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CEC-Centre on Confrontation Course?

CEC-Centre on Confrontation Course?

Author: Shyam Khosla
Publication: Organiser
Date: August 25, 2002

Introduction: Kalam's healing touch on Gujarat

The Constitution has clearly earmarked the authority and areas of operation for all the wings of the polity namely executive, legislature and judiciary. This also applies to commissions, tribunals and authorities constituted under the Constitution. No constitutional authority is expected to transgress its powers and encroach upon areas earmarked for other authorities. Crossing the Laxmanrekha by any authority may lead to a confrontation and eventually to a constitutional crisis. Fortunately, Constitutional authorities have, by and large, operated within their respective spheres. But there have been occasions of prolonged stand off between the judiciary and the legislatures. A case in point is the on-going confrontation between the Assembly and the High Court of a north-eastern state. Judicial activism too led to courts arrogating to themselves powers that belongs to the executive or are clearly legislature in nature. This disconcerting trend became pronounced during the 90s - a period marked by weak Prime Ministers and hung parliaments. The latest in this sordid drama is that Chief Election Commissioner, J.M. Lyngdoh, appears to be on a confrontation course with the Central and Gujarat Governments over the timings of the Assembly elections.

There is no unanimity in the political class over the timings of the polls. Congress that has a big take in the polls and other opposition parties want the state to be placed under central rule and elections held after complete normalcy returns to the state. The ruling party at the Centre and the State, on the other hand, believes that there is near normalcy in Gujarat and early elections will help in the restoration of complete normalcy in the state. K.P.S. Gill, who was till recently security adviser to the Chief Minister, is on record that absence of violence does not mean normalcy and peace and that political parties have a vested interest in keeping the communal tension alive till the elections. He is in full agreement with the Government that early elections will accelerate the process of normalisation.

The Election Commission is yet to make up its mind over the issue. It sent a nine-member team of officers to the state to make an on the spot assessment about the situation in the state. The full Commission raised many eyebrows when this was followed up by a tour of the riot-hit areas. While conceding that it is for the Commission to fix the dates for the elections, the BJP is of the considered opinion that the Commission has no option, as the Assembly stands dissolved. Arun Jaitley, who recently resigned as Law Minister to take up the office of General Secretary of the party, says the Commission should bear in mind the constitutional requirements of Article 174 that mandates the next sitting of the new State Assembly has to be called in early October. Jurist-turned political activist, Rajendra Sachar, does not agree. He says Article 174 applies to a living assembly. Once an assembly is dissolved, as is the case in Gujarat, Article 174 does not apply.

There is no unanimity among constitutional pundits. What happens, a section of them ask, if the Election Commission does not notify elections in September- October? Can the caretaker Government led by much- maligned Narendra Modi that is responsible to no one, continues in office? No, says Sachar. The only alternative will be for the President to promulgate President's rule in the state. Others don't agree. The EC, they say can't force the Centre to put the state under central rule. What will happen, they ask, if the Governor does not recommend and the Central Government too refuses to initiate the move to impose central rule in the state? Can the President, suo-motto issue an ordinance without any recommendation from the Union Government? Even if one were to presume that the Governor recommends and the Centre agrees to impose President's rule in the State but the Parliament does not approve of it? Will not all this lead to a constitutional crisis of a high magnitude? There are no clear answers from the Election Commission on these issues.

Taking exception to the EC's focus on relief and rehabilitation measures during its recent visit to the state, Arun Jaitley has gone on record to say that there were several Relief Commissioners to do the job and that the Election Commission should concentrate on elections. Article 324, he says, vests in the EC only powers to superintend, direct and control elections. Responding to adverse comments by the CEC, the BJP leader asserts that 98 per cent of the State is normal and that elections can't be postponed just because relief and rehabilitation measures needed to be expedited in certain areas. The EC is asking for trouble by holding an on the spot enquiry to find out if civil servants handled the riots as they should have or whether the administration has failed in providing relief rehabilitating to riot victims? There are reports that the CEC took senior civil servants to task for claiming that the situation was normal. Irked by conflicting versions given by the authorities and victims of communal strife, Lyngdoh is reported to have lost his temper. He shouted at the Collector in full view of the media, "What kind of stories were you telling us? You said there were only sporadic incidents? You are jokers. All of you, Aren't you ashamed of yourselves"?

One tends to believe media reports about Lyngdoh's "rude behaviour" as this is in line with what he said at Delhi last week. Hinting that there would be no early elections in Gujarat, the CEC had observed that "some mad men" were demanding early elections. Whom was he referring to? The Chief Minister and his party! Can a constitutional authority dismiss an elected Chief Minister or leaders of the ruling party as "mad men"? Does it add to the dignity of the CEC? Does it behove Lyngdoh to use foul language against political leaders and civil servants? He can't arrogate to himself the license to use foul language and run down others, just because he can't be removed except by impeachment. It is, therefore, not surprising that Vijay Malhotra, spokesman of the BJP Parliamentary Party, said the public perception was that Lyngdoh was acting on behalf of the Congress -a party that is nervous because of its impending defeat in the elections.

In Delhi the CEC dismissed the incidents by saying "such things happen between professionals". So, it is normal for a constitutional authority to lose temper and shout at civil servants. The Commission has not yet announced elections in Gujarat and, therefore, has absolutely no control over officers of the state. All that the CEC can do is to write to the Union Home Ministry or report to the President of India that he has not much faith in the neutrality of the civil servants in the State and demand that the entire polling staff be sent from outside the State to hold a credible poll. Incidentally, a similar decision has already been taken with regard to J&K elections. The CEC needs to take the nation into confidence about the provision of the Constitution that empowers it to hold an enquiry into the handling of law and order situation in a state or pull up officers for not doing enough to rehabilitate refugees.

It is no surprise that the State Government has taken a dim view of the "rude behaviour" of the Chief Election Commissioner. The Chief Secretary is believed to have written to the Union Home Secretary complaining that the senior civil servants, including the Chief Secretary, were humiliated by the CEC. On the political level, the Chief Minister has spoken to the central party leadership accusing the CEC of "bias" against the State Government and having made up its mind not to hold elections before making an objective assessment of the prevailing conditions. This does not augur well for the Commission's credibility. The founding fathers of the Constitution placed the Commission on a high pedestal so that people may have confidence in its neutrality and it can discharge its functions without fear or favour. While it is essential for political parties not to say or do anything that might undermine the dignity and credibility of the Commission, the latter too has a responsibility to ensure that it is not only neutral but also appears to be so.

In sharp contrast to the CEC, President's visit to the strife-torn state heaved a sigh of relief. He steered clear of any controversy and gave a message of peace and social harmony. A section of media and the opposition parties did try to drag the Head of the State into controversy by misinterpreting his advice to the State Government to speed up relief measures as an indictment of the Government. President A.P.J. Abdul Kalam is too balanced a person to fall in their trap.

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