Under Article 143(1) Of The … vs ——– on 28 October, 2002

           CASE NO.:
Special Reference Case  1 of 2002

PETITIONER:
Under Article 143(1) of the Constitution of India

RESPONDENT:
--------

DATE OF JUDGMENT: 28/10/2002

BENCH:
B.N.KIRPAL CJI & V.N.KHARE & K.G.BALAKRISHNAN & ASHOK BHAN & ARIJIT PASAYAT

JUDGMENT:

JUDGMENT

DELIVERED BY:

V.N.KHARE, (J)
K.G.BALAKRISHNAN, (J)
ARIJIT PASAYAT, (J)

V.N. Khare, J.

The dissolved Legislative Assembly of the State of Gujarat was constituted
in March 1998 and its five-year term was to expire on 18.3.2003. On
19.7.2002 on the advice of the Chief Minister, the Governor of Gujarat
dissolved the Legislative Assembly. The last sitting of the dissolved
Legislative Assembly was held on 3rd April 2002. Immediately after
dissolution of the Assembly, the Election Commission of India took steps
for holding fresh elections for constituting the new Legislative Assembly.
However, the Election Commission by its order dated 16th August, 2002 while
acknowledging that Article 174(1) is mandatory and applicable to an
Assembly which is dissolved and further that the elections for constituting
new Legislative Assembly must be held within six months of the last session
of the dissolved Assembly, was of the view that it was not in a position to
a conduct elections before 3rd of October, 2002 which was the last date of
expiry of six months from last sitting of the dissolved Legislative
Assembly. It is in this context the President of India in exercise of
powers conferred upon him by virtue of Clause (1) of Article 143 of the
Constitution of India referred three questions for the opinion of the
Supreme Court by this order dated 19th August, 2002 which run as under:

“WHEREAS the Legislative Assembly of the State of Gujarat was
dissolved on July 19, 2002 before the expiration of its normal
duration on March 18, 2003;

AND WHEREAS Article 174(1) of the Constitution provides that six
months shall not intervene between the last sitting of the
Legislative Assembly in one session and the date appointed for its
first sitting in the next Session;

AND WHEREAS the Election Commission has also noted that the mandate
of Article 174 would require that the Assembly should meet every
six months even after the dissolution of the House, and that the
Election Commission has all along been consistent that normally a
Legislative Assembly should meet at least every six months as
contemplated by Article 174, even where it has been dissolved;

AND WHEREAS under Section 15 of the Representation of the People
Act, 1951, for the purpose of holding general elections on the
expiry of the duration of the Legislative Assembly or its
dissolution, the Governor shall, by notification, call upon all
Assembly Constituencies in the State to elect members on such date
or date as may be recommended by the Election Commission of India;

AND WHEREAS the last sitting of the Legislative Assembly of the
State of Gujarat was held on 3rd April, 2002, and as such the newly
constituted Legislative Assembly sit on or before 3rd October,
2002;

AND WHEREAS the Election Commission of India by its order No.
464/GJ-LA/2002 dated August 16, 2002 has not recommended any date
for holding general election for constituting a new Legislative
Assembly for the State of Gujarat and observed that the Commission
will consider framing a suitable schedule for the general election
to the State Assembly in November-December 2002. Copy of the said
order is annexed hereto;

AND WHEREAS owing to the aforesaid decision of the Election
Commission of India, a new Legislative Assembly cannot come into
existence so as to meet within the stipulated period of six months
as provided under Article 174(1) of the Constitution of India;

AND WHEREAS THE Election Commission has held that the non-
observance of the provisions of Article 174(1) in the present
situation would mean that the Government of the State cannot be
carried 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;

AND WHEREAS doubts have arisen with regard to the Constitutional
validity of the said order of the Election Commission of India as
the order of the Election Commission which would result in a non-
compliance with the mandatory requirement under Article 174(1) of
the Constitution under which not more than six months shall
intervene between two sittings of the State Legislature;

AND WHEREAS in view of what has been hereinbefore stated, it
appears to me that the questions of law hereinafter set out have
arisen which are of a such nature and of such public importance
that it is expedient to obtain the opinion of the Supreme Court of
India;

NOW, THEREFORE, in exercise of the powers conferred upon me under Clause
(1) of Article 143 of the Constitution, I.A.P.(SIC) Abdul Kalam, President
of India, hereby refer the following questions to the Supreme Court of
India for consideration and report thereon, namely:-

(i) Is Article 174 subject to the decision of the Election Commission of
India under Article 324 as to the schedule of elections of the Assembly?

(ii) Can the Election Commission of India frame a schedule for the
elections to an Assembly on the premise that any infraction of the mandate
of Article 174 would be remedied by a resort to Article 356 by the
President?

(iii) Is the Election Commission of India under a duty to carry out the
mandate of Article 174 of the Constitution, by drawing upon all the
requisite resources of the Union and the State to ensure free and fair
elections?”

Much before the matter was taken up for hearing it was made clear by the
Bench hearing the reference that it would neither answer the reference in
the context of the election in Gujarat nor look into the question of facts
arising out of the order of the Election Commission and shall confine its
opinion only on questions of law referred to it.

When this reference was taken up objections were taken by learned counsel
appearing for the Election Commission, several national political parties
and counsel for various States that this reference need not be answered and
it requires to be returned unanswered, inter alia, on the grounds:

(a) that, the reference raises issues already decided or determined by
earlier Supreme Court judgments regarding the plenary and all encompassing
powers of the Election Commission to deal with all aspects of an election
under Articles 324-329;

(b) that, if the Supreme Court considers the said question again, it would
convert advisory Article 143 jurisdiction into an appellate jurisdiction,
which is impermissible;

(c) that, if Article 174 were override Article 324, question No. 3 is
unnecessary. Also, if question No. 1 is answered in the affirmative,
question No. 3 is automatically answered. In any event, the last part of
question No. 3 raises a question to the effect as to whether the Election
Commission is obliged to ensure free and fair elections, the answer to
which is axiomatic, obvious and completely unnecessary to be answered in a
Presidential Reference;

(d) that, since question No. 2 cannot stand in the abstract, it also ought
not to be gone into and deserves to be sent back unanswered;

(e) that, no undertaking has been furnished by the Union of India that they
would be bound by the advice of this Court and, therefore, the reference
need not be answered;

(f) that, the reference proceeds on the flawed legal premise that Article
174 applies to the holding of periodic elections and mandates the Election
Commission to hold elections within the six-month period from the last
session of dissolved Legislative Assembly and, therefore, this Court should
return the reference unanswered; and

(g) that, the reference is a disguised challenge to the order of the
Election Commission dated 16th August, 2002 which is inappropriate in a
reference under Article 143.

In support of the aforesaid propositions learned counsel relied upon the
following decisions: (1) In re: Cauvery Water Disputes Tribunal – (1993)
Suppl. SCC 96; (2) In re: Keshav Singh, Special Reference No. 1 of 1964 –
(1965) 1 SCR 413; (3) In re: The Special Courts Bill, 1978, Spl Ref. No. 1
of 1978; (4) In re: Appointment of Judges Case, Special Reference No. 1 of
1998 – (1998) 7 SCC 739; (5) The Ahmedabad St. Xavier’s College Society and
Anr. v. State of Gujarat and Ors. – (1974) 1 SCC 714; (6) In re:
Presidential Poll, Special Reference No. 1 of 1974; (7) In re: The Kerala
Education Bill, 1957 – (1959) SCR 995; and (8) Dr. M. Ismail Faruqui and
Ors. v. Union of India and Ors

In re: The Kerala Education Bill, 1957 (supra), it was urged that since the
Bill introduced in the Legislative Assembly has been referred to under
Article 143 and the same having not received legislative sanction the
reference need not be answered. Dealing with the said argument this Court
held that under Article 143, the Supreme Court is required to advise the
President not only as to any question which has arisen but also as to a
question which is likely to arise in future.

In re: Special Court Bill, 1978 (supra), it was held that it was not
necessary that the question on which the opinion of the Supreme Court is
sought must have arisen actually. It is competent for the President to make
a reference at an anterior stage, namely, at the stage when the President
is satisfied that the question is likely to arise – Chandrachud, CJ at pg.
400, para 20 held that:

“20. Article 143(1) is couched in broad terms which provide that any
question of law or fact may be referred by the President for the
consideration of the Supreme Court if it appears to him that such a
question has arisen or is likely to arise and if the question is of such a
nature and of such public importance that it is expedient to obtain the
opinion of the Court upon it. Though questions of fact have not been
referred to this Court in any of the six references made under Article
143(1), that Article empowers the President to make a reference even on
questions of fact provided the other conditions of the Article are
satisfied. It is not necessary that the question on which the opinion of
the Supreme Court is sought must have arisen actually. It is competent to
the President to make a reference under Article 143(1) at an anterior
stage, namely, at the stage when the President is satisfied that the
question is likely to arise. The satisfaction whether the question has
arisen or is likely to arise and whether it is of such a nature and of such
public importance that it is expedient to obtain the opinion of the Supreme
Court upon it, is a matter essentially for the President to decide. The
plain duty and function of the Supreme Court under Article 143(1) of the
Constitution is to consider the question on which the President has made
the reference and report to the President its opinion, provided of course
the question is capable of being pronounced upon and falls within the power
of the court to decide. If, by reason of the manner in which the question
is framed or for any other appropriate reason the court considers it not
proper or possible to answer the question it would be entitled to return
the reference by pointing out the impediments in answering it. The right of
this Court to decline to answer a reference does not flow merely out of the
different phraseology used in Clauses (1) and (2) of Article 143, in the
sense that Clause (1) provides that the Court “may” report to the President
its opinion on the question referred to it, while Clause (2) provides that
the Court “shall” report to the President its opinion on the question. Even
in matters arising under Clause (2), though that question does not arise in
this reference, the Court may be justified in returning the reference
unanswered if it finds for a valid reason that the question is incapable of
being answered. With these preliminary observations we will consider the
contentions set forth above.”

In re: Keshav Singh, Special Reference No. 1 of 1964 (supra) 413,
Gajendragadkar, CJ speaking for the Court stated that the words of Article
143(1) are wide enough to empower the President to forward to this Court
for its advisory opinion any question of law or fact which has arisen or is
likely to arise, provided it appears to the President that such a question
is of such a nature of such public importance that it is expedient to
obtain the opinion of the Court upon it.

In re: Allocation of Lands and Buildings, 1943 FCR 20, Gwyer, CJ stated “we
felt some doubt whether any useful purpose would be served by giving of an
opinion under Section 213 of the Government of India Act. The terms of that
section do not impose an obligation on the Court, though we should always
be unwilling to decline to accept a reference except for good reason; and
two difficulties presented themselves. First, it seemed that questions of
title might sooner or later be involved, if the Government whose
contentions found favour with the Court desired to dispose of some of the
lands in question to private individuals and plainly no advisory opinion
would furnish a good root of title such as might spring from a declaration
of this Court in proceedings taken under Section 204(1) of the Act by one
government against the other”.

In re: Levy of Estate Duty, 1944 FCR 317, it was held that Section 213 of
the Government of India Act empowers the Government General to make a
reference when question of law are “likely to arise”.

From the aforesaid decisions it is clear that this Court is well within its
jurisdiction to answer/advise the President in a reference made under
Article 143(1) of the Constitution of India if the questions referred are
likely to arise in future or such questions are of public importance or
there is no decision of this Court which has already decided the question
referred.

In the present case what we find is that one of the questions is as to
whether Article 174(1) prescribes any period of limitation for holding
fresh election for constituting Legislative Assembly in the event of the
premature dissolution of earlier Legislative Assembly. The recitals
contained in the Presidential reference manifestly demonstrate that the
reference arises out of the order of the Election Commission dated
16thAugust, 2002. In the said order the Election Commission has admitted
that under Article 174(1) six months should not intervene between one
Assembly and the other even though there is dissolution of the Assembly.
The reference proceeds upon the premise that as per order of the Election
Commission, a new Legislative Assembly cannot come into existence within
the stipulated period of six months as provided under Article 174(1) of the
Constitution on the assessment of conditions prevailing in the State.
Further, a doubt has arisen with regard to the application of Article 356
in the order of the Election Commission. In view of the decision in Re:
Presidential Poll, holding that in the domain of advisory jurisdiction
under Article 143(1) this Court go into the disputed question of facts, we
have already declined to go into the facts arising out of the order of the
Election Commission. But the legal premise on which order was passed raises
questions of public importance and these questions are likely to arise in
future. The questions whether Article 174(1) is mandatory and would apply
to a dissolved Assembly, that, whether in extraordinary circumstances
Article 174(1) must yield to Article 324, and, that, the non-observance of
Article 174 would mean that the government of a State cannot be carried on
in accordance with the provisions of the Constitution and in that event
Article 356 would step in, are not only likely to arise in future but are
of public importance. It is not disputed that there is no decision of this
Court directly on the questions referred and further, a (SIC) has arisen in
the mind of the President of India as regards the interpretation of Article
174(1) of the Constitution. Under such circumstances, it is imperative that
this reference must be answered. We, therefore, overrule the objections
raised and proceed to answer the Reference.

Question No. 1

Is Article 174 subject to decision of the Election Commission of India
under Article 324 as to the schedule of election of the Assembly?
In an effort that aforesaid question be answered in the negative it was
inter alia, urged on behalf of the Union of India, one of the national
political parties and one of the States:

a) that, the provision in Article 174(1) of the Constitution that six
months shall not intervene between the last sitting of one session and the
date appointed for its first meeting of the next session is mandatory in
nature and it applies when the Governor either prorogues either of the
Houses or dissolves the Legislative Assembly;

b) that, Article 174(2) empowers the Governor to prorogue or dissolve the
Legislative Assembly and Article 174(1) does not make any exception in
respect of the interregnum irrespective of whether the Governor has
prorogued the House or dissolved the Legislative Assembly under Article
174(2);

c) that, on the correct interpretation of Article 174, the mandate of
Article 174(1) is applicable to the dissolved Assembly also. Such an
interpretation would be in the defence of a democracy and, therefore, as
and when an Assembly is prematurely dissolved, the Election Commission has
to fix its calendar for holding fresh election within the time mandated
under Article 174(1);

d) that, alternatively, it was argued that in a situation where mandate
under Article 174(1) cannot be complied with, it does not mean that the
mandate is directory in nature; and

e) that, the holding of election immediately after dissolution of the
Assembly is also necessary in view of the sanction which is required to be
taken with regard to Money Bills by the Legislative Assembly.

The contentions advanced on behalf of the other national political parties,
political parties as well as other States is that Article 174(1) is neither
applicable to the dissolved Assembly nor does it provide any period of
limitation of six months for holding fresh election in the event of a
premature dissolution of the Legislative Assembly. According to learned
counsel appearing for these parties, there is no provision either in the
Constitution or in the Representation of the People Act which provides an
outer limit for holding election for constituting the new Legislative
Assembly or the new House of the People, as the case may be, in the event
of their premature dissolution.

On the argument of learned counsel for the parties, the first question that
arises for consideration is whether Article 174(1) is applicable to a
dissolved Assembly?

A plain reading of Article 174 shows that it stipulates that six months
shall not intervene between the last sitting in one session and the date
appointed for its first sitting in the next session. It does not provide
for any period of limitation for holding fresh election in the event a
Legislative Assembly is prematurely dissolved. It is true that after
commencement of the Constitution, the practice has been that whenever
either Parliament or Legislative Assembly were prematurely dissolved, the
election for constituting fresh Assembly or Parliament, as the case may be,
were held within six months from the date of the last sitting of the
dissolved Parliament or Assembly. It appears that the Election Commission’s
interpretation of Article 174 that fresh elections for constituting
Assembly are required to be held within six months from the date of the
last sitting of the last session was very much influenced by the prevailing
practice followed by the Election Commission since enforcement of the
Constitution. At no point of time any doubt had arisen as to whether the
interval of six months between the last sitting of one session and the
first sitting of the next session of the Assembly under Article 174(1)
provides a period of limitation for holding fresh election to constitute
new Assembly by the Election Commission in the event of a premature
dissolution of Assembly. Since the question has arisen in this Reference
and also in view of the fact that Article 174 on its plain reading does not
show that it provides a period of limitation for holding fresh election
after the premature dissolution of the Assembly, it is necessary to
interpret the said provision by applying accepted rules of interpretations.

One of the known methods to discern the intention behind enacting a
provision of the Constitution and also to interpret the same is to look
into the Historical Legislative Development, Constituent Assembly Debates
or any document preceding the enactment of the Constitutional provision.

In His Holiness Kesavananda Bharati Sripadagalvaru etc. v. State of Kerala
and Anr. etc. it was held that Constituent Assembly debates although not
conclusive, yet show the intention of the framers of the Constitution in
enacting provisions of the Constitution and the Constituent Assembly
Debates can throw light in ascertaining the intention behind such
provisions.

In R.S. Nayak v. A.R. Antulay, it was held that reports of the Commission
which preceded the enactment of a legislation, reports of Joint Parliament
Commission, report of a Commission set up for collecting information
leading to the enactment are permissible external aid to construction of
the provisions of the Constitution. If the basic purpose underlying
construction of legislation is to ascertain the real intention of the
Parliament, why should the aids which Parliament availed of such as report
of a Special Commission preceding the enactment, existing state of Law, the
environment necessitating enactment of legislation, and the object sought
to be achieved, be denied to the Court whose function is primarily to give
effect to the real intention of the Parliament in enacting the legislation.
Such denial would deprive the Court of a substantial and illuminating aid
to construction of the provisions of the Constitution. The modern approach
has to a considerable extent eroded the exclusionary rule in England.

Since it is permissible to look into the pre-existing law. Historical
Legislative Developments, and Constituent Assembly Debates, we will look
into them for interpreting the provisions of the Constitution.
Historical Legislative Developments Government of India Act, 1915 &
Government of India Act, 1919

Part VI of Government of India Act 1915 dealt with the Indian Legislatures
containing provisions dealing with Indian and governor’s provinces
legislatures. Section 63D dealt with Indian Legislature while Section 72B
dealt with the legislature of Governor’s provinces. Sections 63D(1) and
Section 72B(1) run as under:

“Section 63D(1): Every Council of State shall continue for five years and
every Legislative Assembly for three years from its first meeting: Provided
that:

a) either Chamber of the Legislature may be sooner dissolved by the
Governor general; and

b) any such period may be extended by the governor General, if in special
circumstances he so think fit; and

c) after the dissolution of either Chamber the Governor General shall
appoint a date not more than six months or, with the sanction of the
Secretary of the State, not more than nine months from the date of
dissolution for the next session of that Chamber”

Section 72B(1): Every Governor’s legislative counsel shall continue for
three years from its first meeting: Provided that:

a) the Council may be sooner dissolved by the Governor; and

b) the said period may be extended by the Governor for a period not
exceeding one year, by notification in the official gazette of the
province, if in special circumstances (to be specified in the notification)
he so think fit; and

c) after the dissolution of the council the Governor shall appoint a date
not more than six months or, with the sanction of the Secretary of the
State, not more than nine months from the date of dissolution for the next
session of the council.

After repeal of Government of India Act 1915, Government of India act 1919
came into force. Section 8 of the Government of India Act 1919 provided for
sitting of Legislative Council in provinces. Section 8 read as follows:
“Section 8(1): Every Governor’s legislative council shall continue for
three years from its first meeting: Provided that:

a) the Council may be sooner dissolved by the Governor, and

b) the said period may be extended by the Governor for a period not
exceeding one year, by notification in the official gazette of the
province, if in special circumstances (to be specified in the notification)
he so think fit; and

c) after the dissolution of the council the Governor shall appoint a date
not more than six months or, with the sanction of the Secretary of the
State, not more than nine months from the date of dissolution for the next
session of the council”

Similarly, Section 21 provided for the sittings of the Indian legislature.
Section 21 runs as under:

“Section 21(1): Every Council of State shall continue for five
years and every Legislative Assembly for three years from its first
meeting: Provided that:

a) either Chamber of the Legislature may be sooner dissolved by the
Governor General; and

b) any such period may be extended by the Governor General, if in special
circumstances he so think fit; and

c) after the dissolution of either Chamber the Governor General shall
appoint a date not more than six months or, with the sanction of the
Secretary of the State, not more than nine months from the date of
dissolution for the next session of that Chamber.

