PETITIONER:
BRUNDABAN NAYAK
Vs.
RESPONDENT:
ELECTION COMMISSION OF INDIA AND ANOTHER.
DATE OF JUDGMENT:
12/02/1965
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
HIDAYATULLAH, M.
DAYAL, RAGHUBAR
SIKRI, S.M.
RAMASWAMI, V.
CITATION:
1965 AIR 1892 1965 SCR (3) 53
CITATOR INFO :
RF 1966 SC 356 (7)
R 1971 SC1630 (5)
ACT:
Constitution of India, Art. 192(1) and (2)--Who can
raise question as to disqualification of sitting member-
Whether question has to be raised on floor of the Assembly
and referred to the Governor by Speaker--Enquiry to be held
by Governor or Election Commission?
HEADNOTE:
The appellant was elected to the Orissa Legislative
Assembly in 1961. In 1964 respondent No. 2 made a complaint
to the Governor alleging that the appellant had incurred a
disqualification subsequent to his election as contemplated
in Art. 191(1)(e) of the Constitution read with s. 7 of the
Representation of the People Act (Act 43 of 1951). The
Chief Secretary Orissa forwarded the said complaint ,to
respondent No. 1, the Election Commission of India, under
the instructions of the Governor, requesting it to make
enquiry into the complaint and give its opinion. Accordingly
respondent No. 1 served notice on the appellant and called
upon him to submit his reply. The appellant challenged the
jurisdiction of respondent No. 1 to conduct the enquiry and
filed a writ petition in the High Court. On its being
dismissed he appealed to this Court by special leave.
It was contended on behalf of the appellant that no
question under Art. 192(1) had arisen in the case as a
question relating to the disqualification of a member under
Art. 191(1)(e) could not be raised by an ordinary citizen.
It was urged that considering the context of Art. 192 and
the provisions of Art. 199 the question could only be raised
on the floor of the House and thereafter referred to the
Governor by the Speaker of the Assembly. It was further
contended that only the Governor who had to give the
decision could hold the enquiry, and the Election Commission
was only to give its opinion on the materials forwarded to
it by the Governor.
HELD: (i) The argument t that no question had arisen
under Art. 192(1) could not be accepted. What Art 192(1)
requires is that a question should arise; how it arises, by
whom it is raised, in what circumstances it is raised are
not relevant for the purpose of the application of this
clause. [59 H]
The words in Art. 192(1) that "the question shall be
referred for the decision of the Governor" merely emphasise
that any question of the type contemplated in the said
clause shall be decided by the Governor and Governor alone;
no other authority, including the courts, can decide it. Ii
the intention was that the question must b.e raised
first in the legislative Assembly and after a prima facie
examination by the Speaker it should be referred by him to
the Governor, Art. 192(1) would have been worded in an
entirely different manner. [59 B-C]
The object of Art 192 is that no member who has incurred
a disqualification under Art. 191(1) should b.e allowed to
continue as a member.The Constitution itself in Art 190(3)
provides for the vacation of the seat of such a member.
Further it is in the interests of the member's constituency
that no longer being entitled to the status of a member. he
should be removed. In view
54
of these considerationS a citizen is certainly entitled to
make a complaint to the Governor about the disqualification
incurred by a member under Art. 191(1). [59. E-G]
(ii) The enquiry for the purpose of the decision under
Art. 192 has to be held by the Election Commission and not
by the Governor. When the Governor pronounces his decision
under Art. 192(1) he is not required to consult his Council
of Ministers; he has merely to forward 'the question to the
Election Commission for its opinion, and as soon as the
opinion is received, "he shall act according to such
opinion". It is the opinion of the Election Commission which
is in substance decisive, and it is legitimate that the
Commission should proceed to try the complaint before it
gives its opinion. [60 D-H]
[Legislation to vest Election Commission with powers of
a Commission under the Commissions of Enquiry Act, 1952,
recommended.] [62 B]
JUDGMENT:
CIVIL, APPELLATE JURISDICTION: Civil Appeal No. 50 of
1965.
