New Delhi, August 18
The disagreement between the Centre and the Election Commission over the timing of elections in Gujarat today went beyond the realms of sabre-rattling, with the Union Cabinet deciding to make a presidential reference under the provisions of Article 143 of the Constitution and seek the opinion of the Supreme Court on the matter.

The decision was taken at a specially convened meeting of the Union Cabinet here today, in which Solicitor-General Harish Salve and the Additional Solicitor-General were special invitees.

Article 143 states: “If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that court for consideration and the court may, after such hearing as it thinks fit, report to the President his opinion thereon”.

This Article confers upon the President the power to consult the Supreme Court on any question of public importance as the President may think fit.

Speaking to newspersons after the hour-long meeting at the Prime Minister’s residence, Union Minister of Information and Broadcasting Sushma Swaraj said the issue was of “far-reaching constitutional consequence and was not a question of Gujarat alone”.

“Since certain issues were not clear, the government thought the reference was necessary”, the minister said, adding that the details of the reference were in the process of being drafted and would be placed before the President tomorrow.

She said the time frame was implicit in the presidential reference and the Supreme Court would be aware of the urgency.

The Cabinet decision today came in the wake of the decision of the Election Commission ruling out elections in Gujarat by October. Instead, the commission said it would consider a schedule only in November-December. Observers here say that today’s Cabinet decision is perhaps an attempt to seek constitutional legitimacy to the demand for early elections in the state.

Significantly, while under Clause (2) of Article 143 it is obligatory on the Supreme Court to entertain a reference and to report to the President its opinion, the court has, under Clause (1), a discretion in the matter and may, decline to express any opinion on the questions submitted to it.

Among others, the court may decline to express any opinion if the question referred to is a “political one”, as distinguished from the constitutional validity of a Bill or Act.

In other words, it is neither obligatory for the Supreme Court to give its opinion under Clause (1) whenever the President makes a reference, nor for the President to act upon the opinion pronounced by the Supreme Court.

In case the Supreme Court also agrees with the commission, then the government would have no option but to impose President’s rule till the poll is held.

Ms Swaraj, however, said “if President’s rule is imposed on the recommendations of the Election Commission and Parliament does not ratify it, then it will give rise to another constitutional crisis.”

The Election Commission is of the view that though Article 174(1) specified a maximum gap of six months between the two sittings of the Assembly, it should be read with Article 324, which confers powers of conducting the poll to the commission. In response, Ms Swaraj today termed this as a contradiction.

The ruling BJP has been demanding early elections in the state so that a new Assembly could be constituted in Gujarat before October 6, six months after the last sitting of the House. This, they feel, is a constitutional prerequisite.