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SPELLING OUT THE LETTER OF THE LAW

By answering the presidential reference made to it in connection with the upcoming assembly elections in Gujarat, the Supreme Court has clarified certain issues to do with the imposition of presidentís rule in a state, the length of the recess of a legislature, the nature of executive authority with regard to electoral affairs and above all, the authority of the Election Commission to fix the date of election. This settles some issues which were beginning to create a rift between the Centre and the EC.

Both the Centre and the Gujarat cabinet claimed that the elections to the state assembly needed be held before October in order to comply with Article 174, which enjoins that not more than six months should pass between two sittings of an assembly. The Gujarat assembly was last convened on April 3, 2002. But the EC deferred the elections saying that the law-and-order situation in the state was not conducive for free and fair voting, and maintained that a breach of Article 174 could be avoided by imposing presidentís rule and removing the caretaker cabinet of Narendra Modi.

The apex court ruled that the poll-schedule was the exclusive domain of the EC and neither Parliament nor any assembly could interfere with this right, granted by Article 324.

Separate cases

It is, however, a moot question whether the deferred elections in Gujarat violates the letter and spirit of Article 174. The Supreme Court, in answer to this, has meticulously differentiated between two situations. It has held that in case of a working assembly, Article 174 is mandatory in the sense that there cannot be a lapse of more than six months between two sittings. But this article is not applicable to a legislature which has been dissolved prematurely by the governor under Article 174(2)(b) for a mid-term poll.

In the latter case, neither the Constitution, nor the Representation of the People Act fixes a time-limit for conducting an election after the assembly had been dissolved. But the Supreme Court has ruled that according to the scheme of the Constitution, elections should, without exception, be held within six months from the date of dissolution.

The Gujarat assembly was dissolved on July 19, 2002 and there will be no violation of the Constitution if the new assembly convenes within January 18, 2003. With the elections set for December 12, there can be no fears on that count any more.

Lame excuses

The Supreme Court has also rejected the ECís argument that presidentís rule should be imposed if elections cannot be held within six months of dissolution of the state assembly. In its view, the issue of imposing presidentís rule was totally irrelevant in this case since it was not mandatory to hold elections within six months of the day the state assembly last convened.

It is significant that both the contesting parties ó the government and the EC ó have felt that the advisory opinion has been fair and balanced and that it has not been an unqualified victory for either. The court has set aside the claim of the Centre as well as the plea of the EC. Also, though it has granted that the EC has the final say in all electoral matters, the Supreme Court has not given the commission a free hand in citing a law-and-order problem or public disorder as an excuse for postponing elections indefinitely.

Thus, by its well thought-out advisory opinion, the court has determined the proper orbit of each contestant. It has upheld the role of the EC in electoral matters, but, it has, at the same time, determined the limits within which its jurisdiction is to work. Similarly, it has asked the government to concentrate on administration, without claiming a role in the electoral affairs. It has also determined what Article 174 actually means with regard to the recess an assembly can take.

For all these reasons, the advisory opinion of the apex court should be regarded as a judicial service of salutary importance for the future.

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