A Conscience Vote

In the past half decade, as the administrative capability of the State has atrophied, the Supreme Court has stepped in more and more frequently to ensure that laws intended to safeguard people's rights are implemented promptly by the executive. But on Monday, August 26, the court will face an altogether different type of test. On the surface, it will be asked to resolve a conflict between two interpretations of the Constitution. In reality, its decision will determine the future unity and viability of the Indian nation. The conflict is between interpretations being given by the government and the Election Commission to Articles 174 and 324 of the Constitution. Article 174 makes it mandatory for the gap between two sittings of Parliament or a state assembly not to exceed six months. Article 324 empowers the EC to make the arrangements for an election. The conflict has arisen because after two visits to Gujarat, the EC concluded unanimously that peace and the rule of law had not been restored in the state; that far too many people are still missing or living in other parts of it, and therefore that the electoral rolls were out of date. So, elections could be held only when the bulk of them returned to their homes or after fresh electoral rolls had been drawn up. This ruled out an election before October 6.

The commission readily conceded that Article 174 was a mandatory provision of the Constitution. But it argued that the provision applied to sitting assemblies. It lapsed once the assembly has been dissolved. The commission also argued that under Article 324 it alone was empowered to decide whether conditions existed in which a free and fair election could be held. Thus Article 174 could not be read in isolation and had to 'yield' to Article 324 which provided for supervision, control and conduct of polls by the EC.

In contrast, the BJP insists that Article 174 is a statutory requirement, so the EC has no option but to make arrangements for an election within the six months prescribed in it. The question of its making an assessment of the law and order situation independently of the state government does not arise because law and order is a state subject. If the state government feels that elections are possible, the only task left to the EC is to make the necessary arrangements.

The Supreme Court will no doubt address the issue with its customary seriousness and wisdom. But it needs to remember that behind the conflict between two clauses of the Constitution lies a conflict over the raison d'etre of the Constitution itself. The purpose of the Indian, as of any other written constitution, is to protect democracy by giving it a container not easy to reshape or break. But the irreducible requirement of democracy is absolutely free and fair elections. Only when people have unquestioning faith in the fairness of the electoral system will they abandon the bullet as a means of changing policy in favour of the ballot. This is what gives primacy to Article 324 and vindicates the EC's stand that Article 174 cannot be read in isolation. For in contrast to Article 174 which seeks to safeguard the rights of the people's elected representatives, Article 324 seeks to safeguard the rights of the people themselves. It is the people and not their elected representatives who are the source of both power and legitimacy in the Indian Constitution.

In the case of Gujarat, the burden on the Supreme Court is made all the more onerous by the widespread belief that the Modi government and the BJP is bent upon riding back to power in the state on the wave of the Hindu communal hatred unleashed by the Godhra massacre. A spate of byelections in December last year had shown that after 10 years in power, the BJP was on its way out in Gujarat.Modi would not have been human had he not been tempted by the opportunity Godhra offered. What is tragic and extremely frightening is the readiness with which the national BJP (with a few honourable exceptions, including Vajpayee) has taken the bait.

Thus Modi did very little to prevent the riots and did next to nothing to minimise the killing and looting that followed. Instead from March itself, he and his supporters in the national BJP have spared no effort to obtain an early election. Their opportunity finally came when a weakening Vajpayee appointed L.K. Advani as deputy prime minister on July 1. Just 18 days later, Modi dissolved the Gujarat assembly and tried to force an election on the state six months ahead of schedule. In this, he had Advani's full backing.

The prospect this has opened up before the country is frightening. If the apex court ruling goes against the EC and elections are held in which the BJP wins, the entire party will conclude overnight that attempting to woo the moderate centre in Indian politics was a mistake and only rabid Hindutva will bring it to power. The nine states in which elections are scheduled at the end of next year will then see a repeat of the communal sensitisation that Gujarat inadvertently saw after February 27. Minority baiting, riots and murder will once again become the order of the day. Even if the BJP loses in most of these states, the hatred it will have sown among the Muslims could easily pass the point of no return. Lashkar and Jaish cells would multiply throughout the country. The resulting breakdown of law and order will destroy first the remnants of Indian democracy and then the state itself. India will become first an international pariah and then a failed state.

The apex court cannot and must not tailor its decision to achieve a desired political end. But it must ask itself whether it can ignore the radically altered political context of the President's reference to it. This is the first time a state government has directly attacked the secularism enshrined in our Directive Principles. It must therefore ask itself whether it too does not have a duty to break new ground to guard the Constitution against this unforeseen threat.