Centre’s dangerous doctrine

Had they overruled Lyngdoh, the BJP would have now been all set, as Narendra Modi evidently hoped, to reap an electoral harvest vindicating Gujarat’s gaurav. But, as it happened, the EC took its decision unanimously upsetting Vaidya’s neat formulation.

One would have expected the legal eagle of the BJP, Arun Jaitley, to be more mindful of such details while responding to the EC’s order. But then he made out that the Vajpayee government had displayed ‘constitutional statesmanship’ by choosing to make a Presidential Reference seeking the Supreme Court’s opinion rather than confronting the EC by challenging its order in the court. He would have us believe that the Vajpayee Government sacrificed its party interests to preserve the institution of the Election Commission.

Again, Jaitley conveniently avoided explaining what possible grounds the government or the BJP could have cited to challenge the EC’s authority or the validity of its decision. Look at the kind of grievances the BJP leaders came up with.

If J&K can have an election now, why can’t the EC do the same in Gujarat? How can the EC say that the situation is not conducive in Gujarat for a free and fair election when the Jagannath Rath Yatra passed off peacefully and the board exams were held for school children.

How can the entire state be deprived of an election merely because of the reservations expressed by a small section of the electorate? None of these arguments detracts from the discretion duly exercised by the EC under Article 324 of the Co- nstitution, after making a first-hand assessment of the situation.

Notwithstanding Jaitley’s spin, the government did no favour to the nation by opting for the advisory jurisdiction of the Supreme Court. If anything, the reference raises questions that seem to confirm the BJP’s long-suspected designs to replace democracy with majoritarianism and the rule of law with the principle of might-is-right. The three questions referred to the Supreme Court put a premium on the need to hold elections on time, no matter what the ground situation. The reference begins by questioning the EC’s decision to subject the time-frame provided under Article 174 to its own discretion under Article 324 to judge whether the situation was conducive to hold free and fair elections.

As a corollary, the reference questions the EC’s premise that if a free and fair election is not possible within the stipulated period, the president should invoke Article 356 in the state. Displaying an astounding impudence, the government went to the extent of asking whether the EC was not bound in all circumstances by the time-frame of Article 174 by drawing the forces and resources as required from the Central government for conducting free and fair elections.

The unmistakable implication of this question is, no election can be put off on the ground that the situation was not conducive to free and fair elections. This is a dangerous doctrine because it presumes that any situation, no matter how grave, can be readied for elections.

The EC just has to draw upon all the forces and resources available with the Centre. And presto! that will satisfy in full measure the requirement of holding free and fair elections.

One redeeming feature of this wholly avoidable reference is that, for all the hype surrounding it, it can be of no use to the BJP or its government in the immediate context of Gujarat. The Supreme Court will take time to give its opinion. The quickest response it gave in recent years on a reference took over three months. The government, therefore, cannot hope to escape from its day of reckoning.

By its own admission, if the next Assembly of Gujarat does not meet by October 3, Article 174 will stand violated. And the only remedy available to it is, ironically, the one proposed by the EC: Article 356.

So, even as it seeks a clarification from the apex court on the EC’s authority to suggest Article 356, the government has no option but to impose President’s rule in Gujarat some time in the first week of October.

But the man who will have to take over in such an eventuality, Gujarat Governor S.S. Bhandari, has lately been making out of turn statements suggesting that there is no need for President’s rule in the state.

Whatever the predilections of Bhandari or the Centre, the onerous responsibility facing President A.P.J. Abdul Kalam is to show fidelity to the oath he took only recently in Parliament to uphold the Constitution.

Write to manojmittaexpressindia.com