{"id":249487,"date":"2002-10-28T00:00:00","date_gmt":"2002-10-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/under-article-1431-of-the-vs-on-28-october-2002"},"modified":"2018-08-15T05:35:44","modified_gmt":"2018-08-15T00:05:44","slug":"under-article-1431-of-the-vs-on-28-october-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/under-article-1431-of-the-vs-on-28-october-2002","title":{"rendered":"Under Article 143(1) Of The … vs ——– on 28 October, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Under Article 143(1) Of The … vs ——– on 28 October, 2002<\/div>\n
Author: V Khare<\/div>\n
Bench: B.N.Kirpal Cji, V.N.Khare, K.G.Balakrishnan, Ashok Bhan, Arijit Pasayat<\/div>\n
           CASE NO.:\nSpecial Reference Case  1 of 2002\n\nPETITIONER:\nUnder Article 143(1)<\/a> of the Constitution of India\n\nRESPONDENT:\n--------\n\nDATE OF JUDGMENT: 28\/10\/2002\n\nBENCH:\nB.N.KIRPAL CJI & V.N.KHARE & K.G.BALAKRISHNAN & ASHOK BHAN & ARIJIT PASAYAT\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
DELIVERED BY:\n<\/p>\n
   V.N.KHARE, (J)
\n   K.G.BALAKRISHNAN, (J)
\n   ARIJIT PASAYAT, (J)<\/p>\n
V.N. Khare, J.\n<\/p>\n
The dissolved Legislative Assembly of the State of Gujarat was constituted
\nin March 1998 and its five-year term was to expire on 18.3.2003. On
\n19.7.2002 on the advice of the Chief Minister, the Governor of Gujarat
\ndissolved the Legislative Assembly. The last sitting of the dissolved
\nLegislative Assembly was held on 3rd April 2002. Immediately after
\ndissolution of the Assembly, the Election Commission of India took steps
\nfor holding fresh elections for constituting the new Legislative Assembly.
\nHowever, the Election Commission by its order dated 16th August, 2002 while
\nacknowledging that Article 174(1)<\/a> is mandatory and applicable to an
\nAssembly which is dissolved and further that the elections for constituting
\nnew Legislative Assembly must be held within six months of the last session
\nof the dissolved Assembly, was of the view that it was not in a position to
\na conduct elections before 3rd of October, 2002 which was the last date of
\nexpiry of six months from last sitting of the dissolved Legislative
\nAssembly. It is in this context the President of India in exercise of
\npowers conferred upon him by virtue of Clause (1) of Article 143<\/a> of the
\nConstitution of India referred three questions for the opinion of the
\nSupreme Court by this order dated 19th August, 2002 which run as under:\n<\/p>\n
\t“WHEREAS the Legislative Assembly of the State of Gujarat was
\n\tdissolved on July 19, 2002 before the expiration of its normal
\n\tduration on March 18, 2003;\n<\/p>\n
\tAND WHEREAS Article 174(1)<\/a> of the Constitution provides that six
\n\tmonths shall not intervene between the last sitting of the
\n\tLegislative Assembly in one session and the date appointed for its
\n\tfirst sitting in the next Session;\n<\/p>\n
\tAND WHEREAS the Election Commission has also noted that the mandate
\n\tof Article 174<\/a> would require that the Assembly should meet every
\n\tsix months even after the dissolution of the House, and that the
\n\tElection Commission has all along been consistent that normally a
\n\tLegislative Assembly should meet at least every six months as
\n\tcontemplated by Article 174<\/a>, even where it has been dissolved;\n<\/p>\n
\tAND WHEREAS under Section 15<\/a> of the Representation of the People
\n\tAct, 1951, for the purpose of holding general elections on the
\n\texpiry of the duration of the Legislative Assembly or its
\n\tdissolution, the Governor shall, by notification, call upon all
\n\tAssembly Constituencies in the State to elect members on such date
\n\tor date as may be recommended by the Election Commission of India;\n<\/p>\n
\tAND WHEREAS the last sitting of the Legislative Assembly of the
\n\tState of Gujarat was held on 3rd April, 2002, and as such the newly
\n\tconstituted Legislative Assembly sit on or before 3rd October,
\n\t2002;\n<\/p>\n
\tAND WHEREAS the Election Commission of India by its order No.
\n\t464\/GJ-LA\/2002 dated August 16, 2002 has not recommended any date
\n\tfor holding general election for constituting a new Legislative
\n\tAssembly for the State of Gujarat and observed that the Commission
\n\twill consider framing a suitable schedule for the general election
\n\tto the State Assembly in November-December 2002. Copy of the said
\n\torder is annexed hereto;\n<\/p>\n
\tAND WHEREAS owing to the aforesaid decision of the Election
\n\tCommission of India, a new Legislative Assembly cannot come into
\n\texistence so as to meet within the stipulated period of six months
\n\tas provided under Article 174(1)<\/a> of the Constitution of India;\n<\/p>\n
\tAND WHEREAS THE Election Commission has held that the non-
\n\tobservance of the provisions of Article 174(1)<\/a> in the present
\n\tsituation would mean that the Government of the State cannot be
\n\tcarried in accordance with the provisions of the Constitution
\n\twithin the meaning of Article 356(1)<\/a> of the Constitution and the
\n\tPresident would then step in;\n<\/p>\n
\tAND WHEREAS doubts have arisen with regard to the Constitutional
\n\tvalidity of the said order of the Election Commission of India as
\n\tthe order of the Election Commission which would result in a non-
\n\tcompliance with the mandatory requirement under Article 174(1)<\/a> of
\n\tthe Constitution under which not more than six months shall
\n\tintervene between two sittings of the State Legislature;\n<\/p>\n
\tAND WHEREAS in view of what has been hereinbefore stated, it
\n\tappears to me that the questions of law hereinafter set out have
\n\tarisen which are of a such nature and of such public importance
\n\tthat it is expedient to obtain the opinion of the Supreme Court of
\n\tIndia;\n<\/p>\n
NOW, THEREFORE, in exercise of the powers conferred upon me under Clause
\n(1) of Article 143<\/a> of the Constitution, I.A.P.(SIC) Abdul Kalam, President
\nof India, hereby refer the following questions to the Supreme Court of
\nIndia for consideration and report thereon, namely:-\n<\/p>\n
(i) Is Article 174<\/a> subject to the decision of the Election Commission of
\nIndia under Article 324<\/a> as to the schedule of elections of the Assembly?\n<\/p>\n
(ii) Can the Election Commission of India frame a schedule for the
\nelections to an Assembly on the premise that any infraction of the mandate
\nof Article 174<\/a> would be remedied by a resort to Article 356<\/a> by the
\nPresident?\n<\/p>\n
(iii) Is the Election Commission of India under a duty to carry out the
\nmandate of Article 174<\/a> of the Constitution, by drawing upon all the
\nrequisite resources of the Union and the State to ensure free and fair
\nelections?”\n<\/p>\n
Much before the matter was taken up for hearing it was made clear by the
\nBench hearing the reference that it would neither answer the reference in
\nthe context of the election in Gujarat nor look into the question of facts
\narising out of the order of the Election Commission and shall confine its
\nopinion only on questions of law referred to it.\n<\/p>\n
When this reference was taken up objections were taken by learned counsel
\nappearing for the Election Commission, several national political parties
\nand counsel for various States that this reference need not be answered and
\nit requires to be returned unanswered, inter alia, on the grounds:\n<\/p>\n
(a) that, the reference raises issues already decided or determined by
\nearlier Supreme Court judgments regarding the plenary and all encompassing
\npowers of the Election Commission to deal with all aspects of an election
\nunder Articles 324-329;\n<\/p>\n
(b) that, if the Supreme Court considers the said question again, it would
\nconvert advisory Article 143<\/a> jurisdiction into an appellate jurisdiction,
\nwhich is impermissible;\n<\/p>\n
(c) that, if Article 174<\/a> were override Article 324<\/a>, question No. 3 is
\nunnecessary. Also, if question No. 1 is answered in the affirmative,
\nquestion No. 3 is automatically answered. In any event, the last part of
\nquestion No. 3 raises a question to the effect as to whether the Election
\nCommission is obliged to ensure free and fair elections, the answer to
\nwhich is axiomatic, obvious and completely unnecessary to be answered in a
\nPresidential Reference;\n<\/p>\n
(d) that, since question No. 2 cannot stand in the abstract, it also ought
\nnot to be gone into and deserves to be sent back unanswered;\n<\/p>\n
(e) that, no undertaking has been furnished by the Union of India that they
\nwould be bound by the advice of this Court and, therefore, the reference
\nneed not be answered;\n<\/p>\n
(f) that, the reference proceeds on the flawed legal premise that Article
\n174<\/a> applies to the holding of periodic elections and mandates the Election
\nCommission to hold elections within the six-month period from the last
\nsession of dissolved Legislative Assembly and, therefore, this Court should
\nreturn the reference unanswered; and\n<\/p>\n
(g) that, the reference is a disguised challenge to the order of the
\nElection Commission dated 16th August, 2002 which is inappropriate in a
\nreference under Article 143.<\/a>\n<\/p>\n
In support of the aforesaid propositions learned counsel relied upon the
\nfollowing decisions: (1) In re: Cauvery Water Disputes Tribunal – (1993)
\nSuppl. SCC 96; (2) In re: Keshav Singh, Special Reference No. 1 of 1964 –
\n(1965) 1 SCR 413; (3) In re: The Special Courts Bill, 1978, Spl Ref. No. 1
\nof 1978; (4) In re: Appointment of Judges Case, Special Reference No. 1 of
\n1998 – (1998) 7 SCC 739; (5) The Ahmedabad St. Xavier’s College Society and
\nAnr. v. State of Gujarat and Ors<\/a>. – (1974) 1 SCC 714; (6) In re:
\nPresidential Poll, Special Reference No. 1 of 1974; (7) In re: The Kerala
\nEducation Bill, 1957 – (1959) SCR 995; and (8) Dr. M. Ismail Faruqui and
\nOrs. v. Union of India and Ors<\/p>\n
In<\/a> re: The Kerala Education Bill, 1957 (supra), it was urged that since the
\nBill introduced in the Legislative Assembly has been referred to under
\nArticle 143<\/a> and the same having not received legislative sanction the
\nreference need not be answered. Dealing with the said argument this Court
\nheld that under Article 143<\/a>, the Supreme Court is required to advise the
\nPresident not only as to any question which has arisen but also as to a
\nquestion which is likely to arise in future.\n<\/p>\n
In re: Special Court Bill, 1978 (supra), it was held that it was not
\nnecessary that the question on which the opinion of the Supreme Court is
\nsought must have arisen actually. It is competent for the President to make
\na reference at an anterior stage, namely, at the stage when the President
\nis satisfied that the question is likely to arise – Chandrachud, CJ at pg.
