Wednesday, Sep 04, 2002
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FOR THOSE WHO hoped that the Supreme Court would order an early election in Gujarat, the word is out polls in the riot-hit State will take place exactly as the Election Commission wanted and at the end of this year. The Court's decision not to interfere with the E.C.'s judgment is an embarrassing blow to the BJP, which had set itself on a confrontation course with the Commission and which had dissolved the Gujarat Assembly prematurely with the sole intent of using the communally charged environment to reap a rich electoral harvest. While the official reason for making the three-point reference to the Supreme Court under Article 143 was to determine whether the E.C.'s Gujarat order was based on a possible misinterpretation of the Constitution, the real purpose was based on the expectation that the Court would advance the date set by the Commission for the poll.
In arriving at its decision to delink the Presidential reference from the Gujarat election, the Supreme Court, among other possible things, had one overriding constraint: time. As the three-member Bench suggested, it would have been practically impossible for the Court to have settled the questions raised by the Presidential reference with a speed that would have a direct bearing on when the Gujarat election should be held by early October, as Article 174 (1) of the Constitution would imply, or a couple of months later, as the Election Commission, which derives its power and independence from Article 324, ordered. At the same time, the Court made it clear that it would give its decision on the questions raised in the Presidential reference as quickly as possible, being alive to the fact that any decision it takes could have an impact for other States going to the polls. The most important question that it will settle is whether the force of Article 174 (which mandates that a Legislative Assembly meets every six months) is subject to Article 324 (which gives the Election Commission the total responsibility for the conduct of free and fair elections).
In the meantime, however, the Court's decision has excited another legal debate namely, should Gujarat be placed under President's Rule? Under Article 174 (1), the new Gujarat Assembly must be convened by October 6, six months after it last met on the same day in April. Since this requirement under Article 174 (1) cannot be met now in Gujarat, the Opposition parties have demanded the use of Article 356 (under which Article 174 is suspended) as the only means of averting a constitutional crisis. The ironic thing here is that the BJP has walked, with eyes wide shut as it were, right into this legal trap. After having vociferously argued that Article 174 (1) is inviolable, the party has been intellectually stumped while attempting to defend Narendra Modi's continuance as Gujarat's caretaker Chief Minister after the six-month period has run out.
If it was only a respect for Article 174 which led the BJP to demand an early poll in Gujarat and which led some of its functionaries to rubbish the Chief Election Commissioner, J. M. Lyngdoh, then the very least that consistency demands is the imposition of President's Rule in Gujarat. For the BJP to now claim that Mr. Modi can continue unhindered is hypocritical after all, what credible argument can be advanced to prop him and his Ministry up in the face of constitutional imperatives? It is strange that the BJP is already engaged in putting forward weak defences to justify Mr. Modi's continuance in office. The controversy over the use of Article 356 is centred around cases where legitimately elected State Governments have been summarily dismissed from power. In present-day Gujarat, the situation is totally different inasmuch as invoking it would merely be a means of avoiding a constitutionally untenable situation. There may be a host of pragmatic or political reasons for asking Mr. Modi to quit, but the recent turn of events has presented an even sounder justification one that is based on the Constitution itself. The election can wait, but Mr. Modi must go.
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