| LK Advani and AB Vajpayee at a function in Rashtrapati Bhavan. (AFP)
New Delhi, Oct. 29: A day after the Congress and the BJP — the two main players in Gujarat — sought to extract political mileage from the Supreme Court’s advisory opinion on the three-point Presidential reference pertaining to the Gujarat elections and projected it as a “vindication” of their stated positions, euphoria gave way to a more down-to-earth assessment.
Both the parties in essence felt that the court’s views were “fair and balanced” and did not amount to an unqualified victory for anybody, particularly the Election Commission.
It is true that the court has rejected the Centre’s and the Gujarat government’s contention that Article 174 (1) of the Constitution, which mandates that not more than six months should lapse between two sittings of an elected legislature, does not apply to a prematurely “dissolved” Assembly. It has in effect frowned upon the premature dissolution of the House.
However, at the same time, the apex court has also implied that the EC could not cite law and order or public disorder as reasons for postponing elections.
Summing up the Supreme Court’s advisory opinion, Congress Working Committee member Salman Khurshid, himself an eminent jurist, said: “It is a balanced judgement, which denies the government and the Opposition the expectation of high-pitched hyperbole of political projections. It confines to legalistic and constitutional opinion and does not allow the politician to take over constitutional interpretations. It has also given the EC its due share of importance and respect.”
For noted constitutional expert Rajeev Dhawan, the Supreme Court did not answer the two questions that were at the core of the Presidential reference: early elections in Gujarat and allowing the caretaker chief minister to continue without bringing the state under Central rule.
“The disguised purpose of the reference was to seek an answer to these points because the purpose was to really set up an appeal trying to show that the EC had committed an egregious blunder relating to 356. The court answered an entirely different question, which was that 174 did not apply,” Dhawan said. He stressed that, by making this observation, it expressed its disagreement with the Centre, the BJP and the EC.
According to Dhawan, the new point the court raised was that, “if you dissolve an Assembly wrong, it is not for us to answer the other two questions”.
BJP general secretary and legal advisor Arun Jaitley, however, differed with Dhawan. Jaitley maintained that of the five legal issues involved in the Gujarat case, the EC was proved wrong on all.
These were: the application of Article 174 (1), creation of an outer limit of six months within which elections should be held, terming the EC’s order for invoking central rule in case elections were not held as mandated by Article 174 (1) as “gratuitous advice”, rejecting the EC’s decision to defer elections on law and order grounds, as well as its contention that the use of 174 would be circumscribed by Article 324, which gives the EC powers of superintendence, direction, control and conduct of elections.
Jaitley claimed that in the BJP-EC battle — whose contours emerged the day the ruling party began attacking the EC for its “reluctance” to call early polls in Gujarat — the BJP had in fact “gained”. “We wanted to push for early polls and we didn’t want 356.
The whole order delayed polls by two months. That’s the de facto situation, but we were saved Central rule in the process. We have only lost a technical point (when the invocation of Article 174 (1) was rejected) but we were spared 356,” he said.
However, the BJP has decided not to drag the EC issue in its Gujarat poll campaign. “As far as we are concerned, the EC matter is over,” said Ramdas Aggarwal, the central prabhari (in charge) of Gujarat.