\n400, para 20 held that:\n<\/p>\n
“20. Article 143(1)<\/a> is couched in broad terms which provide that any
\nquestion of law or fact may be referred by the President for the
\nconsideration of the Supreme Court if it appears to him that such a
\nquestion has arisen or is likely to arise and if the question is of such a
\nnature and of such public importance that it is expedient to obtain the
\nopinion of the Court upon it. Though questions of fact have not been
\nreferred to this Court in any of the six references made under Article
\n143(1<\/a>), that Article empowers the President to make a reference even on
\nquestions of fact provided the other conditions of the Article are
\nsatisfied. It is not necessary that the question on which the opinion of
\nthe Supreme Court is sought must have arisen actually. It is competent to
\nthe President to make a reference under Article 143(1)<\/a> at an anterior
\nstage, namely, at the stage when the President is satisfied that the
\nquestion is likely to arise. The satisfaction whether the question has
\narisen or is likely to arise and whether it is of such a nature and of such
\npublic importance that it is expedient to obtain the opinion of the Supreme
\nCourt upon it, is a matter essentially for the President to decide. The
\nplain duty and function of the Supreme Court under Article 143(1)<\/a> of the
\nConstitution is to consider the question on which the President has made
\nthe reference and report to the President its opinion, provided of course
\nthe question is capable of being pronounced upon and falls within the power
\nof the court to decide. If, by reason of the manner in which the question
\nis framed or for any other appropriate reason the court considers it not
\nproper or possible to answer the question it would be entitled to return
\nthe reference by pointing out the impediments in answering it. The right of
\nthis Court to decline to answer a reference does not flow merely out of the
\ndifferent phraseology used in Clauses (1) and (2) of Article 143<\/a>, in the
\nsense that Clause (1) provides that the Court “may” report to the President
\nits opinion on the question referred to it, while Clause (2) provides that
\nthe Court “shall” report to the President its opinion on the question. Even
\nin matters arising under Clause (2), though that question does not arise in
\nthis reference, the Court may be justified in returning the reference
\nunanswered if it finds for a valid reason that the question is incapable of
\nbeing answered. With these preliminary observations we will consider the
\ncontentions set forth above.”\n<\/p>\n
In re: Keshav Singh, Special Reference No. 1 of 1964 (supra) 413,
\nGajendragadkar, CJ speaking for the Court stated that the words of Article
\n143(1)<\/a> are wide enough to empower the President to forward to this Court
\nfor its advisory opinion any question of law or fact which has arisen or is
\nlikely to arise, provided it appears to the President that such a question
\nis of such a nature of such public importance that it is expedient to
\nobtain the opinion of the Court upon it.\n<\/p>\n
In re: Allocation of Lands and Buildings, 1943 FCR 20, Gwyer, CJ stated “we
\nfelt some doubt whether any useful purpose would be served by giving of an
\nopinion under Section 213 of the Government of India Act. The terms of that
\nsection do not impose an obligation on the Court, though we should always
\nbe unwilling to decline to accept a reference except for good reason; and
\ntwo difficulties presented themselves. First, it seemed that questions of
\ntitle might sooner or later be involved, if the Government whose
\ncontentions found favour with the Court desired to dispose of some of the
\nlands in question to private individuals and plainly no advisory opinion
\nwould furnish a good root of title such as might spring from a declaration
\nof this Court in proceedings taken under Section 204(1)<\/a> of the Act by one
\ngovernment against the other”.\n<\/p>\n
In re: Levy of Estate Duty, 1944 FCR 317, it was held that Section 213 of
\nthe Government of India Act empowers the Government General to make a
\nreference when question of law are “likely to arise”.\n<\/p>\n
From the aforesaid decisions it is clear that this Court is well within its
\njurisdiction to answer\/advise the President in a reference made under
\nArticle 143(1)<\/a> of the Constitution of India if the questions referred are
\nlikely to arise in future or such questions are of public importance or
\nthere is no decision of this Court which has already decided the question
\nreferred.\n<\/p>\n
In the present case what we find is that one of the questions is as to
\nwhether Article 174(1)<\/a> prescribes any period of limitation for holding
\nfresh election for constituting Legislative Assembly in the event of the
\npremature dissolution of earlier Legislative Assembly. The recitals
\ncontained in the Presidential reference manifestly demonstrate that the
\nreference arises out of the order of the Election Commission dated
\n16thAugust, 2002. In the said order the Election Commission has admitted
\nthat under Article 174(1)<\/a> six months should not intervene between one
\nAssembly and the other even though there is dissolution of the Assembly.
\nThe reference proceeds upon the premise that as per order of the Election
\nCommission, a new Legislative Assembly cannot come into existence within
\nthe stipulated period of six months as provided under Article 174(1)<\/a> of the
\nConstitution on the assessment of conditions prevailing in the State.
\nFurther, a doubt has arisen with regard to the application of Article 356<\/a>
\nin the order of the Election Commission. In view of the decision in Re:
\nPresidential Poll, holding that in the domain of advisory jurisdiction
\nunder Article 143(1)<\/a> this Court go into the disputed question of facts, we
\nhave already declined to go into the facts arising out of the order of the
\nElection Commission. But the legal premise on which order was passed raises
\nquestions of public importance and these questions are likely to arise in
\nfuture. The questions whether Article 174(1)<\/a> is mandatory and would apply
\nto a dissolved Assembly, that, whether in extraordinary circumstances
\nArticle 174(1)<\/a> must yield to Article 324<\/a>, and, that, the non-observance of
\nArticle 174<\/a> would mean that the government of a State cannot be carried on
\nin accordance with the provisions of the Constitution and in that event
\nArticle 356<\/a> would step in, are not only likely to arise in future but are
\nof public importance. It is not disputed that there is no decision of this
\nCourt directly on the questions referred and further, a (SIC) has arisen in
\nthe mind of the President of India as regards the interpretation of Article
\n174(1)<\/a> of the Constitution. Under such circumstances, it is imperative that
\nthis reference must be answered. We, therefore, overrule the objections
\nraised and proceed to answer the Reference.\n<\/p>\n
Question No. 1<\/span><\/p>\n
Is Article 174<\/a> subject to decision of the Election Commission of India
\nunder Article 324<\/a> as to the schedule of election of the Assembly?
