COVER STORY

'E.C. cannot express such an opinion'

Interview with Jana Krishnamurthi.

The Central government's decision to seek the Supreme Court's advisory opinion in respect of the Election Commission's decision on Assembly elections in Gujarat has been slammed by its critics. In defence, Union Law and Justice Minister Jana Krishnamurthi, until recently president of the Bharatiya Janata Party, says that the E.C.'s order raises the question whether the E.C. can take the view that Article 174 of the Constitution, which states that the gap between two sittings of a State Assembly should not be more than six months, is conditioned by Article 324, dealing with the E.C.'s power to conduct elections. "It is a grey area. That is why we have referred it to the Supreme Court," says Krishnamurthi in this interview with V. Venkatesan. "One constitutional authority cannot trespass on another's jurisdiction.... Whatever opinion the Supreme Court gives we will abide by it." Excerpts:

Why is the government aggrieved over the E.C.'s order on the holding of elections in Gujarat?

SANDEEP SAXENA

We don't question the E.C.'s authority to fix dates for the elections. The E.C. is the constitutional authority to conduct elections. We recognise that. But in the course of its reasoning, the Election Commission has strayed upon an area that its predecessors in office had not done. The E.C., in its order, has stated, citing Goa as the latest example, that hitherto the Commission has always accepted Article 174(1) and held elections. But then the E.C. has gone ahead, indicating that the present E.C. would like to take a different view. The question naturally arises whether this E.C. has got a right to take a different view, in the sense that Article 174(1) is conditioned by another Article, that is, 324. That is the question we want to be clarified by the Supreme Court because until now the settled law was that Article 174 holds good. For the first time the E.C. has said it is not so. It is a matter to be decided by the opinion of the Supreme Court because it is a very important constitutional question; because it is only Article 174 that decides the timing of an election, and for the new Assembly to meet. If that goes, then everything depends upon the time that will be chosen only by the E.C.

The E.C. has cited the Goa precedent probably to convey that in situations when the E.C. cannot hold polls within the six-month interregnum, as required by Article 174(1), the imposition of President's Rule and the suspension of Article 174(1) may become necessary.

You don't bring the other issues here. The simple question is whether Article 174(1) is applicable only to the living Assembly or also to a dissolved Assembly. Until now, the E.C. has said it applies to both. Now it has made a departure from this practice. Can this exception be made? Does Article 174(1) allow this?

The E.C. has said Article 174(1) will have to yield to Article 324, dealing with the E.C.'s power to conduct the elections.

For the first time, the E.C. has taken this decision. Who is to decide it? That is why we referred it to the Supreme Court, because it is not clear.

If you follow Article 174(1) literally, it can lead to ridiculous situations. What happens if a Chief Minister seeks the dissolution of the Assembly five months after the last sitting of the House? Will the E.C. be bound by this to hold the polls in one month?

It is a grey area. That is why we have referred it to the Supreme Court.

Even if the Supreme Court decides the issue, you will not be able to hold the polls before October, as required by Article 174(1).

We have not done so from the point of view of holding polls. It is a question of clarity.

The reference to the Supreme Court also raises the issue of whether the E.C. is competent to schedule the polls on the premise that non-compliance with Article 174(1) will lead to the President stepping in under Article 356.

Naturally. The authority to impose Article 356 is with the executive and the order is to be passed by the President and is to be placed before Parliament. It is not a concern of the E.C. The E.C. cannot suggest that Article 356 can be applied.

The E.C. has only expressed its opinion on the basis of precedents. It does not bind you in any way.

The E.C. cannot express such an opinion. It is one of the reasons it attributes for coming to its conclusion. One constitutional authority cannot trespass on another's jurisdiction. Because of this only the Centre referred the matter to the Supreme Court, not because we question the E.C.'s authority. Whatever opinion the Supreme Court gives, we will abide by it.

The E.C.'s decision has already been politicised by the BJP. Gujarat Chief Minister Narendra Modi has attributed motives to Chief Election Commissioner J.M. Lyngdoh for arriving at this decision. Modi has accused Lyngdoh of colluding with Congress(I) president Sonia Gandhi because both are Christians. Is not Modi guilty of demeaning a constitutional authority and inciting communal disharmony?

Because you (the media) and other parties politicised it, why blame Narendra Modi? If everybody can comment upon Narendra Modi, can't he defend himself? He is a political leader and a Chief Minister and has got every right to defend himself. He has not attributed motives. He said so because the Election Commission has attributed motives to him. It has become mutual now. I am not justifying either. If everybody crosses limits, then who can be pulled up for going out of limits? Unfortunately, the Gujarat issue has never been looked at from an objective point of view by the present critics of the Gujarat government. Right from day one, Modi has been made the target.