People's Democracy

THE constitutional mandate given to the election commission under Article 324 of the Constitution is to hold free and fair elections to the legislative bodies. And, in the Commission’s considered view, if a free and fair election cannot be held to a legislative body at a given point of time because of the extraordinary circumstances then prevailing, Article 174 of the Constitution must yield to Article 324 in the interest of genuine democracy and purity of elections. Further, in the Commission’s considered view, such interpretation of the provisions of Articles 174(1) and 324 would not create a situation which is not contemplated or envisaged under the Constitution and which cannot be met thereunder. The non-observance of the provisions of Article 174(1) in the aforesaid eventuality would mean that the Government of the State cannot be carried on in accordance with the provisions of the Constitution within the meaning of Article 356 (1) of the Constitution and the President would then step in.

There cannot be two opinions that under the Constitution, it is the election commission, and this Commission alone, which is empowered to decide as to when an election, that is, a free and fair election, can be held. Any doubt on this aspect will stand dispelled by the following observation of the Constitution Bench of the Supreme Court in the case of Election Commission v State of Haryana (AIR 1984 SC 1406): ‘The Government of Haryana is undoubtedly in the best position to assess the situation of law and order in areas within its jurisdiction and under its control. But the ultimate decision as to whether it is possible and expedient to hold the elections at any given point of time must rest with the election commission.

Even the Constitution itself expressly recognises the power of the election commission to decide whether an election is possible or not at a given point of time. Under Article 356(5)(b) of the Constitution, President’s Rule in a State can be extended by Parliament, after a period of one year from the date of its imposition, only if the election commission gives a certificate that the holding of a general election to its Legislative Assembly in the State is not possible. By the very creation of the election commission as an independent Constitutional authority, the founding fathers of the Constitution cast a sacred duty on the Commission to hold free and fair elections.

Parliament has also expressly provided that it is the election commission which is to decide about the timing of a general election in a State. Section 15 of the Representation of the People Act 1951 stipulates that the Governor of the State shall call upon the Assembly Constituencies in the State to elect a new Assembly on such date or dates as may be recommended by the election commission

On the receipt of the report of the team, the full Commission decided to make a visit of some of the affected areas to see the ground situation for itself and to have first-hand information about the facts reported by the team. Thereupon, the full Commission, consisting the chief election commissioner and both the election commissioners, visited Ahmedabad and Vadodara from August 9 to 11, 2002. It had extensive interaction with the State Government machinery right from the Chief Secretary and Director General of Police and downwards, with retired Chief Justices of different High Courts, with political parties, with organisations manning relief camps, with inmates of 14 relief camps and other affected families and with NGOs and other social and cultural organisations. On such on-the-spot examination and study of the situation, the full Commission found that the situation was indeed bad as reported by the team and that the conditions in the State were not conducive at all for holding any free and fair election for the present.

The two sets of information given by the State Government on the extent of affected areas are mutually contradictory. If only 12 districts were affected as claimed in one report on law and order presented by the State Government, it is not understood why or with what intention the scheme of distribution of free rations has been extended to 20 districts. Out of the 20 such affected districts, the Commission’s team covered 12 districts during their visit and observed that all had been substantially affected by the outbreak of communal violence. The remaining 8 districts out of 20 could not be covered due to paucity of time, but the Commission’s team was furnished with a statement showing the names of towns, cities and villages affected by riots and these cover even more than 20 districts. In any case, it is the government’s own admission that 20 districts are "affected areas" which merit relief. Whether this has been done with the intention to genuinely benefit the affected persons who suffered on account of communal violence in all or parts of 20 out of 25 districts in the State, in which case the claim of the riots being localised and confined to 12 districts is apparently incorrect, or to cover non-affected areas is unclear. What is amply clear is that the scheme of relief supplies to BPL families has been extended upto October 2002 when possibly the elections were expected to be held

Significantly, Additional Director General of Police, Shri R B Sreekumar, stated before the Commission that 151 towns and 993 villages, covering 154 out of 182 Assembly Constituencies in the State, and 284 Police Stations out of 464 Police Stations were affected by the riots. This evidently falsifies the claims of the other authorities that the riots were localised only in certain pockets of the State

Inspections have revealed that a substantial majority of electors who had to perforce leave their houses, and in many cases, flee from their villages to save themselves from the arson and carnage in the wake of the Godhra incident on February 27, 2002, have not yet returned to their houses or villages. In most of the cases, their houses stand totally demolished or burnt, and in many others, their houses have been so badly damaged that the same have been rendered totally unfit to live in. Their return to their houses is prevented primarily on two counts. Firstly, slow progress of reconstruction/repair of their demolished/burnt/ damaged houses because of inadequate/no compensation paid to them by the state govt., and secondly, a fear psychosis still pervading the minds of the displaced persons, particularly, those belonging to the minority community. Thus, the electoral rolls as revised towards the end of the last year and in the early part of this year do not reflect, and do not show fidelity to, the actual situation obtaining on the ground.