Appeal by special leave from the order dated January 6,
1965 of the Circuit Bench of the Punjab High Court at Delhi
in Civil Writ No. 8-D of 1965.
M.C. Setalvad, Ravinder Narain, J.B. Dadachanji and O.C.
Mathur, for the appellant.
C.K. Daphtary, Attorney-General, S.V. Gupte,
Solicitor General, B.R.L. lyengar and R.H. Dhebar, for the
respondent No. 1.
Santosh Chatterjee B. B. Ratho and M.L. Chhibber, for
respondent No. 2.
The Judgment of the Court was .delivered by
Gajendragadkar, C.J. The principal question which this
appeal by special leave raises for our decision relates to
the construction of Article 192 of the Constitution. The
said question arises in this way. The appellant Brundaban
Nayak was elected to the Legislative Assembly of Orissa from
the Hinjili 23 Constituency in Ganjam district in 1961, and
was appointed one of the Ministers of the Council of
Ministers in the said State. On August 18, 1964, respondent
No. 2, P. Biswal, applied to the Governor of Orissa alleging
that the appellant had incurred a disqualification
subsequent to his election under Art. 191(1)(e) of the
Constitution read with section 7 of the Representation of
the People Act, 1951 (No. 43 of 1951) (hereinafter called
the Act). In his application, respondent No. 2 made several
allegations in support of his contention that the appellant
had become disqualified to be a member of the Orissa
Legislative Assembly. On September 10, 1964, the Chief
Secretary to the Government of Orissa forwarded the ,said
complaint to respondent No. 1, the Election Commission of
India, under the instructions of the Governor. In this
communication, the Chief Secretary stated that a question
had arisen under Article 191(1) of the Constitution whether
the member in
55
question had been subject to the disqualification alleged by
respondent No. 2 and so, he requested respondent No. 1 in
the name of the Governor to make such enquiries as it thinks
fit and give its opinion for communication tO the Governor
to enable him to give a decision on the question raised.
On November 17, 1964, respondent No. 1 served a notice
on the appellant forwarding to him a copy of the letter
received by it from respondent No. 2 dated the 4th November,
1964. The notice intimated to the appellant that respondent
No. 1 proposed to enquire in the matter before giving its
opinion on the Governor’s reference, and, therefore, called
upon him to submit on or before the 5th December, 1964, his
reply with supporting affidavits and documents, if any. The
appellant was also told that the parties would be heard in
person or through authorised counsel at 10-30 A.M. on the
8th December, 1964. in the office of respondent No. 1 in New
Delhi.
On December 1, 1964, the appellant sent a telegram to
respondent No. 1 requesting it to adjourn the hearing of the
matter. On the same day, he also addressed a registered
letter to respondent No. 1 making the same request.
Respondent No. 2 objected to the request made by the
appellant for adjourning the hearing of the complaint. On
December 8, 1964. respondent No. 1 took up this matter for
consideration. Respondent No. 2 appeared by his counsel Mr.
Chatterjee, but the appellant was absent. Respondent No. 1
took the view that an enquiry of the nature contemplated by
Art. 192(2) must be conducted as expedtiously as
possible, and so, it was necessary that whatever his other
commitments may be, the appellant should arrange to submit
at least his statement in reply to the allegations made by
respondent No. 2, even if he required some more time for
filing affidavits and/or documents in support of his
statement. Even so, respondent No. 1 gave the appellant time
until the 2nd January, 1965, 10-30 A.M. when it ordered that
the matter would be heard.
On January 2, 1965, the appellant appeared by his
counsel Mr. Patnaik and respondent No. 2 by his counsel Mr.
Chatterjee. On this occasion, Mr. Patnaik raised the
question about the maintainability of the proceedings before
respondent No. 1 and its competence to hold the enquiry. Mr.
Chatterjee repelled Mr. Patnaik’s contention. Respondent No.
1 over-ruled Mr. Patnaik’s contention and recorded its
conclusion that it was competent to hold the enquiry under
Art. 192(2). Mr. Patnaik then asked for adjournment and made
it clear that he was making the motion for adjournment
without submitting to the jurisdiction of respondent No. 1.