\nIn an effort that aforesaid question be answered in the negative it was
\ninter alia, urged on behalf of the Union of India, one of the national
\npolitical parties and one of the States:\n<\/p>\n
a) that, the provision in Article 174(1)<\/a> of the Constitution that six
\nmonths shall not intervene between the last sitting of one session and the
\ndate appointed for its first meeting of the next session is mandatory in
\nnature and it applies when the Governor either prorogues either of the
\nHouses or dissolves the Legislative Assembly;\n<\/p>\n
b) that, Article 174(2)<\/a> empowers the Governor to prorogue or dissolve the
\nLegislative Assembly and Article 174(1)<\/a> does not make any exception in
\nrespect of the interregnum irrespective of whether the Governor has
\nprorogued the House or dissolved the Legislative Assembly under Article
\n174(2);<\/a>\n<\/p>\n
c) that, on the correct interpretation of Article 174<\/a>, the mandate of
\nArticle 174(1)<\/a> is applicable to the dissolved Assembly also. Such an
\ninterpretation would be in the defence of a democracy and, therefore, as
\nand when an Assembly is prematurely dissolved, the Election Commission has
\nto fix its calendar for holding fresh election within the time mandated
\nunder Article 174(1);<\/a>\n<\/p>\n
d) that, alternatively, it was argued that in a situation where mandate
\nunder Article 174(1)<\/a> cannot be complied with, it does not mean that the
\nmandate is directory in nature; and\n<\/p>\n
e) that, the holding of election immediately after dissolution of the
\nAssembly is also necessary in view of the sanction which is required to be
\ntaken with regard to Money Bills by the Legislative Assembly.\n<\/p>\n
The contentions advanced on behalf of the other national political parties,
\npolitical parties as well as other States is that Article 174(1)<\/a> is neither
\napplicable to the dissolved Assembly nor does it provide any period of
\nlimitation of six months for holding fresh election in the event of a
\npremature dissolution of the Legislative Assembly. According to learned
\ncounsel appearing for these parties, there is no provision either in the
\nConstitution or in the Representation of the People Act<\/a> which provides an
\nouter limit for holding election for constituting the new Legislative
\nAssembly or the new House of the People, as the case may be, in the event
\nof their premature dissolution.\n<\/p>\n
On the argument of learned counsel for the parties, the first question that
\narises for consideration is whether Article 174(1)<\/a> is applicable to a
\ndissolved Assembly?\n<\/p>\n
A plain reading of Article 174<\/a> shows that it stipulates that six months
\nshall not intervene between the last sitting in one session and the date
\nappointed for its first sitting in the next session. It does not provide
\nfor any period of limitation for holding fresh election in the event a
\nLegislative Assembly is prematurely dissolved. It is true that after
\ncommencement of the Constitution, the practice has been that whenever
\neither Parliament or Legislative Assembly were prematurely dissolved, the
\nelection for constituting fresh Assembly or Parliament, as the case may be,
\nwere held within six months from the date of the last sitting of the
\ndissolved Parliament or Assembly. It appears that the Election Commission’s
\ninterpretation of Article 174<\/a> that fresh elections for constituting
\nAssembly are required to be held within six months from the date of the
\nlast sitting of the last session was very much influenced by the prevailing
\npractice followed by the Election Commission since enforcement of the
\nConstitution. At no point of time any doubt had arisen as to whether the
\ninterval of six months between the last sitting of one session and the
\nfirst sitting of the next session of the Assembly under Article 174(1)<\/a>
\nprovides a period of limitation for holding fresh election to constitute
\nnew Assembly by the Election Commission in the event of a premature
\ndissolution of Assembly. Since the question has arisen in this Reference
\nand also in view of the fact that Article 174<\/a> on its plain reading does not
\nshow that it provides a period of limitation for holding fresh election
\nafter the premature dissolution of the Assembly, it is necessary to
\ninterpret the said provision by applying accepted rules of interpretations.\n<\/p>\n
One of the known methods to discern the intention behind enacting a
\nprovision of the Constitution and also to interpret the same is to look
\ninto the Historical Legislative Development, Constituent Assembly Debates
\nor any document preceding the enactment of the Constitutional provision.\n<\/p>\n
In His Holiness Kesavananda Bharati Sripadagalvaru etc. v. State of Kerala
\nand Anr. etc.  it was held that Constituent Assembly debates although not
\nconclusive, yet show the intention of the framers of the Constitution in
\nenacting provisions of the Constitution and the Constituent Assembly
\nDebates can throw light in ascertaining the intention behind such
\nprovisions.\n<\/p>\n
In R.S. Nayak v. A.R. Antulay<\/a>, it was held that reports of the Commission
\nwhich preceded the enactment of a legislation, reports of Joint Parliament
\nCommission, report of a Commission set up for collecting information
\nleading to the enactment are permissible external aid to construction of
\nthe provisions of the Constitution. If the basic purpose underlying
\nconstruction of legislation is to ascertain the real intention of the
\nParliament, why should the aids which Parliament availed of such as report
\nof a Special Commission preceding the enactment, existing state of Law, the
\nenvironment necessitating enactment of legislation, and the object sought
\nto be achieved, be denied to the Court whose function is primarily to give
\neffect to the real intention of the Parliament in enacting the legislation.
\nSuch denial would deprive the Court of a substantial and illuminating aid
\nto construction of the provisions of the Constitution. The modern approach
\nhas to a considerable extent eroded the exclusionary rule in England.\n<\/p>\n
Since it is permissible to look into the pre-existing law. Historical
\nLegislative Developments, and Constituent Assembly Debates, we will look
\ninto them for interpreting the provisions of the Constitution.
\nHistorical Legislative Developments Government of India Act, 1915 &
\nGovernment of India Act, 1919<\/p>\n
Part VI of Government of India Act 1915 dealt with the Indian Legislatures
\ncontaining provisions dealing with Indian and governor’s provinces
\nlegislatures. Section 63D<\/a> dealt with Indian Legislature while Section 72B<\/a>
\ndealt with the legislature of Governor’s provinces. Sections 63D(1)<\/a> and
\nSection 72B(1)<\/a> run as under:\n<\/p>\n
“Section 63D(1)<\/a>: Every Council of State shall continue for five years and
\nevery Legislative Assembly for three years from its first meeting: Provided
\nthat:\n<\/p>\n
a) either Chamber of the Legislature may be sooner dissolved by the
\nGovernor general; and\n<\/p>\n
b) any such period may be extended by the governor General, if in special
\ncircumstances he so think fit; and\n<\/p>\n
c) after the dissolution of either Chamber the Governor General shall
\nappoint a date not more than six months or, with the sanction of the
\nSecretary of the State, not more than nine months from the date of
\ndissolution for the next session of that Chamber”\n<\/p>\n
Section 72B(1)<\/a>: Every Governor’s legislative counsel shall continue for
\nthree years from its first meeting: Provided that:\n<\/p>\n
a) the Council may be sooner dissolved by the Governor; and\n<\/p>\n
b) the said period may be extended by the Governor for a period not
\nexceeding one year, by notification in the official gazette of the
\nprovince, if in special circumstances (to be specified in the notification)
\nhe so think fit; and\n<\/p>\n
c) after the dissolution of the council the Governor shall appoint a date
\nnot more than six months or, with the sanction of the Secretary of the
\nState, not more than nine months from the date of dissolution for the next
\nsession of the council.\n<\/p>\n
After repeal of Government of India Act 1915, Government of India act 1919
\ncame into force. Section 8 of the Government of India Act 1919 provided for
\nsitting of Legislative Council in provinces. Section 8<\/a> read as follows:
\n“Section 8(1)<\/a>: Every Governor’s legislative council shall continue for
\nthree years from its first meeting: Provided that:\n<\/p>\n
a) the Council may be sooner dissolved by the Governor, and\n<\/p>\n
b) the said period may be extended by the Governor for a period not
\nexceeding one year, by notification in the official gazette of the
\nprovince, if in special circumstances (to be specified in the notification)
\nhe so think fit; and\n<\/p>\n
c) after the dissolution of the council the Governor shall appoint a date
\nnot more than six months or, with the sanction of the Secretary of the
\nState, not more than nine months from the date of dissolution for the next
\nsession of the council”\n<\/p>\n
Similarly, Section 21<\/a> provided for the sittings of the Indian legislature.
