Author: Arvind Lavakare
Publication: Rediff on Net
Date: August 27, 2002
URL: http://www.rediff.com/news/2002/aug/27arvind.htm
The Resettlement Bill of a private
National Conference member was passed by the J&K assembly in 1981.
However, the state governor withheld his assent because of some constitutional
deficiencies in it pointed out by the Attorney General of India whom he
had consulted, and instead returned it to the state government for reconsideration.
The J&K assembly passed the bill once again and the state governor
had willy nilly to sign his assent. In the interregnum, however, the President
had referred the bill to the Supreme Court for its advisory opinion as
provided for in Article 143 of the Constitution of India. That opinion
came 19 years later, last year; its essence was: no comment because the
bill had already become law.
Another such reference of the President
of India was dated January 7, 1993. It sought the Supreme Court's opinion
on 'Whether a Hindu temple or any Hindu religious structure exited prior
to the construction of the Ram Janma Bhumi- Babri Masjid.' Some 20 months
later, October 24, 1994, the apex court returned the reference unanswered
-- for reasons that are not germane for the moment.
Going by the above instances, it
wouldn't be surprising if the latest Presidential reference on the Election
Commission's Order (with a capital 'O') -- citing its supremacy under Article
324 to defer the Gujarat state assembly polls for the sake of the 'little
voter' -- elicits the apex court's opinion well after the lapse of the
six-month deadline of October 6 by which the next state assembly is required
to be in session under Article 174. Ergo: President's Rule in Gujarat from
October 7. Ergo: the immediate victory of the EC's decision and demolition
of Narendra Modi's hope. Ergo: celebrations in the Congress-Commie camp
and sulking in the BJP Parivar. All of it temporary, maybe, but triumph
and tears nonetheless.
The span of time which the Supreme
Court takes to deliver its wisdom and expertise on the present Presidential
reference affords an opportunity for the EC's poor dear 'little voter,'
like yours truly, to himself resolve the constitutional tangle between
Article 174 and Article 324.
Article 174 is relatively simple
to decipher even for amateur analyst. Titled 'Sessions of the State legislature,
prorogation and dissolution,' its essence is that 'six months shall not
intervene between its last session and the date appointed for its sitting
in the next session.'
Based on the above, the BJP's argument
is: the last Gujarat assembly session was held on April 6, the next session
therefore should be held before October 6, and since the assembly was dissolved
by the governor, the Election Commission is duty-bound to hold elections
in good time for the next assembly session to be held before October 6.
The Election Commission doesn't
accept Article 174 as a constitutional command devoid of exceptions. Its
40-page report on the perceived conditions in Gujarat lists circumstances
for one such exception as to why 'free and fair' polls are not possible
for facilitating a Gujarat assembly session before October 6. It has therefore
ordered deferment of elections till it reviews those circumstances some
12 weeks later. And it cites Article 324(1) as its authority to do that.
What exactly does Article 324(1)
say? Here's what:
'The superintendence, direction
and control of the preparation of the electoral rolls for, and conduct
of, all elections to Parliament and to the Legislature of every State and
of elections to the posts of President and Vice-President held under this
Constitution shall be vested in a Commission (referred to in this Constitution
as the Election Commission).'
A few facets of the above provision
are noteworthy:
* It is the 'preparation of electoral
rolls .for all elections' over which the EC has the supreme authority.
* It is the 'conduct of all elections'
which is vested in the EC, and not 'whether to hold elections.'
* The deputy prime minister put
it succinctly: 'The EC is to hold elections,' he said, 'not to withhold
elections.'
* The much touted 'free and fair'
is missing in the constitutional provision.
* The words 'Notwithstanding anything
in this Constitution' are missing in the above provision.
* The basic fact is of 'elections,'
and the EC comes into play only as a sequel to that basic fact.
And who decides on that basic fact?
You are free to answer while the Supreme Court hears what are called the
submissions of learned counsels.
To help you, the EC's quintessential
'little voter,' in forming your own judgement, below are some excerpts
from previous pronouncements of the apex court itself.
1. 'However wide the powers of the
Election Commission relating to direction and control may be, its orders
must be traceable to some existing law and cannot violate the provisions
of any law including State Acts.' (Dhanoa v Union of India, AIR 1991 SC
1745)
2. 'Article 324 does not enable
the Election Commission to exercise untrammelled powers. The Election Commission
must trace its power either to the Constitution or the law made under Article
327 or Article 328. Otherwise, it would become imperium in imperio which
no one is under our constitutional order.' (State Bank of India v Election
Commission AIR 1995 SC 1078).
3. 'We assume that the powers of
the Election Commission under Article 324 are plenary. But the question
is, in the garb of conduct of elections, can the Election Commission usurp
the power not vested in it?' (Ibid).
4. 'We direct that the Election
Commission shall not withhold the elections to the legislative assemblies
of Bihar and Orissa on the ground that the said Governments had failed
to complete the process of issuance of photo identity cards by the deadline
prescribed by it.' (Ram Dev Bhandari v Election Commission AIR 1995 SC
852).
5. 'The court construed Article
324 as conferring only executive, but not legislative, powers on the Election
Commission. The court disagreed with the contention that the Election Commission
gives complete power to the commission under Article 324 for the conduct
of elections. The Constitution could never have intended to make the commission
as an apex body in respect of matters relating to elections.when the commission
submits a particular direction to the Government for approval (as required
by rules), it is not open to the commission to go ahead with the implementation
of that direction at 'its own sweet will', even though government approval
is not given.' (Elucidation of judgement on A C Jose v. Sivam Pillai, AIR
1984 SC 921 by M P Jain on page 453 of his Indian Constitutional Law, Wadhwa
And Company, Nagpur, Fourth Edition Reprint 2002).
An Indian in the USA cites a comparison
that seems worth more than passing thought. When a particular body is given
autonomy, he says, it is only given autonomy to function independently,
without interference. For example, an IIT can decide how to function independently
as an IIT, but it cannot turn itself into a casino and use its resources
to run it. Similarly, the EC is to take care of the operational details
of an election but it cannot be allowed to dismantle India's electoral
system.
One is tempted to add QED to the
above. But the EC's Order (with a capital 'O') on Gujarat has talked of
the preservation of 'the multiethnic, multireligious and multilingual nature
of the polity.' And who is that EC's poor dear 'little voter' to decide
on such weighty issues?
