In the Supreme Court

IN view of the need to observe due process, the Constitution Bench of the Supreme Court hearing the presidential reference on the interpretation of Articles 174 and 324 decided on September 2 not to schedule a hasty hearing on the matter. The Bench, comprising Chief Justice B.N. Kirpal and Justices V.N. Khare, K.G. Balakrishnan, Ashok Bhan and Arijit Pasayat, is in no hurry to tender an opinion which would have a bearing on the Election Commission's (E.C.) Order concerning the holding of Assembly elections in Gujarat.

The Bench directed the Centre, all the States, and the six national political parties to file submissions by September 16, and posted the matter for hearing from September 17. The national parties are the Bharatiya Janata Party, the Congress(I), the Communist Party of India (Marxist), the Communist Party of India, the Nationalist Congress Party and the Bahujan Samaj Party. The Bench issued notice to the Centre, the Gujarat government, and Chief Minister Narendra Modi, on a public interest litigation petition questioning the legality of Modi continuing as caretaker Chief Minister even after the dissolution of the Assembly.

Article 174(1) says that there should not be a gap of more than six months between two sessions of an Assembly. The Bench has to decide whether this Article is applicable only to a live Assembly, or to successive Assemblies, so as to bind the E.C.'s powers under Article 324 to hold free and fair polls.

Certain pointers to the thinking of the Bench on the matter were available on September 2, when it met to schedule the hearing. The move by the Bench to free itself at the very outset from any government-set deadlines to hear the matter was understandable. Equally, the government's motive in seeking an expeditious hearing was obvious. If the opinion of the Bench goes against the E.C.'s wisdom as articulated in its August 16 Order against holding elections before October, the BJP can use it as a campaign theme with which to deride the E.C.

Secondly, if the Bench tenders its opinion before October 6 - on which date six months would have expired after the last sitting of the dissolved Assembly, without a new Assembly being in existence - the government would have the advantage of taking a decision in accordance with its opinion on whether Article 356 has to be invoked to impose President's Rule in the State in order to suspend the operation of Article 174. Such an opinion, even if it goes against the BJP's liking, could have provided the government an honourable exit route from the mess it has created - first by attacking the E.C.'s August 16 decision, and then by seeking clarity from the Supreme Court on whether the E.C. was right in its stand.

An early opinion by the Bench - preferably before October 6 - would help avoid a constitutional aberration. As the Centre seems adamant on Narendra Modi remaining the caretaker Chief Minister (rather than impose President's Rule) beyond October 6 - even if it involves violation of Article 174 - an opinion tendered by the Bench after October 6 may not be relevant in guiding the government's decision.

In this context, the Bench seems to have thrown certain hints about how it views the issue. The Bench made it clear that it was proceeding on the assumption that whatever had been stated by the E.C. was correct factually. The Bench declined to go into the question whether the E.C. was competent to assess the feasibility of holding free and fair elections.

The Bench did not recognise the possibility of any constitutional breakdown because of the E.C.'s decision to hold elections in November-December, instead of concluding it well before October 6, so that a new Assembly is put in place without risking the violation of Article 174 (1). "Perhaps, November-December is the most likely date for holding polls, so Gujarat is not an issue before us," the Bench observed.

The E.C.'s commitment to hold the polls in November-December seemed sufficient for the Bench to delink Gujarat from the issue before it. This despite the fact that the E.C. itself had admitted that it would be for the first time that it would not hold polls without risking the violation of Article 174 and knowing well that there was no constitutional remedy apart from the imposition of President's Rule.

The Bench's schedule of hearing could, therefore, indicate two things. First, that perhaps prima facie the Bench thinks that Article 174(1) applies only to a live assembly, and that the E.C. is not bound to hold polls in haste under any obligation based on Article 174(1).

Secondly, if the Bench takes this position, the answer to what happens after October 6 becomes clear. As Article 174(1) is not threatened by the E.C.'s decision not to constitute the new House by October 6, there is no need to invoke Article 356 to impose President's Rule in order to just suspend the operation of Article 174(1), and avert a constitutional crisis.

In its Order, the E.C. has pointed out instances when the Centre imposed President's Rule under Article 356, in order to suspend the operation of Article 174(1), when polls could not be completed and a new House constituted within six months after the last sitting of an Assembly. These precedents would then not be binding on the government. In other words, the E.C. and the Bench seem to agree on the former's power to defer the polls beyond October 6, but the Bench appears to have doubts about the E.C.'s reasoning on the issue.

However, the continuance of the Modi government beyond October 6 will be an unprecedented occurrence, as it deprives the State of any measure of legitimate accountability and representation in the absence of the legislature. If a State is under President's Rule, then the Centre is accountable for its governance through Parliament. But can this factor alone be a ground for imposing President's Rule in Gujarat on October 6?

There is strength in the argument that the principle which applies to the State should be relevant in the case of the Centre too. Those who urge the imposition of President's Rule in Gujarat on October 6 admit that they cannot suggest a similar course of action at the Centre, if Article 85(1), which requires that six months shall not intervene between two sessions of Parliament comes under threat because of an unjustified premature dissolution of the Lok Sabha as Article 356 has no corresponding provision for the Centre.

The objective of both Articles 174(1) and 85(1) seems to be to ensure that legislatures meet periodically in order to ensure representative democracy. Even if this objective is threatened, Article 356 is not a consistent remedy which could apply to both the Centre and the States.