NEW DELHI, 20 September — Prime Minister Atal Behari Vajpayee’s Hindu extremist Bharatiya Janata Party (BJP) yesterday urged the Supreme Court to allow immediate assembly elections in Gujarat, a state it rules.
Postponing polls in the western state beyond next month would violate fundamental constitutional provisions, BJP General Secretary Arun Jaitley told the highest court here.
The Election Commission was in error in saying that its last month’s decision putting off elections until the yearend had statutory sanction, added Jaitley, a lawyer. The commission’s order virtually meant that it was taking over legislative powers and this is not permissible under the constitution, he added. The BJP leader also opposed the commission’s view that president’s rule should be clamped on Gujarat by dismissing Chief Minister Narendra Modi. Jaitley made his submission during a hearing on the commission’s order of Aug. 16 that rejected the BJP’s plea for holding Gujarat polls right now.
The BJP-led central government says the commission’s order violates the constitution by pointing at a provision that stipulates no more than a six-month gap between two sittings of a state assembly.
Since Gujarat’s Assembly last met on April 6, it must meet again by Oct. 6, it says. Since the last assembly was dissolved in July, fresh elections must be called immediately to constitute the new assembly by October, it adds.
But the commission rejects this view and cites another constitutional provision that mandates it to ensure that elections are "free and fair".
The commission’s order last month said the situation in Gujarat was not conducive for holding free and fair elections in view of the after-effects of the February-May communal violence. Over 1,000 people, mostly Muslims, died in that violence. Tens of thousands of others were rendered homeless. The commission said these survivors must be rehabilitated before they can participate in the elections.
It also ordered that a revision of voter lists in the state of 51 million be completed by Oct. 15.
Jaitley yesterday contradicted commission’s counsel K.K. Venugopal who had earlier told the court that the stipulation to ensure "free and fair" polls overrode the other norm fixing the six-month gap between two assembly sittings. "The power of the Election Commission under Article 324 of the constitution cannot in any manner override the constitutional mandate of Article 174," Jaitley, who was law minister until June, told the judges.
Article 324 is about "free and fair" elections. Article 174 is about the six-month gap between assembly sittings.
"It is a duty of the Election Commission to fix an election timetable in accordance with the mandate of Article 174."
Jaitley said that if the commission found it difficult to hold elections in some parts of the state it could postpone balloting in those areas, but it cannot hold up elections throughout the state due to disturbances in some places. In any case, the commission had the power to direct the central and state governments to make available a strong security apparatus for conducting the free and fair elections, Jaitley added.
Arguing before the five-judge bench headed by Chief Justice B.N. Kirpal, Jaitley also cited an 18-year-old ruling of the Supreme Court to buttress his claim. He quoted the ruling as saying: "The commission in the garb of passing orders for regulating the conduct of elections cannot take upon itself a purely legislative activity which has been reserved under the scheme of the constitution only to Parliament and the state legislature..."
Opposition parties and critics have accused the BJP of trying to hurry up the Gujarat elections to exploit a perceived communal divide in the state. The BJP denies the charge.