\nSection 21<\/a> runs as under:\n<\/p>\n
\t“Section 21(1)<\/a>: Every Council of State shall continue for five
\n\tyears and every Legislative Assembly for three years from its first
\n\tmeeting: Provided that:\n<\/p>\n
a) either Chamber of the Legislature may be sooner dissolved by the
\nGovernor General; and\n<\/p>\n
b) any such period may be extended by the Governor General, if in special
\ncircumstances he so think fit; and\n<\/p>\n
c) after the dissolution of either Chamber the Governor General shall
\nappoint a date not more than six months or, with the sanction of the
\nSecretary of the State, not more than nine months from the date of
\ndissolution for the next session of that Chamber.\n<\/p>\n
A combined reading of Sections 63D(1) & 72B(1) of Government of India Act
\n1915 and Section 8(1) and 21(1) of Government of India Act 1919 shows that
\nthe Governor General could also either dissolve the Council of State or the
\nLegislative Assembly sooner than its stipulated period or extend the period
\nof their functioning. Further, it was mandated that after the dissolution
\nof either Chamber, the Governor General shall appoint a date not more than
\nsix months or with the sanction of the Secretary of the State, not more
\nthan nine months from the date of dissolution, for the next session of that
\nChamber. Similarly, the Governor of the province could also either dissolve
\nthe Legislative Council sooner than its stipulated period or extend the
\nperiod of its functioning. Further, the Governor was duly bound after the
\ndissolution of the legislative council to appoint a date not more than six
\nmonths, or with the sanction of the Secretary of the State, not more than
\nnine months from the date of dissolution for the next session of
\nlegislative council.\n<\/p>\n
It is noteworthy that these powers of the Governor General and the Governor
\nof the province were similar to the powers exercised by the British monarch
\nhistorically under British conventions. The mandate to the Governor General
\nand the Governor to fix the date for the next session of the new chamber or
\nthe legislative council respectively was based on the British conventions
\nwhereunder the monarch fixes a date for next session of the House of
\nCommons after its dissolution. Further the power of Governor General to
\nextend the period of Legislative Council or to prematurely dissolve it was
\nalso based on British conventions.\n<\/p>\n
Government of India Act 1935<\/p>\n
The Government of India Act, 1919 was repealed by the Government of India
\nAct, 1935, Section 19(1)<\/a> provided for the sittings of the Federal
\nLegislature. Section 19(1)<\/a> runs as under:\n<\/p>\n
Section 19(1)<\/a>: The Chambers of the Federal Legislature shall be summoned to
\nmeet once at least in every year, and twelve months shall not intervene
\nbetween their last sitting in one session and the date appointed for their
\nfirst sitting in the next session.”\n<\/p>\n
Similarly, Section 62(1)<\/a> of the Act provided for sittings of Provincial
\nLegislature. Section 62(1)<\/a> runs thus:\n<\/p>\n
“62(1): The Chamber or Chambers of each Provincial Legislature shall be
\nsummoned to meet once at least in every year and twelve months shall not
\nintervene between their last sitting in one session and the date appointed
\nfor their first sitting in the next session”\n<\/p>\n
We find that under the Government of India Act, 1935, there was a complete
\ndeparture from the provisions contained in the Government of India Act,
\n1915 and Government of India Act, 1919 as regards the powers and
\nresponsibilities of the Governor General and the Governors of the Provinces
\nto extend the period of the chambers or fix a date for the next session of
\nthe new chamber. By the aforesaid provisions, not only were the powers to
\nextend the life of the chambers of the Federal Legislature and the
\nProvincial Legislatures done away with, but the British Convention to fix a
\ndate for the next session of the new chamber was also given up. These were
\nthe departures from the previous Acts. It may also be noted that under the
\nGovernment of India Act, 1935, statutory provisions were made in respect of
\nthe conduct of elections. Under Schedule V Para 20 of the Government of
\nIndia Act, 1935, the Governor General was empowered to make rules for
\ncarrying out the provisions of the Vth and VIthSchedule. Para 20 as a whole
\nrelated to matters concerning elections, and Clause (iii) particularly
\npertained to conduct of elections. Similarly, Schedule VI of the Government
\nof India Act, 1935 contained provisions with respect to electoral rolls and
\nfranchise. Such provisions are not found in either the Government of India
\nAct, 1915 or the Government of India Act, 1919. Thus, we see that statutory
\nprovisions have come in for the first time and conduct of elections has
\nbeen entrusted in the hands of the executive. Since the power to fix the
\ncalendar for holding elections was given in the hand of executive,
\ntherefore, the provisions for fixing a date of next session of new
\nlegislature in The Government of India Act of 1915 and 1919 was given up in
\nthe 1935 Act. This shows that elections in India were no longer based on
\nthe British conventions.\n<\/p>\n
Under the Constitution of India, 1950, even these provisions have been
\ndeparted from. While under the Government of India Act, 1935, the conduct
\nof elections was vested in an executive authority, under the Constitution
\nof India, a Constitutional authority was created under Article 324<\/a> for the
\nsuperintendence, direction and conduct of elections. This body, called the
\nElection Commission, is totally independent and impartial, and is free from
\nany interference of the executive. This is a very noticeable difference
\nbetween the Constitution of India and the Government of India Act, 1935 in
\nrespect of matters concerning elections for constituting the House of the
\nPeople or the Legislative Assembly. It may be noted that Articles 85(1) and
\n174(1) which were physically borrowed from Govt. of India Act, 1935 were
\nonly for the purposes of providing the frequencies of sessions of existing
\nHouses of Parliament and State Legislature and they do not relate to
\ndissolved Houses.\n<\/p>\n
Constituent Assembly Debates with regard to Articles 85 & 174 of the
\nConstitution.\n<\/p>\n
Draft Articles 69 and 153 correspond to Article 85<\/a> and Article 174<\/a> of the
\nConstitution respectively. Article 69<\/a> dealt with the Parliament and Article
\n153<\/a> dealt with State Legislature Assembly. When the aforesaid two draft
\nArticles were placed before the Constituent Assembly for discussion, there
\nwas not much debate on Draft Article 153.<\/a> But there was a lot of discussion
\nwhen Draft Article 69<\/a> was placed before the Constituent Assembly. Draft
\nArticles 69 and 153 run as under:\n<\/p>\n
“69(1) : The Houses of Parliament, shall be summoned to meet twice at least
\nin every year, and six months shall not intervene between their last
\nsitting in one session and the date appointed for their first shifting in
\nthe next session
\n(2) Subject to the provisions of this Article, the President may from time
\nto time-\n<\/p>\n
(a) summon the Houses or either House of Parliament to meet at such time
\nand place as he thinks fit;\n<\/p>\n
(b) prorogue the Houses;\n<\/p>\n
(c) dissolve the House of the People.\n<\/p>\n
153(1) : The House or Houses of the Legislature of the State shall be
\nsummoned to meet twice at least in every year, and six months shall not
\nintervene between their last sitting in one session and the date appointed
\nfor their first sitting in the next session.\n<\/p>\n
(2) Subject to the provisions of this Article, the Governor may from time
\nto time-\n<\/p>\n
(a) summon the Houses or either House to meet at such time and place as he
\nthinks fit;\n<\/p>\n
(b) prorogue the House or Houses;\n<\/p>\n
(c) dissolve the Legislature Assembly.\n<\/p>\n
(3) The functions of the Governor under Sub-clauses (a) and (c) of Clause
\n(2) of this Article shall be exercised by him in his discretion”.\n<\/p>\n
On 18.5.1949, when Draft Article 69<\/a> came up for discussion, there was a
\nproposal to change the intervening period between the two sessions of the
\nHouses of Parliament from six months to three months so as to ensure that
\nthe Parliament has more time to look into the problems faced by the people
\nof the country. Prof. K.T. Shah one of the members of the Constituent
\nAssembly, while moving an amendment to the Draft Article 69<\/a>, as it then
\nstood, said that the Draft Article was based on other considerations
\nprevailing during the British times, when the legislative work was not much
\nand the House used to be summoned only for obtaining financial sanction.
\nShri H.V. Kamath while intervening in the debate emphasized on the need to
\nhave frequent sessions of the Houses of Parliament. He suggested that the
\nHouses should meet at least thrice in each year. he pointed out that in the
\nUnited States of America and the United Kingdom, the Legislatures sat for
\neight to nine months in a year as a result of which they were able to
\neffectively discharged their parliamentary duties and responsibilities. He
\nalso emphasized that the period of business of transactions provided in the
\nFederal or State Legislatures under the Government of India Act, 1935 were
\nvery short as there was not much business to be transacted then by those
\nLegislature. He also reiterated that the Houses of Parliament should sit
\nmore frequently so that the interests of the country are thoroughly debated
\nupon and business is not rushed through. Prof. K.T. Shah was very much
\nconcerned about the regular sitting of the Parliament and, therefore he
\nmoved an amendment 1478 which read as follows:\n<\/p>\n
“at the end of Article 69(2)(c<\/a>), the following proviso is to be added:
\nProvided that if any time the President does not summon as provided for in
\nthis Constitution for more than three months the House of the People of
\neither House of Parliament at any time after the dissolution of the House
\nof the People, or during the currency of the lifetime of the House of the
\nPeople for a period of more than 90 days the Speaker of the House of the
\nPeople or the Chairman of the Council of States may summon each his
\nrespective House which shall then be deemed to have been validly summoned
\nand entitled to deal with any business placed or coming before it”.\n<\/p>\n
Further, Prof KT Shah also moved amendment No. 1483, which provided for
\ninsertion of Clause (3) after Article 69(2<\/a>), and a proviso thereto, which
\nis very relevant. Clause (3) runs as under:\n<\/p>\n
“(3): If any time the President is unable or unwilling to summon Parliament
\nfor more than three months after the prorogation or dissolution of the
\nHouse of the People and there is in the opinion of the Prime Minister a
\nNational Emergency he shall request the Speaker and the Chairman of the
\nCouncil of States to summon both Houses of Parliament, and place before it
\nsuch business as may be necessary to cope with the National Emergency. Any
\nbusiness done in either House of Parliament thus called together shall be
\ndeemed to have been validly transacted, and shall be valid and binding as
\nany Act. Resolution or Order of Parliament passed in the normal course.