A combined reading of Sections 63D(1) & 72B(1) of Government of India Act
1915 and Section 8(1) and 21(1) of Government of India Act 1919 shows that
the Governor General could also either dissolve the Council of State or the
Legislative Assembly sooner than its stipulated period or extend the period
of their functioning. Further, it was mandated that after the dissolution
of either Chamber, the Governor General shall appoint a date not more than
six months or with the sanction of the Secretary of the State, not more
than nine months from the date of dissolution, for the next session of that
Chamber. Similarly, the Governor of the province could also either dissolve
the Legislative Council sooner than its stipulated period or extend the
period of its functioning. Further, the Governor was duly bound after the
dissolution of the legislative council to appoint a date not more than six
months, or with the sanction of the Secretary of the State, not more than
nine months from the date of dissolution for the next session of
legislative council.

It is noteworthy that these powers of the Governor General and the Governor
of the province were similar to the powers exercised by the British monarch
historically under British conventions. The mandate to the Governor General
and the Governor to fix the date for the next session of the new chamber or
the legislative council respectively was based on the British conventions
whereunder the monarch fixes a date for next session of the House of
Commons after its dissolution. Further the power of Governor General to
extend the period of Legislative Council or to prematurely dissolve it was
also based on British conventions.

Government of India Act 1935

The Government of India Act, 1919 was repealed by the Government of India
Act, 1935, Section 19(1) provided for the sittings of the Federal
Legislature. Section 19(1) runs as under:

Section 19(1): The Chambers of the Federal Legislature shall be summoned to
meet once at least in every year, and twelve months shall not intervene
between their last sitting in one session and the date appointed for their
first sitting in the next session.”

Similarly, Section 62(1) of the Act provided for sittings of Provincial
Legislature. Section 62(1) runs thus:

“62(1): The Chamber or Chambers of each Provincial Legislature shall be
summoned to meet once at least in every year and twelve months shall not
intervene between their last sitting in one session and the date appointed
for their first sitting in the next session”

We find that under the Government of India Act, 1935, there was a complete
departure from the provisions contained in the Government of India Act,
1915 and Government of India Act, 1919 as regards the powers and
responsibilities of the Governor General and the Governors of the Provinces
to extend the period of the chambers or fix a date for the next session of
the new chamber. By the aforesaid provisions, not only were the powers to
extend the life of the chambers of the Federal Legislature and the
Provincial Legislatures done away with, but the British Convention to fix a
date for the next session of the new chamber was also given up. These were
the departures from the previous Acts. It may also be noted that under the
Government of India Act, 1935, statutory provisions were made in respect of
the conduct of elections. Under Schedule V Para 20 of the Government of
India Act, 1935, the Governor General was empowered to make rules for
carrying out the provisions of the Vth and VIthSchedule. Para 20 as a whole
related to matters concerning elections, and Clause (iii) particularly
pertained to conduct of elections. Similarly, Schedule VI of the Government
of India Act, 1935 contained provisions with respect to electoral rolls and
franchise. Such provisions are not found in either the Government of India
Act, 1915 or the Government of India Act, 1919. Thus, we see that statutory
provisions have come in for the first time and conduct of elections has
been entrusted in the hands of the executive. Since the power to fix the
calendar for holding elections was given in the hand of executive,
therefore, the provisions for fixing a date of next session of new
legislature in The Government of India Act of 1915 and 1919 was given up in
the 1935 Act. This shows that elections in India were no longer based on
the British conventions.

Under the Constitution of India, 1950, even these provisions have been
departed from. While under the Government of India Act, 1935, the conduct
of elections was vested in an executive authority, under the Constitution
of India, a Constitutional authority was created under Article 324 for the
superintendence, direction and conduct of elections. This body, called the
Election Commission, is totally independent and impartial, and is free from
any interference of the executive. This is a very noticeable difference
between the Constitution of India and the Government of India Act, 1935 in
respect of matters concerning elections for constituting the House of the
People or the Legislative Assembly. It may be noted that Articles 85(1) and
174(1) which were physically borrowed from Govt. of India Act, 1935 were
only for the purposes of providing the frequencies of sessions of existing
Houses of Parliament and State Legislature and they do not relate to
dissolved Houses.

Constituent Assembly Debates with regard to Articles 85 & 174 of the
Constitution.

Draft Articles 69 and 153 correspond to Article 85 and Article 174 of the
Constitution respectively. Article 69 dealt with the Parliament and Article
153 dealt with State Legislature Assembly. When the aforesaid two draft
Articles were placed before the Constituent Assembly for discussion, there
was not much debate on Draft Article 153. But there was a lot of discussion
when Draft Article 69 was placed before the Constituent Assembly. Draft
Articles 69 and 153 run as under:

“69(1) : The Houses of Parliament, shall be summoned to meet twice at least
in every year, and six months shall not intervene between their last
sitting in one session and the date appointed for their first shifting in
the next session
(2) Subject to the provisions of this Article, the President may from time
to time-

(a) summon the Houses or either House of Parliament to meet at such time
and place as he thinks fit;

(b) prorogue the Houses;

(c) dissolve the House of the People.

153(1) : The House or Houses of the Legislature of the State shall be
summoned to meet twice at least in every year, and six months shall not
intervene between their last sitting in one session and the date appointed
for their first sitting in the next session.

(2) Subject to the provisions of this Article, the Governor may from time
to time-

(a) summon the Houses or either House to meet at such time and place as he
thinks fit;

(b) prorogue the House or Houses;

(c) dissolve the Legislature Assembly.

(3) The functions of the Governor under Sub-clauses (a) and (c) of Clause
(2) of this Article shall be exercised by him in his discretion”.

On 18.5.1949, when Draft Article 69 came up for discussion, there was a
proposal to change the intervening period between the two sessions of the
Houses of Parliament from six months to three months so as to ensure that
the Parliament has more time to look into the problems faced by the people
of the country. Prof. K.T. Shah one of the members of the Constituent
Assembly, while moving an amendment to the Draft Article 69, as it then
stood, said that the Draft Article was based on other considerations
prevailing during the British times, when the legislative work was not much
and the House used to be summoned only for obtaining financial sanction.
Shri H.V. Kamath while intervening in the debate emphasized on the need to
have frequent sessions of the Houses of Parliament. He suggested that the
Houses should meet at least thrice in each year. he pointed out that in the
United States of America and the United Kingdom, the Legislatures sat for
eight to nine months in a year as a result of which they were able to
effectively discharged their parliamentary duties and responsibilities. He
also emphasized that the period of business of transactions provided in the
Federal or State Legislatures under the Government of India Act, 1935 were
very short as there was not much business to be transacted then by those
Legislature. He also reiterated that the Houses of Parliament should sit
more frequently so that the interests of the country are thoroughly debated
upon and business is not rushed through. Prof. K.T. Shah was very much
concerned about the regular sitting of the Parliament and, therefore he
moved an amendment 1478 which read as follows:

“at the end of Article 69(2)(c), the following proviso is to be added:
Provided that if any time the President does not summon as provided for in
this Constitution for more than three months the House of the People of
either House of Parliament at any time after the dissolution of the House
of the People, or during the currency of the lifetime of the House of the
People for a period of more than 90 days the Speaker of the House of the
People or the Chairman of the Council of States may summon each his
respective House which shall then be deemed to have been validly summoned
and entitled to deal with any business placed or coming before it”.

Further, Prof KT Shah also moved amendment No. 1483, which provided for
insertion of Clause (3) after Article 69(2), and a proviso thereto, which
is very relevant. Clause (3) runs as under:

“(3): If any time the President is unable or unwilling to summon Parliament
for more than three months after the prorogation or dissolution of the
House of the People and there is in the opinion of the Prime Minister a
National Emergency he shall request the Speaker and the Chairman of the
Council of States to summon both Houses of Parliament, and place before it
such business as may be necessary to cope with the National Emergency. Any
business done in either House of Parliament thus called together shall be
deemed to have been validly transacted, and shall be valid and binding as
any Act. Resolution or Order of Parliament passed in the normal course.
Provided further that if at any time the President is unable or unwilling
to summon Parliament for a period of more than three months or 90 days
after prorogation or dissolution of the House of the People, and the Prime
Minister is also unable or unwilling to make the request aforesaid, the
Chairman of either Houses of Parliament thus called together shall be
deemed to be validly convened and entitled to deal with any business places
before it”.

Shri B.R. Ambedkar, while replying to the aforesaid proposed amendment,
highlighted that after the Constitution comes into force, no executive
could afford to show a callous attitude towards the legislature, which was
not the situation before as the legislature was summoned only to pass
revenue demands. Since there was no possibility of the executive showing a
callous attitude towards the legislature, this would like care of the fear
voiced by some members that no efforts to go beyond the minimum mandatory
sittings of the Houses of Parliament would be made. He further dwelled on
the fact that the clause provided for minimum mandatory sitting in a year
so that if the need arose, the Parliament could sit more often and if more
frequent sessions were made mandatory, the sessions could be so frequent
and lengthy that members would grow tired.

From the aforesaid debates, it is very much manifest that Articles 85 and
Article 174 were enacted on the pattern of Sections 19(1) and 62(1) of the
Government of India Act, 1935 respectively which dealt with the frequency
of sessions of the existing Legislative Assembly and were not intended to
provide any period of limitation for holding elections for constituting new
House of the People or Legislative Assembly in the event of their premature
dissolution. Further, the suggestions to reduce the intervening period
between the two sessions to three months from six months so that Parliament
could sit for longer duration to transact the business shows that it was
intended for existing House of Parliament and not dissolved ones, as a
dissolved House cannot sit and transact legislative business at all.

It is interesting to note that during the debate Prof. K.T. Shah suggested
amendment Nos. 1478 and 1483 quoted above, which specifically contemplated
the possibility of a dissolved House of the People and convening of the
Council of States in an emergency session by the President or the Speaker
if the circumstances so necessitated. Even these amendments were not
accepted. This shows that Draft Article 69 was visualized in the context of
a scenario applicable only to a living and functional House and that the
stipulation of six months intervening period between the two sessions is
inapplicable to a dissolved House.

Moreover, it may be noticed that if the suggestion put forth during the
course of the debate that the House of Parliament should sit for eight to
nine months in a year was accepted, it would not have given sufficient time
for holding fresh elections in the event of premature dissolution of either
Parliament or Legislative Assembly and it would also have led to a breach
of Constitutional provisions. This also shows that what is contained in
Article 174(1) is meant only for an existing and functional House. In a
further scenario, if the suggestions during the debate for reducing the
intervening period from six months to three months were accepted, it would
mean that after premature dissolution of the Houses of People or the
Legislative Assembly, fresh elections have to be held so that House of
People or Legislative Assembly could hold their first sitting within three
months from the date of last sitting of the dissolved Parliament or
Legislative Assembly as the case may be. This would also have not allowed
sufficient time for holding election for constituting either House of
People or a Legislative Assembly. T his shows that the intention of the
framers of the Constitution was that the provisions contained in Article
174 were meant for a living and existing Legislative Assembly and not to a
dissolved Legislative Assembly.

Debates during the Constitution First Amendment Bill regarding amendment of
Article 85 and Article 174.

The original Articles 85 and 174 as they stood prior to first Constitution
Amendment and after the Amendment read as follows:

Article Original Articles in the Constitution As amended by Constitution
(Amendment) Act, 1951

Article 85 Sessions of Parliament Prorogation & Dissolution. (1) The
Houses of Parliament shall be summoned to meet twice at least in every
year, and six months shall not intervene between their last sitting in one
session and the date appointed for their first sitting in the next session.
(1) The President shall from time to time summon each House of Parliament
to meet at such time and place as he thinks fit, but six months shall not
intervene between its last sitting in one session and the date appointed
for its first sitting in the next session.

(2) Subject to the provisions ofcl. (1), the President may from
time to time – (2) The President may from time to-(a) Prorogue the
Houses of either House (b) Dissolve the House of the People

(a) Summon the Houses or either House to meet at such time & Place
as he thinks fit;

(b) Prorogue the Houses;

(c) Dissolve the House of the People
Article 174 Sessions of the State Legislature Prorogation & Dissolution (1)
The House or Houses of the State shall be summoned to meet twice at least
in every year, and six months shall not intervene between their last
sitting in one Session and the date appointed for their first sitting in
the next session. (1) The Governor shall from time to summon the
House or each House to the Legislature of the State to meet at such time
and place as he thinks fit, but six months shall not intervene between its
last sitting in one session and the date appointed for its first sitting in
the next session.

(2) Subject to the provisions of cl. (1), the Governor may from
time to time- (2) the Governor may from time to time-

(a) Summon the House or either House to meet at such time and place
as he thinks fit; (a) prorogue the House or either House;

(b) prorogue the House or Houses (b) dissolve Legislative
Assembly

The aforesaid original Articles show that what was mandated was that the
House of Parliament and State Legislature were required to meet at least
twice in a year and six months shall not intervene between the last sitting
in one session and the date appointed for their first sitting in the next
session. This resulted in absurdity. If it was found that the session then
had been going on continuously for 12 months, technically it could have
been contended that the Parliament had not met twice in that year at all as
there must be prorogation in order that there may be new session and
therefore, the original Article 174(1) resulted in contradictions. In order
to remove the said absurdity, the First Amendment Bill for amendment of
Articles 85 and 174 was moved. While introducing the First Amendment Bill,
Pt. Jawahar Lal Nehru stated thus:

“…..one of the Articles mentions that the House shall meet at
least twice every year and the President shall address it. Now a
possible interpretation of that is that this House has not met at
all this year. It is an extraordinary position considering that
this time this House has laboured more than probably at any time in
the previous history of this or the preceding Parliament in this
country. We have been practically siting with an internal round and
X mas since November and we are likely to carry on and yet it may
be held by some acute interpreters that we have not met at all this
year strictly in terms of the Constitution because we started
meeting November and we have not met again — it has not been
prorogued — the President has not addressed the Parliament this
year. Put in the extreme way, suppose this House met for the full
year without break except short breaks, it worked for 12 months
then it may be said under the strict letter of the law that it has
not met all this year. Of course that Article was meant not to come
in the way of our work but to come in the way of our leisure. It
was indeed meant and it must meet at least twice a year and there
should not be more than six months interval between the meetings.
It did not want any government of the day to simply sit tight
without the House meeting.”.

(emphasis mine)

While intervening in the debate, Dr. B.R. Ambedkar stated thus:
“…..due to the word summon, the result is that although
Parliament may sit for the whose year adjoining from time to time,
it is still capable of being said that Parliament has been summoned
only once and not twice. There must be prorogation in order that
there may be a new session. It is felt that this difficulty should
be removed and consequently the first part of it has been deleted.
The provision that whenever there is a prorogation of Parliament,
the new session shall be called within six months is retained.”

(emphasis mine)

Even other members of the Parliament who participated int eh debate with
regard to the proposed amendment of Article 85 and Article 174 were
concerned only with the current session and working of the existing House
of the People. The proceedings of the debate further show that the entire
debate revolved around prorogation and summoning. There was no discussion
as regards dissolution or Constitution of the House at all and the
amendment was sought to remove the absurdity which has crept into the
original Articles 85 and 174. For these reasons we are of the view that
Article 174(1) is inapplicable to a dissolved Assembly.
Textually

The question at hand may be examined from another angle. As noticed
earlier, the language employed in Article 85 and Article 174 is plan and
simple and it does not contemplate an interval of six months between the
last sitting in one session and the date appointed for its first sitting in
the next session of the new Assembly after premature dissolution of
Assembly. Yet we will examine Article 174 textually also.

Article 174 shows that the expression ‘date appointed for its first sitting
in the next session in Article 174(1) cannot possibly refer to either an
event after the dissolution of the House or an event of a new Legislative
Assembly meeting for the first time after getting freshly elected. When
there is a session of the new Legislative Assembly after elections, the new
Assembly will sit in its “first session” and not in the “next session”. The
expression after each general election has been employed in other parts of
the Constitution and one such provision is Article 176. The absence of such
phraseology ‘after each general election’ in Article 174 is a clear
indication that the said Article does not apply to a dissolved Assembly or
to a freshly elected Assembly. Further, Article 174(1) uses expressions
i.e. ‘its last sitting in one session’. ‘first sitting in the next
session’. None of these expressions suggest that the sitting and the
session would include an altogether different Assembly i.e. a previous
Assembly which has been dissolved and its successor Assembly that has come
into being after elections. Again, Article 174 also employs the word
‘summon’ and not ‘constitute’. Article 174 empowers the Governor to summon
an Assembly which can only be an existing Assembly. The Constitution of an
Assembly can only be under Section 73 of the Representation of the people
Act, 1951 and the requirement of Article 188 of the Constitution suggests
that the Assembly comes into existence even before its first sitting
commences.

Again, Article 174 contemplates a session, i.e. sitting of an existing
Assembly and not a new Assembly after dissolution and this can be
appreciated from the expression ‘its last sitting in one session and its
first sitting in the next session’. Further, the marginal note ‘sessions’
occurring in Article 85 and 174 is an unambiguous term and refers to an
existing Assembly which a Governor can summon. When the term ‘session or
sessions’ is used, it is employed in the context of a particular Assembly
or a particular House of the People and not the legislative body whose life
is terminated after dissolution. Dissolution end the life of legislature
and brings an end to all business. The entire chain of sittings and
sessions gets broken and there is not next session or the first sitting of
the next session after the House itself has ceased to exist. Dissolution of
Legislative Assembly ends the representative capacity of legislators and
terminates the responsibility of the Cabinet to the members of the Lok
Sabha or the Legislative Assembly, as the case may be.

The act of summoning, sitting, adjourning, proroguing or dissolving of the
Legislature is necessarily referable to an Assembly in praesenti i.e. an
existing, functional legislature and has nothing to do with the Legislative
Assembly which is not in existence. It is well understood that a dissolved
House is incapable of being summoned or prorogued and in this view of the
matter also Article 174(1) has no application to a dissolved Legislative
Assembly, as nothing survives after dissolution.

Conceptually

Yet, Article 174 may be examined conceptually. Conceptually, Article 174
deals with a live legislature. The purpose and object of the said provision
is to ensure that an existing legislature meets at least every six months,
as it is only an existing legislature that can be prorogued or dissolved.
Thus Article 174 which is a complete code in itself deals only with a live
legislature.

Article 174(1) shows that it does not provide that its stipulation is
applicable to a dissolved legislature as well. Further, Article 174 does
not specify that interregnum of six months period stipulated between the
two sessions would also apply to a new legislature vis-a-vis an outgoing
legislature. If such be the case, then there was no need to insert the
proviso to Article 172(1) and insertion of the said proviso is rendered
meaningless and superfluous.

Further, if Article 174 is held to be applicable to a dissolved House as
well it would mean that Article 174(2) is controlled by Article 174(1)
inasmuch as the power has to be exercised under Article 174(2) in
conformity with Article 174(1). Moreover, if the House is dissolved in
5thmonth of the last session, the election will have to be held within one
month so as to comply with the requirement of Article 174(1) which would
not have been the intention of the framers of the Constitution.

Yet, there is another aspect which shows that Article 174(1) is
inapplicable to a dissolved Legislative Assembly. It cannot be disputed
that each Legislative Assembly after Constitution is unique and distinct
from the previous one and no part of the dissolved House is carried forward
to a new Legislative Assembly. Therefore, Article 174(1) does not link the
last session of the dissolved House with the newly formed one.
The distinction between frequency of sessions and periodicity of the
elections

A perusal of Articles 172 and 174 would show that there is a distinction
between the frequency of meetings of an existing Assembly and periodicity
of elections in respect of a dissolved Assembly which are governed by the
aforesaid provisions.

