New Delhi, Sept. 19: It was the BJP versus the Congress in the Supreme Court today.
Continuing its arguments before the five-judge Constitution bench presided over by Chief Justice B.N. Kirpal, the BJP contended that the Election Commission had no authority to postpone elections in Gujarat. The Congress said there is no express provision in the Constitution fixing a limit within which the polls had to be conducted.
Resuming arguments for the BJP, its spokesman and former Union law minister Arun Jaitley said the “EC (Election Commission) cannot take upon itself the power of deferring the polls which is not cast upon it under Article 324 of the Constitution”.
Unfettered powers to the poll panel would “defeat the scheme of the Constitution” that enjoined upon the commission mere authority for “conduct, superintendence and directing” elections and nothing beyond that, Jaitley said. He wanted the apex court to give a clear definition of Article 324, lest it led to “constitutional crises in future also”.
Jaitley argued that an Assembly, after its dissolution, has to be convened within six months of its last sitting under Article 174 so that a “responsive government is in place which is accountable to the House of people. A reasonable concession would be to start the poll process within the six months’ time limit and conduct the election as provided under the Representation of People’s Act, which gives five weeks’ time to complete the entire electoral process”.
Counsel and Congress Rajya Sabha member Kapil Sibal said: “If election in an extraordinary situation could not be held within the six-month timeframe, the EC had the power to defer the process beyond that limit.”
Sibal pointed to the poll panel’s order to argue that the elections could not be held in Gujarat due to the riots and that the revised electoral rolls were rendered “inoperable” due to the clashes.
“There is no express provision in the Constitution for holding elections within a particular time-frame as Article 174 only talked about a six-month maximum time limit between two sittings of the Assembly and not about how the polls should be conducted,” Sibal said.
He supported the commission’s view that President’s rule was an alternative and there was nothing to fear that a “constitutional impasse” would be perpetuated. However, when Sibal said Article 356 was invoked to impose President’s rule in various states more than “40 times” so far, the judges observed: “Let’s not go into the political arena”.
Sibal continued to contend that the presidential reference was a “motivated slant” and it should be returned unanswered. Solicitor-General Harish Salve objected to the expressions “motivated” and “slant” used about the highest constitutional authority.
The judges asked Sibal to apply restraint. “Don’t take such an extreme view,” the said. “Look at the document, it is signed by the highest constitutional authority. We have to proceed on the basis of that. It has been referred to us,” said the chief justice.
Sibal clarified that his comments were not aimed at the office of the President and were related to the context of the questions framed and the manner in which the Centre handled the issue.
Outside the court, Sibal said: “I have not attributed any motive to the President for whom we have great regard. All that I said was that the government order is signed by a ‘titular’ head.”
However, Sibal added that the reference had a “slant and motivation behind” it and that the Union government had made the highest constitutional authority sign a referendum that had nothing other than the “motivation” of the head of the ruling coalition.
However, the judges asked Sibal to confine his arguments to the three-point reference:
(a) Is Article 174 subject to the decision of the Election Commission under Article 324 as to the schedule of Assembly elections' (Article 174 stipulates that there should not be a six-month gap between two sessions of an Assembly. Under Article 324, the commission has powers over “superintendence, conduct and control” of elections).
(b) Can the commission frame a schedule for the elections to an Assembly on the premise that any infraction of the mandate of Article 174 would be remedied by a resort to Article 356 by the President' (Under Article 356, the President dissolves an Assembly and imposes Central rule. The commission in its order postponing the Gujarat polls to January 2003 had suggested to the Centre that President’s rule be imposed in the state.)
(c) Is the commission under a duty to carry out the mandate of Article 174 of the Constitution, by drawing upon all the requisite resources of the Union and the state to ensure free and fair elections'