Wednesday, Sep 18, 2002
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By Our Legal Correspondent
Appearing for the Centre, the Solicitor-General, Harish Salve, told a five-judge Bench, headed by Chief Justice B. N. Kirpal, that if, for some reasons, Article 174 could not be complied with, the Council of Ministers could continue in office for six months from the date of dissolution of the Assembly as per Article 164 (according to which any Minister could remain in office for six months without being elected).
Mr. Salve also referred to the Election Commission's stand that its order dated August 16 (that the President would then step in ... if Article 174 could not be complied with) was passed without any reference to Article 356 and it was just a passing reference.
(The Commission, in its written submissions, had made it clear that it was merely pointed out that there need be no apprehension that there would be a constitutional impasse as Article 356 could provide a solution in such a situation).
Mr. Salve told the Bench, which included Justice V. N. Khare, Justice K.G. Balakrishnan, Justice Ashok Bhan and Justice Arijit Pasayat, that the intent of the framers of the Constitution was that all the functionaries must work in harmony to implement the provisions. And non-implementation of the provisions by any of the authorities or creation of a situation in which the provisions could not be complied with, would be dangerous for democracy.
Mr. Salve also cited a hypothetical situation wherein, after the dissolution of the Lok Sabha, the caretaker Prime Minister, "in collusion with the Chief Election Commissioner, decided not to hold elections for two years."
When he said that democracy would perish if the constitutional authorities engineered an "unholy cooperation" to subvert the Constitution, the Bench said that "we are here to insulate democracy... We fully agree with the proposition. But the President would dismiss the Prime Minister.''
Mr. Salve refuted the contention that Article 174 would apply only to an existing Assembly and not to a dissolved one. Such an interpretation would introduce undue rigidity in the system. Referring to the Election Commission's order, he said the Commission had no authority to make reference to Article 356 while considering holding elections in a State. "This is not to be seen in the light of Gujarat only. If such a situation arises at the Centre, will the Commission say that it is not able to hold elections,'' he asked.
Mr. Salve also maintained that the imposition of President's rule was no answer for non-compliance with Article 174. The power to recommend President's rule was vested with the executive branch of the government and this discretion could not be controlled, much less compelled, by any other authority executive or judicial.
On the continuance of a caretaker Chief Minister, Mr. Salve said that as per convention, he could continue in office for six months after dissolution of the State Assembly but the only condition was that he should not take any major policy decision. Article 356 need not be applied, he argued.
He also submitted that the Commission, under Article 324, could not schedule the elections in a State in a manner which "would be inconsistent with the constitutional scheme of representative government itself," even if it was satisfied that free and fair elections could not be held in a prevalent situation.
Senior counsel for the Commission, K. K. Venugopal, submitted that the court should not traverse itself beyond the scope of the reference. And that certain situations and provisions referred to by Mr. Salve were not part of the reference.
Mr. Venugopal will continue with his submissions tomorrow.
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