\nProvided further that if at any time the President is unable or unwilling
\nto summon Parliament for a period of more than three months or 90 days
\nafter prorogation or dissolution of the House of the People, and the Prime
\nMinister is also unable or unwilling to make the request aforesaid, the
\nChairman of either Houses of Parliament thus called together shall be
\ndeemed to be validly convened and entitled to deal with any business places
\nbefore it”.\n<\/p>\n
Shri B.R. Ambedkar, while replying to the aforesaid proposed amendment,
\nhighlighted that after the Constitution comes into force, no executive
\ncould afford to show a callous attitude towards the legislature, which was
\nnot the situation before as the legislature was summoned only to pass
\nrevenue demands. Since there was no possibility of the executive showing a
\ncallous attitude towards the legislature, this would like care of the fear
\nvoiced by some members that no efforts to go beyond the minimum mandatory
\nsittings of the Houses of Parliament would be made. He further dwelled on
\nthe fact that the clause provided for minimum mandatory sitting in a year
\nso that if the need arose, the Parliament could sit more often and if more
\nfrequent sessions were made mandatory, the sessions could be so frequent
\nand lengthy that members would grow tired.\n<\/p>\n
From the aforesaid debates, it is very much manifest that Articles 85 and
\nArticle 174<\/a> were enacted on the pattern of Sections 19(1) and 62(1) of the
\nGovernment of India Act, 1935 respectively which dealt with the frequency
\nof sessions of the existing Legislative Assembly and were not intended to
\nprovide any period of limitation for holding elections for constituting new
\nHouse of the People or Legislative Assembly in the event of their premature
\ndissolution. Further, the suggestions to reduce the intervening period
\nbetween the two sessions to three months from six months so that Parliament
\ncould sit for longer duration to transact the business shows that it was
\nintended for existing House of Parliament and not dissolved ones, as a
\ndissolved House cannot sit and transact legislative business at all.\n<\/p>\n
It is interesting to note that during the debate Prof. K.T. Shah suggested
\namendment Nos. 1478 and 1483 quoted above, which specifically contemplated
\nthe possibility of a dissolved House of the People and convening of the
\nCouncil of States in an emergency session by the President or the Speaker
\nif the circumstances so necessitated. Even these amendments were not
\naccepted. This shows that Draft Article 69<\/a> was visualized in the context of
\na scenario applicable only to a living and functional House and that the
\nstipulation of six months intervening period between the two sessions is
\ninapplicable to a dissolved House.\n<\/p>\n
Moreover, it may be noticed that if the suggestion put forth during the
\ncourse of the debate that the House of Parliament should sit for eight to
\nnine months in a year was accepted, it would not have given sufficient time
\nfor holding fresh elections in the event of premature dissolution of either
\nParliament or Legislative Assembly and it would also have led to a breach
\nof Constitutional provisions. This also shows that what is contained in
\nArticle 174(1)<\/a> is meant only for an existing and functional House. In a
\nfurther scenario, if the suggestions during the debate for reducing the
\nintervening period from six months to three months were accepted, it would
\nmean that after premature dissolution of the Houses of People or the
\nLegislative Assembly, fresh elections have to be held so that House of
\nPeople or Legislative Assembly could hold their first sitting within three
\nmonths from the date of last sitting of the dissolved Parliament or
\nLegislative Assembly as the case may be. This would also have not allowed
\nsufficient time for holding election for constituting either House of
\nPeople or a Legislative Assembly. T his shows that the intention of the
\nframers of the Constitution was that the provisions contained in Article
\n174<\/a> were meant for a living and existing Legislative Assembly and not to a
\ndissolved Legislative Assembly.\n<\/p>\n
Debates during the Constitution First Amendment Bill regarding amendment of
\nArticle 85<\/a> and Article 174.<\/a>\n<\/p>\n
The original Articles 85 and 174 as they stood prior to first Constitution
\nAmendment and after the Amendment read as follows:\n<\/p>\n
Article\tOriginal Articles in the Constitution\tAs amended by Constitution
\n(Amendment) Act<\/a>, 1951<\/p>\n
Article 85<\/a> Sessions of Parliament Prorogation & Dissolution.\t(1) The
\nHouses of Parliament shall be summoned to meet twice at least in every
\nyear, and six months shall not intervene between their last sitting in one
\nsession and the date appointed for their first sitting in the next session.
\n(1) The President shall from time to time summon each House of Parliament
\nto meet at such time and place as he thinks fit, but six months shall not
\nintervene between its last sitting in one session and the date appointed
\nfor its first sitting in the next session.\n<\/p>\n
\t(2) Subject to the provisions ofcl. (1), the President may from
\n\ttime to time –\t(2) The President may from time to-(a) Prorogue the
\n\tHouses of either House (b) Dissolve the House of the People\n<\/p>\n
\t(a) Summon the Houses or either House to meet at such time & Place
\n\tas he thinks fit;\n<\/p>\n
(b) Prorogue the Houses;\n<\/p>\n
(c) Dissolve the House of the People
\nArticle 174<\/a> Sessions of the State Legislature Prorogation & Dissolution\t(1)
\nThe House or Houses of the State shall be summoned to meet twice at least
\nin every year, and six months shall not intervene between their last
\nsitting in one Session and the date appointed for their first sitting in
\nthe next session.\t(1) The Governor shall from time to summon the
\nHouse or each House to the Legislature of the State to meet at such time
\nand place as he thinks fit, but six months shall not intervene between its
\nlast sitting in one session and the date appointed for its first sitting in
\nthe next session.\n<\/p>\n
\t(2) Subject to the provisions of cl. (1), the Governor may from
\n\ttime to time-\t(2) the Governor may from time to time-\n<\/p>\n
\t(a) Summon the House or either House to meet at such time and place
\n\tas he thinks fit;\t(a) prorogue the House or either House;\n<\/p>\n
\t(b) prorogue the House or Houses\t(b) dissolve Legislative
\n\tAssembly<\/p>\n
The aforesaid original Articles show that what was mandated was that the
\nHouse of Parliament and State Legislature were required to meet at least
\ntwice in a year and six months shall not intervene between the last sitting
\nin one session and the date appointed for their first sitting in the next
\nsession. This resulted in absurdity. If it was found that the session then
\nhad been going on continuously for 12 months, technically it could have
\nbeen contended that the Parliament had not met twice in that year at all as
\nthere must be prorogation in order that there may be new session and
\ntherefore, the original Article 174(1)<\/a> resulted in contradictions. In order
\nto remove the said absurdity, the First Amendment Bill for amendment of
\nArticles 85 and 174 was moved. While introducing the First Amendment Bill,
\nPt. Jawahar Lal Nehru stated thus:\n<\/p>\n
\t“…..one of the Articles mentions that the House shall meet at
\n\tleast twice every year and the President shall address it. Now a
\n\tpossible interpretation of that is that this House has not met at
\n\tall this year. It is an extraordinary position considering that
\n\tthis time this House has laboured more than probably at any time in
\n\tthe previous history of this or the preceding Parliament in this
\n\tcountry. We have been practically siting with an internal round and
\n\tX mas since November and we are likely to carry on and yet it may
\n\tbe held by some acute interpreters that we have not met at all this
\n\tyear strictly in terms of the Constitution because we started
\n\tmeeting November and we have not met again — it has not been
\n\tprorogued — the President has not addressed the Parliament this
\n\tyear. Put in the extreme way, suppose this House met for the full
\n\tyear without break except short breaks, it worked for 12 months
\n\tthen it may be said under the strict letter of the law that it has
\n\tnot met all this year. Of course that Article was meant not to come
\n\tin the way of our work but to come in the way of our leisure. It
\n\twas indeed meant and it must meet at least twice a year and there
\n\tshould not be more than six months interval between the meetings.
\n\tIt did not want any government of the day to simply sit tight
\n\twithout the House meeting.”.\n<\/p>\n
\t\t\t\t\t\t(emphasis mine)<\/p>\n
While intervening in the debate, Dr. B.R. Ambedkar stated thus:
\n\t“…..due to the word summon, the result is that although
\n\tParliament may sit for the whose year adjoining from time to time,
\n\tit is still capable of being said that Parliament has been summoned
\n\tonly once and not twice. There must be prorogation in order that
\n\tthere may be a new session. It is felt that this difficulty should
\n\tbe removed and consequently the first part of it has been deleted.
\n\tThe provision that whenever there is a prorogation of Parliament,
\n\tthe new session shall be called within six months is retained.”\n<\/p>\n
\t\t\t\t\t\t(emphasis mine)<\/p>\n
Even other members of the Parliament who participated int eh debate with
\nregard to the proposed amendment of Article 85<\/a> and Article 174<\/a> were
\nconcerned only with the current session and working of the existing House
\nof the People. The proceedings of the debate further show that the entire
\ndebate revolved around prorogation and summoning. There was no discussion
\nas regards dissolution or Constitution of the House at all and the
\namendment was sought to remove the absurdity which has crept into the
\noriginal Articles 85 and 174. For these reasons we are of the view that
\nArticle 174(1)<\/a> is inapplicable to a dissolved Assembly.
