The Telegraph
Since 1st March, 1999
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Court backs EC on Gujarat

New Delhi, Oct. 28: The Supreme Court today held that the power to decide the poll schedule was within the “exclusive domain” of the Election Commission and neither Parliament nor an Assembly could interfere with this right.

This means the Centre’s contention under Article 174 that elections had to be held in Gujarat within six months of the last sitting of the House, and therefore before October, stands dismissed.

The court also observed that there was no time-limit for holding elections after premature dissolution of the House, as in Gujarat. But it added the rider that polls “should” be held within six months.

“Under the Constitution, the power to frame the calendar or schedule for elections for constituting the legislative Assembly is within the exclusive domain of the Election Commission and such a power is not subject to any law either made by Parliament or state legislature,” Justice V.N. Khare, writing the unanimous judgment, said.

The five-judge Constitution bench was answering a presidential reference made to it after the EC declined to hold elections in Gujarat before October on the plea that the situation was not “conducive”.

The court’s observation was an indirect message to the political establishment that the law could not be applied in the same manner in two distinct situations: where legislatures complete their full term and where they are dissolved prematurely.

Citing Article 174, the Centre and the Gujarat government had contended that elections should be held before October to ensure that six months did not lapse between April 3, when the Assembly had its last session, and the opening session of the new House.

Rejecting this argument, the Supreme Court said: “Neither under the Constitution nor under the Representation of the People Act any period of limitation has been prescribed for holding election for constituting legislative Assembly after premature dissolution of the existing one.

“However, in view of the scheme of the Constitution and Representation of the People Act, the election should be held within six months for constituting legislative Assembly from the date of dissolution of the legislative Assembly.”

Settling all questions about the poll panel’s powers, Justice Khare said: “Article 324 was enacted and the superintendence, direction, control and conduct of election was no more left in the hands of the executive but was entrusted to an autonomous constitutional authority, i.e., the Election Commission.”

If these were clear victories for the stand taken by the EC — chief election commissioner J.M. Lyngdoh said he felt vindicated — the government did not come away with empty hands either.

The court rejected the EC’s argument that President’s rule should be imposed if elections were not held within six months of dissolution of the House. It said the issue of President’s rule was irrelevant since it was not mandatory to hold elections within six months.

“I do not think the solution suggested by the EC is appropriate or justified,” Justice Arijit Pasayat, one of the five judges, said.

The observation will help the BJP counter the Congress’ insistence on President’s rule before the elections. Narendra Modi can continue as caretaker chief minister.

BJP general secretary Arun Jaitley said: “It is a sensible verdict and vindicates our stand on the imposition of Central rule.”

The BJP may try to find some satisfaction in another observation of the court. “Ordinarily, law and order or public disorder should not be occasion for postponing the elections,” it said.

Concern over law and order was the reason offered by the EC for deferring the elections.

Congress spokesman Kapil Sibal claimed that the court had accepted his party’s position that Article 174 did not apply in this case and that its application did not circumscribe the use of Article 324. “It shows ministers should be more careful and should not act against a constitutional authority like the EC,” Sibal said.


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