As far as frequency of meetings of Assembly is concerned, the six months
rule is mandatory, while as far as periodicity of election is concerned,
there is no six months rule either expressly or impliedly in Article 174.
Therefore, it cannot be held that Article 174 is applicable to dissolved
House and also provides for period of limitation within which the Election
Commission is required to hold fresh election for constituting the new
Legislative Assembly.

Whether, under the British Parliamentary practice a proclamation which on
the one hand dissolves an existing Parliament and on the other fixes a date
of next session of new Parliament is embodied in Article 174 of the
Constitution.

It was also urged on behalf of the Union of India that Indian Constitution
is enacted on patten of Westminster system of parliamentary democracy and,
therefore, election has to be held within the stipulated time following the
British conventions as reflected in Article 174(1) of the Constitution. It
was urged that since the Parliament was a single entity with the
responsibility to debate matters affecting public interest on a continuous
basis, it was most appropriate that long gaps were not there between its
sessions.

Learned counsel relied upon certain passages from several books in support
of his contention which run as under:

Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of
Parliament 21st Edn.: “A Parliament’ in the sense of a Parliamentary
period, is a period not exceeding five years which may be regarded as a
cycle beginning and ending with a proclamation. Such a proclamation on the
one hand dissolves an existing Parliament, and on the other, orders the
issue of writs for the election of a new Parliament and appoints the day
and place for its meeting. This period, of course, contains an interregnum
between the dissolution of a Parliament and the meeting of its successor
during which there is no Parliament in existence; but the principle of
unbroken continuity of Parliament is for all practical purposes secured by
the fact that the same proclamation which dissolves a Parliament provides
for the election and meeting of a new Parliament. A session is the period
of time between the meeting of a Parliament, whether after a prorogation or
a dissolution, and its prorogation.”

JAG Griffith and Michael Ryle, Parliament: Functions, Practice and
Procedures, 1989: “A Parliament is summoned by the Sovereign to meet after
each general election and the duration of a Parliament is from that first
meeting until Parliament is dissolved by the Sovereign, prior to the next
general election.

The continuity of Parliament is today secured by including in the same
proclamation the dissolution of one Parliament, the order for the issuing
of writs for the election of a new Parliament and the summoning of that
Parliament on a specified date at Westminster. Under Section 21(3) of the
Representation of People Act, 1918, the interval between the date of the
proclamation and the meeting of Parliament must be not less than 20 days,
although this period can be further extended by proclamation. During this
interval the general, election is held.”

Passages relied upon by the learned counsel are extremely inappropriate in
the Indian context for holding elections for constituting either House of
the People or the Legislative Assembly. As is clear from the passages
themselves, under British Parliamentary system, it is the exclusive right
of the Monarch to dissolve the Parliament and the Monarch by the same
proclamation also provides for the election and meeting of its successor,
which is not the case under the Indian Constitution. Under the Indian
Constitution, the power has been entrusted to the Election Commission under
Article 324 to conduct, supervise, control and direction and, therefore,
the British convention cannot be pressed into service. In our democratic
system, the Election Commission is the only authority to conduct and fix
dates for fresh elections for constituting new House of People or
Legislative Assembly, as the case may be. However, it is true that in the
year 2000, Electoral Commission has been constituted in England by the
Political Parties, Elections and Referendums Act, 2000, but the conventions
sought to be relied upon are prior to the year 2000 and the Election
Commission also does not have the power to fix dates for holding elections
for constituting the House of Commons. Therefore, the British conventions
cannot be said to be reflected in Article 174. Yet another reason why the
British convention for fixing a date for newly constituted Parliament
cannot be applied in India is that under British Parliamentary system,
there is a continuity of Parliament, whereas in India once the Parliament
gets dissolved, all the business which is to be transacted comes to an end
and the House of People cannot be revived.

Is there any difference between the British Parliamentary practice and
Parliamentary practice under the Indian Constitution as regards
Prorogation, Adjournment and Dissolution?

In this context, learned counsel appearing for Union of India also relied
upon the following passages — from (SIC) May, Parliamentary Practice,
20thEdn. as regards Prorogation, Adjournment and Dissolution under British
conventions and argued that the session is the period of time between the
meeting of a Parliament whether after prorogation or dissolution. According
to learned counsel there is continuity in the Parliament and it forms an
unbroken chain. In substance the argument is that consequences of
prorogation or dissolution of a House is the same and therefore, Article
174(1) is applicable to new Legislative Assembly after dissolution.
Prorogation
The effect of a prorogation is once to terminate all the current business
of Parliament. Not only are the sitting of the Parliament at an end. but
all proceedings pending at the time are quashed except impeachments by the
Commons, and appeals before the House of Lords. Every bill must therefore
be renewed after a prorogation, as if it had never been introduced.
Adjournment
Adjournment is solely in the power of each House respectively though the
pleasure of the Crown has occasionally been signified in person, by
message, commission or proclamation, that both Houses should adjourn; and
in some case such adjournments have scarcely differed from prorogations.
But although no instance has occurred where the House has refused to
adjourn the communication may be disregarded.

Dissolution
The Queen may also close the existence of Parliament by a dissolution, but
is not entirely free to define the duration of the Parliament. Parliament
is usually dissolved by a proclamation under great seal, after having been
prorogued to a certain day, but such a proclamation has been issued at a
time when both House stood adjourned. This proclamations issued by the
Queen, with the advice of her Privy Council and announces that the Queen
has given orders to the Lord Chancellor of Great Britain and the Secretary
of State for Northern Ireland to issue out writs in due form, and according
to law, for calling a new Parliament; and the writs are to be returnable in
due course of law.

The aforesaid passages relied upon by learned counsel are wholly
inapplicable in the context of Indian Constitution. Under Article 85(2)
when the President on the advice of the Prime Minister prorogues the House,
there is termination of a session of the House and this is called
prorogation. When the House is prorogued all the pending proceedings of the
House are not quashed and pending Bills do not lapse. The prorogation of
the House may take place at any time either after the adjournment of the
House or even while the House is sitting. An adjournment of the House
contemplates postponement of the sitting or proceedings of either House to
reassemble on another specified date. During currency of a session the
House may be adjourned for a day or more than a day. Adjournment of the
House is also sine die. When a house’s adjourned, pending proceedings, or
Bills do not lapse. So far as. the dissolution of either House of the
People or State Legislative Assembly is concerned, the same takes place on
expiration of the period of five years from the date appointed for its
first meeting or under Article 85(2) or Article 174(2). It is only an
existing or functional Lok Sabha or Legislative Assembly which is capable
of being dissolved. A dissolution brings an end to the life of the House of
the People or State Legislative Assembly and the same cannot be revived by
the President. When dissolution of House of the People or State Legislative
Assembly takes places all pending proceedings stand terminated and pending
Bill lapses and such proceedings and Bills are not carried over to the new
House of the people or State Legislative Assembly when they are constituted
after fresh elections.

From the afore-mentioned passages relied upon it is apparent that there is
a difference in the British parliamentary practice and the Indian practice
under he Indian Constitution as regards dissolution and prorogation. Under
Indian Constitution dissolution brings a legislative body to an end and
terminates its life. Prorogation, on the other hand, only terminates a
session and does not preclude another session, unless it is coincident with
the end of a legislative term. In other words prorogation, unlike
dissolution, does not affect the life of the legislative body which may
continue from the last session until brought to an end by dissolution. This
is the difference in the meaning of prorogation and dissolution. In so far
as the effects following from prorogation and dissolution on pending
legislative business are concerned in England, prorogation puts an end to
all pending business in the Parliament, whereas in India, this is not the
case. Under Articles 107 and 196 there is a specific provision that mere
prorogation will not lead to lapsing of Bills pending at that point of
time. It is only on dissolution that the pending Bills lapse under Articles
107(5) and 196(5) of the Constitution. Thus we see that there is
practically no difference in the effects following prorogation and
dissolution in England, which difference is specifically contemplated under
the India Constitution. In England, dissolution does not bring with it any
special or additional consequences apart from those that attend upon
prorogation. Therefore, the British convention with respect to summoning
proroguing and dissolution of the House of Commons is also of not much
relevance in the Indian context.

From the above, the irresistible conclusion is that Article 174(1) is
neither applicable to a dissolved House nor does it provide for any period
for holding election for constituting fresh Legislative Assembly.
Whether the expression “the House” is a permanent body and is different
than the House of People or the Legislative Assembly under Article 85 and
174 of the Constitution.

It was then urged on behalf of the Union that under Article 174 what is
dissolved is an Assembly while what is prorogued is a House. Even when an
Assembly is dissolved, the House continues to be in existence. The Speaker
continues under Article 94 in the case of the House of the People or under
Article 179 in the case of the State Legislative Assembly till the new
House of the People or the Assembly is constituted. On that premise, it was
further urged that the fresh elections for constituting new Legislative
Assembly has to be held within six months from the last session of the
dissolved Assembly.

At first glance, the argument appeared to be very attractive, but after
going deeper into the matter we do not find any substance for the reasons
stated hereinafter.

Drafting the text of a Statute or a Constitution is not just an art but is
a skill. It is not disputed that a good legislation is that the text of
which is plain, simple unambiguous precise and there is no repetition of
words or usage of superfluous language. The skill of a draftsman in the
context of drafting a Statute or the Constitution lies in brevity and
employment of appropriate phraseology wherein superfluous word’s r
repetitive words as avoided. It appears that the aforesaid principle was
kept in mind while drafting the Government of India Act 1935, the
Government of India Act, 1919, and the Government of India Act 1935. The
draftsman of the Constitution of India has taken care to maintain brevity
and the phraseology used is such that there is no ambiguity while making
provisions for the Constitutional institutions in the provisions of the
Constitution.

In this background, wherever the Constitution makers wanted to confer
power, duties or functions or wanted to make similar provisions both for
Council of States as well as House of the People or to the State,
Legislative Council and the Legislative Assembly, they have referred both
the institutions under Part V Chapter II and Part VI Chapter III of the
Constitution as ‘two Houses’, ‘each House’, ‘either House & ‘both Houses’.
On the other hand the Constitution makers, when they wanted to confer
powers, functions and duties or to make provisions exclusively either for
House of the People or Council of States, they have referred the said
institutions either as Council of States or House of the People. Similarly,
in States when the Constitution makers wanted to confer power, functions
duties or wanted to make similar provisions both for the Legislative
council and the Legislative Assembly, they referred both the institutions
as ‘Houses’, ‘either Houses’, both Houses’, ‘each House’ and where there
was no Legislative Council, and power was to give exclusively to
Legislative Assembly, it is referred as Legislative Assembly. The aforesaid
pattern of drafting has been borrowed from Government of India Acts. 1915,
1919 and 1935 which we shall notice hereinafter.

Section 63 of the Government of India Act, 1915 provided that Indian
Legislature shall consist of the Governor General and two Chambers viz.,
Council of State and Legislative Assembly Section 63D(1)(a) provided that
either Chamber of the Legislature may be summoned/dissolved by the Governor
General. The expression ‘ Chamber’ here is analogous to the expression
‘House’. Under Section 63D(1)(c) of the Act, after the dissolution of
either Chamber, the Governor General was required to appoint a date not
more than six months or with the sanction of the Secretary of the State not
more than nine months after the date of dissolution for the next session of
the Chamber. Since both the “Chambers” were subject to dissolution,
therefore, under Section 63D(i)(c) both the Council of States and
Legislative Assembly have been referred as ‘either Chamber’, and not as
‘Council of States or Legislative Assembly’. This show that the expressions
“either Chamber” are referable to Council of States as well as Legislative
Assembly, Under Government of India Act, 1919 again, the Indian Legislature
consisted of the Governor General and two Chambers viz., Council of States
and the Legislative Assembly. Under Section 21(1)(a) of the Act, “either
Chamber” of the Legislature could be dissolved by the Governor General and
under Section 21(1)(c) it was provided that after dissolution of either
Chamber, the Governor General shall appoint a date not more than six months
or with the sanction of the Secretary of the State not more than nine
months after the date of dissolution, the next session. This provision is
in pari materia with Section 63D of Government of India Act, 1915. In this
case also, we find that since both the Chambers viz., Council of State and
Legislative Assembly were subjected to dissolution, therefore, in Section
21(1)(c) the Council of State or Legislative Assembly both were referred to
as ‘either Chamber’ and not as Council of State or Legislative Assembly.

Section 18 of Government of India Act, 1935 provided that the Federal
Legislature was to consist of His Majesty represented by Governor General
and two Chambers to be known respectively as ‘Council of State’ and Federal
Assembly. Under Sub-section (4) of Section 18 of the 1935 Act, the Council
of State was made a permanent body not subject to dissolution, but as many
as 1/3rd members thereof shall retire in every third year, in accordance
with the provisions in that behalf contained in the First Schedule. Sub-
section (2) of Section 19 of the Government of India Act, 1935 which is
similar to Article 85 of the Constitution of India, provided that the
Governor General may in his discretion summon the Chambers or either
Chamber to meet at such time as he deems fit, prorogue the Chamber and
dissolve the Federal Assembly. In this case, the dissolution is not of
Chambers, but of the Federal Assembly for the simple reason that Council of
State was made a permanent body not subject to dissolution and, therefore,
the Federal Assembly which was subjected to dissolution has been
specifically referred in the Section.

In Government of India Act, 1935, there was a provincial legislature and
under Section 60 of the Act, it was provided that there shall provincial
legislature which shall consist of His Majesty represented by the Governor
and in the provinces of Madras, Bombay and Bengal and United Provinces
Bihar and Assam there shall be two Chambers and in other provinces one
Chamber. In Sub-section (2) thereof, it was further provided that where
there are two Chambers of the Provincial Legislature, they shall be known
as Legislative Council and Legislative Assembly and where there is one
Chamber the same will be known as Legislative Assembly. Sub-section (3) of
Section 61 provided that every Legislative Council shall be a permanent
body not subject to dissolution. Sub-section (2) of Section 62 of the Act
provided that Governor may in his discretion from time to time summon the
Chambers or either Chamber, prorogue the Chamber or Chambers and dissolve
the Legislative Assembly. This provision is pari materia with Article 174
of the Constitution of India. In this case also, it is very much clear that
since Legislative Council has been made a permanent body and the
Legislative Assembly was subjected to dissolution, therefore, the
expression ‘Chamber’ has not been employed for the Legislative Assembly,
but expressly Legislative Assembly has been mentioned.

Coming to the Constitution of India, Article 85 is in pari materia with
Section 19 of the Government of India Act, 1935. Similarly Article 174 is
in pari materia with Section 62 of Government of India Act, 1935. Article
79 of Constitution of India provides that thee shall be a Parliament for
the Union which shall consist of President and two Houses respectively to
be known as Council of States and House of People. Article 83 provides that
the Council of States shall not be subject to dissolution. Article 85
provides that the President may, from time to time, prorogue the Houses or
either House and dissolve the House of People. Here again, since Council of
States is a permanent body and not liable to dissolution, therefore,
instead of using the expression ‘either House’, the expression ‘House of
People’ has been employed, the same being liable to dissolution. The same
thing holds for the State Legislature under Article 168, Article 172 and
Article 174 of the Constitution.

From the aforesaid provisions, it is clear that the expressions “Houses”,
“both Houses” and “either House” and “the House” are used synonymously with
the institutions known as Council of States and House of the People and are
interchangeable expressions.

The matter may also be examined from another angle. Under Article 86, the
President is empowered to specially address either House of Parliament or
both Houses assembled together. Similarly, under Article 87, the President
is empowered to address both Houses of Parliament assembled together. Under
Article 88, every Minister and Attorney General has a right to speak or
take part in the proceedings of either House. Article 98 provides that each
House of Parliament shall have a Secretariat Staff and under Clause (2)
thereof, the Parliament is empowered to make law for regulating the
appointment and conditions of services of persons appointed to the
Secretariat staff of either House of Parliament. Article 99 provides that
every member of either House of Parliament shall, before taking his sent,
make and subscribe before the President, or some person appointed in that
behalf by him an oath or affirmation according to the form set out for the
purpose in the Third Schedule. Article 100 provides that all questions at
any sitting of either House or joint sitting of the Houses shall be
determined by a majority of votes of the members present and voting, other
than the Speaker or person acting as Chairman or Speaker. Article 101
provides that no person shall be a member of both Houses of Parliament.
Similarly, Article 102 uses the expression ‘either House of Parliament’.
Article 103 again uses the expression ‘ either House of Parliament’.
Article 104, 106 and 107 also use the expression ‘either House of
Parliament’. This shows that the Constitution framers, wherever they wanted
to make similar provisions for both Council of States and House of the
People, have used the expressions “House”, “either House”, “both Houses”,
“Houses” only for the purpose of maintaining brevity and to avoid using
Council of States and House of the People again and again.

Analogous provisions are found in the provisions dealing with the State
Legislature under Part VI Chapter III of the Constitution. Article 168
provides that for every State, there shall be a Legislature which shall
consist of the Governor and in the States of Bihar, Maharashtra, Karnataka
and Uttar Pradesh two Houses and in other States one House. Sub-clause (2)
thereof further provides that where there are two Houses, one shall be
known as the Legislative Council and the other as the Legislative Assembly,
and where there is only one House it shall be known as Legislative
Assembly. Sub-clause (2) of Article 172 provides that the Legislative
Council of a State is permanent body which is not subject to dissolution.
Under Article 174(1), the Governor is empowered to summon the House or each
House of Legislature of the State to meet at such time and place as the
deems fit, but six months shall not intervene between its last sitting in
one session and the date appointed for its first sitting in the next
session. Under Clause (2) of Article 174 the Governor has power to promgue
the House or either House and dissolve the Legislative Assembly. Here
again, we find that since Legislative Council is a permanent body, it
cannot be dissolved and therefore, the expression ‘House’ does not find
place in Clause (2)(b) of Article 174.

Similarly, in the case of State Legislature, there are provisions where the
Constitution makers have used the expression ‘either House’ ‘both Houses’
and ‘House of Legislature’ wherever they intended to apply similar
provisions to both the Legislative Council as well as Legislative Assembly.

Article 175 empowers the Governor to address ‘both the Houses assembled
together’ and his power to send messages to ‘Houses of Legislature’ of the
State. Article 176 provides for a special address by the Governor to both
the ‘House’ assembled together. Article 177 speaks of the rights of
ministers and Advocate General to speak in the take part in the proceedings
of ‘both Houses’. Article 187 dealing with Secretariat of the State
Legislature uses the expressions, ‘the House’, ‘each House, ‘common to both
Houses’ and ‘Houses’. The head note of Article 189 reads: “voting in House,
power of Houses”. Article 190 also refers to ‘both Houses’. ‘Article 196,
uses the expressions ‘either House’, ‘both Houses’, and ‘Houses’ while
referring to both the Legislature Assembly and Legislative Council.
Similarly, Article 197(2) also provides for passage of a Bill by the
‘Houses of the Legislature’ of the State. Article 202 and Article 209 also
use the expression Houses’ while referring to both the Legislative Assembly
and Legislative Council.

These provisions may be contrasted while Articles 169, 170, 171, 178, 179,
180, 181, 182, 183, 184, 185 and Article 186 which deal exclusively either
with the Legislative Council or the Legislative Assembly, Similarly,
Articles 197 and 198 also mention Legislative Assembly and Legislative
Council separately. Thus, the Constitution makers have specifically
referred to Legislative Assembly and the Legislative Council wherever there
was a need to do so. Moreover, Articles 188, 191 and 193 while dealing with
the respective matters specified therein mention both Legislative Assembly
or Legislative council separately. Since the Constitution was being drafted
for the entire country and not for a particular State, the Constitution
framers thought it fit to specify the Legislative Assembly or Legislative
Council separately to avoid confusion in States having just the Legislative
Assembly and not the Legislative Council.