\nTextually<\/p>\n
The question at hand may be examined from another angle. As noticed
\nearlier, the language employed in Article 85<\/a> and Article 174<\/a> is plan and
\nsimple and it does not contemplate an interval of six months between the
\nlast sitting in one session and the date appointed for its first sitting in
\nthe next session of the new Assembly after premature dissolution of
\nAssembly. Yet we will examine Article 174<\/a> textually also.\n<\/p>\n
Article 174<\/a> shows that the expression ‘date appointed for its first sitting
\nin the next session in Article 174(1)<\/a> cannot possibly refer to either an
\nevent after the dissolution of the House or an event of a new Legislative
\nAssembly meeting for the first time after getting freshly elected. When
\nthere is a session of the new Legislative Assembly after elections, the new
\nAssembly will sit in its “first session” and not in the “next session”. The
\nexpression after each general election has been employed in other parts of
\nthe Constitution and one such provision is Article 176.<\/a> The absence of such
\nphraseology ‘after each general election’ in Article 174<\/a> is a clear
\nindication that the said Article does not apply to a dissolved Assembly or
\nto a freshly elected Assembly. Further, Article 174(1)<\/a> uses expressions
\ni.e. ‘its last sitting in one session’. ‘first sitting in the next
\nsession’. None of these expressions suggest that the sitting and the
\nsession would include an altogether different Assembly i.e. a previous
\nAssembly which has been dissolved and its successor Assembly that has come
\ninto being after elections. Again, Article 174<\/a> also employs the word
\n‘summon’ and not ‘constitute’. Article 174<\/a> empowers the Governor to summon
\nan Assembly which can only be an existing Assembly. The Constitution of an
\nAssembly can only be under Section 73<\/a> of the Representation of the people
\nAct, 1951 and the requirement of Article 188<\/a> of the Constitution suggests
\nthat the Assembly comes into existence even before its first sitting
\ncommences.\n<\/p>\n
Again, Article 174<\/a> contemplates a session, i.e. sitting of an existing
\nAssembly and not a new Assembly after dissolution and this can be
\nappreciated from the expression ‘its last sitting in one session and its
\nfirst sitting in the next session’. Further, the marginal note ‘sessions’
\noccurring in Article 85<\/a> and 174<\/a> is an unambiguous term and refers to an
\nexisting Assembly which a Governor can summon. When the term ‘session or
\nsessions’ is used, it is employed in the context of a particular Assembly
\nor a particular House of the People and not the legislative body whose life
\nis terminated after dissolution. Dissolution end the life of legislature
\nand brings an end to all business. The entire chain of sittings and
\nsessions gets broken and there is not next session or the first sitting of
\nthe next session after the House itself has ceased to exist. Dissolution of
\nLegislative Assembly ends the representative capacity of legislators and
\nterminates the responsibility of the Cabinet to the members of the Lok
\nSabha or the Legislative Assembly, as the case may be.\n<\/p>\n
The act of summoning, sitting, adjourning, proroguing or dissolving of the
\nLegislature is necessarily referable to an Assembly in praesenti i.e. an
\nexisting, functional legislature and has nothing to do with the Legislative
\nAssembly which is not in existence. It is well understood that a dissolved
\nHouse is incapable of being summoned or prorogued and in this view of the
\nmatter also Article 174(1)<\/a> has no application to a dissolved Legislative
\nAssembly, as nothing survives after dissolution.\n<\/p>\n
Conceptually<\/p>\n
Yet, Article 174<\/a> may be examined conceptually. Conceptually, Article 174<\/a>
\ndeals with a live legislature. The purpose and object of the said provision
\nis to ensure that an existing legislature meets at least every six months,
\nas it is only an existing legislature that can be prorogued or dissolved.
\nThus Article 174<\/a> which is a complete code in itself deals only with a live
\nlegislature.\n<\/p>\n
Article 174(1)<\/a> shows that it does not provide that its stipulation is
\napplicable to a dissolved legislature as well. Further, Article 174<\/a> does
\nnot specify that interregnum of six months period stipulated between the
\ntwo sessions would also apply to a new legislature vis-a-vis an outgoing
\nlegislature. If such be the case, then there was no need to insert the
\nproviso to Article 172(1)<\/a> and insertion of the said proviso is rendered
\nmeaningless and superfluous.\n<\/p>\n
Further, if Article 174<\/a> is held to be applicable to a dissolved House as
\nwell it would mean that Article 174(2)<\/a> is controlled by Article 174(1)<\/a>
\ninasmuch as the power has to be exercised under Article 174(2)<\/a> in
\nconformity with Article 174(1).<\/a> Moreover, if the House is dissolved in
\n5thmonth of the last session, the election will have to be held within one
\nmonth so as to comply with the requirement of Article 174(1)<\/a> which would
\nnot have been the intention of the framers of the Constitution.\n<\/p>\n
Yet, there is another aspect which shows that Article 174(1)<\/a> is
\ninapplicable to a dissolved Legislative Assembly. It cannot be disputed
\nthat each Legislative Assembly after Constitution is unique and distinct
\nfrom the previous one and no part of the dissolved House is carried forward
\nto a new Legislative Assembly. Therefore, Article 174(1)<\/a> does not link the
\nlast session of the dissolved House with the newly formed one.
\nThe distinction between frequency of sessions and periodicity of the
\nelections<\/p>\n
A perusal of Articles 172 and 174 would show that there is a distinction
\nbetween the frequency of meetings of an existing Assembly and periodicity
\nof elections in respect of a dissolved Assembly which are governed by the
\naforesaid provisions.\n<\/p>\n
As far as frequency of meetings of Assembly is concerned, the six months
\nrule is mandatory, while as far as periodicity of election is concerned,
\nthere is no six months rule either expressly or impliedly in Article 174.<\/a>
\nTherefore, it cannot be held that Article 174<\/a> is applicable to dissolved
\nHouse and also provides for period of limitation within which the Election
\nCommission is required to hold fresh election for constituting the new
\nLegislative Assembly.\n<\/p>\n
Whether, under the British Parliamentary practice a proclamation which on
\nthe one hand dissolves an existing Parliament and on the other fixes a date
\nof next session of new Parliament is embodied in Article 174<\/a> of the
\nConstitution.\n<\/p>\n
It was also urged on behalf of the Union of India that Indian Constitution
\nis enacted on patten of Westminster system of parliamentary democracy and,
\ntherefore, election has to be held within the stipulated time following the
\nBritish conventions as reflected in Article 174(1)<\/a> of the Constitution. It
\nwas urged that since the Parliament was a single entity with the
\nresponsibility to debate matters affecting public interest on a continuous
\nbasis, it was most appropriate that long gaps were not there between its
\nsessions.\n<\/p>\n
Learned counsel relied upon certain passages from several books in support
\nof his contention which run as under:\n<\/p>\n
Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of
\nParliament 21st Edn.: “A Parliament’ in the sense of a Parliamentary
\nperiod, is a period not exceeding five years which may be regarded as a
\ncycle beginning and ending with a proclamation. Such a proclamation on the
\none hand dissolves an existing Parliament, and on the other, orders the
\nissue of writs for the election of a new Parliament and appoints the day
\nand place for its meeting. This period, of course, contains an interregnum
\nbetween the dissolution of a Parliament and the meeting of its successor
\nduring which there is no Parliament in existence; but the principle of
\nunbroken continuity of Parliament is for all practical purposes secured by
\nthe fact that the same proclamation which dissolves a Parliament provides
\nfor the election and meeting of a new Parliament. A session is the period
\nof time between the meeting of a Parliament, whether after a prorogation or
\na dissolution, and its prorogation.”\n<\/p>\n
JAG Griffith and Michael Ryle, Parliament: Functions, Practice and
\nProcedures, 1989: “A Parliament is summoned by the Sovereign to meet after
\neach general election and the duration of a Parliament is from that first
\nmeeting until Parliament is dissolved by the Sovereign, prior to the next
\ngeneral election.\n<\/p>\n
The continuity of Parliament is today secured by including in the same
\nproclamation the dissolution of one Parliament, the order for the issuing
\nof writs for the election of a new Parliament and the summoning of that
\nParliament on a specified date at Westminster. Under Section 21(3)<\/a> of the
\nRepresentation of People Act, 1918, the interval between the date of the
\nproclamation and the meeting of Parliament must be not less than 20 days,
\nalthough this period can be further extended by proclamation. During this
\ninterval the general, election is held.”\n<\/p>\n
Passages relied upon by the learned counsel are extremely inappropriate in
\nthe Indian context for holding elections for constituting either House of
\nthe People or the Legislative Assembly. As is clear from the passages
\nthemselves, under British Parliamentary system, it is the exclusive right
\nof the Monarch to dissolve the Parliament and the Monarch by the same
\nproclamation also provides for the election and meeting of its successor,
\nwhich is not the case under the Indian Constitution. Under the Indian
\nConstitution, the power has been entrusted to the Election Commission under
\nArticle 324<\/a> to conduct, supervise, control and direction and, therefore,
\nthe British convention cannot be pressed into service. In our democratic
\nsystem, the Election Commission is the only authority to conduct and fix
\ndates for fresh elections for constituting new House of People or
\nLegislative Assembly, as the case may be. However, it is true that in the
\nyear 2000, Electoral Commission has been constituted in England by the
\nPolitical Parties, Elections and Referendums Act, 2000, but the conventions
\nsought to be relied upon are prior to the year 2000 and the Election
\nCommission also does not have the power to fix dates for holding elections
\nfor constituting the House of Commons. Therefore, the British conventions
\ncannot be said to be reflected in Article 174.<\/a> Yet another reason why the
\nBritish convention for fixing a date for newly constituted Parliament
\ncannot be applied in India is that under British Parliamentary system,
\nthere is a continuity of Parliament, whereas in India once the Parliament
\ngets dissolved, all the business which is to be transacted comes to an end
\nand the House of People cannot be revived.\n<\/p>\n
Is there any difference between the British Parliamentary practice and
\nParliamentary practice under the Indian Constitution as regards
\nProrogation, Adjournment and Dissolution?\n<\/p>\n
In this context, learned counsel appearing for Union of India also relied
\nupon the following passages — from (SIC) May, Parliamentary Practice,
\n20thEdn. as regards Prorogation, Adjournment and Dissolution under British
\nconventions and argued that the session is the period of time between the
\nmeeting of a Parliament whether after prorogation or dissolution. According
\nto learned counsel there is continuity in the Parliament and it forms an
\nunbroken chain. In substance the argument is that consequences of
\nprorogation or dissolution of a House is the same and therefore, Article
\n174(1)<\/a> is applicable to new Legislative Assembly after dissolution.
