The Telegraph
Since 1st March, 1999
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Gujarat not an issue before us: SC

New Delhi, Sept. 2 (PTI): The Supreme Court today virtually ruled out interfering with the Election Commission’s decision to defer polls in Gujarat to November-December, expressing its inability to give its opinion on the presidential reference on the controversy by October.

A five-judge Constitution bench, headed by Chief Justice B.N. Kirpal, said: “Perhaps, November-December is (the) most likely date for holding polls. So, Gujarat is not an issue before us.”

The bench separated the constitutional issues raised in the reference from the holding of polls. “We do not think it will be possible for us to say that it will be incorrect to say holding of polls in November-December will be wrong,” the judges said.

Last month, the Union Cabinet had invoked the President’s power to consult the apex court after the Election Commission rejected the BJP’s demand for polls in October.

The Cabinet’s contention was that the Gujarat Assembly had last met in early April. Since Article 174 mandates that the gap between two sittings should not exceed six months, a reconstituted House should be in place by early October.

The reference, besides other issues, had sought the court’s opinion on the poll panel’s power under Article 324, which gives it exclusive jurisdiction on conducting elections, and also wanted to know if Article 174 could be read in isolation.

The court posted further hearing on the reference to September 17 and asked all parties to complete pleadings by then.

It also issued notices to the Centre, the Gujarat government and chief minister Narendra Modi on a public interest litigation, which contended that under the Constitution there was no provision for a caretaker chief minister.

Solicitor-general Harish Salve, who appeared for the government, pressed for an early commencement of the hearing. The bench, which also comprised Justices V.N. Khare, K.G. Balakrishnan, Ashok Bhan and Arijit Passayat, said: “It will be our endeavour to give an opinion on the presidential reference as expeditiously as possible.”

“However, if you think a decision can be given by October 2, it is impossible for all practical purposes,” it added.

The judges made the outline and scope of the hearing clear. They said they would not entertain any clarification on the facts and circumstances enumerated by the poll commission for deferring the elections.

“We will proceed to hear the matter taking whatever the Election Commission has stated in its order as correct and we will not entertain any clarification,” the bench said.

“We will hear only legal arguments pertaining to the issues raised in the reference while accepting factually whatever (the) Election Commission has said in its order.” The bench also sought a clarification from the commission regarding a part of its order.

“We have not been able to understand whether it means the commission will consider a scheme in November-December for holding of polls in Gujarat or is it the time when the elections will be held,” it asked.

In reply, senior advocate K.K. Venugopal, who appeared for the commission, said polls would be held in November-December this year.

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