In view of the attitude adopted by Mr. Patnaik, respondent
No. 1 took the view that it would be pointless to adjourn
the proceedings. and so, it heard Mr. Chatterjee in support
of the case of respondent No. 2. After hearing Mr.
Chatterjee. respondent No. 1 reserved its orders on the
enquiry and noted that its
56
opinion would be communicated to the Governor as early as
possible.
When matters had reached this stage before respondent
No. 1, the appellant moved the Punjab High Court under Art.
226 of the Constitution praying that the enquiry which
respondent No. 1 was holding, should be quashed on the
ground that it was incompetent and without jurisdiction.
This writ petition was summarily dismissed by the said High
Court on January 6, 1965. Thereafter, the appellant applied
to this Court for special leave on January 8, 1965, and
special leave was granted to him on January 14, 1965. The
appellant then moved this Court for stay of further
proceedings before respondent No. 1, and the said prayer was
granted. When special leave was granted to the appellant,
this Court had made an order that the preparation of the
record and the filing of statements of the case should be
dispensed with and the appeal should be heard on the paper-
book filed along with the special leave petition and must be
placed for hearing within three weeks. That is how the
matter has come before us for final disposal.
Since the Punjab High Court had dismissed the writ
petition filed by the appellant in limine, neither of the
two respondents had an opportunity to file their replies to
the allegation made by the appellant in his writ petition.
That is why both respondent No. 1 and respondent No. 2
have filed counter-affidavits in the present appeal setting
out all the relevant facts on which they wish to rely. The
appellant has filed an affidavit-in-reply. All these
documents have been taken on the record at the time of the
hearing of this appeal. It appears from the affidavit filed
by Mr. Prakash Narain. Secretary to respondent No. 1, that
when notice issued by respondent No. 1 on the 17th November,
1964, was served on the appellant, through oversight the
original complaint flied by respondent No. 2 before the
Governor of Orissa and the reference made by the Governor to
respondent No. 1 were not forwarded to the appellant. At the
hearing before us, it is not disputed by the appellant that
a complaint was in fact made by respondent No. 2 before the
Governor of Orissa and that the Governor had then referred
the matter to respondent No. 1 for its opinion.
Let us then refer to Article 192 which fails to be construed
in the present appeal. Before reading this articl, it is
relevant to refer to Art. 191. Article 191(1) provides that
a person shall be disqualified for being chosen as, and for
being, a member of the Legislative Assembly or Legislative
Council of a State if,
57
to the Governor. As we have already indicated, respondent
No. 2’s case is that the appellant has incurred the
disqualification under Art. 191(1)(e) read with s. 7(d) of
the Act, and this disqualification has been incurred by him
subsequent to his election. It is well-settled that the
disqualification to which Art. 191(1) refers, must be
incurred subsequent to the election of the member. This
conclusion follows from the provisions of Art. 190(3)(a).
This Article refers to the vacation of seats by members duly
elected. Sub-Article (3)(a) provides that if a member of a
House of the Legislature of a State becomes subject to any
of the disqualifications mentioned in clause (1) of Art.
191, his seat shall thereupon become vacant. Incidentally,
we may add that corresponding provisions with regard to the
disqualification of members of both Houses of Parliament are
prescribed by Articles 101,102 and 103 of the Constitution.
It has been held by this Court in Election Commission, India
v. Saka Venkata Subba Rao and Union of
lndia–Intervener/that Articles 190(3) and 192(1) are
applicable only to disqualifications to which a member
becomes subject after being elected as such. There is no
doubt that the allegations made by respondent No. 2 in his
complaint before the Governor, prima facie, indicate that
the disqualification on which respondent No. 2 relies has
arisen subsequent to the election of the appellant in 1961.
Reverting then to Art. 192, the question which we have to
decide in the present appeal is whether respondent No. 1
is entitled to hold an enquiry before giving its opinion
to the Governor as required by Art. 192(2). Let us read
Art. 192:–
“(1) If any question arises as to
whether a member of a House of the Legislature
of a State has become subject to any of the
disqualifications mentioned in clause (1) of
Article 191, the question shall be referred
for the decision of the Governor and his
decision shall be final.
