent
with its perception of the requisite precautionary and remedial measures.'
The Haryana case related to what
one of the five judges on the bench recorded as 'only a by-election to
one single seat of no significance which would not have resulted in postponement
of the installation of an elected government.' Further, the date of the
poll had already been notified by the EC. For reasons of its perception
of the law and order situation in neighbouring terror-stricken Punjab,
and for wanting to tag the by-election to the coming Lok Sabha elections
so as to save time, labour and expense, the Haryana government wanted a
postponement of that notified date; the EC wanted to hold the poll as per
its previously notified programme. Thus, it was not as though Haryana didn't
want an election and the EC did or the other way around. It was not as
though the by-election had to be held within a mandatory period to meet
a constitutional provision. It is in those circumstances that the apex
court's ruling has to be seen; its words must be applied to the context.
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