Commission is obviously not in a position to persuade itself to agree with the latter part of the above statement of the state government that the inmates of the camps have mostly returned to their houses, as it contradicts the ground situation as observed by the Commission itself while visiting some of the affected areas..

Having regard to this ground situation, the electoral rolls in the State of Gujarat particularly in those districts which were disturbed by the riots, cannot be said to be as reasonably accurate and up-to-date as desirable for a free and fair election, as these contain the names of a large number of electors who are either dead or are not ordinarily resident at the address at which they have been registered in the electoral rolls; nor the names of these displaced persons included at the addresses at which they are presently resident ordinarily. It is pertinent to point out again that in terms of the State Government’s circular No.PDS/10/2002/1470/A, dated April 30, 2002 read with GR No. RHL-232002/513/(13)/S-4 dated May 6, 2002, 20 out of the 25 districts in the State have been classified as districts disturbed/affected by riots and the State Government is distributing, upto October 2002, free rations to the disturbed families below the poverty line (BPL) in those affected districts. The number of such BPL families identified by the State Government authorities for such relief in these 20 districts is as high as 27.12 lakhs.

The State Government has also provided information of the deployment of police and paramilitary forces on July 12, 2002 in Ahmedabad during Rath Yatra to support the case for normalcy prevailing in the State. It has been reported that 14,812 police personnel of various ranks (including 87 companies of paramilitary forces and armed-police) were deployed during the Rath Yatra this year whereas, 18,059 personnel (including 41 companies of SRP) were deployed during the Rath Yatra last year. The government concluded that, "deployment of forces last year which was a normal year from the law and order point of view is far higher than the deployment this year." Two points are to be noted in this regard. The first is that in the current year Central Para Military Forces (CPMF) has been extensively used unlike last year when only the State Police was deployed. The second, and more important, the route of the Rath Yatra this year was only one third of its normal length of nearly 14 kilometers. The claims of the State Government do not reveal the true situation on the ground where fear, anxiety and apprehension amongst the affected persons continue to exist.

The Commission’s team had the following observations to make regarding the overall law and order situation in the State: - (i) Though the situation on the surface seems to be normal with trade, business and general activities continuing without any apparent hindrance, there is, however, an under current of fear and tension prevailing in the State particularly amongst the minority community. At almost all the places visited by the team people were scared to return to their place of residence on account of the fear psychosis. There is still strong apprehension in their minds about their safety and security in view of the carnage on such an extensive scale spreading across both urban and rural areas of the State. In Godhra district for instance, one family was motivated in July, 2002 to return to their original village under police protection and they were found murdered on the following day (17.07.2002).

There is a general lack of confidence in the State Armed Police (SRP), which is seen by many victims as abettors and perpetrators of violence that took place post-Godhra in Gujarat.

The CRPF, RAF and BSF are seen to be neutral forces and everywhere there was a demand for replacing the SRP with CPMF. In places where CPMF has been replaced after the Rath Yatra of July 12, demands were made particularly by persons in the affected areas to bring them back.

A large number of IPS officers who did commendable work in preventing the spread of violence were soon replaced. A common complaint received was that these officers were punished for their impartiality. Before the Commission, the Chief Secretary and Director General of Police painted a similar picture of normalcy in Gujarat. But the Additional Director General of Police (Intelligence), Shri R B Sreekumar, whose views were supported by the new Commissioner of Police, Ahmedabad, Shri K R Kaushik, stated before the Commission that an undercurrent of tension and fear was prevailing beneath the apparent normalcy in the State. He further added that there was no interaction between the two communities even though moderates were trying their level best, as there were hawks in both the groups. He added that additional forces would be required to ensure that there were no communal clashes. And the State Government have on the Commission’s queries subsequently been avoiding giving a clear picture on the number and identity of persons complained against, similar details of persons included in the FIRs, similar details of persons who have been arrested, similar details of persons named in the FIRs who have been released on bail, similar details of persons enlarged on bail as against whom appeals have been filed for cancellation of their bail bonds

The Commission is thus of the considered view that the law and order situation in the State is still far from normal. The wounds of the communal divide following the riots have not yet healed. The slow progress in relief and rehabilitation work on the one hand and non-arrest and non-punishment of the guilty on the other have hampered the process of normalcy returning to the State, the victims carrying the fear and anxiety of another backlash. Similar feelings are shared by persons from the majority community as well living in minority-dominated areas. The people have lost confidence in the local police force, the civil administration and political executive. Someone who met the Commission, in fact, said how could the situation mend when there was not even regret for what had happened. In this environment, election campaigns evoking passions will threaten a violent backlash. So confidence-building measures have to be taken up in earnestness and with urgency. Foremost among these would be to arrest and punish the guilty for their crimes, irrespective of their status and rank and to reinstate all officers who acted with courage to stem the riots, in their original posts. CPMF have to be inducted in large numbers for deployment in affected areas. Steps should be taken to rebuild peoples’ confidence in the state police and administration. Most of all, the people of the State need the balm of generous and humane governance. All these confidence building measures are essential for creating an atmosphere conducive to the holding of free and fair elections as then alone would the electors be in a position to go to the polling stations to cast their votes without fear in their minds.