It may be noted here that there is a difference is phraseology used in
Articles 99 and 188, which deal with oath or affirmation of members,
Articles 103 and 191, which deal with disqualification of members and
Articles 104 and 193 which deal with penalty for sitting and voting before
making oath or affirmation or when not qualified or disqualified. Articles
99, 103 and 104 employ the expression ‘either House’ while Articles 188,
191 and 193 mention “Legislative Assembly or Legislative Council”. This
difference in phraseology can be explained on the basis of the fact that
there are many states where there is no Legislative Council, and therefore,
in this context, use of the expression “either House” in Articles 188, 191
and 193 could have been misleading.

From the aforesaid provisions, it is manifest that there is no distinction
between the ‘House’ and ‘Legislative Assembly’. Wherever the Constitution
makers wanted to make similar provisions for Legislative Council as well as
Legislative Assembly, both together have been referred to as Houses and
wherever the Constitution makers wanted to make a provisions exclusively
for the Legislative Assembly, it has been referred to as Legislative
Assembly. For the aforesaid reasons out conclusion is that the expressions
“The House”or “either House” in Clause (2) of Article 174 of the
Constitution and Legislative Assembly are synonymous and are
interchargeable expressions. The use of expression “the House” denotes the
skill of Draftsman using appropriate phraseology in the text of the
Constitution of India. Further the employment of expressions “the House or
“either House” do not refer to different bodies other than the Legislative
Assembly or the legislative Council, as the case may be, and have no
further significance.

2.(a) Is there any period of limitation provided under the Constitution of
India or Representation of the People Act for holding fresh election for
constituting new Legislative Assembly in the event of premature dissolution
of a Legislative Assembly?

In the context, we have looked into the provisions of the Constitution of
India, but we do not find any provision expressly providing for any period
of limitation for constituting a fresh Legislative Assembly on the
premature dissolution of the previous Legislative Assembly. On our
interpretation of Article 174(1), we have already held that it does not
provide for any period of limitation for holding elections within six
months from the date of last sitting of the session of the dissolved
Assembly. Section 15 of the Representation of the People Act, 1951 provides
that general election is required to be held for the purpose of
constituting a new Legislative Assembly on the expiration of duration of
the existing Assembly or on its dissolution. Sub-section (2) thereof
provides that for constituting new Legislative Assembly, the Governor shall
by notification, on such date or dates, as may be recommended by the
Election Commission, call upon all Assembly constituencies in the State to
elect members in accordance with the provisions of the Act, rules and
orders made thereunder. The proviso to Sub-section (2) of Section 15 of the
Act provides that where an election is held otherwise than on the
dissolution of the existing Legislative Assembly, no such notification
shall be issued at any time earlier than six months prior to the dates on
which the duration of that Assembly would expire under the provision of
Clause (1) of Article 172.

The aforesaid provisions also do not provide for any period of limitation
for holding elections for constituting new Legislative Assembly in the
event of premature dissolution of an existing Legislative Assembly,
excepting that election process can be set in motion by issuing a
notification six months prior to the date on which the normal duration of
the Assembly expires. Thus, the question arises as to whether the
Constitution framers have omitted by oversight to provide any such period
for holding election for constituting new Assembly in an event of premature
dissolution or it was purposely not provided for in the Constitution. For
that purpose, we must look into the legislative developments and the
Constitutional debates preceding the enactment of Constitution of India.

As earlier noticed, Sections 63D and 72B(1) of the Government of India Act,
1915 and Sections 8(1) and 21(1) of the Government of India Act, 1919
empowered the Governor General in case of Indian Legislature and the
Governor in case of Provincial Legislature to dissolve either chambers
sooner than their stipulated period and appoint a date, nor more than six
months or, with the sanction of the Secretary of the State, not more than
nine months from the date of dissolution for the next session of that
Chamber. Thus the statutes themselves provided a period of limitation
within which elections were to be held for constituting the new Chamber.
The power of the Governor General to fix a date for the next chamber was
similar to the powers exercised by the British Monarch historically under
the British conventions.

However, in Government of India Act, 1935, the period of limitation fixed
for holding election for constituting Legislative Council and Legislative
Assembly were dispensed with the under Schedule V Para 20 to the Government
of India Act, 1935, the Governor General was empowered to make rules for
carrying out the provisions of the Vth and VIthSchedule. Para 20 thereof as
a whole, related to matters consisting of elections and Clause (3)
particularly pertains to conduct of elections. Similarly, Schedule VI of
Government of India Act, 1935 contained provisions with respect to
electoral roll and franchise. Thus, the conduct of election was entrusted
to the Executive and the Executive was empowered to fix the date or dates
for holding elections for constituting Federal Legislature as well as
Provincial Legislature.

When the question, who would conduct the elections under Indian
Constitution was debated upon before the Constituent Assembly, concerns
were expressed by the members of the Constituent Assembly in entrusting the
same in the hands of the Executive and, in fact, there was unanimity among
the members that an independent Constitutional Authority be set up for
superintendence, direction, control and the conduct of elections to
Parliament and Legislature of every State. In this connection, Dr. B.R.
Ambedkar stated before the Constituent Assembly thus:
“But the House affirmed without any kind of dissent that in the
interest of purity and freedom of elections to the legislative
bodies, it was of the utmost importance that they should be freed
from any kind of interference from the executive of the day. In
pursuance of the decision of the House, the Drafting Committee
removed this question from the category of Fundamental Rights and
put it in a separate part containing ‘Articles 289, 290 and so on.
Therefore, so far as the fundamental question is concerned that the
election machinery should be outside the control of the executive
Government, there has been no dispute. What Article 289 does is to
carry out that part of the decision of the Constituent Assembly. It
transfers the superintendence, direction and control of the
preparation of the electoral rolls and of all elections to
Parliament and the Legislatures of States to a body outside the
executive to be called the Election Commission.”

It is in light of the aforesaid discussion, Article 324 was enacted and the
superintendence, direction, control and conduct of election was no more
left in the hands of the Executive but was entrusted to an autonomous
Constitutional Authority i.e. the Election Commission. It appears that
since the entire matter relating to the elections was entrusted to the
Election Commission, it was found to be a matter of no consequence to
provide any period of limitation for holding fresh election for
constituting new Legislative Assembly in the event of premature
dissolution. This was deliberate and conscious decision. However, care was
taken not to leave the entire matter in the hands of the Election
Commission and, therefore, under Article 327 read with Entry 72 of List I
of VIIth Schedule of the Constitution, Parliament was given power subject
to the provisions of the Constitution to make provisions with respect to
matters relating to or in connection with the election of either House of
Parliament or State Legislature, as the case may be, including preparation
of electoral roll. For the States also, under Article 328 read with Entry
37 of List II, the Legislature was empowered to make provisions subject to
the provisions of the Constitution with respect to matters relating to or
in connection with election of either House of Parliament or State
Legislature, including preparation of electoral roll. Thus, the Parliament
was empowered to make law as regards matters relating to conduct of
election of either Parliament or State Legislature, without affecting the
plenary powers of the Election Commission. In this view of the matter, the
general power of superintendence, direction, control and conduct of
election although vested in the Election Commission under Article 324(1),
yet it is subject to any law either made by the Parliament or State
Legislature, as the case may be which is also subject to the provisions of
the Constitution. The word ‘election’ has been interpreted to include all
the steps necessary for holding election. In M.S. Gill v. Chief Election
Commissioner (suprs), A.C. Jose v. Sivan Pillai and Ors. – and Kanhiya Lal
Omar v. R.K. Trivedi and Ors., it has been consistently held that Article
324 operates in the area left unoccupied by legislation and the words
‘superintendence, ‘controi’ ‘direction’ as well as ‘conduct of all
elections’ are the broadest of the terms. Therefore, it is no more in doubt
that the power of superintendence, direction and control are subject to law
made by either Parliament or by the State Legislature, as the case may
provided the same does not encroach upon the plenary powers of the Election
Commission under Article 324.

We find that the Representation of the People Act, 1951 also has not
provided any period of limitation for holding election for constituting
fresh Assembly election in the event of premature dissolution of former
Assembly. In this context, concerns were expressed by learned counsel for
one of the national political parties and one of the States that in the
absence of any period provided either in the Constitution or in the
Representation of the People Act, the Election Commission may not hold
election at all and in that event it would be the end of democracy. It is
no doubt true that democracy is a part of the basic structure of the
Constitution and periodical, free and fair election is substratum of
democracy. If there is no free and fair periodic election, it is end of
democracy and the same was recognized in M.S. Gill v. Chief Election
Commissioner – (1978) 1 SCC 464 thus:

“A free and fair election based on universal adult franchise is the
basic, the regulatory procedures vis-a-vis the repositories of
functions and the distribution of legislative, executive and
judicative roles in the total scheme, directed towards the holding
of free elections, are the specifies. The super authority is the
Election Commission, the Kingpin is the returning officer, the
minions are the presiding officers in the polling stations and the
electoral engineering is in conformity with the elaborate
legislative provision.”

Similar concern was raised in the case of A.C. Jose v. Sivan Pillai and
Ors. In that case, it was argued that if the Commission is armed with
unlimited arbitrary powers and if it happens that the persons manning the
Commission shares or is wedded to a particular ideology, he could be giving
odd directions cause a political havoc or bring about a Constitutional
crisis, setting at naught the integrity and independence of the electoral
process, so important and indispensable to the democratic system. Similar
apprehension was also voiced in M.S. Gill v. Chief Election Commissioner
(supra). The aforesaid concern was met by this Court by observing that in
case such a situation ever arises, the Judiciary which is a watchdog to see
that Constitutional provisions are upheld would step in and that is enough
safeguard for preserving democracy in the country.

However, we are of the view that the employment of words “on an expiration”
occurring in Sections 14 and 15 of the Representation of the People Act,
1951 respectively show that Election Commission is required to take steps
for holding election immediately on expiration of the term of the Assembly
or its dissolution, although no period has been provided for. Yet, there is
another indication in Sections 14 and 15 of the Representation of the
People Act that the election process can be set in motion by issuing of
notification prior to the expiry of six months of the normal term of the
House of People of Legislative Assembly. Clause (1) of Article 172 provides
that while promulgation of emergency is in operation, the Parliament by law
can extend the duration of the Legislative Assembly not exceeding one year
at a time and this period shall not, in any case, extend beyond a period of
six months after promulgation has ceased to operate. Further, under
Articles 123 and 213, the life of an ordinance promulgated either by the
President or by the Governor, as the case may be, is six months and
repeated promulgation of ordinance after six months has not been welcomed
by this Court. Again, under Articles 109, 110, and 111 and analogous
Articles for State Assembly, Money Bill has to be passed by the House of
People or by the Legislative Assembly. The aforesaid provisions to indicate
that on the premature dissolution of Legislative Assembly the Election
Commission is required to initiate immediate steps for holding election for
constituting Legislative Assembly on the first occasion and in any case
within six months from the date of premature dissolution of the Legislative
Assembly.

2(b) Is there any limitation on the powers of the Election Commission to
frame schedule for the purpose of holding election for constituting
Legislative Assembly?

So far as the framing of the schedule or calendar for election of the
Legislative Assembly is concerned, the same is in the exclusive domain of
the Election Commission, which is not subject to any law framed by the
Parliament. The Parliament is empowered to frame law as regards conduct of
elections but conducting elections is the sole responsibility of the
Election Commission. As a matter of law, the plenary powers of the Election
Commission can not be taken away by law framed by Parliament. If Parliament
makes any such law, it would repugnant to Article 324. Holding periodic,
free and fair elections by the Election Commission are part of the basic
structure and the same was reiterated in Indira Nehru Gandhi v. Raj Narain
which run as under:

“198. This Court in the case of Kesavananda Bharati (supra) held by
majority that the power of amendment of the Constitution contained
in Article 368 does not permit altering the basic structure of the
Constitution. All the seven Judges who constituted the majority
were also agreed that democratic set-up was part of the basic
structure of the Constitution. Democracy postulates that there
should be periodical elections, so that people may be in a position
either to re-elect the old representatives or, if they so choose,
to change the representatives and elect in their place other
representatives. Democracy further contemplates that the elections
should be free and fair so that the voters may be in a position to
vote for candidates of their choice. Democracy can indeed function
only upon the faith that elections are free and fair and not rigged
and manipulated, that they are effective instruments of
ascertaining popular will both in reality and form and are not mere
rituals calculated to generate illusion of defence to mass
opinion…..”

The same is also evident from Sections 14 and 15 of the Representation of
People Act, 1951 which provide that the President or the Governor shall fix
the date or dates for holding elections on the recommendation of the
Election Commission. It is, therefore, manifest that fixing schedule for
elections either for the House of People or Legislative Assembly is in the
exclusive domain of the Election Commission.

(3) Application of Article 356

It appears that the interpretation of Article 174(1) of the Constitution by
the Election Commission in its order was mainly influenced by the past
practice adopted by the Election Commission holding elections for
constituting fresh Legislative Assembly within six months of the last
sitting of the dissolved House. It also appears that the gratuitous advice
of application of Article 356 by the Election Commission in its order was
in all its sincerity, although now on our interpretation of Article 174(1),
we find that it was misplaced. However, the Election Commission in its
written submission has stated thus:

“The decision, contained in the Election Commission’s order dated
16.8.2002, was taken without reference to Article 356. However, it was
merely pointed out that there need be no apprehension that there would be a
constitutional impasse as Article 356 could provide a solution in such a
situation”.

In that view of the matter and the view we have taken in regard to the
interpretation of Article 174(1), there is no need to go further into the
question of application of Article 356 in the context of the order of the
Election Commission out of which the Reference arises.

As a result of the aforesaid discussion, our conclusions are as follows:

a) The Reference made by the President of India under Article 143(1) arises
out of the order of the Election Commission dated 19.8.2002 and the
questions raised therein are of public importance and are likely to arise
in future. Further, there being no decision by this Court on the questions
raised and a doubt having arisen in the mind of the President in regard to
the interpretation of Article 174(1) of the Constitution, the Reference is
required to be answered.

b) Article 174(1) of the Constitution relates to an existing, live and
functional Legislative Assembly and not to a dissolved Assembly.

c) The provision in Article 174(1) that six months shall not intervene
between its last sitting in one session and the date appointed for its
sitting in the next session is mandatory and relates to the frequencies of
the sessions of a live and existing Legislative Assembly and does not
provide for any period of limitation for holding fresh elections for
constituting Legislative Assembly on premature dissolution of the Assembly.

d) The expressions “the House”, “either House” is synonymous with
Legislative Assembly or Legislative Council and they do not refer to
different bodies other than the Legislative Assembly or the Legislative
Council, as the case may be.

e) Neither under the Constitution nor under the Representation of the
People Act, any period of limitation has been prescribed for holding
election for constituting Legislative Assembly after premature dissolution
of the existing one. However, in view of the scheme of the Constitution and
the Representation of the People Act, the elections should be held within
six months for constituting Legislative Assembly from the date of
dissolution of the Legislative Assembly.

f) Under the Constitution the power to frame the calender or schedule for
elections for constituting Legislative Assembly is within the exclusive
domain of the Election Commission and such a power is not subject to any
law either made by Parliament or State Legislature.

g) In view of the affidavit filed by the Election Commission during hearing
of the Reference, the question regarding the application of Article 356 is
not required to be gone into.

In accordance with the foregoing opinion, we report on the questions
referred as follows:

Question No. (i):

This question proceeds on the assumption that Article 174(1) is also
applicable to a dissolved Legislative Assembly. We have found that the
provision of Article 174(1) of the Constitution which stipulates that six
months shall not intervene between the last sitting in one session and the
date appointed for is first sitting in the next session is mandatory in
nature and relates to an existing and functional Legislative Assembly and
not to a dissolved Assembly whose life has come to an end and ceased to
exist. Further, Article 174(1) neither relates to elections nor does it
provide any outer limit for holding elections for constituting Legislative
Assembly. The superintendence, direction and control of the preparation of
electoral roll and conduct of holding elections for constituting
Legislative Assembly is in the exclusive domain of the Election Commission
under Article 324 of the Constitution. In that view of the matter, Article
174(1) and Article 324 operate on different fields and neither Article
174(1) is subject to Article 324 nor Article 324 is subject to Article
174(1) of the Constitution.

Question No. (ii):

This question also proceeds on the assumption that Article 174(1) is also
applicable to a dissolved House. On our interpretation of Article 174(1),
we have earlier reported that the said Article is inapplicable to a
dissolved Legislative Assembly. Consequently, there is no infraction of the
mandate of Article 174(1) in preparing a schedule for elections to an
Assembly by the Election Commission. The Election Commission in its written
submissions stated thus:

“The decision, contained in the Election Commission’s order dated
16.8.2002, was taken without reference to Article 356. However, it was
merely pointed out that there need be no apprehension that there would be a
constitutional impasse as Article 356 could provide a solution in such a
situation”.

In that view of the matter, the question of applicability of Article 356 on
the infraction of the provisions of Article 174 loses much of its substance
and, therefore, application of Article 356 is not required to be gone into.
Question No. (iii):

Again, this question proceeds on the assumption that the provision of
Article 174(1) also apply to a dissolved Assembly. In view of our answer to
question No. (i), we have already reported that Article 174(1) neither
applies to a prematurely dissolved Legislative Assembly nor does it deal
with elections and, therefore, the question that the Election Commission is
required to carry out the mandate of Article 174(1) of the Constitution
does not arise. Under Article 324, it is the duty and responsibility of the
election Commission to hold free and fair elections at the earliest. No
efforts should be spared by the Election Commission to hold timely
elections. Ordinarily, law and order or public disorder should not be
occasion for postponing the elections and it would be the duty and
responsibility of all concern to render all assistance, cooperation and aid
to the Election Commission for holding free and fair elections.

The Reference is answered accordingly.

___________________________________________________________________________

Balakrishnan, J.

I had the advantage of reading the Opinion in draft of my learned brothers
V.N. Khare and Arijit Pasayat, JJ. and I fully concur with the opinion
expressed by them regarding interpretation of Article 174 and the
consequential answers to the reference made by the President of India, and
I would like to add the following.

The Legislative Assembly of Gujarat was dissolved by the Governor of
Gujarat on 19th July, 2002 in exercise of the powers conferred on him under
Article 174(2)(b) of the Constitution. The full term of the Legislative
Assembly would be expiring on 18thMarch, 2003. After the dissolution of the
Assembly, the ruling party in the State of Gujarat requested the Election
Commission for conducting fresh General Election urgently so that the new
Legislative Assembly would be able to have its first session before
6thOctober, 2002. The ruling party of the State of Gujarat made this demand
on the basis of the premise that under Article 174(1) of the Constitution,
there shall not be more than six months period in between the last session
of the dissolved assembly and the first meeting of the next session of the
Assembly to be newly constituted. Certain other political parties, public-
spirited citizens and organisations urged the Election Commission not to
hold the general election to the Gujarat State Legislative Assembly but to
wait for some more time until the people who were affected by the communal
riots and violence returned to their houses from the various relief camps
where they were staying.

In the last week of February, 2002 an unfortunate incident took place at
the railway station in Godhara in Gujarat in which a railway compartment
was set on fire and several people who were occupants of that compartment
died of burning. After this incident a spate of communal violence erupted
in various parts of Gujarat and curfew was clamped in many cities of the
State of Gujarat. Many people who had been the victims of such riots were
put in the relief camps. Election Commission, which was requested to
conduct the election, visited Gujarat and in the Order passed by the
Election Commission on 16thAugust, 2002, the following observations were
made:

(1) The Commission was of the opinion that Article 174(1) of the
Constitution was applicable even in respect of dissolved Assemblies and in
the Order it is stated that the Commission has, in the past, been taking
the view that the six months mentioned in Article 174(1) of the
Constitution applies not only to a Legislative Assembly in existence but
also to dissolved assembly and elections to constitute a new Legislative
Assembly have always been held within such time so as to enable the new
Assembly to meet within the period of six months from the last sitting of
the last session of the dissolved Assembly;

(2) Commission was of the opinion that any other view on the interpretation
of Article 174(1) of the Constitution may lead to extensive gaps between
two Houses of a Legislative Assembly and the abuse of democracy, there
being no provision in the Constitution or in any law in force prescribing a
period during which an election to be held to constitute a new Legislative
Assembly on the dissolution of the previous house;

(3) The Commission further observed that Article 174(1) of the Constitution
cannot be read in isolation and it has to be read along with other relevant
provisions of the Constitution, particularly Article 324 of the
Constitution and this Article being not subject to the provisions of any
other Article of the Constitution including Article 174(1), vests the
superintendence, direction and control, inter alia, of the preparation of
electoral rolls for, and conduct of, elections to Parliament and State
Legislature in the Election Commission. The Commission further observed
that free and fair election based on universal adult franchise being the
basic feature of the Constitution the same cannot be held in view of the
prevailing situation in Gujarat. The Commission was of the view that there
was large scale movement and migration of electors due to communal riots
and violence and they had not returned to their homes and they would not be
able to go to the polling station to cast their votes and the electoral
rolls had to be revised.

