COVER STORY

A historic document

The Election Commission's Order on elections to the Gujarat Assembly records the actual situation in the State and exposes claims made by the State government and the Centre. The document should prove a significant input for the Supreme Court, before which the Presidential Reference on the subject now lies.

A.G. NOORANI

Woh baat saare fasane men
jis ka zikr na tha
Woh baat unko bohat nagavar guzri hai
(The matter that did not figure in the entire story was the one that had offended her most).

- Faiz Ahmad Faiz

THE Election Commission of India's Order of August 16, 2002 on elections to the Gujarat Assembly aroused the wrath of the Bharatiya Janata Party not because it violates the Constitution, but because it records in meticulous detail the actual situation in the State even five months after the massacre of Muslims there. In doing so, it exposed the sheer mendacity of the claims by its governments, in the State and at the Centre, and its spokesmen in both places that the situation has returned to normal.

Chief Election Commissioner J.M. Lyngdoh talking to riot victims at Naroda Patya in Ahmedabad during a visit on August 9.

The order is truly a historic document. On August 17, Union Law Minister K. Jana Krishnamurthi said: "Though I do not agree to the Election Commission's decision, I am bound by the decision." Going to court against it was not going to "benefit anybody in any manner". One hopes that the Supreme Court's response to the President's reference to the court for an advisory opinion on the legal issues under Article 143 of the Constitution will prove his remark to be prophetic.

The bulk of the order (pages 12-35) is a recital of facts recorded by the E.C. based on eyewitness accounts. It first sent a nine-member team of senior officers, headed by two of its Deputy Election Commissioners S. Mendiratta and A.N. Jha. They visited, from July 31 to August 4, 12 out of the 25 districts in the State covering a large part of the affected areas. The order records: "On the basis of its on-the-spot study of the ground situation, the team observed that the electoral rolls in the State, which had been revised with reference to 1st January, 2002 as the qualifying date, had become very defective as a large number of electors included therein had moved out of the houses wherein they were ordinarily resident during the riots and had not returned, their houses having been totally demolished/damaged/burnt and the law and order situation having not become conducive for their return to their original places of ordinary residence. The team found that there was still a sense of insecurity pervading the minds of such displaced persons and it was evident that under such a fear psychosis, they could not be expected to run the gauntlet and go to the polling stations to cast their vote. The team felt that any election on the basis of such defective electoral rolls and in a such traumatic situation would not only deprive the electors concerned of exercising their franchise but would also give an opportunity to unscrupulous elements to cast bogus votes in the names of those absentee voters."

Their reports impelled the full E.C. - Chief Election Commissioner J.M. Lyngdoh and the Commissioners, B.B. Tandon and T.S. Krishnamurthy - to visit Ahmedabad and Vadodara from August 9 to 11. They met officials from the Gujarat Chief Secretary downwards, representatives of political parties, non-governmental organisations manning relief camps, their inmates and a diverse array of persons. "On such on-the-spot examination and study of the situation, the full Commission found that the situation was indeed bad as reported by the team and that the conditions in the State were not conducive at all for holding any free and fair election for the present."

On this ground alone the Reference merits a speedy return by the court. For, if the facts recorded are true, a free and fair election is simply not possible in the State. The E.C.'s version can be controverted only by an equally detailed statement of the facts based on evidence. And it is well settled that the Supreme Court will decline to give an advisory opinion under Article 143 if the facts are contested and recording of evidence is necessary. Pages 3 to 10 of the Order touch on issues of law. However, pages 36 to 40 contain detailed directions which have to be carried out if the polls are to have any meaning. Surely no court will override the discretion of this quasi-judicial body on the steps it considers necessary to secure that result.

Moreover, the court's advice is not binding. It does not operate as res judicata (final settlement of the issue) (H.M. Seervai, Constitutional Law of India; Fourth Edn. page 2,688). In Re: Presidential Elections ((1974) 2 Supreme Court Cases 33) a seven-member Bench ruled unanimously: "This Court cannot go into disputed questions of fact in its advisory jurisdiction under Article 143 (1)" (para 37; page 55). That reference turned on the main issue whether the election to the office of the President must be completed before the expiry of the term of office notwithstanding the fact that the Gujarat Assembly was dissolved. SCC recorded (at page 38): "On behalf of the intervener, Jana Sangh, its president Shri L.K. Advani requested the Supreme Court to refuse to exercise its advisory jurisdiction unless the terms of the reference were modified and the Government 'unservedly commits itself' to abide by the Court's opinion. He stated that 'this reference had not been made by reasons of any bona fide doubt existing in the mind of the Government', but with a view to securing judicial approval for a 'course of political action the Government has already decided on'. The Supreme Court has discretionary powers to decline to express its opinion in this reference as per the law laid down to Re Kerala Education Bill and some other cases.

