The Supreme Court's view

The Supreme Court's opinion on the presidential reference on the Election Commission's August 16 order deferring elections to the Gujarat Assembly, limits the E.C.'s power to schedule elections.

THE opinion tendered by the five-member Constitution Bench of the Supreme Court on October 28 began with a lengthy reasoning on why the presidential reference under Article 143 on the scope of Article 174 vis-a-vis Article 324 should be answered, and not returned unanswered, as was urged by several senior counsel in their arguments. The questions posed in the reference, the Bench said, were likely to arise in future and were of public importance. However, as the Bench ended up not answering any of these questions in its opinion, it would seem as though the Bench saw merit in the plea to return the reference unanswered, without actually admitting it. While Article 174 deals with the interregnum between two sessions of a State legislature, Article 324 empowers the Election Commission (E.C.) to superintend, direct and control elections.

In his reference sent to the Supreme Court on August 19, President, A.P.J. Abdul Kalam, as advised by the Union Cabinet, had posed three questions to be resolved by the court. First, is Article 174 subject to the decision of the E.C. under Article 324? Secondly, 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? Thirdly, is the E.C. 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 elections?

These questions were based on the premise that Article 174(1), which stipulates that six months shall not intervene between the Assembly's last sitting in one session and the date appointed for its first sitting in the next session, would determine the date of the first sitting of a yet-to-be-constituted Assembly, following the holding of elections after the dissolution of the previous Assembly.

The main opinion, written by Justice V.N. Khare on behalf of the Chief Justice, B.N. Kirpal and Justice Ashok Bhan, and the two concurring opinions by Justices Arijit Pasayat and K.G. Balakrishnan found this basic premise faulty but proceeded to answer the reference. The E.C. too had endorsed this premise in its order, albeit with a caveat that under the circumstances found in Gujarat, in the aftermath of the post-Godhra riots against a minority community, Article 174(1) should yield to Article 324.

The Bench justified its response to the reference on the grounds that a doubt had arisen in the mind of the President in regard to the interpretation of Article 174(1) of the Constitution, and that there was no earlier judgment by the apex court on the issue. But, it would seem that the Union government, which advised the President, was indeed convinced that the Article applied to a live as well as a dissolved Assembly.

The Bench gave cogent reasons as to why the basic premise of the reference was not valid, thus vindicating to some extent the plea of some senior counsel to return the reference unanswered to the President. However, instead of returning the reference, the Bench sought to explain why it could not answer any of the three queries, as posed by the President, because his basic assumption was wrong. Article 174(1), the Bench opined, relates to an existing, live and functional legislative Assembly and not to a dissolved one. This Article and Article 85 (the corresponding provision for Parliament) were not intended to provide any period of limitation for holding elections in order to constitute a new House, the Bench said.

The Bench pointed out that Articles 85(1) and 174(1) were borrowed from Sections 19(1) and 62(1) of the Government of India Act, 1935, which dealt with the frequencies of sessions of existing Houses of Parliament and State legislatures, and did not relate to dissolved Houses.

Quoting from Constituent Assembly Debates, when the Draft Articles 69 and 153 (corresponding to the current Articles 85 and 174) were discussed, the Bench concluded that they were visualised in the context of a scenario applicable only to a living and functional House and that the stipulation of a six-month intervening period between the two sessions is inapplicable to a dissolved House.

Again, when Articles 85 and 174 were sought to be amended by the Constitution First Amendment Bill in 1951, the entire debate in Parliament revolved around prorogation and summoning of the current session and the working of the existing Lok Sabha and State Assemblies, the Bench pointed out.

Textually, Article 174(1) shows that the expression `date appointed for its first sitting in the next session' cannot possibly refer to either an event after the dissolution of the House or to a new Legislative Assembly meeting for the first time after getting elected; when there is a session of the new Assembly after elections, the new Assembly will sit in its "first session" and not in the "next session", the Bench explained. The omission of the phrase "after each general election" in Article 174 is a clear indication that it does not apply to a dissolved Assembly or a freshly elected one, the Bench suggested.

