The Gujarat reference

Despite the BJP's efforts, the Election Commission emerged as the pivotal and unscathed pillar of Indian democracy. But its discretion has been rightly disciplined by the Supreme Court.

THE GUJARAT riots of 2002 were the worst ever in India's troubled history. BJP Governments were in control in both New Delhi and Ahmedabad. Over 20 reports indicted the State Government's actions and inactions. The state exacerbated the crisis allowing rapes, murder, arson and hate to drown the constructive forces of secular reconciliation. Not interested in restoring peace, the BJP sought to exploit the disharmony for electoral gain. A constitutional crisis was created by the Chief Minister, Narendra Modi, on July 19, 2002, by prematurely dissolving the Gujarat Assembly so that elections were held whilst the State was in chaos and could be excited into disbalance by the hate machines of the BJP and its allies. The Governor became a willing ally and accepted the dissolution which he should have refused. The BJP spared no one. When the head of the NHRC visited Gujarat, he was accused of bias. Mr. Modi then turned his ire on the Chief Election Commissioner, J. M. Lyngdoh, and Sonia Gandhi because they are Christians. The relentless violence continued.

On August 16, 2002, the Election Commission took the view that although Article 174 of the Constitution required the election to be held by October 3 (that is, six months from the last session of the dissolved Assembly), this was not possible because the State was still in turmoil, the electoral rolls were not ready and the electoral machinery needed reinforcement. The E.C. also pointed out that, in the past, if elections were not held within six months, President's Rule was imposed. In political terms, the Chief Election Commissioner's decision meant that the BJP lost out on two counts: (i) the elections would be postponed till the tension died down (which the BJP did not want); and (ii) there was a distinct possibility that President's Rule would displace Mr. Modi by October 3, 2002 (which the BJP could not risk).

How was the E.C. to be stopped? The BJP could have thrown Mr. Modi out; but he was its communal "master blaster". It could have filed a case in the Supreme Court as was done in Haryana (1984), 1993 (the Northeast), or 1995 (Tamil Nadu and other States). But, the party feared that this would not bring the immediate results it wanted. Cases can take years; and the Supreme Court would not order an immediate election. The President has the power to make a reference under Article 143 to refer any question of law and facts. Legal ingenuity surpassed political greed to frame three questions which, if decoded, implied that (i) Article 174 requires an election by October 3, 2002, which overrode the general power of the E.C. to determine the date of elections; (ii) President's Rule should not be imposed to enable Mr. Modi to stay on after October 3, 2002, and (iii) the E.C. must use all its powers to conduct the election by October 3? This is not what the Reference said. But this is what it meant.

The Reference was a disguised appeal from the E.C.'s order. The disguise was lowered when the E.C. clarified that its August 16 order was not really concerned with President's Rule but simply pointed to earlier practice. This being the case, the Reference became redundant as far as President's Rule was concerned. One-third of the Reference was, therefore, knocked out.

But, during the course of the hearing, the remaining two-thirds of the Reference also became fragile and unstable. The basic issue was whether the six months period for completing the elections to the new Assembly was from the last date of the "dissolved" Assembly (March 3) or the date of dissolution (19 July). This entailed an interpretation of Article 174 which clearly applied to only a "live" Assembly so that during an Assembly's life, the latter met at least every six months. Had this provision not been there, a Prime Minister or Chief Minister could rule without calling for dissolution of Parliament or the Assembly? It is common sense that the question of re-election can only arise when the Assembly is dissolved. This common sense eluded the E.C. which pointed out that it had always earlier tried to hold elections within six months of the last session of the dissolved House. But, while this was the E.C.'s practice, surely the Government, with the full advice of the Attorney-General, the Solicitor-General and others, should have known the law better? But, how can better sense prevail when the BJP was more concerned with winning elections rather than defending the democracy of the Constitution.

In their answer, the Supreme Court judges took the view that the six months within which elections were to be held was from the date of dissolution of the Assembly; and, not from the earlier date of the dead Assembly's last session. Article 174 applied to `live' and not `dissolved' Assemblies. This had very grave implications for the BJP's Reference to the Court. The very foundation of the Reference was that Article 174 applied to dissolved Assemblies. If the very basis of the Reference disappeared completely, there was, in fact, no Reference to answer. The Reference was dead. It had been uprooted. Its very foundation was destroyed. The BJP's entire basic legal strategy of a disguised appeal had backfired.

The Court could easily have responded by saying that in the light of its analysis, all the questions posed to the Court proceeded on the wrong premise and rejected the Reference as flawed and, therefore unanswerable. Indeed, the judges specifically said so in respect of the question on President's Rule. But, the Court proceeded with a characteristic constitutional graciousness. Although not necessarily invited to do so, the judges went deeper into the question of how and when fair and timely elections could be held. Having decided that the question of holding elections arises from the date of dissolution, the Court relied on various provisions of the Constitution and the Election Law of 1951 to lay down that elections should be completed immediately within an outside limit of six months unless there were some overriding emergency reasons for going beyond that limit. No less, ordinarily law and order was not a reason to postpone elections — otherwise there was a danger of indefinite deferment. But, the core of the judgment also reposes judicial faith and constitutional confidence in the E.C.'s autonomy to take decisions on the holding and conduct of elections. No doubt, the E.C. is not a law unto itself; and, its decisions are subject to judicial review. But, at the same time, if free, fair and timely elections are part of the inalienable basic structure of the Constitution, the E.C. is the cornerstone of the electoral process.

In this sense, despite the BJP's efforts, the Election Commission emerged as the pivotal and unscathed pillar of Indian democracy. But its discretion has been rightly disciplined by the Supreme Court. So many democracies in Asia and Africa have suffered entropic decay because periodic elections have not taken place. Now, after the judgment, a hop, skip and jump cannot take place to displace elections which have to be held immediately so that Governments are accountable to the people through their legislatures.

The story of the Gujarat Reference is a story of political subterfuge — entailing an abuse of the President's power to refer matters to the Supreme Court. The Reference started as an expensive farce — a disguised appeal by the BJP in an effort to embarrass the E.C. and gain electoral dividends. In the end, the BJP did not get an early election; or stain the reputation of the Commission. The Court rose to the occasion and laid down impressive principles of democratic accountability. The BJP failed in its ploys; but, ironically, the Constitution is better off.

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