Gujarat: Day of surprises in SC

The Congress party’s counsel, Kapil Sibal, came out in support of the EC’s plea to return the reference unanswered even as he rebutted the very basis of the EC’s decision to postpone the Gujarat election: Article 174.

Sibal said categorically that Article 174, which stipulates that there can’t be a gap of more than six months between two sessions of a House, had ‘‘nothing to do with elections, much less so with when they should be held.’’ Contrary to the EC’s opinion, the Congress party said that the six-month rule of Article 174 applied only to a prorogued House and not to a dissolved Assembly. Sibal asserted that no Constitutional or legal provision imposed any time limit on the extent to which an election can be postponed in any extraordinary situation. On the basis of mere ‘‘practice,’’ the EC, he said, always held elections within six months of the dissolution of the House. This raised eyebrows in the court as the implication of Sibal’s stand is that the Congress party was agreeable to the Gujarat election being put off till January 19, when it would be six months since the dissolution of the House. The BJP’s counsel, former law minister Arun Jaitley, disagreed with the Centre’s contention that under Article 164 of the Constitution the Commission could hold the Gujarat election any time within six months from the dissolution of the Assembly on July 19.

In Jaitley’s opinion, Article 164 does not apply at all to a state once the Assembly is dissolved. The BJP based its whole case for an early election on Article 174. In other words, the BJP stuck by its earlier stand that the next Assembly of Gujarat should have been elected and convened by the first week of October. As for the EC’s discretionary powers under Article 324 to ensure free and fair elections, Jaitley sought to reverse the EC’s observation that ‘‘Article 174 must yield to Article 324 in the interest of genuine democracy and purity of elections.’’ Jaitley’s own formulation is: ‘‘It is the duty of the Election Commission under Article 324 to act in aid of Article 174.’’

Jaitley also took pains to clarify that the imminent breach of Article 174 in Gujarat next month did not mean that President’s Rule should be imposed there. He argued that ‘‘each and every infraction of Constitutional provisions does not make a case for Article 356’’ and therefore the existing caretaker government can continue till whenever the election is held.