Therefore, the Election Commission came to the conclusion that it was not
in a position to conduct free and fair election immediately after the
dissolution of the Assembly and after the electoral roll is revised, the
Commission would be in a position to conduct election to the General
Assembly in the month of November/December, 2002.

The Commission was also of the view that Legislative Assembly should meet
at least every six months as contemplated by Article 174(1) of the
Constitution even when it has been dissolved and in case it was not
feasible, that 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 step
in and declare a state of emergency.

After the receipt of the report of the Election Commission, the
Presidential Reference was made under Article 143(1) of the Constitution of
India and the Order of Reference proceeded on the assumption that the
mandate of the Constitution under Article 174(1) is that six months shall
not intervene between the last sitting of the previous session and the date
appointed for the first sitting in the next session and the Election
Commission has all along been consistent that normally, a Legislative
Assembly should meet at least every six months as contemplated by Article
174(1) of the Constitution, even where it has been dissolved, and the Order
of the Election Commission of India dated August 16, 2002 had not
recommended any date for holding general election for constituting a new
Legislative Assembly for the State of Gujarat. The new Legislative Assembly
cannot come into existence so as to meet within the stipulated period of
six months as provided under Article 174(1) of the Constitution of India.
The following observation of the Election Commission was also noted in the
Reference:

“AND WHEREAS the Election Commission has held that the non-
observation of the provisions of Article 174(1) in the present
situation would mean that the Government of the State cannot be
carried 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;

AND WHEREAS doubts have arisen with regard to the constitutional
validity of the said order of the Election Commission of India as
the order of the Election Commission which would result in a non-
compliance with the mandatory requirement envisaged under Article
174(1) of the Constitution under which not more than six months
shall intervene between two sittings of the State Legislature;

AND WHEREAS in view of what has been hereinbefore stated, it
appears to me that the questions of law hereinafter set out have
arisen which are of such a nature and of such public importance
that it is expedient to obtain the opinion of the Supreme Court of
India.”

The following three questions were referred to the Supreme Court of India
for consideration:

(i) Is Article 174 subject to the decision of the Election Commission of
India under Article 324 as to the schedule of elections of the Assembly?

(ii) Can the Election Commission of India frame a schedule for the
elections to an Assembly on the premise that any infraction of the mandate
of Article 174 would be remedied by a resort to Article 356 by the
President?

(iii) Is the Election Commission of India under a duty to carry out the
mandate of Article 174 of the Constitution, by drawing upon all requisite
resources of the Union and the State to ensure free and fair elections?

After the receipt of the reference, notices were issued to all the States
and all the recognised national political parties. On behalf of the Union
of India, Solicitor General Shri Harish N. Salve appeared and raised the
following contentions. It was contended on behalf of the Union of India
that Article 174 is applicable even to dissolved assemblies and since there
is no time limit at all for conducting fresh election, it would
hypothetically lead to a situation of Council of Ministers continuing
perennially after the dissolution of Assembly, which, in turn, would lead
to a breakdown of the constitutional democracy. It was argued that there is
no question of Article 174, or Article 85, or Article 85 or Article 164
coming in conflict with Article 324 and these provisions operate in
different fields and the power of superintendence, direction and control of
elections vested with the Election Commission should be exercised in the
manner which would be consistent with the constitutional scheme of
representative government. It is submitted that the Election Commission
must use all the requisite resources of Union and the State to ensure free
and fair election. It was further argued that the power under Article 356
is utterly irrelevant for ascertaining the constitutional mandate for
holding elections and this power is highly discretionary and is to be
exercised where there is a breakdown of the constitutional machinery. The
executive government has no legal authority to compel the holding of
elections – not even Parliament can, by resolution, legally compel the
Election Commission to fix a particular schedule for the elections. By the
same token, the Election Commission cannot recommend – or even proceed upon
the premise of — imposition of President’s Rule, which would require
executive action ratified by Parliament.

Shri Arun Jaitley, Sr. Advocate, appearing on behalf of the Bharatiya
Janata Party contended that the view of the Election Commission that
Article 174 is subject to Article 324 of the Constitution is wholly
erroneous and contrary to the constitutional mandate. It was further
submitted that Article 324 does not enable Election Commission to exercise
untrammeled powers and the Commission must exercise power either of the
Constitution or the law under Article 327 and 328. It was also argued that
even when the Assembly is dissolved, the House continue to exist and,
therefore, Article 174 is applicable even to dissolved assemblies. A
reference was made to the Parliamentary practice in various other countries
including Britain.

Shri Kapil Sibal, Sr. Advocate appearing on behalf of the Indian National
Congress contended that Article 174 has no application to dissolved
Assembly. However, he submitted that on dissolution of an Assembly, it is
the duty of the Election Commission is conduct the election immediately and
every step shall be taken to see that the new Legislative Assembly met for
its first session at the earliest. However, it was submitted that the
Election Commission is the supreme authority, which should take a decision
as to when a free and fair election can be held. Article 324 of the
Constitution gives vast power to the Election Commission to decide the
question as to when the election shall be held and if the Election
Commission fails to carry out the constitutional mandate for any other
extraneous reason, such decision can be challenged under judicial review.
According to the counsel, any other interpretation of these constitutional
provisions would lead to a situation where the Election Commission would be
forced to conduct election when it is not possible to conduct a free and
fair election and that would be against the constitutional spirit of a
democratic government. It was submitted that as the Reference was based on
the wrong assumption of the constitutional provisions, it need not be
answered by this Court.

Shri Ram Jethmalani, Sr. Advocate appearing on behalf of the State of Bihar
submitted that Article 174 applies to an Assembly whose
personality/identity is not interrupted or altered by premature dissolution
or expiry of its period of duration. Free and fair elections being a basic
feature of a democratic and Republican Constitution, Article 174 will have
to yield to Article 324. It was further submitted that Article 356 does not
include the power to suspend the operation of Article 174. It was also
submitted that Article 174 imposes a mandate only on the Governor of the
State and is not concerned with the Election Commission.

Shri Rajeev Dhavan, Sr. Advocate appearing on behalf of the Communist Party
of India (Marxist) also supported the contention raised by the counsel who
appeared for Indian National Congress and contended that Article 174 is not
applicable to dissolved Assembly. Similar contentions were raised by
counsel for other political parties and counsel who appeared for various
States.

Shri K.K. Venugopal, Sr. Advocate appearing on behalf of the Election
Commission submitted that Article 174 has no application to dissolved
Assemblies. It was submitted that free and fair election is the basic
feature of the Constitution and the power of superintendence, direction and
control of election vests with the Election Commission. It was further
submitted that as the Reference has been made on the wrong premise, this
Court need not answer the same. it was also submitted that the Election
Commission has been trying its best to conduct election at the earliest
even under very adverse circumstances and for the past 50 years Election
Commission earned a good reputation as a free and independent body, which
has conducted elections to various State Legislatures and the House of the
People.

We are greatly beholden to other Senior Lawyers, M/s. K. Parasaran, P.P.
Rao, Milon Banerjee, M.C. Bhandare, Ashwani Kumar, P.N. Puri, A. Sharan,
Devendra N. Dwivedi, A.M. Singhvi, Gopal Subramaniam, and Vijay Bahuguna,
who had made very enlightening arguments on various vexed legal questions
involved in this case.

The first and foremost question that arises for consideration is whether
Article 174 is applicable in respect of a dissolved Assembly. The next
question that arises for consideration is the interplay of Article 147 and
Article 324 of the Constitution. Incidently, a question also may arise
whether the Election Commission can postpone the election indefinitely on
one pretext or the other and create a situation where there is a breakdown
of democratic form of Government. Article 174 of the Constitution reads
thus:

“174. Sessions of the State Legislature, prorogation and dissolution – (1)
The Governor shall from time to time summon the House or each House of the
Legislature of the State to meet at such time and place as he thinks fit,
but six months shall not intervene between its last sitting in one session
and the date appointed for its first sitting in the next session.
(2) The Governor may from time to time-

(a) prorogue the House or either House;

(b) dissolve the Legislative Assembly”.

Article 324 of the Constitution reads as under:

324. Superintendence, direction and control of elections to be vested in an
Election Commission-

(1) The superintendence, direction and control of the preparation of the
electoral rolls for, and the conduct of, all elections of Parliament and to
the Legislature of every State and of elections to the offices of President
and Vice-President held under this Constitution shall be vested in a
Commission (referred to in this Constitution as the Election Commission).
(2) …..

(3) …..

(4) …..

(5) …..

(6) …..”.

Section 8 of the Constitution (First Amendment) Act, 1951 amended Article
174 of the Constitution. The amended Article requires the Governor to
summon the House or each house of the Legislature to the State and this
Article mandates that six months shall not intervene between the last
sitting of one session and the date appointed for the first sitting of the
next session. The sole object of Article 174(1) is to ensure accountability
of executive to the people through their elected representatives. Article
164(2) states that the Council of Ministers shall be collectively
responsible to the Legislative Assembly of the State. In a democratic form
of Government the responsibility of the Government is to the people of the
country and the Members of the Legislative Assembly represent the people of
the State and the Council of Ministers shall be collectively responsible to
the Legislative Assembly. Therefore, frequency of the meeting of the
Legislative Assembly is necessary, otherwise, there will not be any check
and balance to the actions of the executive government. The Solicitor
General contended that Article 174 would apply even to a dissolved assembly
because the House as such is not dissolved and it was pointed out that when
the British Parliament is dissolved, notice to summon the next session of
the Parliament is simultaneously issued. On that basis, it was contended
that Article 174 is even applicable to a dissolved Assembly. We do not find
much force in this contention. The plain meaning of the words used in
Article 174 itself would show that Article 174 has no application to a
dissolved Assembly. The words “six months shall not intervene between its
last sitting in one session and the date appointed for its first sitting in
the next session” occurring in Article 174 clearly indicate that the
interregnum between the two sessions shall not be six months and that is
applicable only in respect of a live Assembly. Once the Assembly is
dissolved, Article 174 has no application.

Of course, in the Report of the Election Commission it is stated that that
Commission has all along been taking the view that once the Assembly is
dissolved it would take all possible steps to see that the first sitting of
the next Assembly would be made possible within a period of six months of
the last sitting of the dissolved Assembly. This is a very healthy
convention which is being followed since the adoption of our Constitution
and we must appreciate the action of the Election Commission in scheduling
the election in such a way that the first session of the next Assembly
meets within the period of six months of the last sitting of the dissolved
Assembly. But that by itself is no reason to interpret that Article 174
would apply to a dissolved Assembly. Frequency of meeting as provided under
Article 174 would apply to an Assembly which is in esse at that time.

Therefore, a question may arise that if Article 174 is not applicable to a
dissolved Assembly, can the Election Commission postpone election for
indefinite period so as to defeat the democratic form of Government? Is
there any mandate in the Constitution or in the Representative of People
Act, 1951 prescribing time to conduct the election? Obviously, neither the
Constitution nor the Representation of People Act, 1951 prescribes any time
limit for the conduct of election after the term of the Assembly is over
either by premature dissolution or otherwise. Proviso to Section 15(2) of
the Representation of People Act, 1951 states that where a general election
is held otherwise than on dissolution of the existing House of the People,
no notification for election shall be issued at any time earlier than six
months prior to the date on which the duration of that House would expire
under the provisions of Clause (2) of Article 83. Once there is dissolution
of the Assembly, the Election Commission shall take immediate steps to
conduct the election an see that the new Assembly is formed at the earliest
point of time. A democratic form of Government would survive only if there
are elected representatives to rule the country. Any delay on the part of
the Election Commission is very crucial and it is the Constitutional duty
of the Election Commission to take steps immediately on dissolution of the
Assembly. Article 324 of the Constitution gives vast powers to the Election
Commission and time and again this Court has pointed out the extent of
powers and duty vested with the Election Commission. It was argued by
various counsel appearing on behalf of the various political parties as to
what would be the position if the Election Commission would indefinitely
postpone the election under some pretext or the other. So, the question
posed was: ‘Quis custodiet ipsos custodes’ – who will guard the guards
themselves?

The Election Commission is vested with the power to decide the election
schedule. It can act only in accordance with the Constitutional provisions.
The election process for electing the new Legislative Assembly should start
immediately on the dissolution of the Assembly. There may be cases where
the electoral roll may not be up-to-date and in such case the Election
Commission is well within its power to update the electoral roll and the
time taken for such updating of the electoral roll shall be reasonable
time. Ordinarily, the Election Commission would also require time for
notification, calling of nomination and such other procedure that are
required for the proper conduct of election. There may be situation where
the Election Commission may not be in a position to conduct free and fair
election because of certain natural calamities. Even under such situation
the Election Commission shall endeavour to conduct election at the earliest
making use of all the resources within its command. Ample powers are given
to the Election Commission to coordinate all actions with the help of
various departments of the Government including military and para-military
forces. When an Assembly is dissolved by the Governor on the advice of the
Chief Minister, naturally, the Chief Minister or his political party seeks
fresh mandate from the electorate. The duty of the Election Commission is
to conduct fresh election and see that a democratically elected Government
is installed at the earliest and any decision by the Election Commission,
which is intended to defeat this very avowed object of forming an elected
Government can certainly be challenged before the Court if the decision
taken by the Election Commission is perverse, unreasonable or for
extraneous reasons and if the decision of the Election Commission is
vitiated by any of these grounds the Court can give appropriate direction
for the conduct of the election.

The next point that arises for consideration to form opinion regarding the
questions referred to this Curt is as to the application of Article 355 of
the Constitution. Reference to Article 356 was incidentally made by the
Election Commission to point out that if Article 174 cannot be complied
with, the possible alternative is to invoke Article 356 and declare a state
of emergency. I do not think that the solution suggested by the Election
Commission is appropriate or justified. Article 356 has no application
under any of these situations. It is an independent power to be exercised
very rarely and this power is hedged by ever so many Constitutional
limitations. In view of the above discussion, the three questions made in
the Reference can be answered in the following manner.
(I) Is Article 174 subject to the decision of the Election Commission of
India under Article 324 as to the schedule of elections of the Assembly?

Article 174 and Article 324 operate in different fields. Article 174 does
not apply to dissolved Assemblies. The schedule of the election of the
Assembly is to be fixed having regard to the urgency of the situation that
a democratically elected Government be installed at the earliest and the
process of election shall start immediately on the dissolution of the
Assembly. Though the ultimate authority to decide as to when a free and
fair election can be conducted is Election Commission, such decisions shall
be just and reasonable and arrived at having regard to all relevant
circumstances. Any decision to postpone election on unreasonable grounds is
anathema to democratic form of government and it is subject to judicial
review on traditionally accepted grounds.

(ii) Can the Election Commission of India frame a schedule for the
elections to an Assembly on the premises that any infraction of the mandate
of Article 174 would be remedied by a resort to Article 356 by the
President?

The framing of schedule for election for the new Legislative Assembly shall
start immediately on dissolution of the Assembly and the Election
Commission shall endeavour to see that the New Legislative Assembly meets
at least within a period of six months of the dissolution. Article 356
regarding declaration of state of emergency in the State has no relevance
to the fixation of the election schedule.

(iii) Is the Election Commission of India under a duty to carry out the
mandate of Article 174 of the Constitution, by drawing upon all the
requisite resources of the Union and the State to ensure free and fair
elections?

The Election Commission is under a constitutional duty to conduct the
election at the earliest on completion of the term of the Legislative
Assembly on dissolution or otherwise. If there is any impediment in
conducting free and fair election as per the schedule envisaged by the
Election Commission, it can draw upon all the requisite resources of Union
of State within its command to ensure free and fair election, though
Article 174 has no application in the discharge of such constitutional
obligation by the Election Commission. It is the duty of the Election
Commission to see that the election is done in a free and fair manner to
keep the democratic form of Government vibrant and active.

___________________________________________________________________________

Arijit Pasayat, J.

Free, far and periodic elections are the part of the basic structure of the
Constitution of India, 1950 (in short the ‘Constitution). In a democracy
the little man – voter – has overwhelming importance and cannot be hijacked
from the course of free and fair elections.

‘Democracy’ and ‘free and fair election’ are inseparable twins. There is
almost an insevereable umbilical cord joining them. The little man’s ballot
and not the bullet of those who want to capture power (starting with booth
capturing) is the heartbeat of democracy. Path of the little man to the
polling booth should be free and unhindered, and his freedom–to-elect a
candidate of his choice is the foundation of a free and fair election.

The message relates to the pervasive philosophy of democratic elections
which Sir Winston Churchill vivified in matchless words:
“At the bottom of all tributes paid to democracy is the little man, walking
into a little booth, with a little pencil, making a little cross on a
little bit of paper-no amount of rhetoric or voluminous discussion can
possibly diminish the overwhelming importance of the point.”

If we may add, the little, large Indian shall not be hijacked from the
course of free and fair elections by mob muscle methods, or subtle
perversion of discretion by men’ dressed in little, brief authority’. For
‘be you ever so high, the law is above you’.

The moral may be stated with telling terseness in the words of William
Pitt: “Where laws end, tyranny begins’. Embracing both these mandates and
emphasizing their combined effect is the elemental law and politics of
Power best expressed by Benjamin Disraeli:

“I repeat …. that all power is trust – that we are accountable for its
exercise-that, from the people and for the people, all springs, and all
must exist.”

At the threshold: why the Reference was made, and in what background.

