The Election Vaudeville - (Indolink.Com, 26/08/2002)

-- By Dasu Krishnamoorty

The Supreme Court needed a four-day breather today (Monday) to express its opinion on the President Abdul Kalam´s reference relating to the Election Commission´s directive on Gujarat elections. A five-judge bench sent notices to all the six national parties and to all the State governments. What is at issue are not just constitutional niceties but also power egos. History does not indicate that the judiciary always went by the letter of the law. National sentiment plays a role the judiciary is shy to admit.

The media have whipped up a frenzy of hysteria and hatred making the task of the judiciary difficult. They have already delivered their judgement in the case, knowing very well that judges like all others read newspapers and react to what they read like anyone else. The media approach to the controversy was in terms of black and white; everything that the government does is wrong and everything its adversary does is necessarily right. To elevate this prejudice to a high-sounding philosophy, the clergy of secular religion resorted to lies and propaganda characteristic of the Goebbels era.

All that appeared in the press suggests that the government is challenging the authority of the Election Commission to postpone the polls in Gujarat. This is not true and the editors know it.

The three questions on which President APJ Abdul Kalam sought the opinion of the Supreme Court were

	Is Article 174 subject to the decision of the Election Commission of India under Article 324 as to the schedule of elections of the Assembly?
	Can the Election Commission of India frame a schedule for the elections to an Assembly on the premise that any infraction of the mandate of Article 174 would be remedied by a resort to Article 356 by the President?
	Is the Election Commission of India under a duty to carry out the mandate of Article 174 of the Constitution, by drawing upon all the requisite resources of the Union and the State to ensure free and fair election?

There is no doubt that the Commission had overstepped its authority in recommending Central rule. In hindsight one can assert that the Commission visited Gujarat with a view to marshal evidence to prepare the rationale to put off the election. There is no dispute about the right of the Commission to suggest a postponement. There are, however, doubts about the unanimity of the decision. Two members are reported to have different views and refrained from expressing them in the interests of the Commission´s image. That leaves Lyngdoh alone as the author of the report.

Even as the Prime Minister Atal Behari Vajpayee stayed away from the controversy, Dy. Prime Minister L.K. Advani boldly declared that "the Election Commission´s job is to hold elections and take the co-operation of the executive for it." The task of asking the President to impose Central rule is the prerogative of the Governor. An Election Commission misappropriating that right is the height of constitutional bizarre. Some experts have argued that the Commission did not suggest Central rule.

Here is the sentence from the CEC report:" The non observance of the provisions of Article 174(1) (that a fresh assembly sitting be convened no later than six months after the preceding one) would mean that the government of the State cannot be carried on in accordance with the provisions of the Constitution … and then the President would step in." Advani said he was surprised that the EC should have written the above paragraph at all. If this was not true, why should a pressman ask the Prime Minster if in his opinion the EC had overstepped its mandate?

Agreed that conditions in the State are not conducive for a free and fair election. Is that the last word? K.P.S. Gill who stayed in Gujarat for far longer time than the Commission says that the situation in the State is absolutely normal. And if situation is the criterion, is it normal in Jammu and Kashmir? What about the massacres there on alternate days? More voters are in hiding in J&K than in Gujarat. Yet the Commission has given the go-ahead for the J&K poll. The Commission has every right to recommend what it had recommended but consistency demands that it apply the same norm to all States.

The media accommodated an excessive load of constitutional verbiage to show their concern for the sanctity of the Constitution. This shows a baseless suspicion that the President, the darling of the media, will helplessly look on as the BJP vandals ravage the Constitution. On the side of the press there are great Constitutional luminaries like Kapil Sibal who can anytime move the Supreme Court to prevent constitutional improprieties. Apart from that, is the government bound to accept every finding of a commission?

The refrain is Lyngdoh can do no wrong. Before he became CEC, Lyngdoh was one of the faceless IAS crowd. Suddenly he becomes a hero because he had embarrassed the government, because he was decent enough to call high-ranking IAS and IPS officers as jokers. Seshan did it earlier. Anybody who wants a few inches of media space and minutes of fame does it knowing the weakness of the press for such Don Quixotes.

It would have made more sense if the media had said that Narendra Modi had dissolved the state assembly to put the Election Commission between the devil and the deep sea. The devil is the compulsion of holding the election amidst tension and fear. The deep sea is bypassing the mandate of Article 174. Modi´s calculation is to cash in on the favourable voter sentiment.

There is no constitutional impropriety in Lyngdoh recommending a postponement of the election. Why should he ask for a President´s rule and suggest that the guilty should be punished? On several occasions in the past, the Supreme Court suo moto directed State and Central governments to release undertrials, to take 15-year-old vehicles off the roads etc. It can do the same thing now. What happened to all the great constitutional authorities that are silent on the Election Commission´s exuberance?

I will again say that the Commission is right in recommending a postponement. The government is right in contesting that conclusion. The issue is which of the two Articles (174 (1) and 324) has primacy over the other. The Supreme Court is seized of the matter and it has greater resources of law and precedent to come to a conclusion than editorial mavericks.

Hatred and fear deprive even intelligent people of their sanity. The hysteria one witnessed in the media about the Lyngdoh vs Modi issue raises doubts about the future of the press in the country, whether it can ever regain its sanity and impartiality, at present clouded by religious fervor.