Taking Gujarat out of reference

The Election Commission threw a spanner in the works by pleading that the Supreme Court should return the Gujarat reference unanswered. It s...

The Election Commission threw a spanner in the works by pleading that the Supreme Court should return the Gujarat reference unanswered. It seems to detract from the solemnity with which five Lordships, including Chief Justice B.N. Kirpal, have been hearing the reference with the avowed intention of settling or clarifying important questions of law. Kirpal said that the questions raised in the reference were necessary to be answered because so many elections are held every year. He said this at least once in every hearing of the reference. But, with due regard to his wisdom and erudition, and regardless of the Election Commission’s reservations, it must be said that the significance Kirpal and his brother judges are reading into the questions posed by the Centre is rather misplaced.

Elections are, of course, being held frequently but then this is the first time ever in the 52 years of the Indian Republic that any government has made an issue of the Election Commission’s discretion to hold elections at a time of its choice. There is no basis to suggest that the reference deals with some recurring problem faced by the nation. What is in issue is a problem peculiar to post-Godhra Gujarat and created by the pin-up boy of Hindutva, Narendra Modi. The Centre took recourse to the reference only because the Election Commission scotched the BJP’s plans to reap an electoral harvest from the graveyards in Gujarat. In its reference, the Vajpayee government, to be sure, gives no inkling of the BJP’s grotesque twist to politics. Employing all the drafting skills available to it, the Centre couched its politically motivated questions in high-sounding constitutional terms. But it is surely not unreasonable to expect the Supreme Court to take the background of the reference into account and see through those contrived questions.

The only way the judges could have dealt with the reference without playing into the BJP’s hands was by ensuring that the proceedings never lost sight of the Gujarat happenings. Instead, Kirpal ruled at the outset that the proceedings on the reference will have nothing to do with Gujarat. He gave three reasons for this. Since the reference did not raise any questions of fact, the court presumes that the Centre has accepted all the factual findings in the Election Commission’s order of August 16, putting off Gujarat polls. The second reason the court gave for keeping out Gujarat is the fact that there was anyway too little time for the next Assembly to be elected and convened by the constitutional deadline of October 6. Lastly, the court endorsed the Election Commission’s proposal to hold the deferred poll by this year-end. None of these reasons, however, warrants the court’s failure to take cognisance of the sordid sequence of events that led to the reference.

Story continues below this ad

The genesis of the reference lies in the resolution passed in the first week of April by the BJP national executive meeting in Goa, calling for a snap poll in Gujarat. The resolution came when the killings which began in the aftermath of Godhra were still going on in Gujarat. It is a travesty that such pertinent details are not being considered to examine the questions of law raised in the same context. Worse, in a departure from their pro-active style of functioning, the judges have failed to take note of the verbal blitzkrieg on Muslims made by Modi in the course of his Gaurav Yatra, even while the court is seized of the reference. People bigger than Modi have been ticked off by the Supreme Court for lesser lapses. Modi could get away with his terror tactics because the court is evidently wary of getting sucked into any discussion on Gujarat.

There is something surreal about the proceedings going on in Court No 1 of the Supreme Court

On account of this squeamishness about Gujarat, there is something surreal about the proceedings going on in Court No 1 of the Supreme Court. Indeed, to an outsider, it would seem like a grand exercise in pretence: That everybody is pretending — or made to pretend — that the reference is all about law and not politics. The G-word does crop up now and then but that is despite the exhortation of the judges to look beyond Gujarat. The judges even appealed to the lawyers representing various state governments and political parties to rise above political considerations and address the questions purely on the constitutional plane. In keeping with this restraint, Solicitor General Harish Salve argues in purely abstract terms lest he betrays the Centre’s immediate concern over Gujarat: to ensure that Modi remains the caretaker chief minister when the election is held. The judges say they are only concerned about fixing a time limit on the extent to which the Election Commission can put off an election to ensure that it is free and fair. The long-term benefit of resolving such an issue is self-evident. But the consciously academic approach adopted by the court has deprived the nation of an opportunity of using this reference as a catharsis for the Gujarat trauma. As a result, although Gujarat is the sole cause of the reference, it has been reduced to a sub-text.

Email the author