Yes, CEC can postpone Gujarat polls: Seshan

Did you not set the precedent yourself when as the CEC you postponed the Jammu and Kashmir election in 1996 despite the Narasimha Rao government’s decision to conduct it with the Lok Sabha?
Well, elections have been postponed several times in Punjab, Kashmir, and the North-East.You are right, the three member EC (Gill, Krishnamurty and I) visited J&K and decided unanimously to postpone the polls there for six months after Narasimha Rao declared them in late 1995. Again I decided to postpone the second phase of the Lok Sabha polls after Rajiv Gandhi was assassinated in 1991. When the Chandra Sekhar government fell I held the view that Assam, Punjab and J&K were not fit for elections. The government disagreed yet I postponed the Punjab polls by three months and Assam by a few days. So yes, Lyngdoh can postpone elections in Gujarat until he is fully convinced that they can be held ‘‘free and fair.’’

Are there any limits to the powers of the CEC in this case?
Well, the Parliament under Section 153 of the RPA has not given the right to the EC to cancel the elections. But in the case of postponement the CEC doesn’t even have to send any notification to the government. This issue had cropped up during a by-election in UP when Kumaramangalam was the Union Law minister. In short, the EC is a Constitutional authority. It is not answerable to the government. (I don’t mean, therefore, it is irresponsible). It owes holding of free and fair elections to the country.

What about Arun Jaitley’s suggestion that we should have elections in Gujarat minus the riot -torn cities?
It is a suggestion which the CEC has to assess. Suppose the number of constituencies affected by the riots are significant enough to have a lasting impact on the outcome of the elections. (That is what the IB report seems to suggest in Gu-jarat). If the CEC so deems then the Gujarat polls can be, and must be, postponed. Second, the question of revision of electoral roles is again something that the CEC has to consider. It is the same case with ordering re-poll within a constituency. Questions such as how many polling booths affected, is that significant enough to impact the outcome of the polls within that constituency, are key in that decision by the CEC.

Isn’t the condition of ‘‘free and fair’’ rather subjective vesting the CEC with arbitrary powers contrary to the principles of democracy?
Not really. Free and fair is based on detailed constitutional criteria, such as electoral rolls, no intimidation of voters, voting and counting possible or not. Also don’t assume that it is only with regard to law and order. What about the physical impossibility in holding elections given drought, fire, earthquake, or some other natural disaster. .

Can the courts interfere in this matter?
Not if the notification for polls has been issued by the CEC. In today’s situation the courts can theoretically intervene since the elections have not been notified. But I am sure the honourable judges would argue that let the CEC decide whether they can hold polls in a free and fair manner.