The claims of the state government about the normalcy having being restored in the State on the ground that panchayat elections were held for 1677 panchayats in April is not borne by the evidence in respect of the postponed elections to municipalities in the State. In fact, it has been ascertained from the State election commissioner, Gujarat, that it was he, on account of his having notified these panchayats for elections, who compelled the state government to hold the said elections. But, obviously, the people who had been affected in the riots had moved out and did not vote in those elections. There were also cases of uncontested elections ("Samras" panchayats) for which the State Government have a scheme of giving Rs 60,000/- to the panchayat as incentive if there is no contest. And, according to the information furnished by the state election commissioner, Gujarat, there was no contest in as many as 620 panchayats out of the aforesaid 1677 panchayats. Therefore, it is difficult to understand how a co-relation can be established between holding of panchayat elections and restoration of normalcy.

The scale of relief sanctioned for damage to houses varies from place to place with the maximum limit of Rs. 50,000/- for a destroyed house. Estimates are based on an assessment made by the Revenue and PWD officials. Instances were brought to the notice of the Commission and its team where the relief sanctioned for a completely destroyed house was as little as Rs. 200. While it was not possible for the Commission and its team to assess the actual value of the damaged houses and co-relate to the quantum of relief sanctioned, there was an invariable reluctance on the part of inmates of these camps to return to their original places of habitation on account of meagre amounts received for compensation. The amount sanctioned is just not adequate to construct a reasonable dwelling unit. Which of the two — meagre amount received or fear of reprisal — is the main cause of the reluctance to return is a subject of debate but the point to be emphasised is the general apathy of the administration in handling this most sensitive issue of restoration of the places of habitation of the affected persons

For those cases in the riot-affected areas where people had not moved to officially-recognized camps, the process of receiving compensation for damaged houses and destruction of property has not received the focused attention of the Government. While the quantum of relief being distributed has left many unsatisfied and even disgusted, the assessment itself has not been carried out in most places as the concentration of the Government seems to be only on those persons who migrated to officially recognised camps and not on those who chose to move to safer places with relatives and friends.

…………..

For loans and advances to the riot victims to help them to resume their livelihood, the general impression has been that the DICs have been extremely tardy in processing cases. As a result, the banks are not coming forward to give loans. Bare statistics furnished by the State Government would bear this out. Of a total of 4204 cases recommended, there are only 1469 cases of sanction and only 627 cases of disbursement of loan has taken place.

After a careful examination and analysis of the situation obtaining presently in the State of Gujarat, the full Commission has unanimously come to the considered view that it is presently not in a position to conduct a free and fair election in the State. The electoral rolls in the State have become substantially defective in view of the large-scale displacement of electors in the wake of the communal riots and violence in the months of February, March, April 2002 etc. and their failure to return to their places of ordinary residence where they have been registered as electors. Also, the law and order situation cannot be said to have become normal as fear in the minds of large sections of the electorate, particularly of the minority community, is still a palpable reality and the riot-victims would be extremely wary of going to the polling stations to cast their votes fearing risk to their life and property. Many others would obviously be physically prevented from going to the polling stations. A situation has thus to be created which would be conducive to the holding of free, fair and peaceful polling in the State…..

We do sincerely hope that having regard to the above principles that the period between now and the announcement of the elections will be best used to create such conditions so as to preserve the multiethnic, multireligious and multilingual nature of the polity in the larger interest of democracy and humanity and not used for promoting political acrimony.

In the full Commission’s view, the law and order situation in the State is still far from normal. The wounds of the communal divide following the riots have not yet healed. The slow progress in relief and rehabilitation work on the one hand and non-arrest and non-punishment of the guilty and the fear of a communal backlash on the other have hampered the process of restoration of normalcy to the State. Similar feelings are shared by persons from the majority community living in minority-dominated areas. The people have lost confidence in the local police, civil administration and political executive. In this environment, election campaigns evoking passions will only shatter the fragile peace unless adequate confidence-building measures are taken up in earnestness and with urgency. Foremost among these would be to arrest and punish the guilty, irrespective of their status and rank, for their crimes. Also, all physical obstructions and barriers erected to deny access of the riot-affected people to their destroyed homes, some of those noticed by the Commission itself, must be removed forthwith and never allowed to be re-erected in future. The CPMF have to be inducted in large numbers for deployment in affected areas and permanent pickets need to be set up in the affected areas of the State to build confidence. The induction of CPMF and opening of permanent pickets can be started immediately. Finally, steps should be taken to rebuild peoples’ confidence in the State police, political leadership and civil administration, especially in the highest echelons. Exemplary action in arresting and punishing the guilty and restoring to their original postings the officers who performed their duties fearlessly and forthrightly to contain the riots would go a long way in restoring the confidence in the law and order apparatus of the State.

After completion of this exercise to correct the electoral rolls and bringing them as up-to-date as possible and creation of conditions conducive for free and fair elections in the State, the Commission will consider framing a suitable schedule for the general election to the State Assembly in November-December 2002.