"The Jana Sangh pleaded that the terms of the reference should be modified as a vital issue had been 'clearly' kept out. This vital question is not whether the election would be valid or not in the absence of the Gujarat Assembly, but whether the election would be valid or not if the Government, by its own acts of omission, denies to the representatives of Gujarat an opportunity of participating in the elections." (emphasis added, throughout).

That rule - no one can take advantage of his own wrong - applies in this case with greater force. The Gujarat pogrom began on February 28. The last session of the State Assembly was held on April 6. Yet, on July 19, the Governor prematurely dissolved the Assembly whose term was to expire on March 18, 2003. Why the tearing hurry? To profit on a pogrom? The BJP now contends that the polls must soon be held regardless of the situation in the State, the irregularities in the voters' list and the like, so that the new Assembly is able to meet on October 6. Else, it contends, the "mandate" of Article 174(1) - "six months shall not intervene between last sitting in one session and the date appointed for its first sitting in the next session" - will be violated.

Article 174(1) imposes no such mandate and concerns the same Assembly, not a new one formed after an election. It is another matter that democratic norms require respect for it, as a rule of thumb, even in regard to dissolved Assemblies. But a "mandate" it is not and its observance depends on other factors, including the "mandate" for a free and fair poll. As C.R. Irani rightly points out: "On the face of it the proposition (urged by the BJP) is absurd. By what process of reasoning is it sought to argue that elections must be held otherwise the advantage obtained by wholesale violations of human rights will be lost. Besides, both Attorney-General and Solicitor-General have argued the opposite before the Supreme Court in TP(C) Nos.601-603 still pending - that the phrase in Article 174(1) "its last sitting in one session" and "its first sitting in the next session" relate to one and the same Assembly. This was in the case of the U.P. Assembly, also under the BJP" (The Statesman; August 21, 2002).

Hemendra Singh Bartwal provides the details of that case: "The U.P. Government was then represented by Attorney-General Soli Sorabjee and Solicitor-General Harish Salve. Significantly, the latter attended Sunday's Cabinet meeting where it was decided to refer the issue for the Supreme Court's advice.

"In its counter affidavit, the U.P. Government had said, 'it is clear that the first session of the newly-constituted 13th Assembly would not be called next to the last session of the 12th Assembly within the meaning of Article 174(1) since the life of the 12th Assembly would be extinct after its dissolution'. The case is still pending in the Supreme Court". (The Hindustan Times, August 21, 2002).

No one believes Deputy Prime Minsiter L.K. Advani's claim that "If he (Chief Election Commissioner) had confined his observation to simply (sic.) his opinion that the law and order situation there is not favourable for an election, may be you could have differed with it but it would not have been anything which could be legally challenged."

The relevant portion from the E.C.'s order goes thus: "The non-observance of the provisions of Article 174(1) (that a fresh Assembly sitting be convened no later than six months after the preceding one)... 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."

Clearly, the E.C. was only pointing out an obvious solution to the mess that Chief Minister Narendra Modi had deliberately created. Not long ago the Patna High Court had, lamenting non-observance of the rule of law, alluded to the possibility of President's Rule in Bihar, to the BJP's great joy.

The E.C. was planning to hold elections in Gujarat ''in the early part'' of 2003 along with polls to the Assemblies of Himachal Pradesh, Meghalaya, Nagaland and Tripura whose terms are also due to expire in March 2003.