The Gujarat Legislative Assembly met on 3rd April, 2002 and thereafter was
dissolved on 19thJuly, 2002. Election Commission passed an order on
16thAugust, 2002 holding that free and fair elections was not possible in
Gujarat, even though Article 174 of the Constitution mandatorily provides
that the time gap between two sittings of the House should not exceed six
months. In that context, the Election Commission held that Article 324
postulates “free and fair election” and when it is not possible to hold it,
the provisions contained in Article 174 have to yield. That gave rise to
doubts and the President of India has made reference to this Court under
Article 143(1) of the Constitution, basically on that core issue and three
questions have been referred. First question specifically refers to Article
174 and Article 324. The Election Commission observed that even if the
period prescribed under Article 174 cannot be adhered to the situation can
be met by imposition of President’s Rule by Article 356 of the
Constitution. The Reference (including the preambles) and relevant portion
of Election Commission’s order so far as relevant for the Reference read as
follows:

President Address:

WHEREAS the Legislative Assembly of the State of Gujarat was dissolved on
July 19, 2002 before the expiration of this normal duration on March 18,
2003;

AND WHEREAS Article 174(1) of the Constitution provides that six months
shall not intervene between the last sitting of the Legislative Assembly in
one session and the date appointed for its first sitting in the next
Session;

AND WHEREAS the Election Commission has also noted that the mandate of
Article 174 would require that the Assembly should meet every six months
even after the dissolution of the House, and that the Election Commission
has all along been consistent that normally a Legislative Assembly should
meet at least every six months as contemplated by Article 174, even where
it has been dissolved;

AND WHEREAS under Section 15 of the Representation of the People Act, 1951,
for the purpose of holding general elections on the expiry of the duration
of the Legislative Assembly or its dissolution the Governor shall, by
notification, call upon all Assembly Constituencies in the State to elect
members on such date or dates as may be recommended by the Election
Commission of India;

AND WHEREAS the last sitting of the Legislative Assembly of the State of
Gujarat was held on 3rd April, 2002, and as such the newly constituted
Legislative Assembly should sit on or before 3rd October, 2002;

AND WHEREAS the Election Commission of India by its order No. 464/GJ-
LA/2002 dated August 16, 2002 has not recommended any date for holding
general election for constituting a new Legislative Assembly for the State
of Gujarat ad observed that the Commission will consider framing a suitable
schedule for the general election to the State Assembly in November,
December 2002. Copy of the said order is annexed hereto;

AND WHEREAS owing to the aforesaid decision of the Election Commission of
India, a new Legislative Assembly cannot come into existence so as to meet
within the stipulated period of six months as provided under Article 174(1)
of the Constitution of India;

AND WHEREAS the Election Commission has held that the non-observance of the
provisions of Article 174(1) in the present situation would mean that the
Government of the State cannot be carried 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;

AND WHEREAS doubts have arisen with regard to the constitutional validity
of the said order of the Election Commission of India as the order of the
Election Commission which would result in a non-compliance with the
mandatory requirement envisaged under Article 174(1) of the Constitution
under which not more than six months shall intervene between two sittings
of the State Legislature;

AND WHEREAS in view of what has been hereinbefore stated, it appears to me
that the questions of law hereinafter set out have arisen which are of such
a nature and of such public importance that it is expedient to obtain the
opinion of the Supreme Court of India;

NOW, THEREFORE, in exercise of the powers conferred upon me under Clause
(1) of Article 143 of the Constitution. I, A.P.J. Abdul Kalam, President of
India, hereby refer the following questions to the Supreme Court of India
for consideration and report thereon, namely:-

(i) Is Article 174 subject to the decision of the Election Commission of
India under Article 324 as to the schedule of elections of the Assembly?

(ii) Can the Election Commission of India frame a schedule for the
elections to an Assembly on the premise that any infraction of the mandate
of Article 174 would be remedied by a resort to Article 356 by the
President?

(iii) Is the Election Commission of India under a duty to carry out the
mandate of Article 174 of the Constitution, by drawing upon all the
requisite resources of the Union and the State to ensure free and fair
elections?

Order of the Election Commission (Relevant portions)

1. The term of the Legislative Assembly of the State of Gujarat was
normally due to expire, in terms of Article 172(1) of the Constitution, on
the 18thMarch, 2003. Keeping that in view, the Commission had been planning
to hold the next general election in the State for constituting a new
Legislative Assembly in the early part of the year 2003, along with the
general elections to the Legislative Assemblies of Himachal Pradesh,
Meghalaya, Nagaland and Tripura whose terms are also normally due to expire
in the month of March, 2003.

2. The Legislative Assembly of the State of Gujarat was, however, dissolved
prematurely by the Governor of Gujarat on the 19thJuly, 2002 in exercise of
his powers under Article 174(2)(b) of the Constitution. On such premature
dissolution of the State Legislative Assembly, a demand is being made,
particularly by the Bhartiya Janta Party and a few other smaller parties
and NGOs, that the general election to constitute the new Legislative
Assembly be urgently held by the Commission so as to enable the new
Legislative Assembly so constituted to meet for its first session before
6thOctober, 2002. In support of such demand, they are citing Article 174(1)
of the Constitution which provides that the ‘the Governor shall, from time
to time, summon the House or each House of the Legislature of the State to
meet at such time and place as he thinks fit, but six months shall not
intervene between its last sitting in one session and the date appointed
for this first sitting in the next session’. The last session of the
dissolved Legislative Assembly of Gujarat was prorogued on 6thApril, 2002
and it is contended that the first session of the new Legislative Assembly
should be held before 6thOctober, 2002 and, therefore, it is mandatory for
the Commission to hold the election well before 6th October, 2002. They
also claim that the situation in the State of Gujarat is quite normal and
conductive to the holding of free and fair elections, as is evident from
the facts that the panchayat elections in large areas were successfully
conducted in April 2002, that HSC, SSC examination were held peacefully and
that various religious festivals like the Rath Yatra had passed off without
any untoward incident.

x x x x x x

4. The Commission has carefully examined the provisions of Article 174(1)
of the Constitution. It has also considered other relevant provisions in
the Constitution having a bearing on functioning of the Legislative
Assemblies and the conduct of elections to constitute them. The Commission
has, in the past, been taking the view that the six months in Article
174(1) of the Constitution applies not only to a Legislative Assembly in
existence but also to elections to constitute the new Assembly on the
dissolution of the previous Assembly and in all past cases, like the recent
dissolution of the Goa Legislative Assembly on 27th February, 2002,
wherever any Assembly has been dissolved prematurely by the Governor under
Article 174(2)(b) of the Constitution (and where the President has not
taken over the administration of the State under Article 356 of the
Constitution on the dissolution of the Assembly), elections to constitute a
new Legislative Assembly have always been held in such time as have enabled
the new Assembly to meet within the period of six months from the last date
of the last session of the dissolved Assembly. Similar action has been
taken by the Commission wherever the House of the People has been
prematurely dissolved by the President under Article 85(2)(b) of the
Constitution-for example the dissolution of the House of the People in
1999, 1998 and earlier in 1991, 1979 and 1971 – so that the new House of
the People could meet within the period of six months from the last sitting
of the dissolved House.

5. Thus, the Commission has all along been consistent that, normally, a
Legislative Assembly should met at least every six months as contemplated
by Article 174(1) of the Constitution, even when it has been dissolved
(except where President’s Rule has been imposed in the State under Article
356 of the Constitution). The Commission sees no convincing/justifiable
reason to take a different view in the present case. In fact, any other
view on the interpretation of Article 174(1) of the Constitution might lead
to extensive gaps between two Houses of a Legislative Assembly and the
abuse of democracy, there being no provision in the Constitution or in any
law in force prescribing a period during which an election is to be held to
constitute a new Legislative Assembly on the dissolution of the previous
House. This will be contrary to the basic scheme of the Constitution which
prescribes that there shall be a State Legislative Assembly (Article 168)
and the Council of Ministers shall be collectively responsible to that
Assembly [Article 164(2)] and that if a minister is not a member of the
Assembly for a consecutive six months period, he shall cease to be a
minister [Article 164(4)]. A more alarming situation may arise with
Parliament where Article 85(1) of the Constitution makes identical
provisions relating to the holding of sessions of the House of the People.
Any view that the House of the People need not meet every six months and
the elections be indefinitely postponed after one House has been dissolved
would not only be destructive of the whole Parliamentary system so
assiduously built in our Constitution but also be abhorrent to every
section of the Indian polity and citizenry.

6. The Commission is also fortified in its above interpretation by the view
taken by the President and Parliament on the provisions of Article 174(1)
whenever there was an imposition of President’s Rule in a State under
Article 356 of the Constitution. Whenever the Legislative Assembly of any
State has been dissolved in the past by the President under Article 356 of
the Constitution, the provisions of Article 174(1) have invariably been
expressly suspended in the Proclamation issued by the President under that
Article and approved by Parliament during the operation of that
Proclamation (See for example, the latest Proclamation dated 10thFebruary,
1999 issued by the President dissolving the Goa Legislative Assembly an
imposing President’s Rule in that State). If Article 174(1) has no
application after an Assembly has been dissolved, as is being contended by
one set of representations, there is no question of the suspension of that
provision after the dissolution of the Assembly by the said Proclamation.
x x x x x x

8. There is, to the Commission’s knowledge, no authoritative pronouncement
of the Supreme Court or of any High Court on this aspect of the issue. But
the most plausible view that appears to the Commission in that Article
174(1) of the Constitution envisages that normally, the Legislative
Assembly of a State should meet every six months even after the dissolution
of one House.

9. The next question for consideration of the Commission is whether the
Commission is obliged whatever may be the circumstances to hold the general
election within the period remaining out of six months from the date of the
last sitting of the dissolved Assembly. The Commission does not accept this
view. Article 174(1) of the Constitution cannot be read in isolation and it
has to be read along with other relevant provisions of the Constitution,
particularly Article 324 of the Constitution. Article 324, which is not
subject to the provisions of any other Article of the Constitution
including Article 174(1), vests the superintendence, direction and control,
inter alia, of the preparation of electoral rolls for, and conduct of,
elections to Parliament and State Legislature in the Election Commission.
Elections, in the context of democratic institutions, mean free and faire
elections and not merely a ritual to be gone through periodically. In the
words of the Constitution Bench of the Supreme Court in T.N. Seshan v.
Union of India and Ors. [(1995) 4 SCC 61]:

‘Democracy being the basic feature of our constitutional set up, there can
be no two opinions that free and fair elections to our Legislative bodies
alone would guarantee the growth of a healthy democracy in the country. In
order to ensure the purity of the election process, it was thought by our
Constitution-makers that the responsibility to hold free and fair election
in the country should be entrusted to an independent body which would be
insulated from political and/or executive interference.’
Again the Constitution Bench of the Supreme Court observed in the famous
Keshavanand Bharati v. State of Kerala that ‘Free, fair fearless and
impartial elections are the guarantee of a democratic polity.’ Likewise,
the Supreme Court repeatedly underscored the importance of free and faire
elections in the case of Mohinder Singh Gill v. Chief Election Commissioner
and Ors., Kanhiya Lal Omar v. R.K. Trivedi and a catena of other
decisions. In the case of Mohinder Singh Gill (supra), the Supreme Court
observed:

‘The free and fair election based on universal adult franchise is the
basic….it needs little argument to hold that the heart of the
Parliamentary system is free and fair election periodically held, based on
adult franchise and that social and economic democracy may demand much
more.’
Similar sentiments of the Supreme Court laying stress on free and fair
elections to the legislative bodies have found echo in every other decision
of the Supreme Court on elections
x x x x x x

11. Thus, 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 Commissioner’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.
x x x x x x

61. 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.

It may be noted here that the Election Commission in the written
submissions filed and the submissions made before us has stated that the
observations regarding imposition of Presidents rule were not made in the
context of Article 356 of the Constitution, which we shall deal in detail
infra. The third question relates to the exercise of power in the context
of Article 174.

When the Reference was taken up for hearing we made it clear to the parties
that the correctness of factual conclusions arrived at by Election
Commission in its order shall not be considered by us. Only legal issues
and the foundations therefore i.e. as recorded in the order were to be
analysed. We also pointed out to learned counsel for the parties that while
considering a Reference there is no adversarial lis involved. We record our
appreciation that learned counsel appearing for the parties have placed
their submissions as amicus curiae, though there was divergence in
approach.

It was argued by some of the learned counsel that the Reference need not be
answered because the questions do not arise of the order of the Election
Commission though the Preamble is based on the same. It is not imperative
for the Court to answer the Reference and even if any doubt is entertained,
that cannot be on hypothetical premises and answers which are self-evident
and/or issues settled by this Court by its decisions need not be answered.
It was submitted that the questions which are inherently incapable of being
answered should not be answered. The Reference was as described by some of
the learned counsel to be inappropriate and defective. It was submitted
that the Reference is potentially political and seeking judicial review
though disguised as a Reference. Per contra, submissions were made by some
of the learned counsel who have submitted that the questions are of great
national interest, and there is no political overtone and in order to avoid
controversies in future and to have the law settled, the Reference has been
made.

The questions referred are intrinsically linked with the conclusions of the
Election Commissioner and are clearly relatable to it. The scope and ambit
of reference under Article 143(1) has been examined by this Court in
several cases. In some cases, this Court had declined to answer References
on the ground that political issues are involved or that the Court does not
act in exercise of appellate jurisdiction while dealing with a Reference.
It will be proper to take note of few decisions on this aspect where
References were not answered on the ground that they are potentially
political or that the Advisory Jurisdiction is not appellate in character
[See Dr. M. Ismail Faruqui and Ors. v. Union of India and Ors. and in the
matter of Cauvery Water Disputes Tribunal (1993) Supp 1 SCC 96(II)].

The Federal Court in Re The Allocation of Lands and Buildings in a Chief
Commissioner’s Province (AIR 1943 FC 13) a Reference under Section 213(1)
of the Government of India Act which is similar to Article 143 said that
though the terms of the at section do not impose an obligation on the
Court, the Court should be unwilling to accept a Reference except for good
reasons. This Court accepted the Reference for reasons which appeared to be
constitutional importance as well as in public interest.

In Re Kerala Education Bill (AIR 1958 SC 956 – 1959 SCR 995) Das, C.J.
referred to the Reference in Re The Allocation of Lands and Buildings
(supra) and the Reference in Re Levy of Estate Duty (AIR 1944 FC 73) and
the observations in both the cases that the Reference should not be
declined excepting for good reasons. This Court accepted the Reference on
the questions of law arising or likely to arise. Das, C.J. in Re Kerala
Education Bill (supra) said that it is for the President to determine what
questions should be referred and if he does not have any serious “doubt” on
the provisions, it is not for any party to say that doubts arise out of
them. In short, parties appearing in the Reference cannot go behind the
order of the Reference and present new questions by raising doubts. (See In
Re: Presidential Poll).

This Court is bound by the recitals in the order of Reference. Under
Article 145(1) we accept the statements of fact set out in the Reference.
The truth or otherwise of the facts cannot be enquired or gone into nor can
Court go into the question of bona fides or otherwise of the authority
making the Reference. This Court cannot go behind the recital. This Court
cannot got into disputed questions of fact in its advisory jurisdiction
under Article 143(1).

The correct approach according to us has been laid down by a 7 Judge Bench
in Special Reference No. 1 of 1964 [commonly known as Keshav Singh Contempt
Case] (1965) 1 SCR 413. After culling out the core issues (as seen at page

439) from the questions set out at pages 429, 430 at page 440 it was
observed as follows:

“Though the ultimate solution of the problem posed by the questions
before us would thus lie within a very narrow compass, it is
necessary to deal with some wider aspects of problem which
incidentally arise and the decision of which will assist us in
rendering our answers to the questions framed in the present
Reference”.

(Underlined for emphasis)

It would be appropriate to take note of certain pivotal provisions in the
Constitution; Representation of Peoples’ Act, 1951 (in short ‘R.P. Act,
1951) and the Government of India Act, 1935 (in short ‘Government Act‘).
Article 172: Duration of State Legislature-(1) Every Legislative Assembly
of every State, unless sooner dissolved, shall continue for five years from
the date appointed for its first meeting and no longer and the expiration
of the said period of five years shall operate as a dissolution of the
Assembly:

Provided that the said period may, while a Proclamation of Emergency is in
operation, be extended by Parliament by law for a period not exceeding one
year at a time and not extending in any case beyond a period of six months
after the Proclamation has ceased to operate.

(2) The Legislative Council of a State shall not be subject to dissolution,
but a nearly as possible one-third of the members thereof shall retire as
soon as may be on the expiration of every second year in accordance with
the provisions made in that behalf by Parliament by law.
Article 174: Sessions of the State Legislature, prorogation and
dissolution-(1) The Governor shall from time to time summon the House or
each House of the Legislature of the State to meet as such time and place
as he thinks fit, but six months shall not intervene between its last
sitting in one session and the date appointed for its first sitting in the
next session.

(2) The Governor may from time to time-

(a) prorogue the House or either House;

(b) dissolve the Legislative Assembly
Article 324: Superintendence, direction and control of elections to be
vested in an Election Commission – (1) The superintendence, direction and
control of the preparation of the electoral rolls, for and the conduct of,
all elections to Parliament and to the Legislature of every State and of
elections to the offices of President and Vice-President held under this
Constitution shall be vested in a Commission (referred to in this
Constitution as the Election Commission).

(2) The Election Commission shall consist of the Chief Election
Commissioner and such number of other Election Commissioners, if any, as
the President may from time to time fix and the appointment of the Chief
Election Commissioner and the other Election Commissioners shall, subject
to the provisions of any law made in that behalf by Parliament, be made by
the President.

(3) When any other Election Commissioner is so appointed the Chief Election
Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the
Legislative Assembly of each State, and before the first general election
and thereafter before each biennial election to the Legislative Council of
each State having such Council, the President may also appoint after
consultation with the Election Commission such Regional Commissioners as he
may consider necessary to assist the Election Commission in the performance
of the functions conferred on the Commission by Clause (1).
(5) Subject to the provisions of any law made by Parliament, the conditions
of service and tenure of office of the Election Commissioners and the
Regional Commissioners shall be such as the President may be rule
determine:

Provided that the Chief Election Commissioner shall not be removed from his
office except in like manner and on the like grounds as a Judge of the
Supreme Court and the conditions of service of the Chief Election
Commissioner shall not be varied to his disadvantage after his appointment:

Provided further that any other Election Commissioner or a Regional
Commissioner shall not be removed from office except on the recommendation
of the Chief Election Commissioner.

(6) The President, or the Governor of a State, shall, when so requested by
the Election Commission, make available to the Election Commission or to a
Regional Commissioner such staff as may be necessary for the discharge of
the functions conferred on the Election Commission by Clause (1).
Article 327: Power of Parliament to make provision with respect to
elections to Legislatures. – Subject to the provisions of this
Constitution, Parliament may from time to time by law make provision with
respect to all matters relating to, or in connection with, elections to
either House of Parliament or to the House or either House of the
Legislature of a State including the preparation of electoral rolls, the
delimitation of constituencies and all other matters necessary for securing
the due constitution of such House or Houses.

Article 356: Provisions in case of failure of constitutional machinery in
States – (1) If the President, on receipt of report from the Governor of a
State or otherwise, is satisfied that a situation has arisen in which the
government of the State cannot be carried on in accordance with the
provisions of this Constitution, the President may be Proclamation –

(a) assume to himself all or any of the functions of the Government of the
State and all or any of the powers vested in or exercisable by the Governor
or any body or authority in the State other than the Legislature of the
State;

(b) declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament;

(c) make such incidental and consequential provisions as appear to the
President to be necessary or desirable for giving effect to the objects of
the Proclamation, including provisions for suspending in whole or in part
the operation of any provisions of this Constitution relating to any body
or authority in the State:

Provided that nothing in this clause shall authorize the President to
assume to himself any of the powers vested in or exercisable by a High
Court, or to suspend in whole or in part the operation of any provision of
this Constitution relating to High Courts.

(2) Any such Proclamation may be revoked or varied by a subsequent
Proclamation.

(c) Every Proclamation under this Article shall be laid before each House
of Parliament and shall, except where it is a Proclamation revoking a
previous Proclamation, cease to operate at the expiration of two months
unless before the expiration of that period it has been approved by
resolutions of both Houses of Parliament.

Provided that if any such Proclamation (not being a Proclamation revoking a
previous Proclamation) is issued at a time when the House of the People is
dissolved or the dissolution of the House of the People takes place during
the period of two months referred to in this clause, and if a resolution
approving the Proclamation has been passed by the Council of States, but no
resolution with respect to such Proclamation has been passed by the House
of the People before the expiration of that period, the Proclamation shall
cease to operate at the expiration of thirty days from the date on which
the House of the People first sits after its reconstitution unless before
the expiration of the said period of thirty days a resolution approving the
Proclamation has been also passed by the House of the People.
(4) A Proclamation so approved shall, unless revoked, cease to operate on
the expiration of a period of six months from the date of issue of the
Proclamation.

Provided that if and so often as a resolution approving the continuance in
force of such a Proclamation is passed by both Houses of Parliament, the
Proclamation shall, unless revoked, continue in force for a further period
of six months from the date on which under this clause it would otherwise
have ceased to operate, but no such Proclamation shall in any case remain
in force for more than three years;

Provided further that if the dissolution of the House of the People takes
place during any such period of six months and a resolution approving the
continuance in force of such Proclamation has been passed by the Council of
States, but no resolution with respect to the continuance in force of such
Proclamation has been passed by the House of the People during the said
period, the Proclamation shall cease to operate at the expiration of thirty
days from the date on which the House of the People first sits after its
reconstitution unless before the expiration of the said period of thirty
days a resolution approving the continuance in force of the Proclamation
has been also passed by the House of the People.