(2) Before giving any decision on any
such question. the Governor shall obtain the
opinion of the Election Commission and shall
act according to such opinion”.
Mr. Setalvad for the appellant contends that in the present
case. no question can be said to have arisen as to whether
the appellant has become subject to any of the
disqualifications mentioned in clause (1) of Art. 191,
because his case is that such a question can be raised only
on the floor of the Legislative Assembly and can be raised
by members of the Assembly and not by an ordinary citizen or
voter in the form of a complaint to the Governor. Mr.
Setalvad did not dispute the fact that this contention has
not been taken by the appellant either in his writ petition
before the High Court or even in his application for special
leave before this Court. In fact, the case sought to be made
out by the appellant in the present proceedings appears to
be that though a question may have arisen about
(1)[1953]S.C.R.1144.
58
his disqualification, it is the Governor alone who can hold
the enquiry and not respondent No. 1. Even so, we have
allowed Mr. Setalvad to raise this point, because it is
purely a question of law depending upon the construction of
Art. 192(1).
In support of his argument, Mr. Setalvad refers to the
fact that Art. 192 occurs in Chapter III of Part VI which
deals with the State Legislature, and he invited our
attention to the fact that under Art. 199(3) which deals
with a question as to whether a Bill introduced in the
Legislature of a State which has a Legislative Council is a
Money Bill or not, the decision of the Speaker of
the Legislative Assembly of such State thereon shall be
final. He urges that just as the question contemplated by
Art. 199(3) can be raised only on the floor of the House, so
can the question about a subsequent disqualification of a
member of a Legislative Assembly be raised on the floor of
the House and nowhere else. He concedes that whereas the
question contemplated by Art. 199(3) has to be decided by
the Speaker and his decision is final, the authority to
decide the question under Art. 192(1) is not vested in the
Speaker. but is vested in the Governor. In other words, the
context in which Art. 192(1) occurs is pressed into service
by Mr. Setalvad in support of his argument.
Mr. Setalvad also relies on the fact that Art. 192(1)
provides that if any question arises, it shall be referred
for the, decision of the Governor and this clause, says Mr.
Setalvad, suggests that there should be some referring
authority which makes a reference of the question to the
Governor for his decision. According to him, this referring
authority, by necessary implication, is the Speaker of the
Legislative Assembly. There is another argument which he has
advanced before us in support of this construction. Article
192(2) requires that whenever a question is referred to the
Governor, he shall obtain the opinion of the Election
Commission and Mr. Setalvad suggests that it could not have
been the intention of the Constitution to require the
Governor to refer to the Election Commission every question
which is raised about an alleged disqualification of a
member of a Legislative Assembly even though such a question
may be patently frivolous or unsustainable.
We are not impressed by these arguments. It is
significant that the first clause of Art. 192(1) does not
permit of any limitations such as Mr. Setalvad suggests.
What the said clause requires is that a question should
arise; how it arises, by whom it is raised, in what
circumstances it is raised, are not relevant for the purpose
of the application of this clause. All that is relevant is
that a question of the type mentioned by the clause should
arise; and so, the limitation which Mr. Setalvad seeks to
introduce in the construction of the’ first part of Art.
192(I) is plainly inconsistent with the words used in the
said clause.
59
Then as to the argument based on the words “the question
shall be referred for the decision of the Governor”, these
words do not import the assumption that any other authority
has to receive the complaint and after a prima facie and
initial investigation about the complaint, send it on or
refer it to the Governor for his decision. These words
merely emphasise that any question of the type contemplated
by clause (1) of Art. 192 shall be decided by the Governor
and Governor alone; no other authority can decide it, nor
can the decision of the said question as such fall within
the jurisdiction of the Courts. That is the significance of
the words “shall be referred for the decision of the
Governor”. If the intention was that the question must be
raised first in the Legislative Assembly and after a prima
facie examination by the Speaker it should be referred by
him to the Governor, Art. 192(1) would have been worded in
an entirely different manner. We do not think there is any
justification for reading such serious limitations in Art.
192(1) merely by implication.