\nProrogation
\nThe effect of a prorogation is once to terminate all the current business
\nof Parliament. Not only are the sitting of the Parliament at an end. but
\nall proceedings pending at the time are quashed except impeachments by the
\nCommons, and appeals before the House of Lords. Every bill must therefore
\nbe renewed after a prorogation, as if it had never been introduced.
\nAdjournment
\nAdjournment is solely in the power of each House respectively though the
\npleasure of the Crown has occasionally been signified in person, by
\nmessage, commission or proclamation, that both Houses should adjourn; and
\nin some case such adjournments have scarcely differed from prorogations.
\nBut although no instance has occurred where the House has refused to
\nadjourn the communication may be disregarded.\n<\/p>\n
Dissolution
\nThe Queen may also close the existence of Parliament by a dissolution, but
\nis not entirely free to define the duration of the Parliament. Parliament
\nis usually dissolved by a proclamation under great seal, after having been
\nprorogued to a certain day, but such a proclamation has been issued at a
\ntime when both House stood adjourned. This proclamations issued by the
\nQueen, with the advice of her Privy Council and announces that the Queen
\nhas given orders to the Lord Chancellor of Great Britain and the Secretary
\nof State for Northern Ireland to issue out writs in due form, and according
\nto law, for calling a new Parliament; and the writs are to be returnable in
\ndue course of law.\n<\/p>\n
The aforesaid passages relied upon by learned counsel are wholly
\ninapplicable in the context of Indian Constitution. Under Article 85(2)<\/a>
\nwhen the President on the advice of the Prime Minister prorogues the House,
\nthere is termination of a session of the House and this is called
\nprorogation. When the House is prorogued all the pending proceedings of the
\nHouse are not quashed and pending Bills do not lapse. The prorogation of
\nthe House may take place at any time either after the adjournment of the
\nHouse or even while the House is sitting. An adjournment of the House
\ncontemplates postponement of the sitting or proceedings of either House to
\nreassemble on another specified date. During currency of a session the
\nHouse may be adjourned for a day or more than a day. Adjournment of the
\nHouse is also sine die. When a house’s adjourned, pending proceedings, or
\nBills do not lapse. So far as. the dissolution of either House of the
\nPeople or State Legislative Assembly is concerned, the same takes place on
\nexpiration of the period of five years from the date appointed for its
\nfirst meeting or under Article 85(2)<\/a> or Article 174(2).<\/a> It is only an
\nexisting or functional Lok Sabha or Legislative Assembly which is capable
\nof being dissolved. A dissolution brings an end to the life of the House of
\nthe People or State Legislative Assembly and the same cannot be revived by
\nthe President. When dissolution of House of the People or State Legislative
\nAssembly takes places all pending proceedings stand terminated and pending
\nBill lapses and such proceedings and Bills are not carried over to the new
\nHouse of the people or State Legislative Assembly when they are constituted
\nafter fresh elections.\n<\/p>\n
From the afore-mentioned passages relied upon it is apparent that there is
\na difference in the British parliamentary practice and the Indian practice
\nunder he Indian Constitution as regards dissolution and prorogation. Under
\nIndian Constitution dissolution brings a legislative body to an end and
\nterminates its life. Prorogation, on the other hand, only terminates a
\nsession and does not preclude another session, unless it is coincident with
\nthe end of a legislative term. In other words prorogation, unlike
\ndissolution, does not affect the life of the legislative body which may
\ncontinue from the last session until brought to an end by dissolution. This
\nis the difference in the meaning of prorogation and dissolution. In so far
\nas the effects following from prorogation and dissolution on pending
\nlegislative business are concerned in England, prorogation puts an end to
\nall pending business in the Parliament, whereas in India, this is not the
\ncase. Under Articles 107 and 196 there is a specific provision that mere
\nprorogation will not lead to lapsing of Bills pending at that point of
\ntime. It is only on dissolution that the pending Bills lapse under Articles
\n107(5) and 196(5) of the Constitution. Thus we see that there is
\npractically no difference in the effects following prorogation and
\ndissolution in England, which difference is specifically contemplated under
\nthe India Constitution. In England, dissolution does not bring with it any
\nspecial or additional consequences apart from those that attend upon
\nprorogation. Therefore, the British convention with respect to summoning
\nproroguing and dissolution of the House of Commons is also of not much
\nrelevance in the Indian context.\n<\/p>\n
From the above, the irresistible conclusion is that Article 174(1)<\/a> is
\nneither applicable to a dissolved House nor does it provide for any period
\nfor holding election for constituting fresh Legislative Assembly.
\nWhether the expression “the House” is a permanent body and is different
\nthan the House of People or the Legislative Assembly under Article 85<\/a> and
\n174<\/a> of the Constitution.\n<\/p>\n
It was then urged on behalf of the Union that under Article 174<\/a> what is
\ndissolved is an Assembly while what is prorogued is a House. Even when an
\nAssembly is dissolved, the House continues to be in existence. The Speaker
\ncontinues under Article 94<\/a> in the case of the House of the People or under
\nArticle 179<\/a> in the case of the State Legislative Assembly till the new
\nHouse of the People or the Assembly is constituted. On that premise, it was
\nfurther urged that the fresh elections for constituting new Legislative
\nAssembly has to be held within six months from the last session of the
\ndissolved Assembly.\n<\/p>\n
At first glance, the argument appeared to be very attractive, but after
\ngoing deeper into the matter we do not find any substance for the reasons
\nstated hereinafter.\n<\/p>\n
Drafting the text of a Statute or a Constitution is not just an art but is
\na skill. It is not disputed that a good legislation is that the text of
\nwhich is plain, simple unambiguous precise and there is no repetition of
\nwords or usage of superfluous language. The skill of a draftsman in the
\ncontext of drafting a Statute or the Constitution lies in brevity and
\nemployment of appropriate phraseology wherein superfluous word’s r
\nrepetitive words as avoided. It appears that the aforesaid principle was
\nkept in mind while drafting the Government of India Act 1935, the
\nGovernment of India Act, 1919, and the Government of India Act 1935. The
\ndraftsman of the Constitution of India has taken care to maintain brevity
\nand the phraseology used is such that there is no ambiguity while making
\nprovisions for the Constitutional institutions in the provisions of the
\nConstitution.\n<\/p>\n
In this background, wherever the Constitution makers wanted to confer
\npower, duties or functions or wanted to make similar provisions both for
\nCouncil of States as well as House of the People or to the State,
\nLegislative Council and the Legislative Assembly, they have referred both
\nthe institutions under Part V Chapter II and Part VI Chapter III of the
\nConstitution as ‘two Houses’, ‘each House’, ‘either House & ‘both Houses’.
