The Election Commission has maintained all through that it was required by law to hold the Bihar election within six months of the dissolution of the Assembly. The law it cites is the Supreme Court’s verdict in the 2002 Gujarat case. So when it announced its schedule early this month for the Bihar election, the SC advanced the hearing of the Bihar case by a week. And then it marked out specific dates from September 20 to 29 for oral submissions by the two sides. Thus, the case, which has been dragging on for over three months, sprang to life. Despite the rescheduled court dates, the hearing in the SC will still clash with the four-phase poll schedule in Bihar. On September 23, the EC is due to issue the notification that will kick off a 25-day process for the first phase of polling. The corresponding notification for the second phase will follow on September 28. Thus, by the time the SC concludes its hearing on September 29, the EC would have set in motion the process for two of the four phases of polling. This means that, even as the SC is hearing arguments for and against the dissolution of the Bihar Assembly, the first stage of the election process for the next House would be underway in more than half of the constituencies in the state. To be precise, candidates will be filing their nominations in the 130 constituencies that will go to polls in the first two phases. Never before did the EC have to issue a notification without quite being sure that it would legally be in a position to take the process to its logical conclusion, namely, to hold the poll and declare the result. The Constitution, after all, bars the courts from interfering with the election process; election petitions are entertained only after the results are declared. The whole point of insulating elections from being called in question real-time is to impart a certainty to the whole process. Indeed, the sanctity of the EC’s notification is based on its certainty: Once a notification is issued, the successive stages of the election process are supposed to roll like a ‘‘juggernaut’’ (as the SC said in its landmark Mohinder Singh Gill case almost three decades ago). Even otherwise, certainty of the process is obviously an essential ingredient of a free and fair election. This is really the first occasion that the SC has had to exercise the sweeping powers conferred on it by the Bommai verdict to undo any misuse of Article 356. On September 8, while advancing the final hearing of the case by a week, the SC disposed of two interim applications. Taking a cue from the S.R. Bommai verdict of 1994, both applications had sought a stay on the EC restraining it from issuing any election notification till the main petitions challenging the dissolution of the Assembly were decided. By not allowing those applications, the SC sent out three important signals. One, ending all speculation over interim orders, the SC signalled that it had no intention whatsoever to stop the EC from going ahead with its plan of initiating the election process on September 23. Two, by stipulating that the hearing of the case will have to conclude by this month-end, the SC is indicating that the judgment may be expected any day before the first phase of polling is due to be conducted on October 18. Three, if it allows the petitions, the SC will, in keeping with the powers conferred on it by the Bommai verdict, restore the dissolved Assembly. Implicit in all this is the possibility that the EC, despite acting in a bona fide manner, may have to roll back its juggernaut. If the SC does deliver its judgment before the first poll and if that verdict does restore the dissolved Assembly, then the election process that is underway will inevitably have to be abandoned. Much as our founding fathers did not envisage such a situation, the embargo on judicial interference spelt out by Article 329 of the Constitution will have to yield to the implications of the fresh election being held even after the restoration of the dissolved Assembly.
