COVER STORY

'The six-month norm is dangerous in Gujarat'

Interview with Rajeev Dhavan.

Rajeev Dhavan, Senior Advocate in the Supreme Court, is a well-known commentator on legal issues. Recently he submitted a detailed memorandum on behalf of the Safdar Hashmi Memorial Trust (Sahmat) to the Election Commission, on the interpretation of Article 174 of the Constitution, and what the E.C. is expected to do under Article 324 to ensure free and fair polls in Gujarat (Frontline, August 30). In this interview to V. Venkatesan, he explains how he perceives the E.C.'s August 16 order on Gujarat and the Centre's reference to the Supreme Court. Excerpts:

In your memorandum to the E.C. on behalf of Sahmat, you have argued that Article 174 deals only with a 'live' legislature and that its requirement that six months shall not intervene between two sessions does not control the timing of the first meeting of the succeeding legislature. The E.C., has, however, rejected this view saying that Article 174(1) applies not only to an Assembly in existence but also to elections to constitute a new Assembly on the dissolution of the previous Assembly.

S. SUBRAMANIUM

The Constitution consists of evolving practices. The E.C. has quoted from D.D. Basu's Commentary on the Constitution of India to suggest that the Governor's summons to the new Legislative Assembly to meet must be issued in such time that more than six months must not elapse between the date of the last sitting of the dissolved or expired Assembly and the date appointed for the first sitting of the newly elected Assembly. As Basu himself has pointed out in that book, Article 174(1) only "envisages" an interregnum during which the State may not have any Assembly at all and "limits" it. It is not a mandatory requirement. I treat it purely as a norm. Normally, elections should be held within six months from the date of the last sitting of the dissolved or expired Assembly. The six-month norm is good, useful and a practice that should be recognised.

The E.C. is right when it says, "read this norm along with Article 324". Article 324 is not a token provision. We are not having a token election in Gujarat. In Goa, this government accepted the practice. The proclamation imposing President's Rule in Goa in February 1999 by the BJP-led coalition government at the Centre had expressly suspended the operation of Article 174(1) in the State.

The E.C. has cited the Goa precedent to drive home the point that Article 174(1) does have application after an Assembly has been dissolved, as otherwise, the proclamation imposing President's Rule need not suspend this provision. However, the E.C. has also gently reminded the government that the Goa precedent would bind it to impose President's Rule in Gujarat now that the Assembly stands dissolved, and there is no question of constituting a new Assembly to comply with the six-month norm.

The spirit of the six-month norm is to ensure democratic accountability. If it is not feasible to hold fresh elections in time, accountability can be achieved through President's Rule. Normally, I am an opponent of President's Rule. It is not essential. We cannot have two interpretations, one for the States and another for the Centre, where there is no provision for President's Rule. Therefore, I would say we must strive for substantive compliance with this norm.

In the case of Gujarat, it will be dangerous to call the norm mandatory. If Chief Minister Narendra Modi had sought the dissolution of the Assembly in September, five months after it last sat in April, would the E.C. be under compulsion to hold the elections in September itself? By its very nature, the holding of elections requires a prior assessment of the preparation and conduct of the State machinery and the mobility of forces.

We are now dealing with imaginary fears. An extreme example is used to test a workable solution. The BJP argues that non-compliance with Article 174(1) would affect democracy. We are not dealing with that issue at all. We are only mid-term; that situation has not emerged. It was Governor Sunder Singh Bhandari and Narendra Modi who killed democracy by not calling a session of the Assembly after April, and by seeking its premature dissolution. It is, therefore, ironical that they worry about non-compliance with Article 174(1). It is contradictory. This is not to make the Constitution work.

Was the government correct in seeking the opinion of the Supreme Court under Article 143 on the issue?

This reference shows that the BJP as a political party has usurped the Government of India's function, as it sees a major political benefit if the court's decision goes in its favour. The silence of its allies is embarrassing. Secondly, it is using the advisory jurisdiction as an appeal mechanism, as the option of challenging the E.C.'s decision in a court was available to it. Thirdly, it is dragging the judiciary into a question regarding a political rather than a constitutional crisis. Such situations are better handled by discussions and negotiations. Article 143 is meant for a situation in which a constitutional paralysis has taken place or if there is a genuine question that has to be resolved for the sake of the future. Advisory opinion under Article 143 is not hamstrung by time.

If the government considers the E.C.'s order to be a serious issue, then it should be ready for a national due process commensurate with the issue. Every State should be given notice, as the court's decision on the Gujarat case could affect every State. In the Babri Masjid reference case (1994) many States appeared. The practice in cases involving a presidential reference under Article 143 was that even under tight schedule, the court heard it in a calm and unhurried manner, and issued notice to every interested party. But the motive of the government in this reference seems to be to teach the E.C. a lesson and cause it a constitutional embarrassment, so that it could use the issue to its advantage in the run-up to the elections in Gujarat.