\nOn the other hand the Constitution makers, when they wanted to confer
\npowers, functions and duties or to make provisions exclusively either for
\nHouse of the People or Council of States, they have referred the said
\ninstitutions either as Council of States or House of the People. Similarly,
\nin States when the Constitution makers wanted to confer power, functions
\nduties or wanted to make similar provisions both for the Legislative
\ncouncil and the Legislative Assembly, they referred both the institutions
\nas ‘Houses’, ‘either Houses’, both Houses’, ‘each House’ and where there
\nwas no Legislative Council, and power was to give exclusively to
\nLegislative Assembly, it is referred as Legislative Assembly. The aforesaid
\npattern of drafting has been borrowed from Government of India Acts. 1915,
\n1919 and 1935 which we shall notice hereinafter.\n<\/p>\n
Section 63 of the Government of India Act, 1915 provided that Indian
\nLegislature shall consist of the Governor General and two Chambers viz.,
\nCouncil of State and Legislative Assembly Section 63D(1)(a)<\/a> provided that
\neither Chamber of the Legislature may be summoned\/dissolved by the Governor
\nGeneral. The expression ‘ Chamber’ here is analogous to the expression
\n‘House’. Under Section 63D(1)(c)<\/a> of the Act, after the dissolution of
\neither Chamber, the Governor General was required to appoint a date not
\nmore than six months or with the sanction of the Secretary of the State not
\nmore than nine months after the date of dissolution for the next session of
\nthe Chamber. Since both the “Chambers” were subject to dissolution,
\ntherefore, under Section 63D(i)(c)<\/a> both the Council of States and
\nLegislative Assembly have been referred as ‘either Chamber’, and not as
\n‘Council of States or Legislative Assembly’. This show that the expressions
\n“either Chamber” are referable to Council of States as well as Legislative
\nAssembly, Under Government of India Act, 1919 again, the Indian Legislature
\nconsisted of the Governor General and two Chambers viz., Council of States
\nand the Legislative Assembly. Under Section 21(1)(a)<\/a> of the Act, “either
\nChamber” of the Legislature could be dissolved by the Governor General and
\nunder Section 21(1)(c)<\/a> it was provided that after dissolution of either
\nChamber, the Governor General shall appoint a date not more than six months
\nor with the sanction of the Secretary of the State not more than nine
\nmonths after the date of dissolution, the next session. This provision is
\nin pari materia with Section 63D of Government of India Act, 1915. In this
\ncase also, we find that since both the Chambers viz., Council of State and
\nLegislative Assembly were subjected to dissolution, therefore, in Section
\n21(1)(c) the Council of State or Legislative Assembly both were referred to
\nas ‘either Chamber’ and not as Council of State or Legislative Assembly.\n<\/p>\n
Section 18 of Government of India Act, 1935 provided that the Federal
\nLegislature was to consist of His Majesty represented by Governor General
\nand two Chambers to be known respectively as ‘Council of State’ and Federal
\nAssembly. Under Sub-section (4) of Section 18<\/a> of the 1935 Act, the Council
\nof State was made a permanent body not subject to dissolution, but as many
\nas 1\/3rd members thereof shall retire in every third year, in accordance
\nwith the provisions in that behalf contained in the First Schedule. Sub-
\nsection (2) of Section 19 of the Government of India Act, 1935 which is
\nsimilar to Article 85<\/a> of the Constitution of India, provided that the
\nGovernor General may in his discretion summon the Chambers or either
\nChamber to meet at such time as he deems fit, prorogue the Chamber and
\ndissolve the Federal Assembly. In this case, the dissolution is not of
\nChambers, but of the Federal Assembly for the simple reason that Council of
\nState was made a permanent body not subject to dissolution and, therefore,
\nthe Federal Assembly which was subjected to dissolution has been
\nspecifically referred in the Section.\n<\/p>\n
In Government of India Act, 1935, there was a provincial legislature and
\nunder Section 60<\/a> of the Act, it was provided that there shall provincial
\nlegislature which shall consist of His Majesty represented by the Governor
\nand in the provinces of Madras, Bombay and Bengal and United Provinces
\nBihar and Assam there shall be two Chambers and in other provinces one
\nChamber. In Sub-section (2) thereof, it was further provided that where
\nthere are two Chambers of the Provincial Legislature, they shall be known
\nas Legislative Council and Legislative Assembly and where there is one
\nChamber the same will be known as Legislative Assembly. Sub-section (3) of
\nSection 61<\/a> provided that every Legislative Council shall be a permanent
\nbody not subject to dissolution. Sub-section (2) of Section 62<\/a> of the Act
\nprovided that Governor may in his discretion from time to time summon the
\nChambers or either Chamber, prorogue the Chamber or Chambers and dissolve
\nthe Legislative Assembly. This provision is pari materia with Article 174<\/a>
\nof the Constitution of India. In this case also, it is very much clear that
\nsince Legislative Council has been made a permanent body and the
\nLegislative Assembly was subjected to dissolution, therefore, the
\nexpression ‘Chamber’ has not been employed for the Legislative Assembly,
\nbut expressly Legislative Assembly has been mentioned.\n<\/p>\n
Coming to the Constitution of India, Article 85<\/a> is in pari materia with
\nSection 19 of the Government of India Act, 1935. Similarly Article 174<\/a> is
\nin pari materia with Section 62 of Government of India Act, 1935. Article
\n79<\/a> of Constitution of India provides that thee shall be a Parliament for
\nthe Union which shall consist of President and two Houses respectively to
\nbe known as Council of States and House of People. Article 83<\/a> provides that
\nthe Council of States shall not be subject to dissolution. Article 85<\/a>
\nprovides that the President may, from time to time, prorogue the Houses or
\neither House and dissolve the House of People. Here again, since Council of
\nStates is a permanent body and not liable to dissolution, therefore,
\ninstead of using the expression ‘either House’, the expression ‘House of
\nPeople’ has been employed, the same being liable to dissolution. The same
\nthing holds for the State Legislature under Article 168<\/a>, Article 172<\/a> and
\nArticle 174<\/a> of the Constitution.\n<\/p>\n
From the aforesaid provisions, it is clear that the expressions “Houses”,
\n“both Houses” and “either House” and “the House” are used synonymously with
\nthe institutions known as Council of States and House of the People and are
\ninterchangeable expressions.\n<\/p>\n
The matter may also be examined from another angle. Under Article 86<\/a>, the
\nPresident is empowered to specially address either House of Parliament or
\nboth Houses assembled together. Similarly, under Article 87<\/a>, the President
\nis empowered to address both Houses of Parliament assembled together. Under
\nArticle 88<\/a>, every Minister and Attorney General has a right to speak or
\ntake part in the proceedings of either House. Article 98<\/a> provides that each
\nHouse of Parliament shall have a Secretariat Staff and under Clause (2)
\nthereof, the Parliament is empowered to make law for regulating the
\nappointment and conditions of services of persons appointed to the
\nSecretariat staff of either House of Parliament. Article 99<\/a> provides that
\nevery member of either House of Parliament shall, before taking his sent,
\nmake and subscribe before the President, or some person appointed in that
\nbehalf by him an oath or affirmation according to the form set out for the
\npurpose in the Third Schedule. Article 100<\/a> provides that all questions at
\nany sitting of either House or joint sitting of the Houses shall be
\ndetermined by a majority of votes of the members present and voting, other
\nthan the Speaker or person acting as Chairman or Speaker. Article 101<\/a>
\nprovides that no person shall be a member of both Houses of Parliament.
\nSimilarly, Article 102<\/a> uses the expression ‘either House of Parliament’.
\nArticle 103<\/a> again uses the expression ‘ either House of Parliament’.
\nArticle 104<\/a>, 106<\/a> and 107<\/a> also use the expression ‘either House of
\nParliament’. This shows that the Constitution framers, wherever they wanted
\nto make similar provisions for both Council of States and House of the
\nPeople, have used the expressions “House”, “either House”, “both Houses”,
\n“Houses” only for the purpose of maintaining brevity and to avoid using
\nCouncil of States and House of the People again and again.\n<\/p>\n
Analogous provisions are found in the provisions dealing with the State
\nLegislature under Part VI Chapter III of the Constitution. Article 168<\/a>
\nprovides that for every State, there shall be a Legislature which shall
\nconsist of the Governor and in the States of Bihar, Maharashtra, Karnataka
\nand Uttar Pradesh two Houses and in other States one House. Sub-clause (2)
\nthereof further provides that where there are two Houses, one shall be
\nknown as the Legislative Council and the other as the Legislative Assembly,
\nand where there is only one House it shall be known as Legislative
\nAssembly. Sub-clause (2) of Article 172<\/a> provides that the Legislative
\nCouncil of a State is permanent body which is not subject to dissolution.
\nUnder Article 174(1<\/a>), the Governor is empowered to summon the House or each
\nHouse of Legislature of the State to meet at such time and place as the
\ndeems fit, but six months shall not intervene between its last sitting in
\none session and the date appointed for its first sitting in the next
\nsession. Under Clause (2) of Article 174<\/a> the Governor has power to promgue
\nthe House or either House and dissolve the Legislative Assembly. Here
\nagain, we find that since Legislative Council is a permanent body, it
\ncannot be dissolved and therefore, the expression ‘House’ does not find
\nplace in Clause (2)(b) of Article 174.<\/a>\n<\/p>\n
Similarly, in the case of State Legislature, there are provisions where the
\nConstitution makers have used the expression ‘either House’ ‘both Houses’
\nand ‘House of Legislature’ wherever they intended to apply similar
\nprovisions to both the Legislative Council as well as Legislative Assembly.\n<\/p>\n
Article 175<\/a> empowers the Governor to address ‘both the Houses assembled
\ntogether’ and his power to send messages to ‘Houses of Legislature’ of the
\nState. Article 176<\/a> provides for a special address by the Governor to both
\nthe ‘House’ assembled together. Article 177<\/a> speaks of the rights of
\nministers and Advocate General to speak in the take part in the proceedings
\nof ‘both Houses’. Article 187<\/a> dealing with Secretariat of the State
\nLegislature uses the expressions, ‘the House’, ‘each House, ‘common to both
\nHouses’ and ‘Houses’. The head note of Article 189<\/a> reads: “voting in House,
\npower of Houses”. Article 190<\/a> also refers to ‘both Houses’. ‘Article 196<\/a>,
\nuses the expressions ‘either House’, ