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Does a governor have absolute powers of dissolution and appointment? : real issues in Gujarat
By Syed Shahabuddin

The Governor has dissolved the Gujarat Assembly, on the advice of Chief Minister Narendra Modi, over 6 months before the expiry of its term, on 19 July, 2002. Immediately thereafter Chief Minister Modi submitted his resignation. It was accepted by the Governor and he was asked to carry on till alternative arrangement was made. The alternative arrangement envisaged was an early election by 3 October within 6 months of the last meeting of the last session of the dissolved Assembly, before the 'Modi wave ' subsided.

Both the Governor and the Chief Minister had taken it for granted that the Election Commission shall immediately announce the election schedule. In the event, after 2 unprecedented surveys of the ground reality in Gujarat, first by a team of the Commission officials and then by the Chief Election Commissioner himself accompanied by both his colleagues, the Election Commission decided that primarily the condition was not conducive for holding a free and fair election; that the first task was to revise the electoral rolls and that should be completed by 15 October and then the Election Commission shall announce the election schedule. The Election Commission also stated that given the formalities it may not be possible to hold Assembly elections before November or December. This led to an outburst by the BJP, an indecorous assault on the sanctity of a constitutional institution.

Subsequently the Central Government deemed it fit to refer the matter to the Supreme Court for its Opinion under Article 143 of the Constitution whether under Article 174(1), the Election Commission is bound to hold the elections so that the newly elected Assembly may be constituted and hold its first sitting before 6 October, 2002, before the expiry of 6 months from the date of the first sitting of the last Session of the Gujarat Assembly on 3 April, 2002.

Incidentally, the BJP has now taken a stand on Article 174(2) of the Constitution diametrically opposite to the view it earlier placed before the Supreme Court in the case of UP that the six-month period was to apply only to the gap between two consecutive sessions of the same Assembly. On the other hand, the Election Commission has always firmly stood by the right, responsibility and prerogative vested in it under Article 324 for the conduct of election. So the battle lines have been drawn: Article 324 vs Article 174(1). To me it appears that the core of the problem that has arisen and led to a constitutional impasse between the Union Executive and the ECE revolves around the premature dissolution of the Assembly. The Gujarat Assembly had held the last sitting on its last session on 3 April and has not met since then, not even to discuss the horrifying happenings which had repeatedly brought the Parliament to a standstill. The Governor had failed in his duty to advise the Chief Minister to convene it, when approached with the request of dissolution. Chief Minister Modi, by all accounts, continued to enjoy an overwhelming majority in the Assembly.

There was no question of a vote of no-confidence against his Government or the government being defeated on any major question of policy. There was no dissidence in the BJP. No split was on the horizon. So why should the Chief Minister have sought dissolution? Obviously to put his political plan into operation, to take advantage of the communal polarization that the genocidal carnage in Gujarat had created which may be kept up with occasional refuelling by the vested interests, before rethinking begins and good sense prevails, before its economic and social implications are felt by the common people. Article 174 (2) no doubt empowers the Governor to dissolve the Assembly. By implication, the Article empowers the Chief Minister to seek dissolution. But can an Assembly be dissolved arbitrarily, capriciously, whimsically, at the absolute discretion of a Chief Minister? Normally a legislature should run its course. Dissolution may be sought when the government loses a vote of confidence or its majority is threatened by split or defection. To put it in legal terms, is the power to seek dissolution as well as the power to grant dissolution absolute or, like the exercise of any constitutional power or prerogative by any constitutional authority, is it subject to an objective test or to some circumstantial conditions and limitations?

Quite apart from the financial burden of a premature election, an absolute power of dissolution opens the way for a politically ambitious and morally unscrupulous Chief Minister to seek re-election when he feels that he has reached the peak of popularity and further continuance in power may be counter-productive, and thus enlarge his term of office, endlessly. One cannot deny the possibility that the dissolution may be invoked after a private understanding between the Chief Minister and the Governor, and the high command of the Party, if both of them belong to the same party or if the Union and the State are both under the rule of one party. The Supreme Court, should, therefore, go into the question whether the constitutional prerogative may be exercised by the constitutional authorities concerned arbitrarily and capriciously, even though the advice given by the CM to the Governor or vice versa is not justiciable and lay down an objective test for the grant of dissolution under Article 174(2). The Supreme Court would no doubt lay down once for all that Article 174(1) refers to the gap between 2 sessions of a living assembly and not between the last session of a dissolved assembly and the inaugural session of the new Assembly.

On 2 September 2002, the Supreme Court has effectively permitted the postponement of the election to a suitable date after 6 October. Till then Chief Minister Modi shall continue to head a Caretaker Government. But can he continue in this capacity beyond 6 October, 2002 till 6 months after the dissolution i.e. till 19 January, 2003 or till the post-election Government is formed?

Assuming that the Supreme Court formally rules before 6 October, 2002 that the six month gap is to be counted from the last date of the last session of the dissolved Assembly, there is prima facie no option for the Union Government but to impose the President's rule. However, it is also open to the Governor to act, in collusion with the Union Government and the acting Chief Minister to take advantage of Article 164(4) of the Constitution, seek and accept his resignation and again reappoint him as Chief Minister for a maximum period of 6 months and administer him a fresh oath of office. This would be based on the presumption that the Constitution permits no vacuum and the head of the State is competent to swear in anyone, literally anyone picked from the street, as the Chief Minister for a period of 6 months under Article 164(4). Didn't President Zail Singh appoint the late Rajiv Gandhi as Prime Minister without waiting for his formal election by the Congress Parliamentary Party as its Leader and without receiving a letter from him claiming the support of the majority in the Lok Sabha? There have been other instances of appointment as head of government of persons who were not members of the legislature and Article 164(4) being stretched to cover it. But in the case of Gujarat that will be a highly controversial decision. There shall be an uproar. There is no Assembly so that there is no question of anyone claiming the support of the majority. It is a case of constitutional break down and Article 356 should be invoked. Article 164(4) should normally apply to the inclusion of a non-member as a member of an existing Council of Ministers, if the Prime Minister or the Chief Minister, as head of the Government considers such inclusion in public interest, to be ratified retrospectively by his election to the house. Should it apply to fill a constitutional vacuum when there is no Assembly and elections are in the offing but the provision in Article 174(2) stands exhausted? One sees the need of a clear ruling by the Supreme Court on this point in the light of the real intention of the Constituent Assembly while debating this article.

Ever since the genocidal carnage began, there has been persistent demand from all quarters, with the exception of the Sangh Parivar, for the dismissal of his government and the promulgation of the President's Rule in the State. Indeed the recent communalization of the social environment demands a spell of President's rule long enough to nurse Gujarat back to social health before Assembly elections are held so that democracy survives pressures of majoritarianism and all voters may exercise their right to vote in an atmosphere free from fear and intimidation. 
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