An independent judiciary is expected to exercise great caution while delivering judgments which may directly impact the functioning of other independent constitutional bodies, like the Election Commission (EC). Gujarat Chief Minister Narendra Modi, who has a scant regard for constitutional niceties, had threatened to go before the Gujarat High Court against the EC “ordering transfer of eight Gujarat police and civil officers” including the director-general of police, on October 15. Modi later decided not to challenge the EC’s transfer orders because the issue could be politically exploited by his opponents.

The issue is important: an independent judiciary and the EC are both constitutional bodies with well-defined areas of activities and jurisdiction. Should the EC be subject to judicial scrutiny in the performance of its constitutional obligation of conducting elections in the country? The party in power tries to ‘rig’ the elections by deputing its political favourities as officials handling election duties.

The EC announced December 11 and 16, 2007, as dates for the Gujarat assembly elections and a fortnight before the Model Code came into force, the Gujarat government had transferred 41 police officers. There is no need to pretend that these transfers were provoked by the need to have a better administration.

What gives the issue a whole new significance is an authoritative judgment pronounced by the Supreme Court on September 20, 2007, which had stated that “there can be no hard and fast rule that every transfer at the instance of an MP or MLA would be vitiated”. It went on to say that “after all, it is the duty of representative of the people to speak on the grievances of his people” and “if there is any complaint against an official, the state government is certainly within its jurisdiction to transfer such an employee”.

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