The Centre today hurled itself into a collision course with the Election Commission by referring to the Supreme Court through the President the Commission’s rejection of early assembly elections in Gujarat. But instead of directly challenging the EC, it said the reference was being made under Article 143 of the Constitution as the EC’s decision had thrown up important constitutional issues. Govt showed constitutional statesmanship, says Jaitley • Arun Jaitley, BJP general secy and spokesman: The Government has shown political and constitutional statemanship. It has attempted to avoid a deadlock which the EC’s decision could create • Nilotpal Basu, CPI (M): The EC’s stand on Gujarat and Jammu and Kashmir has, in fact, increased its credibility as an independent constitutional body • G M Banatwalla, IUML president: EC’s assessment depicted the reality of the situation. President’s Rule should be imposed and Advani should quit for giving the administration a clean chit • Pramod Mahajan, Union Parliamentary Affairs Minister: When two constitutional authorities differ on any crucial issue, the only course open is to refer the matter to the Supreme Court for its opinion • Narendra Modi, Gujarat CM: The Centre’s decision was needed to pull the country out of the constitutional crisis it finds itself in ‘‘Though it is in the Gujarat context but there are important constitutional questions in it,’’ Information and Broadcasting Minister Sushma Swaraj said after the Cabinet meeting. ‘‘If the EC thinks that elections can’t be held and President’s Rule be imposed, this will have far-reaching consequences,’’ she added. Swaraj said that exact wording of the reference was being framed and would be sent to the President tomorrow. This course of action taken by the Centre will have serious implications for the Jammu and Kashmir elections too. CEC J M Lyngdoh is the face of ‘free and fair’ polls that India is showing to the world. And the Government is now willy-nilly proclaiming that it doesn’t trust his judgement. Though the hour-long Cabinet meeting was attended by the Solicitor General, Harish Salve, and the Additional Solicitor General, Mukul Rohtagi, the decision was in line with the Government’s intent to get the Court’s opinion on the possibility of a constitutional crisis arising from the EC’s recommendation. Under Article 143, if at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court on it, he may refer the question to the Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion. The President may, notwithstanding anything in the proviso to Article 131, refer a dispute of the kind mentioned in the said proviso to the apex court for opinion and the court shall, after hearing as it things fit, report to the President its opinion thereon. Swaraj said there were two issues involved: Whether Article 174 was mandatory and whether on the EC’s recommendation President’s Rule can be imposed, making Parliament’s ratification — said to be must in the Bommai case — redundant. On Friday, the EC had rejected the BJP’s request for early polls, saying the situation in Gujarat was far from normal and that a suitable schedule for polls would be considered in November-December when the voters lists are revised and relief work improves. Arguing its case, the EC order pointed out that Article 174, which has been quoted extensively by the BJP while seeking early polls, cannot be read in isolation. Article 174 states ‘‘the Governor shall, from time to time, summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.’’ The BJP has been contending that the last session of the dissolved Gujarat Assembly was prorogued on April 6 and the first session of the new Assembly should be held before October 6. So, the election in Gujarat should be held before that date. The EC had argued in its order that the question is ‘‘.whether the Commission is obliged, whatever may be the circumstance, to hold the general election within the period remaining out of the six months from the date of the last sitting of the dissolved Assembly.’’ ‘‘The Commission does not accept this view,’’ the EC order categorically stated. ‘‘Article 174 (1) of the Constitution cannot be read in isolation and it has to be read along with.Article 324 of the Constitution,’’ the order added. Article 324 gives the EC the sole authority in superintendence, direction, control and conduct of elections to Parliament and state legislatures. The EC order concluded, ‘‘Elections, in the context of democratic institutions, mean free and fair elections and not merely a ritual to be gone through periodically.’’ ‘‘Article 174 must yield to Article 324 in the interest of genuine democracy and purity of elections,’’ it added. By referring to various orders, including Election Commission versus State of Haryana, the order also argued that the timing of elections can be decided only by the EC. Constitutional experts feel the Government would probably refer to the Supreme Court the issue whether the EC can overrule a state government’s decision on when to hold elections. On whether the Centre has chosen a path of collision with the EC, constitutional expert and senior advocate Rajiv Dhawan said, ‘‘The Government is simply telling the EC that they don’t agree with it. The Centre has not agreed to President’s Rule in Gujarat even earlier. And the President can always refer the matter back to the Cabinet, asking them for details.’’ However, another prominent constitutional expert, P.N.Lekhi, feels, ‘‘The Grund Norm or Kelsen’s theory, which says that necessity of time validates every action, cannot be applied in the Indian context. For instance, it is debatable to say that Article 174 cannot be applied in the present situation. The EC can only decide the manner in which elections can be held, not when elections should be held.’’