Provided also that in the case of the Proclamation issued under Clause (1)
on the 11thday of May, 1987 with respect to the State of Punjab, the
reference in the first proviso to this clause to “three years” shall be
construed as a reference to five years.

(5) Notwithstanding anything contained in Clause (4), a resolution with
respect to the continuance in force of a Proclamation approved under Clause
(3) for any period beyond the expiration of one year from the date of issue
of such proclamation shall not be passed by either House of Parliament
unless-

(a) a Proclamation of Emergency is in operation, in the whole of India or,
as the case may be, in the whole or any part of the State, at the time of
the passing of such resolution, and

(b) the Election Commission certifies that the continuance in force of the
Proclamation approved under Clause (3) during the period specified in such
resolution is necessary on account of difficulties in holding general
elections to the Legislative Assembly of the State concerned:

Provided that nothing in this clause shall apply to the Proclamation issued
under Clause (J) on the 11thday of May, 1987 with respect to the State of
Punjab.

Representation of People Act, 1951
Section 14: Notification for general election to the House of the People –
(1) A general election shall be held for the purpose of constituting a new
House of the People on the expiration of the duration of the existing House
or on its dissolution.

(2) For the said purpose the President shall, by one or more notifications
published in the Gazette of India on such date or dates as may be
recommended by the Election Commission, call upon all parliamentary
constituencies to elect members in accordance with the provisions of this
Act and of the rules and orders made thereunder:

Provided that where a general election is held otherwise than on the
dissolution of the existing House of the People, no such notification shall
be issued at any time earlier than six months prior to the date on which
the duration of that House would expire under the provisions of Clause (2)
of Article 83.

Section 15: Notification for general election to a State Legislative
Assembly – (1) a general election shall be held for the purpose of
constituting a new Legislative Assembly on the expiration of the duration
of the existing Assembly or on its dissolution.

(2) For the said purpose the Governor or the Administrator as the case may
be shall, by one or more notifications published in the Official Gazette of
the State on such date or dates as may be recommended by the Election
Commission, call upon all Assembly constituencies in the State to elect
members in accordance with the provisions of this Act and of the rules and
orders made thereunder:

Provided that where a general election is held otherwise that on the
dissolution of existing Legislative Assembly on such notification shall be
issued at any time earlier than six months prior to the date on which the
duration of that Assembly would expire under the provisions of Clause (1)
of Article 172 or under the provisions of Section 5 of the Government of
Union Territories Act, 1963, as the case may be.

Section 30: Appointment of dates for nomination etc. – As soon as the
notification calling upon a constituency to elect a member or members is
issued, the Election Commission shall, by notification in the Official
Gazette, appoint-

(a) the date of publication of the first mentioned notification or, if that
day is a public holiday the last date for making nominations, which shall
be the seventh day after holiday, the next succeeding day which is not a
public holiday.

(b) The date for the scrutiny of nomination, which shall be, the day
immediately following the last day for making nominations or, if that day
is a public holiday, the next succeeding day which is not a public holiday,

(c) The last date for the withdrawal of candidature, which shall be the
second day after the date for the scrutiny of nominations or, if that day
is a public holiday, the next succeeding day which is not a public holiday.

(d) The date or dates on which a poll shall, if necessary, be taken which
or the first of which shall be a date not earlier than the fourteenth day
after the last date for the withdrawal of candidature; and

(e) the date before which the election shall be completed.
Section 73: Publication of results of general elections to the House of the
People and the State Legislative Assemblies and of names of persons
nominated thereto – Where a general election is held for the purpose of
constituting a new House of the People or a new State Legislative Assembly,
there shall be notified by the Election Commission in the Official Gazette,
as soon as may be, after the results of the elections in all the
constituencies other than those in which the poll could not be taken for
any reason on the date originally fixed under Clause (d) of Section 30 or
for which the time for completion of the election has been extended under
the provisions of Section 153 have been declared by the returning officer
under the provisions of Section 53 or, as the case may be, Section 66, the
names of the members elected for those constituencies and upon the issue of
such notification that House or Assembly shall be deemed to be duly
constituted:

Provided that the issue of such notification shall not be deemed-

(a) to preclude-

(i) the taking of the poll and the completion of the election in any
Parliamentary or Assembly constituency or constituencies in which the poll
could not be taken for any reason on the date originally fixed under Clause

(d) of Section 30; or

(ii) the completion of the election in any Parliamentary or Assembly
constituency or constituencies for which time has been extended under the
provisions of Section 153; or

(b) to affect the duration of the House of the People or the State
Legislative Assembly if any functioning immediately before the issue of the
said notification.

Government of India Act, 1935:

18. Constitutional of the Federal Legislative – (1) There shall be a
Federal Legislature which shall consist of His Majesty, represented by the
Governor General, and two Chambers, to be known respectively as the Council
of State and the House of Assembly (in this Act referred to as “the Federal
Assembly”).

(2) The Council of State shall consist of one hundred and fifty-six
representatives of British India and not more than one hundred and four
representatives of the Indian States, and the Federal Assembly shall
consist of two hundred and fifty representatives of British India and not
more than one hundred and twenty-five representatives of the Indian States.
(3) The said representatives shall be chosen in accordance with the
provisions in that behalf contained in the First Schedule to this Act.
(4) The Council of State shall be a permanent body not subject to
dissolution, but as near as may be one-third of the members thereof shall
retire in every third year in accordance with the provisions in that behalf
contained in the said First Schedule.

(5) Every Federal Assembly, unless sooner dissolved, shall continue for
five years from the date appointed for their first meeting and no longer,
and the expiration of the said period of five years shall operate as a
dissolution of the Assembly.

19. Session of the Legislature, prorogation and dissolution – (1) The
Chambers of the Federal Legislature shall be summoned to meet once at least
in every year, and twelve months shall not intervene between their last
sitting in one session and the date appointed for their first sitting in
the next session.

(2) Subject to the provisions of this section, the Governor-General may in
his discretion from time to time-

(a) summon the Chambers or either Chamber to meet at such time and place as
he thinks fit;

(b) prorogue the Chambers;

(c) dissolve the Federal Assembly.

(3) The Chambers shall be summoned to meet for their first session on a day
not later than such day as may be specified in that behalf in His Majesty’s
Proclamation establishing the Federation.

In the aforesaid background it would be expedient to render answers to the
questions framed in the Reference.

The judicial aspect of these triple questions alone can attract judicial
jurisdiction. However, even if we confine ourselves to legal problematic,
eschewing the political overtones, the words of Justice Holmes will haunt
the Court: “We are quite here, but it is the quite of a storm center”. The
judicature must, however, be illumined in its approach by a legal –
sociological guideline and a principled- pragmatic insight in resolving
with jural tools and techniques, the various crises of human affairs’ as
they reach the forensic stage and seek dispute-resolution in terms of the
rule of law. Justice Cardozo felicitously set the perspective:
The great generalities of the Constitution have a content and significance
that vary from age to age.

Chief Justice Hidayatullah perceptively articulated the insight:
One must, of course, take note of the synthesized authoritative content or
the moral meaning of the underlying principle of the prescriptions of law,
but not ignore the historic evolution of the law itself or how it was
connected in its changing moods with social requirements of a particular
age.

The old Articles of the supreme lex meet new challenges of life, the old
legal pillars suffer new stresses. So we have to adopt the law and develop
its latent capabilities if novel situations, as here, are encountered. That
is why in the reasoning we have adopted and the perspective we have
projected, not literal nor lexical but liberal and visional is our
interpretation of the Articles of the Constitution and the provisions of
the Act. Lord Denning’s words are instructive:

“Law does not stand still. It moves continually. Once this is recognized,
then the task of the Judge is put on a higher plane. He must consciously
seek to mould the law so as to serve the needs of the time. He must not be
a mere mechanic a mere working mason, laying brick on brick, without
thought to the overall design. He must be an architect – thinking of the
structure as a whole building for society a system of law which is strong,
durable and just. It is on his work that civilized society itself depends.
The constitutional scheme with regard to the holding of the elections to
parliament and the State Legislatures is quite clear. First, the
Constitution has provided for the establishment of a high power body to be
in charge of the elections to Parliament and the State Legislature and of
elections to the offices of President and Vice-President. That body is the
Commission. Article 324 of the Constitution contains detailed provision
regarding the constitution of the Commission and its general power. The
superintendence, direction and control of the conduct of elections referred
to in Article 324(1) of the Constitution are entrusted to the Commission.
The words ‘superintendence’, ‘direction’ and ‘control’ are wide enough to
include all powers necessary for the smooth conduct of elections. It is,
however, seen that Parliament has been vested with the power to make law
under Article 327 of the Constitution read with Entry 72 of List I of the
Seventh Schedule to the Constitution with respect to all matters relating
to the elections to either House of Parliament or to the House or either
House of the Legislature of a State subject to the provisions of the
Constitution. Subject to the provisions of the Constitution and any law
made in that behalf by Parliament, the Legislature of a State may under
Article 328 read with Entry 37 of List II of the Seventh Schedule to the
Constitution make law relating to the elections to the House or Houses of
Legislature of that State. The general powers of superintendence, direction
and control of the elections vested in the Commission under Article 342(1)
naturally are subject to any law made either under Article 327 or under
Article 328 of the Constitution. The word ‘election’ in Article 324 is used
in a wide sense so as to include the entire process of election which
consists of several stages and it embraces many steps, some of which may
have an important bearing on the result of the process. Article 324 of the
Constitution operates in areas left unoccupied by legislation and the words
‘superintendence’, ‘direction’ and ‘control’ and well as ‘conduct of all
elections’ are the broadest terms which would include the power to make all
such provisions. [See Mohinder Singh Gill v. Chief Election Commissioner,
New Delhi, A.C. Jose v. Sivan Pillai and Kanhiya Lal Omar v. R.K. Trivedi
and Ors.].

Before the scheme of the Constitution is examined in some detail it is
necessary to give the pattern which was followed in framing it. The
constituent Assembly was unfettered by any previous commitment in evolving
a constitutional pattern “suitable to the genius and requirements of the
Indian people as a whole”. The Assembly had before it the experience of the
working of the Government Act several features of which would be accepted
for the new Constitution. Our Constitution borrowed a great deal from the
Constitutions of other countries, e.g. United Kingdom, Canada, Australia,
Ireland, United States of America and Switzerland. The Constitution being
supreme all the organs and bodies owe their existence to it. Noen can claim
superiority over the other and each of them has to function within the
four-corners of the constitutional provisions. The preamble embodies the
great purposes, objectives and the policy underlying its provisions apart
from the basic character of the State which was to come into existence,
i.e. a Sovereign Democratic Republic. It is the executive that has the main
responsibility for formulating the government policy by “transmitting it
into law” whenever necessary. “The executive function comprises both the
determination of the policy as well as carrying it into execution. This
evidently includes the initiation of legislation, the maintenance of order,
the promotion of social and economic welfare, the direction of foreign
policy, in fact the carrying on or supervision of the general
administration of the State”. With regard to the civil services and the
position of the judiciary the British model has been adopted inasmuch as
the appointment of Judges both of the Supreme Court of India and the High
Courts of the States is kept free from political controversies. Their
independence has been assured. But the doctrine of parliamentary
sovereignty as it obtains in England does not prevail here except to the
extent provided by the Constitution. The entire scheme of the Constitution
is such that it ensures the sovereignty and integrity of the country as a
Republic and the democratic way of life by parliamentary institutions based
on free and fair elections. These aspects have been highlighted in
Kesavananda Bharati’s case (supra).

Democracy is a basic features of the Constitution. Whether any particular
brand or system of government by itself, has this attribute of a basic
feature, as long as the essential characteristics that entitle a system of
government to be called democratic are otherwise satisfied is not necessary
to be gone into. Election conducted at regular, prescribed intervals is
essential to the democratic system envisaged in the Constitution. So is the
need to protect and sustain the purity of the electoral process. That may
take within it the quality, efficacy and adequacy of the machinery for
resolution of electoral disputes.

The first question essentially relates to the interplay between two
Articles i.e. Article 174 and Article 324 of the Constitution. A bare
reading of the aforesaid two Articles makes it clear that they operate in
different fields. Article 14 appears in Chapter III of Part VI of the
Constitution relating to State Legislature. The parallel provision, so far
as the Union is concerned, is contained in Article 85 in Chapter II of Part
V of the Constitution. Chapter III of Part VI with which we are presently
concerned deals with State Legislature. Article 168 provides that for every
State there shall be Legislature which shall consist of the Governor and in
for States with two Houses and in other States one House of the State.
Where there are two Houses of the Legislature of a State, one is known as a
Legislative Council and other is Legislative Assembly and when there is
only one House, it is known as the Legislative Assembly. Article 172
provides for the duration of State Legislatures. Article 174 deals with
sessions of the State Legislatures, prorogation and dissolution. Under
Clause (1), the Governor is required to summon the House or each House of
the Legislature of the State from time to time to meet at such time and
place as he thinks fit. It further provides that six months shall not
intervene between its last sitting of one session of the House and the date
appointed for its first sitting in the next session of the House. The
requirement relating to the meeting within the prescribed time period is
the crucial issue in the reference. Clause (2) deals with power of the
Governor to (a) prorogue the House or either House or (b) dissolve the
Legislative Assembly. Almost in similar language are couched Articles 83
and 85. As has been rightly contended by some of the learned counsel,
Article 174 does not deal with elections. ON the contrary, the occasion for
holding of elections to the conducted by the Election Commission arise only
after dissolution of the House. It is the stand of the Union of India, the
Election Commission and some of the parties that the Election Commission is
duty bound to ensure meeting of the House within the time indicated in
Article 174(1). According to them, the urgency and desirability involved in
calling the meeting of the House cannot be frustrated by postponing
elections. Thus, according to them, the Election Commission has to ensure
that the elections are held in time, so that the State Legislature can meet
within the prescribed time period. On the other hand, learned counsel for
some of the other parties have submitted that the period of six months does
not operate in respect of the dissolved Assemblies. Election Commissioner
under the Constitution is required to hold “free and fair election” and
election which is not free and fair is, sham or manipulated, and no
election at all. Article 174 according to them relates to the live assembly
and not assembly which on dissolution has suffered civil death. It has been
pointed out by them that no time period is prescribed for holding the
elections after dissolution either in the Constitution or Representation of
People’ Act, 1950 (in short R.P. Act 1950) and R.P. Act 1951′. The stand of
the Union of India, the Election Commission and some of the parties is that
in the scheme of the Constitution and the laws framed under Article 327, it
is impossible to conceive that elections can be deferred indefinitely.
According to them, the fact that elections constitute basic structure of
the Constitution, the care taker Ministry is not the answer and not even
imposition of President’s Rule. According to them, President Rule can be
imposed only if the enumerated circumstances exist and not otherwise.
Imposition of President’s Rule has to be ratified by both the Houses of
Parliament. It is further submitted that Election Commissioner has to
ensure holding of elections and not holding up the elections, and effort
should be to take necessary assistance from the Center and the States, if
necessary, to hold the elections and that is why the third question has
been referred. With reference to the language used in Article 174 that is
“between its last sitting in one session and the date appointed for
its first sitting in the next session”, it is pointed out that the
House does not get dissolved, it is only the Legislative Assembly
which gets dissolved. Therefore, the Election Commissioner is duty
bound to see that Article 324 is exercised in such a manner that
prescription under Article 174 is not diluted or rendered
ineffective.

So far as Chapter III of Part VI is concerned, like Chapter III of Part V.
difference is made between the Legislature, the Legislative Assembly and
the House of the People, as the case may be, Article 79 says that there
shall be a Parliament for the Union which shall consist of the President
and the two Houses to be known respectively as the Council of States and
the House of the People. As indicated above, in almost identical language
is couched Article 168, Clause (1) of which provides that for every State
there shall be a Legislature which shall consist of the Governor etc. It
was submitted by some of the learned counsel that the House is known as
Legislative Assembly so far as the States are concerned and so far as the
Parliament is concerned, two Houses are known as Legislative Council and
the Legislative Assembly. According to them, it is only the nomenclature
and that on the dissolution of the Legislative Assembly or the House of the
People, as the case may be, there is no House in existence. This plea
though attractive is not tenable. The question of holding elections by the
Election Commissioner to meet the dead line fixed under Article 174, some
times becomes impossible of being performed. In a hypothetical case if the
House of People or the Legislative Assembly is dissolved a month before the
expiry of the six months period, it becomes a practical impossibility to
hold the election to meet the dead line. There may be several cases where
acts of God intervene, rendering holding of election impossible even though
a time schedule has been fixed. In such cases, even if the elections are
held after six months period they do not become invalid. The Election
Commission in such cases cannot be asked to perform the impossible. There
lies the answer to the question whether Article 174 has mandatory
attributes.

The House of the people or the Legislature is a permanent body. On
dissolution of the House of the People or the Legislative Assembly, the
House does not cease to be in existence. Dissolution in its broadest sense
means decomposition, disintegration, undoing a bond. In a broad sense – the
Constitutional – it implies the dismissal of an Assembly or the House of
the People. Dissolution is an act of the Executive which dismisses the
legislative body and starts the process through exercise of franchise by
the little men who are the supreme arbitrators of the State to put the new
legislative body in place. The natural dissolution is on expiry of period
fixed under the Constitution, and other mode of dissolution is by an act of
the Executive. It is the lawful act of the Executive that prematurely
dissolution ends the life of the Legislature. We are not concerned whether
such an act of the Executive can be subject to judicial review which is
another matter.

The exercise of the right of the Executive to dissolve the House of the
People or the Legislative Assembly pre-supposes certain conditions i.e. (i)
the existence of a representative body which is the object of dissolution
and (ii) the act of the Executive which implies a separate and distinct
state organ vested with the power to dissolve (iii) the consequential
summoning of a new House of People or Legislative Assembly after the
election is held by the Election Commission and the result notified after
its conclusion.

The State organ vested with the right to dissolve Parliament must express
its will to do so in a manner which accords with the Constitution, and the
relevant laws. The primary consequence of dissolution is that House of
People or the Legislative Assembly, as the case may be, legally ceases to
exist and cannot perform its legislative functions. Such pre-mature
interruption of the life of the House of the People or the Legislative
Assembly as the case may be, amongst others factors affects it as a body as
well as its individual members likewise its work is also abruptly ended,
subject to prescribed exclusions, if any. Any further meeting of the ex-
members has to be considered an ordinary meeting of citizens, and not an
official session of the Legislative Assembly or House of People in the
legislative capacity.

When the House meets after the results of election are notified and
notification has been issued under the relevant law, it becomes a live body
after it is duly constituted. The constituents of the body may have been
changed but the constitutional body which is permanent one becomes alive
again. Therefore, the submission that under Article 174(1) time period
fixed does not apply to dissolved Legislative Assembly has substance.

Dissolution brings a legislative body to an end. It essentially terminates
the life of such body and is followed by a constitution of new body (a
Legislative Assembly or a House of People, as the case may be). Prorogation
on the other hand relates to termination of a session and thus preclude
another session, unless it coincides with end of the legislative term. The
basic difference is that prorogation unlike dissolution does not affect a
legislative body’s life which may continue from session to session, until
brought to an end of dissolution. Dissolution draws the final curtain upon
the House. Once the House is dissolved it becomes irrevocable. There is no
power to recall the order of dissolution and or revive the
previous House. Consequently effect of dissolution is absolute and
irrevocable. It has been described by some learned authors that dissolution

“passes a sponge ever the parliamentary slate”. The effect of
dissolution is in essence termination of current business of the
legislative body, its sittings and sessions. There is a cessation
of chain of sessions, sittings and for a dissolved legislative body
and there cannot be any next session or its first sitting. With the
election of legislative body a new Chapter comes into operation.
Till that is done, the sine qua non of responsible government i.e.
accountability is non-existent. Consequentially, the time
stipulation is non-existent. Any other interpretation would render
use of the word “its” in relation to “last sitting in one session”
and “first sitting in the next session” without significance.