It is true that Art. 192(2) requires that whenever a
question arises as to the subsequent
disqualification of a member of the Legislative Assembly, it
has to be forwarded by the Governor to the Election
Commission for its opinion. It is conceivable that in some
cases, complaints made to the Governor may be frivolous or
fantastic; but if they are of such a character, the Election
Commission will find no difficulty in expressing its opinion
that they should be rejected straightaway. The object of
Art. 192 is plain. No person who has incurred any of the
disqualifications specified by Art. 191(1), is entitled to
continue to be a member of the Legislative Assembly of a
State, and since the obligation to vacate his seat as a
result of his subsequent disqualification has been imposed
by the Constitution itself by Art. 190(3)(a), there should
be no difficulty in holding that any citizen is entitled to
make a complaint to the Governor alleging that any member of
the Legislative Assembly has incurred one of the
disqualifications mentioned in Art. l 91 (1) and should,
therefore, vacate his seat. The whole object of democratic
elections is to constitute legislative chambers composed of
members who are entitled to that status, and if any member
forfeits that status by reason of a subsequent
disqualification, it is in the interests of the constituency
which such a member represents that the matter should be
brought to the notice of the Governor and decided by him in
accordance with the provisions of Art. 192(2). Therefore,
we must reject Mr. Setalvad’s argument that a question has
not arisen in the present proceedings as required by Art.
192(1).
The next point which Mr. Setalvad has raised is that
even if a question is held to have arisen under Art. 192(1),
it is for the Governor to hold the enquiry and not for the
Election Commission. He contends that Art. 192(1) requires
the question to be referred to the Governor for his decision
and provides that his decision shall be final. It is a
normal requirement of the rule of law that a person
60
who decides should be empowered to hold the enquiry which
would enable him to reach his decision, and since the
Governor decides the question, he must hold the enquiry and
not the Election Commission. That, in substance, is Mr.
Setalvad’s case. He concedes that Art. 192(2) requires that
the Governor has to pronounce his decision in accordance
with the .opinion given by the Election Commission; that is
a Constitutional obligation imposed on the Governor. He,
however, argues that the Election Commission which has to
give an opinion, is not competent to hold the enquiry, but
it is the Governor who should hold the enquiry and then
forward to the Election Commission all the material
collected in such an enquiry to enable it to form its
opinion and communicate the same to the Governor.
We are satisfied that this contention also is not well-
founded. The scheme of Article 192(1) and (2) is absolutely
clear. The decision on the question raised under Art. 192(1)
has no doubt to be pronounced by the Governor, but that
decision has to be in accordance with the opinion of the
Election Commission. The object of this provision clearly is
to leave it to the Election Commission to decide the matter,
though the decision as such would formally be pronounced in
the name of the Governor. When the Governor pronounces his
decision under Art. 192(1), he is not required to consult
his Council of Ministers; he is not even required to
consider and decide the matter himself; he has merely to
forward the question to the Election Commission for its
opinion, and as soon as the opinion is received, “he shall
act according to such opinion”. In regard to complaints made
against the election of members to the Legislative Assembly.
the jurisdiction to decide such complaints is left with the
Election Tribunal under the relevant provisions of the Act.
That means that all allegations made challenging the
validity of the election of any member, have to be tried by
the Election Tribunals constituted by the Election
Commission. Similarly, all complaints in respect of
disqualifications subsequently incurred by members who have
been validly elected, have, in substance, to be tried by the
Election Commission, though the decision in form has to be
pronounced by the Governor. If this scheme of Art. 192(1)
and (2) is borne in mind, there would be no difficulty in
rejecting Mr. Setalvad’s contention that the enquiry must be
held by the Governor. It is the opinion of the Election
Commission which is in substance decisive and it is
legitimate to assume that when the complaint is received by
the Governor, and he forwards it to the Election Commission.
the Election Commission should proceed to try the complaint
before it gives its opinion. Therefore, we are satisfied
that respondent No. 1 acted within its jurisdiction when it
served a notice on the appellant calling upon him to file
his statement and produce his evidence in support thereof.
