Caretaker by default

Narendra Modi continues as Chief Minister beyond the stipulated constitutional time limit, with the Supreme Court's Constitution Bench reserving its judgment on the Presidential reference on the Election Commission's August 16 order regarding elections to the Gujarat Assembly.

WHEN Narendra Modi continued as the Chief Minister of Gujarat beyond October 3, he became the first head of government in the country since Independence to remain in power without facing the legislature for six consecutive months. His continuance in power may not be violative of any constitutional provision, but involves serious questions such as lack of propriety and non-accountability, which the five-member Constitution Bench of the Supreme Court, that had heard the Presidential reference on the Election Commission's (E.C.) August 16 order relating to the holding of Assembly elections in Gujarat seems to have overlooked. The Bench, comprising Chief Justice B.N. Kirpal, and Justices V.N. Khare, K.G. Balakrishnan, Ashok Bhan and Arijit Pasayat, also refused to grant any interim relief on the writ petition (which would be taken up separately) challenging Modi's continuance as caretaker Chief Minister.

The hearing of arguments by senior counsel representing national political parties and some States concluded on October 1, with the Bench reserving its judgment on the reference. In particular, the Bench heard the plea advanced on October 1 by senior counsel for Maharashtra, Abhishek Manu Singhvi, to make a "declaratory comment" on the need to impose President's Rule in Gujarat. Singhvi pointed out that in the Bommai case, the Supreme Court had held that any exercise of power under Article 356 to impose President's Rule, in the States was judicially reviewable and that President's Rule, if wrongly imposed, could be set aside. Conversely, he suggested, that could mean that non-imposition of President's Rule too could be judicially reviewable. The Centre did not challenge the E.C.'s August 16 order, he said, and contended that the facts stated in it should be construed as undisputed and serious enough to warrant the exercise of power under Article 356.

Singhvi's argument was an answer to the dilemma faced by many of the counsel, representing the Congress(I) and the States ruled by it. These counsel had found the E.C.'s stand that Article 174 which requires that six months shall not intervene between two sessions of a legislative Assembly applies to both a live and a dissolved Assembly, to be erroneous. They argued that this Article applied only to a live Assembly, and therefore it was not mandatory for the E.C. to hold elections to a State legislature before the expiry of six months from the date of the last sitting of the dissolved Assembly. The Bench pointed out that if Article 174 did not apply to a dissolved Assembly, then the E.C.'s premise for the exercise of power under Article 356 by the Centre to suspend the operation of Article 174 was not valid.

As Ashwani Kumar, counsel for Manipur, told the Bench, the question of invoking constitutional remedies under Article 356 is not to be viewed in the context of Article 174 alone but in the face of the conclusion of the E.C., based upon relevant material and information, that there is a breakdown of the constitutional machinery in the State and that the administration of the State cannot be carried on in accordance with the Constitution, making it impossible to hold free and fair elections.

It was left to Kapil Sibal, who represented the Congress(I), to answer the question whether Article 174(1) is mandatory. Sibal told the Bench that if it was mandatory, it could not have been suspended. The fact that Article 174 was suspended for six years in Jammu and Kashmir and for five years in Punjab through a constitutional amendment, proved that it was not mandatory, he explained.

CAN the E.C. frame a schedule for elections to an Assembly on the premise that any infraction of the mandate of Article 174 would be remedied by resort to Article 356 by the President? This question, posed as the second of the three questions drafted in the Presidential reference to the Supreme Court, presumes that Article 174 applies to a dissolved Assembly also, and that failure to hold elections within six months of the last sitting of the dissolved Assembly would certainly lead to an infraction of Article 174. In its submission before the Bench, the Gujarat government, through its counsel Kirit Rawal, argued that it would be an infraction of the basic structure of the Constitution if the E.C. proceeded on the assumption that it could compel or create a situation where resort to Article 356 by the President becomes inevitable and thereupon frame a schedule for elections.

Rawal pointed out that if the remedy for Article 356 was not available in the context of a breach of Article 85 (the corresponding provision for Article 174 in the context of Parliament), it cannot be presumed to be available in the context of a breach of Article 174 as well. When this question seemed to trouble the Bench, Kapil Sibal explained that the Bench ought not to be concerned about the hypothetical question of a similar situation emerging at the Centre, and that such an issue was not before the Bench.

Sibal agreed that no political party could contend that the Council of Ministers cannot continue as a caretaker government until the completion of the election process. However, in the present case, he said, the peculiar situation that had arisen was on account of the findings of the E.C. that the constitutional machinery in the State had broken down because of the factors set out in its order and that in the circumstances there could be no free and fair polls in the State. Since this finding had been rendered following the dissolution of the House on July 19, imposition of President's Rule was the only answer to ensure free and fair elections, Sibal told the Bench.

The E.C.'s counsel, K.K. Venugopal, told the Bench that the E.C.'s August 16 order was independent of Article 356 and that it was based on the premise that Article 174 should be applicable to the next Assembly, to be duly constituted, "as far as possible". Therefore, the laying down of an "outer limit" or any "rigid formula" by the Bench to enable the E.C. to hold elections in such situations would be inappropriate, he felt. As the E.C. enjoyed a vast reservoir of powers under Article 324, Article 174 necessarily had to be subservient to Article 324, he suggested.

The Karnataka government's senior counsel P.P. Rao threw more light on whether the E.C. assumed that there would be any infraction of Article 174, because of its order deferring elections in Gujarat beyond October 3. Arguing that Article 174 operates after a legislature is reconstituted, following the completion of free and fair elections, P.P. Rao told the Bench that if free and fair elections cannot be held at a particular point of time, the time limit mentioned in Article 174 with regard to the two consecutive sittings of the State legislature cannot operate. In a situation where a State Assembly is dissolved and free and fair elections cannot be held within the period of six months as stipulated in Article 174, it will be a case of failure of constitutional machinery in the State concerned, thus attracting the provisions of Article 356, he explained.

The only fear, as articulated by the Bench, appears to be whether the E.C. could abuse the powers under Article 324 and delay the elections that are due under the pretext that the conditions necessary for holding free and fair elections are absent. Chief Justice Kirpal, for instance, asked during the hearing whether elections in Jammu and Kashmir were not expected to bring peace to the troubled State. He observed that democracy could not be hijacked and timely elections were essential to preserve democracy.

The answer to this fear was provided by Sibal, Singhvi, Rajeev Dhavan (representing West Bengal and the Communist Party of India (Marxist)) and Ram Jethmalani (representing Bihar), who argued that in any case judicial review was available as a remedy in such situations and that a delayed round of free and fair elections was better than hurriedly held sham elections. As proper electoral rolls were the basis for ensuring free and fair elections, which again were the basis for democracy, identified as part of the basic structure of the Constitution by the Supreme Court, the E.C.'s role in maintaining the sanctity of the electoral rolls should not be belittled, they told the Bench.

The judgment, which is expected to be delivered before Chief Justice Kirpal retires on November 8, will be made only after his return from an official tour of the United States on October 21. Until then, the constitutional aberration of Narendra Modi continuing as the Chief Minister of Gujarat may not be rectified.