Posing a hypothetical question, the Bench said that if Article 174(1) applied to a dissolved Assembly, and if the House was dissolved in the fifth month after the last day of sitting of the last session, the election will have to be held within one month so as to comply with its requirement, which would not have been the intention of the framers of the Constitution. As no part of the dissolved House is carried forward to a new legislative Assembly, Article 174(1) does not link the last session of the dissolved House with the newly formed one, the Bench reasoned.

The superintendence, direction and control of the preparation of electoral rolls and the conduct of elections to constitute the legislative Assembly fall in the exclusive domain of the E.C. under Article 324 of the Constitution. Article 174(1) neither relates to elections nor provides any outer limit for holding elections to constitute an Assembly. Therefore, Articles 174(1) and 324 operate on different fields and neither of them is subject to each other, the Bench said.

The Bench did not go into the merits of the application of Article 356, as suggested by the E.C. in its August 16 order, because it found that there was no infraction of the mandate of Article 174(1) in preparing a schedule for elections to an Assembly. By the same reasoning, the Bench concluded that the third question posed by the President for its resolution did not arise.

The Bench acknowledged that the E.C., in its interpretation of Article 174(1), was influenced mainly by the past practice of holding elections within six months of the last sitting of the dissolved House. "The gratuitous advice of application of Article 356 by the E.C. in its order was in all its sincerity, although now on our interpretation of Article 174(1), we find that it was misplaced," the Bench remarked.

After explaining why it could not answer any of the President's three questions, the Bench, however, sought to answer a hypothetical question, which was not posed in the reference but was articulated during the hearing of the case. The Bench found that the Representation of the People Act, 1951, has not provided any period of limitation to hold elections to constitute a fresh Assembly in the event of a premature dissolution of an Assembly. The Bench appears to have been carried away by imaginary concerns expressed by counsel for one of the national political parties and one of the States that in the absence of any period provided either in the Constitution or in the RPA, the E.C. may not hold elections at all and that in the event it would be the end of democracy. Examining related provisions in the Constitution and the RPA, the Bench concluded that upon the premature dissolution of an Assembly, the E.C. was required to initiate immediate steps to hold elections in order to constitute a legislative Assembly within six months from the date of such dissolution. "Ordinarily, law and order or public disorder should not be occasion for postponing the elections and it would be the duty and responsibility of all concerned to render all assistance, cooperation and aid to the E.C. for holding free and fair elections," the Bench concluded.

The fixing of an "outer limit" by the Bench for holding of elections by the E.C. in the case of a premature dissolution of an Assembly, has dismayed observers. The Bench did not hear such a plea being advanced by any counsel, although Kapil Sibal, representing the Congress(I), had suggested that in response to a specific query from the Bench.

Justice Pasayat, in his concurrent opinion, suggested that reasons for deferring elections beyond six months after the dissolution of an Assembly should normally bear relation to acts of God and not the acts of man. But the main opinion tendered on behalf of three Judges makes no such distinction.

Logically, one can imagine an incident such as Godhra and the riots that followed it or even a serious earthquake or flood happening in a State after the dissolution of the Assembly, thus making it difficult for the E.C. to hold free and fair elections within six months. Under such circumstances, is there no way in which the E.C. can ensure free and fair elections? Although the opinion of the Bench is not binding on the constitutional functionaries, it seems to have overlooked such possibilities, thus inviting the criticism of being unreasonable.

Within an hour of the opinion being tendered by the Bench, the E.C. announced the schedule for the Assembly elections in Gujarat. The State will have a one-day poll on December 12 and the counting of votes will be taken up on December 15. However grim the law and order situation in the State, with the Supreme Court fixing an outer limit for holding elections, the E.C.'s hands appear to be tied.

The Bharatiya Janata Party is pleased that the court's opinion did not go into the merits of Narendra Modi continuing as Chief Minister beyond six months without facing the State Assembly. The party is relieved that the coalition government headed by it at the Centre does not have to impose President's Rule in the State, as demanded by the Opposition, to meet the constitutional crisis following the earlier perceived infraction of Article 174. For those who expected the court to pronounce on the non-accountability of the Modi regime since April 3, the last sitting of the dissolved Assembly, the opinion is bound to be a huge disappointment.