Much of the discussion around having a session of the Goa Assembly before February 26, is actually academic. And the different views and counter views going back and forth, are missing some fundamental points which will be visible if you step back from the din.
We had the last Assembly session on August 26, which means ideally we should have one session before February 26. Ideally yes. But we do not live in an ideal world but a practical one. Moreover, adopting a practical approach to the issue, after examining that it doesn’t contravene the constitution, makes more sense. And surprising as it may sound, the do nothing solution in this case, is perfectly within the Constitution.
The position is this. As and when an Assembly is prematurely dissolved, the Election Commission has to fix its calendar for holding fresh election within the time mandated under. When the Assembly is running its normal course too, it is vital to note that the EC “has to fix its calendar for holding fresh election” within the time mandated under Article 174(1), which is six months. Now the last Assembly session sitting was held on August 26, 2016. The Election Commission fixed its calendar for holding fresh election vide a press conference and notification on January 4, 2017, well within the time frame of six months. This itself concludes the debate. Further the election process has commenced and the most vital aspect of the process, polling has been completed
Now let us, purely for academic interest look at the following case. Interestingly there was instance in Gujarat where the Election Commission by its order dated 16th August, 2002 was of the view that it was not in a position to conduct elections before 3rd of October, 2002 which was the last date of expiry of six months from last sitting of the dissolved Legislative Assembly. The last sitting of the Legislative Assembly of the State of Gujarat was held on 3rd April, 2002.
To get advice on this situation, a Presidential reference was made to the Supreme Court with the following questions
(i) 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?
(ii) 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?
(iii) 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 elections?”
There questions were important.
After the receipt of the reference, notices were issued to all the States and all the recognised national political parties. On behalf of the Union of India, Solicitor General Shri Harish N. Salve appeared and raised the following contentions. It was contended on behalf of the Union of India that Article 174 is applicable even to dissolved assemblies and since there is no time limit at all for conducting fresh election, it would hypothetically lead to a situation of Council of Ministers continuing perennially after the dissolution of Assembly, which, in turn, would lead to a breakdown of the constitutional democracy. It was argued that there is no question of Article 174 or Article 85 or Article 85 or Article 164 coming in conflict with Article 324 and these provisions operate in different fields and the power of superintendence, direction and control of elections vested with the Election Commission should be exercised in the manner which would be consistent with the constitutional scheme of representative government. It is submitted that the Election Commission must use all the requisite resources of Union and the State to ensure free and fair election. It was further argued that the power under Article 356 is utterly irrelevant for ascertaining the constitutional mandate for holding elections and this power is highly discretionary and is to be exercised where there is a breakdown of the constitutional machinery (This para is a direct excerpt from cases where this reference has been quoted).
The conclusion was: The executive government has no legal authority to compel the holding of elections – not even Parliament can, by resolution, legally compel the Election Commission to fix a particular schedule for the elections. By the same token, the Election Commission cannot recommend – or even proceed upon the premise of – imposition of President’s Rule, which would require executive action ratified by Parliament.
This reasoning pretty much covers the broad spirits of the questions raised in the Presidential reference.
What is important here that EVEN IN THE CASE of elections not been called within the 6 months of the last session, the recourse to President’s rule cannot be taken.
Goa’s case is an open and shut one and goes beyond this debate since the election schedule was duly fixed well within the time frame.
