NEW DELHI, 19 August — The government yesterday said it would seek the Supreme Court’s advice on the validity of the Election Commission’s order against early elections in Gujarat.
Information and Broadcasting Minister Sushma Swaraj said the commission’s order, based on two constitutional provisions, was "contradictory" and the government had decided to seek legal advice from the apex court as it could have "far-reaching consequences".
"The Cabinet decided that a reference should be sent through the president to obtain the court’s advice," she told reporters after a meeting of the Cabinet presided over by Prime Minister Atal Behari Vajpayee.
The Election Commission on Friday rejected the ruling Hindu extremist Bharatiya Janata Party (BJP)’s plea for an early election to Gujarat’s 182-seat assembly, saying the situation in the violence-scarred state was not conducive to free and fair polls. The reference will be sent to President A.P.J. Abdul Kalam today.
Sushma said "contradictions" in the Election Commission’s order arose from the two constitutional provisions — Article 174 and Article 324 — on which it is based. Article 174 says a state assembly should meet at least once every six months. The Gujarat Assembly last met on April 6 before Chief Minister Narendra Modi quit on July 19 and had the legislature dissolved, demanding early polls.
Under the terms of Article 174, a new assembly must be constituted after elections by Oct. 6, she noted.
Article 324, however, gives the Election Commission the powers of "superintendence, direction and control" of all polls, and the commission had based its order on the Gujarat election on this provision.
Sushma said the commission’s recommendation that central rule be imposed in Gujarat if an election could not be held too had raised questions about the use of constitutional provisions. "There are certain prerequisites for using Article 356 which allows the government to impose central rule in a state," she said. "It can be used only if there is a total breakdown of the administrative machinery in a state."
Sushma sought to make the case that the commission’s order was not limited to Gujarat, and could have far-reaching consequences. "This goes beyond Gujarat.
"The Supreme Court can advise us whether Article 174 is mandatory. There are some questions that want and even demand clarification," she said.
The solicitor general and additional solicitor general attended the Cabinet meeting as special invitees to advise the government on the implications of the commission’s order. The government’s decision to refer the matter to Kalam is being perceived as the first constitutional test for the president since he assumed office on July 25, and gains significance in view of the opposition’s tremendous support for the commission order.
"We are confident that the president will take appropriate advice from the Supreme Court and settle the issue in a legal and constitutional way," BJP spokesman Mukhtar Abbas Naqvi said.
The Congress party and the left-wing parties flayed the government yesterday for seeking presidential advice and said the step amounted to bucking the orders of the commission. "The step displays contempt for the Election Commission and undermines the prestige of the constitutional body," the opposition said. The commission had said the situation in Gujarat — which was rocked by largely anti-Muslim sectarian violence in February-May — was still not conducive to "free and fair" polls. "In this environment, election campaigns evoking passions will only shatter the fragile peace," it said in its order.
Chief Election Commissioner J.M. Lyngdoh and fellow commissioners T.S. Krishnamurthy and B.B. Tandon last week visited Gujarat and met victims of the violence that killed about 1,000 people.
During the tour, Lyngdoh was highly critical of the administration’s efforts to rehabilitate the victims and even snubbed several officials. The commission’s order on Friday said the voters’ list in Gujarat would be revised by Oct. 15, and elections would be possible only after that date.
The BJP reacted angrily to the order saying it was unconstitutional and suggesting that the commission was stepping beyond its constitutional role. The BJP maintains the situation in Gujarat is normal and the fact that some 12,000 Muslim survivors are still living at makeshift relief camps did not imply the situation was not conducive for holding elections.
The opposition, rights groups and a large number of Muslims, all of who bitterly objected to the demand for early polls, have backed the Election Commission.
Chief Minister Narendra Modi has been accused of siding with killers of Muslims — a charge both he and BJP deny.