In providing key to the meaning of any word or expression the context in
which it is said has significance. Colour and content emanating from
context may permit sense being preferred to mere meaning depending on what
is sought to be achieved and what is sought to be prevented by the
legislative scheme surrounding the expression. It is a settled principle
that in interpreting the statute the words used therein cannot be read in
isolation. Their colour and content are derived from their context and,
therefore, every word in a statute must be examined in its context by the
word ‘context’. it means in its widest sense as including not only other
enacting provisions of the same statute but its preamble, the existing
state of the law, other statutes in pari materia and the mischief which the
statute intended to remedy. While making such interpretation the roots of
the past the foliage of the Present and the seeds of the future cannot be
lost sight of Judicial interpretation should not be imprisoned in verbalism
and words lose their thrust when read in vacuo. Context would quite often
provide the key to the meaning of the word and the sense it should carry.
Its setting would give colour to it and provide a cue to the intention of
the Legislature in using it. A word is not a crystal, transparent and
unchanged; it is the skin of living thought and may vary greatly in colour
and content according to the circumstances and the time in which the same
is used as was observed by Homes, J. in Towne v. Eisner [(1917) 245 US 418m

425.]

The following passage from Statutory Interpretation by Justice G.P. Singh
(Eighth Edition, 2001 at pp. 81-82) is an appropriate guide to the case at
hand:

“No word”, says Professor H.A. Smith “has an absolute meaning, for no words
can be defined in vacuo, or without reference to some context”. According
to Sutherland there is a “basic fallacy” in saying “that words have meaning
in and of themselves”, and “reference to the abstract meaning of words”,
states Craies, “if there be any such thing, is of little value in
interpreting statutes” ….in determining the meaning of any word or phrase
in a statute the first question to be asked is—“what is the natural or
ordinary meaning of that word or phrase in its context in the statute? It
is only when that meaning leads to some result which cannot reasonably be
supposed to have been the intention of the Legislature, that it is proper
to look for some other possible meaning of the word or phrase”. The
context, as already seen, in the construction of statutes, means the
statute as a whole, the previous state of the law, other statutes in pari
material the general scope of the statute and the mischief that was
intended to remedy”.

The judicial function of the Court in interpreting the Constitution thus
becomes anti nomi. It calls for a plea upon a continuity of members found
in the instrument and for meeting the domain needs and aspirations of the
present. A constitutional court like this Court is a nice balance of
jurisdiction and it declares the law as contained in the Constitution but
in doing so it rightly reflects that the Constitution is a living and
organic thing which of all instruments has the greatest claim to be
construed broadly and liberally. [See Goodyear India Ltd. v. State of
Haryana and Anr. and Synthetics and Chemicals Ltd. v. State of U.P. and
Ors.].

In the interpretation of a constitutional document words are butthe
framework of concepts and concepts may change more than wordsthemselves.
The significance of the change of the concepts themselvesis vital and
constitutional issues are not solved by a mere appeal tothe meaning of
words without an acceptance of the line of theirgrowth. It is aptly said
that the intention of the Constitution is rather tooutline principles than
to engrave details. (See R.C. Poudval v. Union of India and Ors.).

In Purushothaman Nambudiri v. The State of Kerala, a Constitution Bench of
this Court observed as follows:

“Dissolution of Parliament is sometimes described as ‘a civil death
of Parliament’. Ilbert, in his work on ‘Parliament’, has observed
that ‘prorogation means the end of a session (not of a
Parliament)’;”

“in any case, there is no continuity in the personality of the
Assembly where the life of one Assembly comes to an end another
Assembly is in due course elected.”

It will be also clear from the Constituent Assembly Debates (vis-a-vis
Article 153 – presently Article 174) that the stress was on frequent
meetings of long durations of live Legislative Assembly.

In May’s Parliamentary Practice, the following paragraph reinforces the
view:

“A session is the period of time between the meeting of a
Parliament, whether after the prorogation or dissolution, and its
prorogation…During the course of a session either House may
adjourn itself of its own motion to such as ti pleases. The period
between the prorogation of Parliament and its reassembly in a new
session is termed as ‘recess’; while the period between the
adjournment of either House and the resumption of its sitting is
generally called an ‘adjournment’.

A prorogation terminates a session; an adjournment is an interruption in
the course of one an the same session.”

There is a direct decision of the Kerala High Court in K.K. Aboo v. Union
of India on the point. It was inter alia observed as follows:
“A Legislature can be summoned to meet only if it is in esse at the
time. A dissolved Legislature is incapable of being summoned to
meet under Article 174 of the Constitution. The question therefore
is not whether the Legislature should or could have been summoned
to meet, but whether its dissolution ordered by the President, is
constitutionally valid.”

The view is well founded.

The position gets further clear that one looks at the original Article 174
which was amended in 1951. The un-amended Article 174 reads as follows:
“174(1) The House or Houses of the Legislature of the State shall
be summoned to meet twice at lest in every year, and six months
shall not intervene between their last sitting in one session and
the date appointed for their first sitting in the next session.
(2) Subject to the provisions of Clause (1), the Governor may from time to
time–

(a) summon the House or either House to meet at such time and place as he
thinks fit;

(b) prorogue the House or Houses.”

Having reached the conclusion that Article 174 in terms does not apply to
dissolved Assembly (similar in the case of Article 85 in case of House of
People), the other question that survives consideration is that can there
be a time limit fixed for holding the elections in such cases? It has been
emphatically submitted by some of the learned counsel that the Constitution
does not provide for any time of limitation, nor does not R.P. Act.

Can it be said that the framers of the Constitution intended that in case
of life of the elected body comes to an end on expiry of the fixed
duration, a time limit for holding elections is imperative, while in the
case of a pre-mature dissolution it does not so?

Sections 14 and 15 of the R.P. Act, 1951 deal with notification for general
election to the House of the People and the State Legislative Assemblies
respectively. It is clearly stipulated that notification for holding the
election cannot be issued at any time earlier than 6 months prior to the
date on which the duration of the House will expire under provisions of
Clause (2) of Article 83 or under Clause (1) of Article 172 respectively.
The obvious purpose is that the President or the Governor, as the case may
be, to call upon the electorate to elect members in accordance with the
provisions of the Rules, Act and the orders made thereunder on such dates
as may be recommended by the Election Commission. The dates are to be so
fixed that they are not much prior to the expiry of the duration. Here
also, the underlying object is that the elected members are to continue for
the full term. It has been fairly accepted by learned counsel for the
parties who submitted that there is no time limit fixed that there should
always be a responsible Government. Our Constitution establishes a
democratic republic as is indicated in the Preamble to the Constitution
itself and Cabinet system of Government is generally known as the
responsible government. We may notice here that in a democracy the
sovereign powers vest collectively to the three limbs i.e. the executive,
legislature and the judiciary. Section 14 of the R.P. Act, 1951 mandates
that general elections shall be held for the purpose of constituting the
new House of People on the expiry of the duration of the existing House or
on its dissolution. Similar is in the case of Legislative Assembly in the
background of Section 15. When the election is to be held on the expiry of
the fixed term, the Election Commissioner knows the date in advance and can
accordingly fix up schedule of the election. The problem arises when there
is a pre-mature dissolution. In that case, the Election Commissioner
becomes aware only after the dissolution takes place. He cannot, therefore,
fix up any schedule in advance in such a case. The consequential fall out
of not holding election for a long time is the functioning of a care-taker
government which is contrary to the principles of responsible Government.
The caretaker government is not the solution to deferring elections for
unduly long periods.

As noted above, due to unforeseen contingencies it may become impossible to
constitute new House of People or the Legislative Assembly. Deferring an
election is an exception to the requirement that elections should be held
as early as practicable. The requirement of summoning the House has inbuilt
in it; the existence of a House capable of being summoned. Therefore even
in the case of pre-mature dissolution, effort of the Election Commission
should be to hold elections in time so that a responsible government is in
office. At the cost of repetition it may be indicated that where free and
fair election is not possible to be held, there may be inevitable delay.
But reasons for deferring elections should be relatable to acts of God and
normally not acts of man. Myriad reasons may be there for not holding
elections.

In determining the question whether a provision is mandatory or directory,
the subject matter, the importance of the provision, the relation to the
provision to the general object intended to be secured by the Act will
decide whether the provision is directory or mandatory. It is the duty of
the courts to get the real intention of the legislature by carefully
attending the whole scope of the provision to be construed. The key to the
opening of every law is the reason and spirit of the law, it is the animus
impotentia, the intention of the law maker expressed in the law itself,
taken as a whole”. (See Bratt v. Bratt (1826) 3 Addams 210 at p. 216).

The necessity for completing the election expeditiously is enjoined by the
Constitution in public and State interest to see that the governance of the
country is not paralysed.

The impossibility of holding the election is not a factor against the
Election Commission. The maxim of law impotentia exusat legem is intimately
connected with another maxim of law lex non cogit ad impossibilia.
Impotentia excusat legem is that when there is a necessary or invincible
disability to perform the mandatory part of the law that impotentia
excuses. The law does not compel one to do that which one cannot possibly
perform. “Where the law creates a duty or charge, and the party is disabled
to perform it, without any default in him, and has no remedy over it, there
the law will in general excuse him.” Therefore, when it appears that the
performance of the formalities prescribed by a statute has been rendered
impossible by circumstances over which the persons interested had no
control, like the act of God, the circumstances will be taken as a valid
excuse. Where the act of God prevents the compliance of the words of a
statute, the statutory provision is not denuded of its mandatory character
because of supervening impossibility caused by the act of God. (See Broom’s
Legal Maxims 10th Edition at pp. 1962-63 and Craies on Statute Law 6th Ed.
P. 268). These aspects were highlighted by this Court in Special Reference
1 of 1974 (1975 (1) SCR 504). Situations may be created by interested
persons to see that elections do not take place and the caretaker
government continue in office. This certainly would be against the scheme
of the Constitution and the basic structure to that extent shall be
corroded.

A responsible Government provides for a healthy functioning. The democracy
has to be contrasted with a caretaker government which is ad hoc in all its
context and which is not required to take any policy decision. A piquant
situation may arise when a Cabinet of Ministers being sure that it will
loose the vote of confidence, calls for a dissolution a few days before the
expiry of the six months’ period in terms of Article 174 knowing fully well
that the elections cannot be held immediately continues as the care taker
government. Let us take another hypothetical case, where free and fair
elections are not possible and caretaker government continues in office
because of man made situations. Here the Election Commissioner has a duty
to lift the veil, see the design and make all possible efforts to hold the
elections so that a responsible government takes place in office. Question
then arises as to how a impasse can be avoided when an Assembly or the
House of People is dissolved and election can be held immediately so that
six month’s period is not given a go by, between the last sitting of the
dissolved one and the first sitting of the duly constituted subsequent one.
One of the solutions can be that an emergent session which is usually
described as ‘lame duck’ session can be convened, and immediately
thereafter the dissolution can be notified. In such a situation, the
Election Commissioner gets sufficient time to hold the election subject of
course to the paramount consideration that it is free and fair one; thereby
enabling functioning of the next session of the duly constituted elected
body to meet within six months from the date of dissolution. For practical
purposes the six months’ period then would begin from the date of
dissolution.

Free and fair election is the sine qua non of democracy. The scheme of the
Constitution makes it clear that two distinct Constitutional authorities
deal with election and calling of session. It has been pointed out to us
that as a matter of practice the elections are completed within a period of
six months from the date of dissolution, on completing the prescribed
tenure or on pre-mature dissolution except when for inevitable reasons
there is a delay. The Election Commissioner is a high constitutional
authority charged with the duty of ensuring free and fair elections and the
purity of electoral process. To effectuate the constitutional objective and
purpose it is to draw upon all incidental and ancillary powers. Six months’
period applicable to elections held on expiry of the prescribed term would
be imperatively applicable to elections held after pre-mature dissolution.
This of course would be subject to such rare exceptional cases occasioned
on account of facts situation (like acts of God) which make holding of
elections impossible. But man made situation intended to defer holding of
elections should be sternly dealt with and should not normally be a ground
for deferring elections beyond six months period, starting point of which
would be the date of dissolution. As was observed in Digvijay Mote v. Union
of India and Ors., timely election which is not free and fair subverts
democracy and frustrates the ultimate responsibility to assess objectively
whether free and fair election is possible. Any man made attempt to
obstruct free and fair election is antithesis to democratic norms and
should be overcome by garnering resources from the intended sources and by
holding the elections within the six months’ period.”

Reference was made to Article 164(4) of the Constitution to contend that
six months’ period for holding election is in built in Article 174. It has
to be noted that as observed by this Court in S.R. Chaudhuri v. State of
Punjab and Ors. the provisions is not really concerned with holding of
elections and primarily relates to a requirement to get elected within the
time prescribed. The said provision contemplates a situation where a
Minister in a Legislature in existence has to be elected, it does not deal
with a non-existing House and in the background, there is nothing to do
with Article 174.

The second question has really lost its sting because of the submissions
made before this Court on behalf of the Election Commission.

So far as applicability of Article 356 is concerned, though in the order
the Election Commission has specifically dealt with the possibility of
applying that situation, in the written submissions and the arguments made
before this Court the view was given a go by; and in our view rightly. Mere
non-compliance of Article 174 so far as the time period is concerned, does
not automatically bring in Article 356. It is made clear that the order of
the Election Commissioner is the foundation and not what is stated
subsequently by way of an affidavit or submissions to clarify. But in view
of the concession, which according to us is well founded, we need not go
into the question in detail. It was submitted by some of the learned
counsel that the Election Commission’s order otherwise makes out a case for
applying Article 356. We are not concerned with those as the Reference only
related to application of Article 356 when the requirement of Article 174
is not met. In K.N. Rajgopal v. Thiru M. Karunanidhi, a Constitution Bench
of this Court inter alia, observed as follows:

“……Article 356 of the Constitution makes provisions in case of
failure of constitutional machinery in the State. But when an
Assembly is dissolved there is no failure of constitutional
machinery within Article 356.”

A similar observation was made by one of us (Hon’ble V.N. Khare, J. as His
Lordship was then) in Arun Kumar Rai Chaudhary v. Union of India. His
Lordship succinctly stated the position as follows:
“This question came up for consideration before Supreme Court in
the case of U.N.R. Rao v. Indira Gandhi and Thiru K.N. Rai Gopal v.
M. Karuna Nidhi. The Supreme Court while interpreting Articles 74
and 75 as well as Articles 163 and 164 of the Constitution held
that even if the House is dissolved, the Council of Ministers
continues. These decisions squarely cover the case before us.
Following these decisions we hold that after the Governor of the
State of U.. dissolved the Legislative Assembly and directions were
issued for holding fresh poll for constituting the Legislative
Assembly, the Council of Ministers continues. Further there being
no failure of constitutional machinery within the meaning of
Article 356 of the Constitution, the contention that the President
of India ought to have promulgated President Rule in the State for
carrying on the function of the Government must be rejected.”

Situations when Article 356 can be resorted to have been illuminatingly
highlighted in S.R. Bommai v. Union of India,. The following observations
very aptly summarized the position:

“…..Article 356 is an emergency provision though, it is true, it
is qualitatively different from the emergency contemplated by
Article 352, or for that matter, from the financial emergency
contemplated by Article 360. Undoubtedly, breakdown of the
constitutional machinery in a State does give rise to a situation
of emergency. Emergency means a situation which is not normal, a
situation which calls for urgent remedial action. Article 356
confers a power to be exercised by the President in exceptional
circumstances to discharge the obligation cast upon him by Article

355. It is a measure to protect and preserve the Constitution,
consistent with his oath. He is as much bound to exercise this
power in a situation contemplated by Article 356 as he is bound not
to use it where such a situation has not really arisen.”
It has been further observed:

“…..He has to exercise his powers with the aid and advice of the
Council of Ministers with the Chief Minister at its head (Article

163). He takes the oath prescribed by Article 159, to preserve,
protect and defend the Constitution and the laws to the best of his
ability. It is this obligation which requires him to report to the
President the commissions and omissions of the Government of his
State which according to him are creating or have created a
situation where the Government of the State cannot be carried on in
accordance with the provisions of the Constitution. In fact, it
would be a case of his reporting against his own Government but
this may be a case of his wearing two hats, one as the head of the
State Government and the other as the holder of an independent
constitutional office whose duty it is to preserve, protect and
defend the Constitution (See Shamsher Singh v. State of Punjab).
Since he cannot himself take any action of the nature contemplated
by Article 356(1), he reports the matter to the President and it is
for the President to be satisfied – whether on the basis of the
said report or on the basis of any other information which he may
receive otherwise – that situation of the nature contemplated by
Article 356(1) has arisen…..”

The third question is to be considered in the background of what has been
observed supra about scope and ambit of Article 174. It does not relate to
holding of elections. Therefore, he question of seeking control or State
assistance does not arise. However, the Election Commission and the
Governments (Central and or State) have well-defined roles to play to
ensure free and fair election. The parameters have been laid down by this
Court in several cases e.g. Election Commission of India v. State of
Haryana, (1984 (3) SCR 554). Election Commission of India v. Union of India
and Ors. (1995) Supp (3) SCC 643), Election Commission of India v. State of
T.N. and Ors. (1995 Supp (3) SCC 379). Some of the relevant observations
need to be noticed.

In Tamil Nadu’s case (supra) it was observed:

“The Election Commission of India is a high constitutional
authority charged with the function and the duty of ensuring free
and fair elections and of the purity of the electoral process. It
has all the incidental and ancillary powers to effectuate the
constitutional objective and purpose. The plenitude of the
Commission’s powers corresponds to the high constitutional
functions it has to discharge. In an exercise of the magnitude
involved in ensuring free and fair elections in the vastness of our
country, there are bound to be differences of perception as to the
law and order situation in any particular constituency at any given
time and as to the remedial requirements. Then again, there may be
intrinsic limitations on the resources of the Central government to
meet in full the demands of the Election Commission. There may
again be honest differences of opinion in the assessment of the
magnitude of the security machinery. There must, in the very nature
of the complexities and imponderables inherent in such situations,
be a harmonious functioning of the Election Commission and the
Governments, both State and Central. If there are mutually
irreconcilable viewpoints, there must be a mechanism to resolve
them. The assessment of the Election Commission as to the State of
law and order and the nature and adequacy of the machinery to deal
with situations so as to ensure free and fair elections must, prima
facie, prevail. But, there may be limitations of resources.
Situation of this kind should be resolved by mutual discussion and
should not be blown up into public confrontations. This is not good
for a healthy democracy. The Election Commission of India and the
Union Government should find a mutually acceptable coordinating
machinery for resolution of these differences.”

To sum up, answers to the questions set out in the Reference are as
follows:

1. The provisions of Article 174 are mandatory in character so far as the
time period between two sessions is concerned in respect of live Assemblies
and not dissolved Assemblies. Article 174 and Article 324 operate in
different fields. Article 174 does not deal with elections which is the
primary function of the Election Commission under Article 324. Therefore,
the question of one yielding to the other does not arise. There is scope of
harmonizing both in a manner indicated supra.

2. Article 174 is not relatable to a dissolved Assembly. Similar is the
position under Article 85 vis-a-vis House of People. Merely because the
time schedule fixed under Article 174 cannot be adhered to, that per se
cannot be the ground for bringing into operation Article 356.

3. As Article 174 does not deal with election, the question of Election
Commissioner taking the aid, assistance or co-operation of the Center or
the State Governments or to draw upon their resources to hold the election
does not arise. On the contrary for effective operation of Article 324 the
Election Commission can do so to ensure holding of free and fair election.
The question whether free and fair election is possible to be held or not
has to be objectively assessed by the Election Commission by taking into
consideration all relevant aspects. Efforts should be to hold the election
and not to defer holding of election.