New Delhi, September 17
The BJP-led NDA government submitted before the Supreme Court today that elections to a state Assembly have to be held within six months of its dissolution and that it was beyond the Election Commission to suggest or recommend imposition of President’s rule.
Opening its arguments in the Gujarat presidential reference in the apex court, the Centre maintained that under Article 174 of the Constitution there could not be a gap of more than six months between the sitting of the previous Assembly and the newly constituted one.
Appearing for the Union Government, Solicitor-General Harish Salve argued that it was mandatory for the Election Commission to hold elections within six months of the dissolution of the state Assembly. Further, the Election Commission had no authority to make reference to Article 356 of the Constitution while considering holding elections in a state.
The five-judge Constitution Bench headed by the Chief Justice of India, Mr Justice B.N. Kirpal, began hearing arguments on the presidential reference under Article 143 of the Constitution in the wake of the stand-off between the Centre and the Election Commission on the issue of holding early Assembly elections in Gujarat. Other members of the Bench are Mr Justice V.N. Khare, Mr Justice K.G. Balakrishnan, Mr Justice Ashok Bhan and Mr Justice Arijit Pasayat.
The Supreme Court had observed in the first instance itself that it did not wish to interfere with the Election Commission’s decision to hold Assembly elections in Gujarat at the end of this year in November or December.
Contending that non-implementation of the provisions of the Constitution posed a threat to democracy, Mr Salve warned that democracy would perish if the constitutional authorities engineered an unholy cooperation to subvert the Constitution.
To this the Chief Justice of India
remarked, “We are here to insulate democracy.”Mr Salve said the Election Commission could not schedule the elections in a manner which was inconsistent with the constitutional scheme of representative government. The Election Commission must use all the requisite resources of the Union and the state to ensure free and fair elections.
Initially, in his written submissions, Election Commission counsel K.K. Venugopal said the Election Commission’s August 16 order regarding deferring poll in Gujarat was not taken with reference to Article 356 pertaining to imposition of President’s rule.
At the same time, the Election Commission said that compliance of Article 174 (1) was subject to the holding of free and fair elections.
Later, in his oral submissions to the court, Mr Venugopal said the Election Commission, in exercise of its powers under Article 324 of the Constitution, would be failing in its duty if it could not ensure free and fair elections.
He said the Election Commission had to necessarily be conscious of two constitutional requirements. In this context under Article 174 (1) that six months should not intervene between two sittings of a legislative Assembly; and the second that under Article 324 the elections to the legislative Assembly must be free and fair.
Mr Venugopal said the Constitution did not envisage that elections to a state Assembly should be held irrespective of the mandate of Article 324 stipulating that elections should be free and fair. He argued that the Constitution would not permit the Election Commission to hold elections which were not free and fair merely because of the time limit of six months as envisaged in Article 174.
President A.P.J. Abdul Kalam, in his reference, has sought the Supreme Court’s views on three issues. These are:
(i) Whether Article 174 is subject to the decision of the Election Commission of India under Article 324 as to the schedule of elections of the Assembly?
(ii) Can the Election Commission of India frame a schedule for elections to an Assembly on the promise that any infraction of the mandate of Article 174 would be remedied by a resort to Article 356 by the President?
(iii) Is the Election Commission of India under a duty to carry out the mandate of Article 174 of the Constitution, by drawing upon all requisite resources of the Union and the state to ensure free and fair election?
