THE STATES

The E.C.'s options

V. VENKATESAN

IN the immediate aftermath of the dissolution of the Gujarat Assembly by Governor Sunder Singh Bhandari on the advice of Chief Minister Narendra Modi, several political parties and individuals of eminence urged the Election Commission (E.C.) to take an independent decision on Modi's recommendation to hold elections to the Assembly at the earliest. The E.C. initiated the process of decision-making on this by sending a team of officials to the State. Later, the three members of the E.C. decided to tour the State for three days from August 8.

The tepid response from Nirvachan Sadan to the Bharatiya Janata Party's demand to hold elections in the first week of October made it clear that the E.C. was in no hurry to hold them without satisfying itself about the situation on the ground. Even as the E.C. takes its own time to come to a conclusion, it cannot ignore the many representations made to it on the scope of its powers and the lack of legitimacy of the BJP's view that holding early elections in the State is a constitutional imperative.

One of the submissions to the E.C. that stands out for its clarity and level of conviction is that presented on behalf of SAHMAT by Senior Advocate in the Supreme Court, Rajeev Dhavan. Dhavan concedes that it does not directly lie within the powers of the E.C. to inquire into the political circumstances in the State. However, he makes the point that one has to consider these antecedent circumstances in order to contextualise both the crisis and the possible solution to it.

Dhavan said that although the Governor had the power to dissolve a legislature, valid reasons must exist for granting a dissolution request by the Chief Minister. Citing precedents, he suggested that holding elections and letting an outgoing Assembly continue were not mutually exclusive options. In other words, in order to hold elections, it was not essential to dissolve the legislature prematurely, as the Governor's action seemed to suggest.

Quoting from Halsbury's Laws of England (fourth edition, Vol.8, page 542), Dhavan argued that if the Sovereign (in this case, the Governor) believed that an existing legislature was still vital, viable and capable of doing its job, he or she could consider refusing a request for dissolution. In other words, a distinction must be drawn between the existence of the prerogative to refuse a request for dissolution and the question whether in any particular set of circumstances the Sovereign would regard it as in the best interests of the nation to refuse a dissolution. In the case of Gujarat, Dhavan argued, the Governor erred in not making a principled decision. The Governor should have summoned the Gujarat Assembly and, in case the Chief Minister failed to do so, recommended President's Rule.

According to Dhavan, the illegality of the Governor's action should be seen in the context of the untenability of the BJP's demand. The BJP has argued before the E.C. that in accordance with the requirements under Article 174, elections must be held by September 2002 so that the gap between the last sitting of the previous Assembly and the first sitting of the new one does not exceed six months. (The Assembly's last sitting was in April.)

More significant, Dhavan pointed out that in the Draft Constitution of 1948, Article 153(2) - which corresponds to the present Article 174 (2) relating to dissolution of a Legislative Assembly - said, "Subject to the provisions of this Article, the Governor may from time to time (a) summon the House or either House to meet at such time and place as he thinks fit; (b) prorogue the House or Houses; (c) dissolve the Legislative Assembly." While Article 153(1) corresponds to the present Article 174(1), there is a key change in the adaptation of 153(2) in 174(2). Article 174(2) avoided the expression "subject to the provisions of this Article" used in the Draft Article 153(2), thereby clearly indicating that the requirement that a gap of more than six months should not exist between the sittings of the two sessions of the House no longer governed the Governor's power to dissolve it. Equally important, Article 174 does not bind the E.C. to holding the elections in time so that the new House meets within six months of the last sitting of the previous Assembly.

The real limitation on the E.C., according to Dhavan, is that it must complete the election process within five years of an Assembly holding its first sitting. Where a premature and unwarranted dissolution takes place, the election must be held as soon as possible but within six months of the dissolution. This is a pointer to what might be reasonable, Dhavan has pointed out, and consistent with the concept of a free and fair election. Quoting from the Supreme Court's observations in cases involving the E.C.'s powers under Article 324, Dhavan has concluded that the E.C. has the power and the duty to examine the situation and consider whether the conditions warrant the deferment of an election.