The Order pointedly recalls that polls to 81 municipalities ''were postponed by an order of the government dated 15th November, 2000 on account of drought and shortage of drinking water for which the administrative machinery would be fully engaged. These were postponed again by the government's notification of March 5th, 2001 on account of the earthquake and its resultant impact. On 5th September, 2001, the Government again postponed the elections to these 81 municipalities, and five more, whose term had expired in the interregnum, for a period of four months on account of continuing drought and the impacts of earthquake and cyclone. Though the Government announced the holding of these elections on 8th February, 2002 these were postponed on account of communal riots for three months by the Government's orders of 13th March, 2002. On 12th June, 2002, the Government have again postponed these elections for four months up to 11th October, 2002 - this time citing its difficulty to hold free and fair elections during the monsoon when farmers and workers who earn their livelihood from farming and harvesting are likely to be deprived of their right to franchise in the aforesaid elections''. It tartly asks: "If the State Government is not in a position to hold elections to local bodies such as municipalities and Taluka panchayats on account of monsoons, and that too in urban areas, how it can hold a general election to the State Assembly which involves far greater mobilisation and effort throughout the State, is beyond one's comprehension."

That the Reference was made out of ire, not after calm deliberation, is evident from the fact that even if the court's answers support the government's case, the polls cannot be held before October 6. The law requires, at the minimum, a gap of 25 days between the date of notification and the date of poll. The court issued on August 26 notices to the E.C., all the State governments and six recognised political parties. Every State and major political party will be entitled to intervene and be heard. Sufficient time will be given to them to prepare their cases.

The real, but unstated, reason for the challenge to the Order lies, of course, in its thorough exposure of the BJP's lies to Parliament and to the nation on every aspect that matters - law and order, impartiality of administration, and relief and rehabilitation. Narendra Modi's government claimed, as did his mentors in Delhi, that "the riots were confined to pockets in a few districts of the State, with 13 districts remaining unaffected. But the State Government in its presentation also indicated that for relief and rehabilitation of persons in affected areas it had introduced a scheme of distribution of free ration to BPL (below poverty line) families in areas classified as 'affected areas'... enquiries reveal that based on the above classification adopted by the State Government, 20 districts out of 25 in the State are 'affected areas' in which nearly 27 lakh and 12 thousand BPL families are in receipt of free rations. The two sets of information given by the State Government on the extent of affected areas are mutually contradictory."

The E.C. team covered only 12 of the 20 such affected districts due to paucity of time. But it was furnished with a statement showing names of towns, cities and villages affected by riots, "and these cover even more than 20 districts". Significantly, the scheme of relief supplies to the BPL families in the 20 districts was extended up to October "when possibly elections were expected to be held". The number of such families is as high as 27.12 lakhs. The E.C. was told that "151 towns and 993 villages, covering 154 out of 182 Assembly constituencies in the State, and 284 Police Stations out of 464 Police Stations were affected by the riots. This evidently falsifies the claims of the other authorities that the riots were localised only in certain pockets of the State".

ON-THE-SPOT inspections revealed that a substantial majority of electors fled from their villages to save themselves from the arson and carnage in the wake of the Godhra incident on February 27. They had not returned to their houses or villages. "In most of the cases, their houses stand totally demolished or burnt, and in many others, their houses have been so badly damaged that the same have been rendered totally unfit to live in. Their return to their houses is prevented primarily on two counts. Firstly, slow progress of reconstruction/ repair of their demo-lished/burnt/damaged houses because of inadequate/no compensation paid to them by the State Government, and, secondly, fear psychosis still pervading the minds of the displaced persons, particularly, those belonging to the minority community. Thus, the electoral rolls as revised towards the end of the last year and in the early part of this year do not reflect, and do not show fidelity to, the actual situation obtaining on the ground".

More to the point as the E.C. adds: "The draft electoral rolls in the State were prepared on the basis of house-to-house enumeration undertaken in the months of November-December 2001 and the draft rolls so prepared were published on 11th February, 2002 for inviting claims and objections up to 26th February, 2002. Significantly, the period of lodging claims and objections expired on 26th February, 2002, that is to say, a day prior to the day (27th Feb. 2002) on which the holocaust descended on the State of Gujarat. The electoral rolls were thereafter finalised on the basis of claims and objections filed during the period when normalcy prevailed in the State and were finally published on 15th May, 2002, without taking into account the large-scale movement and migration of the affected people from the riot-torn areas to safe havens. Most of the displaced electors have not yet returned to their respective houses/villages. Though all but 8 relief camps out of 121 camps said to have been set up in the State of Gujarat, have been disbanded or closed, as per the claims of the State Government, the reality of the situation on the ground, as verified by the visits of the Commission and of its team to the affected areas, is that the inmates of these disbanded/closed camps have yet to go back to their respective houses/villages."

