The Telegraph
Since 1st March, 1999
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Gujarat battle awaits verdict

New Delhi, Oct. 1: After marathon arguments over three weeks on postponement of the Gujarat polls, the Supreme Court today reserved its judgment on the presidential reference about the Election Commission’s powers to decide when to hold elections.

A five-judge Constitution bench of Chief Justice B.N. Kirpal, Justice V.N. Khare, Justice K.G. Balakrishnan, Justice Ashok Bhan and Justice Arijit Passayat reserved judgment after the arguments concluded.

Several Congress-ruled states today flooded the court with submissions opposing the Centre and the BJP, which have questioned the poll panel’s powers to push back the elections. Bengal and Bihar have also opposed the Centre’s stand.

“We understand the difficulty in holding immediate elections... (in Gujarat)... but no one can argue that for months together, the Election Commission would sit tight and say that it cannot hold elections within the stipulated time,” the bench said.

President A.P.J. Abdul Kalam, in his reference to the apex court, has raised three points:

nIs Article 174 subject to the decision of the Election Commission of India under Article 324 as to the schedule of elections of the Assembly' (Article 174 stipulates that there should not be a six-month gap between two sessions of a Assembly. Under Article 324, the poll panel has powers over “superintendence, conduct and control” of elections).

nCan the Election Commission frame a schedule for polls to an Assembly on the premise that any infraction of the mandate of Article 174 would be remedied by resorting to Article 356 by the President' (Under Article 356, the President dissolves a state Assembly and imposes the Centre’s rule. The Election Commission, in its order postponing polls in Gujarat till January 2003, had suggested to the Centre that President’s rule be imposed.)

nIs the poll panel under 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 election'

The Centre, through Solicitor-General Harish Salve, and the BJP, through former Union law minister Arun Jaitley, contended that the poll panel was duty-bound to hold elections and its decisions were subject to the six month time limit prescribed in the Constitution.

The poll panel, through senior counsel K.K. Venugopal, and the Congress, though Rajya Sabha member and senior counsel Kapil Sibal, argued that the poll panel had the right to postpone elections in a state if it believed they would not be “free and fair”. In that case, imposition of President’s rule was the only way out.

The Centre contended that the panel was duty-bound to keep in mind Article 174 while exercising its powers under Article 324.

If the “no-six-month-gap” rule was violated, it would lead the President and the Governor failing in their constitutional function of summoning the House before the expiry of the six-month term, it added.

On the other hand, the Congress supported the Election Commission, which had said in its August order that President’s rule would be a way out of the constitutional impasse. The party told the court that imposition of President's rule would also ensure free and fair elections.

The Congress contended that the constitutional machinery had broken down in Gujarat. It said the Election Commission report setting out the “factors to postpone the elections” alone made it clear that there was total breakdown of constitutional machinery.

Senior counsel Ram Jethmalani, former law minister in the BJP-led government, said Article 174, which “merely” stipulated that six month should not intervene between two sittings of an “existing Assembly”, would have to be subject to Article 324 empowering the poll panel with “superintendence, control and conduct” of elections to ensure free and fair poll, a basic feature of the Constitution.

“An Assembly, which is the end product of an unfree and unfair election, is a fraud on the Constitution,” he said.

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