COVER STORY

'The BJP is seeking political advantage'

Interview with Kapil Sibal.

As the principal Opposition party, the Congress(I) has taken a principled stand on the question of the Gujarat Assembly elections, and has defended the Election Commission's powers to schedule the polls after assessing the ground realities. Congress(I) member of the Rajya Sabha and Senior Advocate, Kapil Sibal, in an interview to V. Venkatesan, explains the party's stand. Excerpts:

How do you look at the Centre's move to seek the Supreme Court's opinion under Article 143 on the issue of holding elections in Gujarat?

R.V. MOORTHY

Basically, from a practical standpoint, between now and October 6, when six months after the last sitting of the State Assembly will expire, there is no way elections can be held in Gujarat to stick to the principle the BJP believes in. Therefore, making this reference will not allow the BJP somehow to use the process of law to have that principle upheld. So what is the point of making the reference?

Are there not larger issues involved than holding elections before October? The Centre claims it has referred the matter to the Supreme Court to seek clarity on Article 174(1).

What is the larger question here? The E.C., which is a constitutional authority, has itself said that Article 174(1) applies to a live Assembly as well as to a dissolved Assembly. But the E.C. says there cannot be situations in which there are no exceptions. Supposing Godhra were to take place in September, and the Assembly had not met after April 6, could there be elections before October 6? Obviously not.

There are human situations which confront society that have to be resolved. Such situations cannot be resolved within the straitjacket of a legal formula in which there is no flexibility. That is why the E.C. itself says in its order that Gujarat is a peculiar case. It feels that there can be no fair and free elections in Gujarat at this point of time. It is because of this exception that it feels Article 174 is not something that puts Article 324 in shackles. Nothing wrong in that. But it is something which the Supreme Court has to decide. It is not fair for us at this point to start talking about the legality of the order.

Does the question merit a presidential reference to the Supreme Court?

That is the wisdom of the government. This government has shown itself to be constantly unwise. Wisdom is certainly not a commodity which this government has in ample measure.

Would you consider it basically a political or a constitutional issue?

In the context of Gujarat, it is a purely political question. In any other context, it would never have arisen. The BJP has not told us till date as to why it wants early elections in Gujarat, before the expiration of the term of the Assembly. Why is it that it wanted the elections in May itself? It couldn't have the elections in May because of the presidential election. I am not saying they are duty-bound to explain. But the people cannot fathom, apart from a political motivation, any reason for holding early election. Why would a political party want early elections, before the expiry of the government's term, especially when people in power are so enamoured of the spoils of power? The answer is in the question. They want it because they want to take political advantage of it. Political advantage is there because of Godhra and the polarisation post-Godhra. That is the most cynical reason, bereft of morality.

Is President's Rule in Gujarat inevitable after October 6?

The E.C. has said nothing more than what the constitutional position is: There can be no caretaker government after six months. The BJP itself says there has to be elections within six months because the caretaker government cannot continue beyond six months.

The Constitution does not say so. It seems to be silent on how long a government can continue in office without facing the Assembly, even though one could say a Ministry cannot continue beyond six months after the dissolution of the Assembly, as in that case the Ministers would invite disqualification from holding office because of their lack of membership of the Assembly beyond the permissible period of six months.

But that is what the BJP is saying. Whether it is wrong or right is not the issue. The E.C. has not said that the BJP is wrong. A caretaker government cannot continue after October 6 because the life of the Assembly is over; so there has to be President's Rule. It cannot apply to the Centre, because there can be no President's Rule there and Article 356 does not apply to the Centre. The Congress(I) and the BJP, in the case of Uttar Pradesh, believed that Article 174(1) applied to live Assemblies and not to dissolved Assemblies. But in the light of the E.C.'s order, and the BJP's own position now, there can be little doubt that elections ought to be held to comply with Article 174(1), and if that is not possible owing to extraordinary circumstances, as in Gujarat today, then President's Rule would be the obvious remedy.

What should have happened was, when the Chief Minister went to the Governor recommending dissolution of the Assembly the Governor should have - and this should be made part of constitutional convention - asked him to call the Assembly, and said that since the life of the Assembly is being reduced, it would be appropriate to have the matter debated in the House, and then come back to him if such a resolution is passed, or if after a debate the Chief Minister came to the conclusion that he would like it to be dissolved. The Governor ought to have considered whether the Chief Minister's request seeking dissolution of the Assembly was sensible, and conducive to the interests of democracy. In other words, if any Chief Minister wants to take advantage of a situation, he should take advantage of it, provided he calls the Assembly.

In Jammu and Kashmir, Punjab and the terrorist infested northeastern States, the Congress in the past opted for elections because it wanted to show the rest of the world that you cannot take advantage of terrorism and derail the political process. In Gujarat the BJP wanted to go to the polls having derailed democracy. The E.C. has told the BJP that it cannot take advantage of the carnage and derail the political process, which, I believe, is consistent.