An early poll will be a fraud

Modi had earlier roped in the easily available K.P.S. Gill to publicly state that conditions were ripe for elections. He has now taken to making unedifying and legally incorrect remarks that election decisions are to be taken by the government and not by the bureaucrats in the EC.

Realising that the EC cannot be bullied, Modi has gone in for a sudden assembly dissolution, acting possibly on wrong legal advice that the EC will be left with no alternative but to hold the election by October, in view of Article 174 which mandates the governor to summon the House to meet at such time and place as he thinks fit but six months shall not intervene between its last sitting — which in Gujarat’s case was held in April 2002 — in one session and the date appointed for its first sitting in the next session.

This is fallacious. Article 174 deals with the interval between the sitting of the existing legislature — once the assembly has been dissolved, Article 174 has no applicability — and, therefore, the dates for holding general elections can be fixed beyond six months of the last sitting of the dissolved assembly. The purpose of Article 174 is that the sittings in the existing assembly should not have a gap of more than six months so that legislators can effectively exercise their control over the executive.

In law, the next steps after dissolution are determined by the Representation of People Act, 1951. Section 15 of the 1951 Act provides that a general elections shall be held for the purpose of constituting a new legislative assembly on the expiration of the existing assembly, or on its dissolution. For the said purpose the governor will issue a notification on such dates as may be recommended by the EC (emphasis mine) calling upon the people to elect assembly members. If the EC, as late as last week, was not inclined to order an early poll, Modi’s move seems destined to fail. In fact, under the present circumstances, for the EC to permit the holding of early elections would be an abdication of its constitutional duty.

The Supreme Court has ruled that ‘‘the Constitution contemplates a free and fair elections and vests comprehensive responsibility of superintendence, direction and control of the conduct of elections in the Election Commission.’’ Thus, if the EC is of the view that conditions are not ripe for a fair and free election in October, the same cannot be held.

A question can legitimately be raised as to what would happen if the EC does not fix a date for holding elections before October. The answer lies in Article 356 which provides that where the president is satisfied that the situation has arisen in which the government cannot be carried out in tandem with the provisions of the Constitution, the president may assume to himself all the government’s functions and declare that the powers of the legislature shall be exercisable, by or under the authority of the Parliament.

Article 356, although it initially permits a proclamation to remain in force for six months, allows the Parliament to extend it for a further period of six months up to a maximum of three years. If, therefore, the EC does not recommend the holding of election in October, the only alternative is for the president to relieve Modi of his responsibilities and to issue a proclamation under Article 356 of the Constitution to himself assume the functions of the government until the EC is ready to recommend the holding of the election.

In any case, isn’t Modi’s desire for an early poll not a challenge to Prime Minister Vajpayee’s authority, who had in the aftermath of Gujarat carnage publicly declared: ‘‘We will not collect votes on dead bodies’’?