The Tribune, Chandigarh, India

Sunday, August 18, 2002, Chandigarh, India

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BJP says EC creating constitutional crisis
Cabinet to discuss EC directive today
Tribune News Service

New Delhi, August 17
The BJP today accused the Election Commission (EC) of disregarding the primacy of the constitutional mandate of Article 174 which disallows a gap of more than six months between two Assembly sessions and asked the EC to “realise the consequences of the situation created by it”.

Accusing the Election Commission with creating a “constitutional anomaly”, BJP spokesman Arun Jaitley said its order on the Gujarat polls disregarded constitutional provisions and the party expected the poll panel to “untie the knot created by it.”

“The order of the EC (not to hold the poll now) disregards the primacy of the constitutional mandate of Article 174. It is an obligation of every constitutional authority to act in aid of the Constitution. Regrettably, this has not happened,” Mr Jaitley, who is also the general secretary in charge of Gujarat, said.

Stating that his observations were only “preliminary” in nature, he said the party was yet to decide if it should challenge the order.

Meanwhile, Prime Minister Atal Behari Vajpayee has called a special Cabinet meeting tomorrow to discuss the Election Commission’s 4O-page order spelling out why the situation in Gujarat is not conducive to poll.

At the end of a marathon meeting on yesterday, the commission said it would consider “framing a suitable schedule” in November-December after electoral rolls were corrected and conditions become conducive for free and fair poll.

The pronouncement made by the three-member commission Bench has come as a setback to the BJP which has been pushing for elections in October.

After dissolving the Assembly last month, Chief Minister Narendra Modi cited the Constitution to contend that elections would have to be completed by the first week of October. Article 174 (1) holds that there should not be a gap of more than six months between two Assembly sittings and the Gujarat House last met in April.

The commission has however, ruled that Article 174 (1) cannot be read in isolation and has to be read alongwith other relevant provisions of the Constitution, particularly Article 324. The commission has pointed out that Article 324 which is not subject to the provisions of any other Article of the Constitution, including Article 174 (1), vests the superintendence, direction and control, inter-alia, of the preparation of electoral rolls for and conduct of elections to Parliament and state legislatures in the commission.

Hinting that the imposition of President’s rule was the only option now, the commission said: “The non-observance of the provisions of Article 174 (1) in the aforesaid eventuality would mean that the government of the state could not be carried on in accordance with the provisions of the Constitution within the meaning of Article 356 (1) of the Constitution and the President would then step in.”

Earlier, Mr Jaitley said “The powers under Article 324 can never be exercised in derogation of a statutory provision. In the present case, they are in derogation of a constitutional provision”.

According to Mr Jaitley’s interpretation of Article 174, a new Assembly has to be constituted within six months of the dissolution of the previous one.

The spokesman said the party was not convinced with the substance of the reasoning contained in the order.

“The draft electoral rolls were published in February while the final list was published in May. In any case, it is the EC’s duty to make sure the rolls are in order,” he added. Asked whether the government would challenge the EC order, Mr Jaitley said, "we will decide our future course of action and let you know."