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.