The Commission was contemplating, in the normal course, ''a summary revision of electoral rolls of all the Assembly Constituencies in the State with reference to 1.1.2003 as the qualifying date. This summary revision was scheduled to be taken up in the months of November, December this year and early part of January 2003. With the premature dissolution of the State Assembly on 19th July 2002, a general election has become due before the normally expected period and it may not be possible to conduct the aforesaid summary revision with reference to 1.1.2002 as the qualifying date, because such revision, if undertaken, would delay the elections considerably and, in that event, it may not be possible to hold the elections before the months of February-March 2003. But at the same time, the Commission is of the considered opinion that elections cannot be held on the basis of the existing electoral rolls which are defective to a considerable extent as pointed out hereinabove. Any election held on the basis of these defective rolls would deprive a substantially large number of electors who have been displaced from their places of ordinary residence." Hence its detailed directives for rectification of the defects. Can fair polls be held in such circumstances especially when the law and order situation remains disturbed?

"Statistics presented by the government giving the comparative crime chart for June 2002 and June 2001 show a decline in the overall crime rate, but in the category of rioting there is an increase of 13.66 per cent. Statistics presented also indicate that instances of rioting are still high in the 12 affected districts visited by the team during their stay in Gujarat. And to the specific queries raised by the Commission with the Chief Secretary on the number of FIRs filed, charge-sheets filed and the progress of cases, the State Government says that out of 4,208 FIRs filed as on 31 July 2002 a total of only 1,360 cases have been charge-sheeted.

"There is a general lack of confidence in the State Armed Police (SRP), which is seen by many victims as abettors and perpetrators of violence that took place post-Godhra in Gujarat... a large number of IPS officers who did commendable work in preventing the spread of violence were soon replaced. A common complaint received was that these officers were punished for their impartiality."

The E.C.'s conclusion settles the issue. "The Commission is thus of the considered view that the law and order situation in the State is still far from normal. The wounds of the communal divide following the riots have not yet healed. The slow progress in relief and rehabilitation work on the one hand and non-arrest and non-punishment of the guilty on the other have hampered the process of normalcy returning to the State, the victims carrying the fear and anxiety of another backlash. Similar feelings are shared by persons from the majority community as well living in minority-dominated areas. The people have lost confidence in the local police force, the civil administration and political executive. Someone who met the Commission, in fact, said how could the situation mend when there was not even regret for what had happened. In this environment, election campaigns evoking passions will threaten a violent backlash."

It is in such a situation that the E.C. refused to hold the polls by October 6. It is so far as to acknowledge that it has "in the past, been taking the view that the six months in Article 174(1) of the Constitution applies not only to a Legislative Assembly in existence but also to elections to constitute the new Assembly on the dissolution of the previous Assembly."

It is the grim realities created by the misdeeds of the Narendra Modi regime that impelled it to invoke Article 324 which confers on it the power and duty to conduct a free poll. "If a free and fair election cannot be held to a legislative body at a given point of time because of the extraordinary circumstances then prevailing, Article 174 of the Constitution must yield to Article 324 in the interest of genuine democracy and purity of elections." If this entails violation of Article 174, President's Rule can be imposed since "the Government of the State cannot be carried on in accordance with the provisions of the Constitution within the meaning of Article 356(1)."

If in 1983, the Chief Election Commissioner, R.K. Trivedi, had shown similar courage, Assam would have been spared the massacres. Talks between the Centre and the All Assam Students' Union (AASU) failed on January 5, 1983. The very next day, the E.C. was informed that President's Rule in Assam would not be extended beyond February 28, 1983. The Assembly had been dissolved on March 19, 1982. Trivedi felt that unless elections were held before February 28, "a constitutional crisis would arise even in respect of financial matters." His opinion on the state of things was candidly set out in a confidential note of February 19: "The commission has on many occasions during the recent past made it clear that the situation in the State of Assam was not ideal for holding the elections. It was also known that in the commission's view an ideal situation would have been when a solution to the main problem of foreign nationals could have been found or an agreement could have been reached between the concerned parties for conducting the peaceful poll with or without amendment to the Constitution and after intensive revision of rolls." This note was laid before Parliament by Atal Behari Vajpayee. He was opposed to elections in Assam then.

