NEWSLINKS
US EDITION
COLUMNISTS
DIARY
SPECIALS
INTERVIEWS
CAPITAL BUZZ
REDIFF POLL
THE STATES
ELECTIONS
ARCHIVES
SEARCH REDIFF

Search the Internet          Tips

Recent Columns

The EC's Gujarat Order Labelling with     gay abandon "Over half" or     just 7% Uncle Sam, don't     lecture us J&K: Pre-1953 and its     implications

The Gujarat impasse

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. Labels can't be transferred.

Arvind Lavakare