Wednesday, August 21, 2002, Chandigarh, India

National Capital Region--Delhi


M A I N   N E W S

SC gets presidential reference on Gujarat
B.N. Kripal to decide Bench
Tribune News Service

New Delhi, August 20
The Supreme Court today received the three-point presidential reference seeking its opinion on the legality of the Election Commissionís recommendation of imposition of Presidentís rule in Gujarat as the Assembly poll could not be held within the stipulated timeframe.

The three questions raised in the three-page reference, signed by President A P J Abdul Kalam broadly said:

(i) Whether Article 174 (1) of the Constitution, providing that not more than six months should elapse between two sittings of contiguous sessions of the Assembly, is mandatory;

(ii) Whether the position of Article 174 (1) can yield to Article 324, which authorises the EC to supervise and conduct elections;

(iii) Whether the ECís suggestions or situation created due to its order could be a valid ground for the imposition of Presidentís rule under Article 356 of the Constitution.

Solicitor-General Harish Salve is likely to approach the apex court in a day or two for an early hearing of the reference made under Article 143 of the Constitution.

Article 143 envisages that ďif at any time it appears to the President that a question of law or fact has arisen or is likely to arise, which is of such a nature and such public importance that it is expedient to obtain the opinion of the apex court on it, he may refer the question to the court for consideration and it may after such a hearing, as it thinks fit, report to the President its opinion thereon.Ē

Registrar (Judicial) R.C. Gandhi said the court received the presidential reference and steps were being taken to place it before the Chief Justice B.N. Kripal, who will decide the Bench to look into the matter. Both Mr Justice Kripal and Registrar General L.C. Bhadoo were out of town leading to a flurry of activities in the court registry.

The government feels that as the last sitting of the Gujarat Assembly was in April, the next sitting had to be held by October 6 as per the mandate of Article 174.

The main objection of the Central Government to the Election Commissionís August 16 order, which ruled out early poll in Gujarat, centered around the observations made by the commission in paragraph 11.

Paragraph 11 said, ďThe non-observance of the provisions of Article 174(1) in the aforesaid eventuality would mean that the Government of the State cannot be carried on in accordance with the provisions of the Constitution within the meaning of Article 356(1) of the Constitution and the President would then step in.Ē

The government is understood to have taken a strong exception to the commissionís interpretation that Article 174 would yield to Article 324.

The Cabinet felt that instead of adopting a confrontationist posture a dignified procedure be adopted to clear the legal doubts by going for the presidential reference to the Supreme Court.

The EC also said if it concluded that elections were not possible due to any reason, Presidentís rule should be imposed under Article 324 of the Constitution. The government has sought the opinion of the court on this view also. For the imposition of Article 356, there should be constitutional breakdown in the state.

The question also arises whether or not the ECís inability to hold elections can be the ground for the imposition of the Presidentís rule. And, if Article 356 was imposed on the basis of the ECís recommendation, ratification by Parliament would only become a formality, which would not be in consonance with the guidelines laid down by the Supreme Court in the S.R. Bommai case. If Parliament does not ratify it, there will be another constitutional crisis.

The government had, on Sunday, decided to seek through a presidential reference the Supreme Courtís views on the issue as it felt that the ECís order had raised ďconstitutional questions of far-reaching consequence.Ē 

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