The 44th Amendment to the Constitution sponsored by the Janata Party government, of which Vajpayee and Advani were senior members, recognised the E.C.'s decisive voice in an abnormal situation. Article 356 was amended to reduce the term of President's Rule from three years to one. Clause 5 was added to enable extension for a maximum period of three years subject to two conditions. A proclamation of Emergency must be in force "in the whole or any part of the State" and the E.C. "certifies" that continuance of President's Rule "is necessary on account of difficulties in holding general elections" to its Assembly. Trivedi admitted that the E.C. "would not have felt any difficulty in issuing the certificate" required under Article 356.

AFTER the event he sought legal opinion on whether he could have refused to hold elections. One of his queries shows his misconception: "Whether the Union Government can stipulate a deadline for revocation of President's Rule" and force the E.C. to hold elections? The answer is obvious. The Centre can act as it pleases for its political ends. But the E.C. is not bound to oblige. It is not the E.C. but the government which will have created a constitutional crisis. As Dr. B.R. Ambedkar said in the Constituent Assembly on October 14, 1949, the Constitution presupposes that all the institutions it creates act according to its terms.

To assert that Article 174 (1) imposes a "mandate" is to betray constitutional illiteracy. It is a replica of Article 85 (1) which concerns summoning of Parliament. It reads: "The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. (2) The President may from time to time (a) prorogue the Houses or either House, (b) dissolve the House of the People." It is, even as it reads, a curb on the President's discretion in respect of the existing Lok Sabha. No such curb can be put on a power that he does not possess - fixing the dates for a general election.

The Constitution uses different language when it imposes a mandate. It is crisp, explicit and mandatory. Article 300-A, for instance: "No person shall be deprived of his property save by authority of law."

The Constitution is based on the Government of India Act, 1935 whose basics were set out in a White Paper of the British Government entitled "Proposals for Indian Constitutional Reform". (Command Paper 4268). Its para 23 read: "Power to summon, and appoint places for the meetings of the Chambers, to prorogue them, and to dissolve them... will be vested in the Governor-General in his discretion, subject to the requirement that they shall meet at least once in every year and not more than twelve months shall intervene between the end of one session and the commencement of the next" - a curb on discretion concerning the same House.

Section 19 of the Government of India Act, 1935 read: "(1) (The Chambers of the Federal) Legislature shall be summoned to meet once at least in every year, and twelve months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session. (2) Subject to the provisions of this section, the Governor-General may in his discretion from time to time - (a) summon the (Chambers or either Chamber) to meet at such time and place as he thinks fit; (b) prorogue the Chambers; (c) dissolve the Federal Assembly."

The Draft Constitution reproduced this text (Articles 69 for Parliament and 153 for the State Assembly) for debate and adoption. Overlooked in all current discussion is the fact that Sections 6 and 8 of the Constitution (First Amendment) Act 1951 amended both texts as finally adopted; namely Articles 85 and 174, to read as they now do. If anything, the redrafting highlights the aspect of curb on discretion in respect of an existing House.

It makes sense. Consider two cases. A Prime Minister or a Chief Minister in a majority in a newly-elected House suddenly advises dissolution a mere fortnight before the House was to meet, five months after it had last met. Dissolution would be hard to refuse since none else can form a government. The new House will meet more than six months after the last meeting of the old House. The Indian coalition is notoriously a drunk unsteady on his legs. None can predict when and where he will fall. President's Rule can take care of instability in the States. But, what if, five months after the Lok Sabha last met, a Central coalition breaks up in acrimony? Dissolution becomes inevitable. President's Rule is impossible. A general election will perforce be held well after six months since the Lok Sabha's last meeting. So much for the mandate. As a Judge of the U.S. Supreme Court remarked, the worst way to read a Constitution is to read it literally.

The Supreme Court will be gravely handicapped in deciding these issues on a Reference like this. It cannot go behind the recital of facts set out in it which is palpably tendentious (The Hindu, August 22). The queries are clumsily worded. However, since the E.C.'s Order is mentioned, the court cannot but read it. Only to discover that the Reference cannot be answered. It must be respectfully returned to the President.