Thursday, September 19, 2002, Chandigarh, India

National Capital Region--Delhi


M A I N   N E W S

Return presidential reference, pleads EC
Favours invoking Art 356 in Gujarat
Tribune News Service and UNI

New Delhi, September 18
The Election Commission urged the Supreme Court today to return the presidential reference under Article 143 without giving its opinion on the questions raised as they were “hypothetical” to the facts of law.

Resuming his arguments before the five-judge Constitution Bench headed by Chief Justice B.N. Kirpal, counsel for the Election Commission K.K. Venugopal argued that interpretation of Article 174 (1) of the Constitution did not form part of the presidential reference.

He contended that this was so as the President had proceeded on the assumption that the provision would apply not only to the existing one, but also to the dissolved Assembly.

Mr Venugopal, thus, made out a case for invoking Article 356 of the Constitution for imposing President’s rule in Gujarat after October 3 as the state Assembly was dissolved in the first week of April. Further, he said, Article 174 could not be complied with without holding the elections and reconstituting a new Assembly before October 3.

He maintained that the Election Commission was of the firm view that Assembly elections in Gujarat could only be held in November or December after the revision of the electoral rolls as a large number of errors had arisen because of migration of a vast chunk of the population in the wake of the recent communal riots.

Mr Venugopal cited relevant precedence and urged the Supreme Court not to examine the question that did not form part of the presidential reference.

He said the court, while giving its advisory opinion, should not traverse on hypothetical and speculative premises. Moreover, advisory opinion was not binding and the court, therefore, should refrain from answering the reference, he added.

When the Bench asked whether it could presume that the assumption of the President on Article 174 was correct, Mr Venugopal replied in the affirmative.

To another pointed question from the Bench whether the Election Commission could for some reason or the other, postpone elections to the assembly indefinitely, Mr Venugopal said the Election Commission was expected to hold free and fair elections, which was a basic feature of the Constitution.

In the present case of Gujarat, Mr Venugopal said elections had not been postponed indefinitely. The elections had to be delayed because a situation arose in which free and fair elections could not be held because of the defective electoral rolls due to large-scale migration on account of the riots in Gujarat.

He explained that the Election Commission required time to update the electoral rolls. He told the court that the revision would be completed by October 15 and the assembly elections in Gujarat could be conducted in November and December this year.

Additional Solicitor General Kirit Rawal, appearing for the state of Gujarat, submitted that the Election Commission ought to have first assessed the ground situation whether free and fair elections could be held. If it had found any deficiency, either in the electoral rolls or in the law and order situation, it should have asked the Centre and the state to take remedial measures and hold the elections within the stipulated time, he added.

For some deficiency in the limited area, the democratic process should not be set at nought for the entire state, he emphasised.

Mr Rawal faulted the Election Commission for proceeding on an assumption that it could compel or create a situation for the imposition of President’s rule in the state.

Former Law Minister Arun Jaitley, appearing for the Bharatiya Janata Party, maintained that the power under Article 324 could not override the legislative mandate under Article 174 to hold elections within the timeframe. The Election Commission must take all possible steps to hold elections and not to withhold elections, he said.

Meanwhile, the Supreme Court today criticised certain sections of the media for ‘’misreporting’’ the proceedings in the ongoing presidential reference on the Gujarat elections. The Chief Justice, heading a five-Judge Constitution Bench, said: ‘’We read all kinds of reports which are factually incorrect.’’

He was responding to statements made by Solicitor General Harish Salve that at least one national daily had reported that he had suggested holding of Gujarat elections in 2003, which he never did.

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