Mr. Setalvad faintly attempted to argue that the failure
of respondent No. 1 to furnish the appellant with a copy of
the complaint made by respondent No. 2 before the Governor
and of the
61
order of reference passed by the Governor ,forwarding the
said complaint to respondent No. 1, rendered the proceedings
before respondent No. 1 illegal. This contention is plainly
misconceived. As soon as respondent No. 1 received the
complaint and the order of reference which was communicated
to it by the Chief Secretary to the Government of Orissa, it
was seized of the matter and it was plainly acting within
its jurisdiction under Art. 192(2) when it served the notice
on the appellant. As we have already indicated, it was
through oversight that the two documents were not forwarded
to the appellant along with the notice, but that cannot in
any sense affect the jurisdiction of respondent No. 1 to
hold the enquiry. In fact, as respondent No. 2 has pointed
out in his affidavit, the fact that a reference had been
made by the Governor to respondent No. 1 was known all over
the State, and it is futile for the appellant to suggest
that when he received the notice from respondent No. 1, he
did not know that a complaint had been made against him to
the Governor alleging that subsequent to his election, he
had incurred a disqualification as contemplated by Art.
191(1)(e) of the Constitution read with s. 7(d) of the Act.
It would have been better if the appellant had not raised
such a plea in the present proceedings.
In this connection, we ought to point out that so far the
practice followed in respect of such complaints has
consistently recognised that the enquiry is to be held by
the Election Commission both under Art. 192(2) and Art.
103(2). In fact, the learned Attorney General for respondent
No. 1 stated before us that though on several occasions, the
Election Commission has held enquiries before communicating
its opinion either to the President under Art. 103(2) or to
the Governor under Art. 192(2), no one ever thought of
raising the contention that the enquiry must be held by the
President or the Governor respectively under Art. 103(1) and
Art. 192(1). He suggested that the main object of the
appellant in taking such a plea was to prolong the
proceedings before respondent No. 1. In the first instance,
the appellant asked for a long adjournment and when that
request was refused by respondent No. 1, he adopted the
present proceedings solely with the object of avoiding an
early decision by the Governor on the complaint made against
the appellant by respondent No. 2. We cannot say that there
is no substance in this suggestion.
There is one more point to which we may refer before we
part with this appeal. Our attention was drawn by the
learned Attorney-General to the observations made by the
Chief Election Commissioner when he rendered his opinion to
the Governor on May 30, 1964, on a similar question under
Art. 192(2) in respect of the alleged disqualification of
Mr. Biren Mitra, a member of the Orissa Legislative
Assembly, “Where, as in the present case”, observed the
Chief Election Commissioner, “the relevant facts are in
dispute and can only be ascertained after a proper enquiry,
the Commission finds itself in the unsatisfactory position
of having to give a decisive
L/B(D)2SCI- 6
62
opinion an the basis of such affidavits and documents as may
be produced before it by interested parties. It is desirable
that the Election Commission should be vested with the
powers of a commission under the Commissions of Enquiry Act,
1952, such as the power to summon witnesses and examine them
on oath, the power to compel the production of documents,
and the power to issue commissions for the examination of
witnesses”. We would like to invite the attention of
Parliament to these observations, because we think that the
difficulty experienced by the Election Commission in
rendering its opinion under Art. 103(2) or Art. 192(2)
appears to be genuine, and so Parliament may well consider
whether the suggestion made by the Chief Election
Commissioner should not be accepted and appropriate
legislation adopted in that behalf.
The result is, the appeal fails and is dismissed with
costs. In view of the fact that the present proceedings have
unnecessarily protracted the enquiry before respondent No.
1, we suggest that respondent No. 1 should proceed to
consider the matter and forward its opinion to the Governor
as early as possible. It is hardly necessary to point out
that in case the allegations made against the
appellant are found to be valid, and the opinion of
respondent No.1 is in favour of the case set out by
respondent No. 2, complications may arise by reason of the
Constitutional provision prescribed by Art. 190(3). In view
of the said provision, it is of utmost importance that
complaints made under Art. 192(1) must be disposed of as
expeditiously as possible.
Appeal dismissed.
63