The Telegraph
Since 1st March, 1999
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Court bout on Gujarat Delhi rule

New Delhi, Sept. 17: A constitutional debate broke out in the Supreme Court today with the Centre and the Election Commission sparring over their powers and the government challenging the panel’s right to recommend President’s rule in a state.

Opening the Centre’s arguments in the Gujarat presidential reference case, solicitor-general Harish Salve said: “It (the poll panel) cannot make recommendations for imposition of presidential rule in a state as it was beyond its jurisdiction.”

The commission had suggested in a report after a tour of Gujarat that Central rule is an option, if elections are not held within the stipulated period in Gujarat.

The commission’s counsel, K.K. Venugopal, said the option was referred to without reference to Article 356 and as a way out.

“The aim was not to suggest or recommend but only to point out that the government need not worry about any constitutional impasse and that there was a way out in the form of President’s rule. It was merely pointed out that there need be no apprehension that there would be a constitutional impasse…,” Venugopal told the court today.

Commenting on the President’s rule option, Salve said: “Power under Article 356 is utterly irrelevant for ascertaining the constitutional mandate for holding elections. The power is highly discretionary and is exercised only when (the) constitutional machinery breaks down.”

Salve’s argument today reflected a line of thought within the BJP-led Centre that Gujarat should go to polls under Narendra Modi’s caretaker government. The Opposition has been demanding Central rule in the state, saying free and fair polls could not be expected if Modi remained in power.

The Centre began its arguments today against the backdrop of an earlier indication by the court that the case is unlikely to be wrapped up before the first week of October, perceived by Delhi as a constitutional deadline for constituting a new Assembly.

A five-judge Constitution bench of the apex court, headed by Chief Justice of India B.N. Kirpal, told the parties to the presidential reference that arguments should be over by September 26. Even if a decision comes on the date, it would not be possible to complete the electoral process by October 2.

The Centre contended that the poll panel was under a constitutional mandate to hold elections before the expiry of six months after the last meeting of the Assembly.

The commission countered the argument by saying that “the constitutional mandate” to it was to hold “free and fair” elections which was “impossible” in the current situation.

But Salve said the decision of the commission was subject to Article 174 which mandated that there should not be a gap of six months between two sessions.

Venugopal said it was not a question of whether Article 324 (giving powers to the commission to hold or postpone elections) was subject to Article 174, but “whether it is subject to the constitutional mandate of holding free and fair polls which is the essence of a democratic form of government and which is part of the basic structure of the Constitution”.

Venugopal told the court that the commission “will be failing in its constitutional duty if it does not exercise its power under Article 324 to ensure that the elections to a state legislature are free and fair, even if it means that the time period stipulated under Article 174 of the Constitution cannot be adhered to in rare cases”.

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