New Delhi, September 19
The Gujarat Government categorised as “wholly erroneous” the Election Commission’s opinion that President’s rule be imposed in the state if early Assembly elections are not feasible.
Making its submissions before the five-judge Constitution Bench, headed by Chief Justice B.N. Kirpal, hearing the Presidential reference under Article 143 here today, former Union Minister for Law and Justice Arun Jaitley argued that the consistent view held by the apex court was that the powers of the EC under Article 324 was governed by legislation.
Mr Jaitley said the provisions of Article 324 vested in the EC the superintendence, direction and control and preparation of electoral rolls and conduct of all elections — from Parliament to legislative Assemblies and the offices of the President and Vice-President.
He said it would be wholly erroneous that if free-and-fair elections were not possible at a given point of time due to the prevailing circumstances, then Article 174, stipulating that the gap between two Assembly sessions cannot be more than six months, must yield to Article 324 in the interests of genuine democracy.
Mr Jaitley maintained that if the timetable for holding elections to the Assembly was regulated by the provisions of law, the jurisdiction of the EC under Article 324 could not override the legislative mandate under Article 174.
He said under the constitutional scheme and even in the case of the dissolution of an Assembly, early constitution of the new Assembly was necessary so that the Council of Ministers could be held accountable.
Even as the ruling party submitted that the EC had no authority to postpone the elections, the Congress said there was no express provision in the Constitution to fix a limit.
Senior counsel Kapil Sibal, representing the Congress, said in the conditions of fear existing in Gujarat due to the omissions and commissions of the state government and law enforcement agencies, it was unthinkable that the confidence of the voter could be resurrected by merely drawing upon the requisite resources of the Union and the state governments.
He insisted that the fact of the present case was such that unless President’s rule was imposed in Gujarat, free-and-fair elections were not possible.
Mr Sibal supported the EC’s order of August 16 for deferring the Gujarat Assembly elections to November-December this year.
