The Supreme Court on Tuesday received from the President a reference seeking its opinion on the three questions relating to the legality of the Election Commission's controversial recommendation that President's Rule be imposed in Gujarat because the Assembly polls could not be held within the stipulated time frame. Registrar (judicial) R C Gandhi said the court has received the presidential reference and steps were being taken to plate it before the Chief Justice, who alone was empowered to constitute a suitable bench for hearing of the matter. Incidentally, Chief Justice BN Kirpal and registrar general LC Bhadoo were out of town leading to a flurry of activities in the court registry.
The three-questions raised in the three-page reference, signed by the President broadly said: Does Article 174 yield to Article 324 meaning thereby is the time frame provided under Article 174 be subject to the Election Commission's order under Article 324?
Can the Election Commission under Article 324 frame an election schedule under the premise if the timeframe provided under Art 174 is not complied with, then the President will step in under Article 356?
Is the Election Commission bound by the mandate of Article 174 and therefore bound to conduct elections within the time frame drawing the forces and resources as required from the Central Government for conducting free and fair elections?
While Article 174 (1) provides that these should not be a gap of more than six months between the two sittings of an Assembly, article 324 gives exclusive jurisdiction to the Election Commission to conduct and superintend the polls. The government feels that as the last sitting of the Gujarat Assembly was in April, the next sitting had to be held by October 6 as per the mandate of Article 174. The main objection of the Central government to the Election Commission's August 16 order, which rules out early polls in Gujarat, centred around the observations made by the Commission in paragraph 11.
Paragraph 11 said, "The non-observance
of the provisions of Article 174(1) in the aforesaid eventually would mean
that the government of the state cannot be carried on in accordance with
the provisions of the Constitution within the meaning of Article 356(1)
of the Constitution and the President would then step in. "Government sources
said the Cabinet did not object to the Election Commission's assessment
of the law and order situation on the ground that it was entitled to have
its own view.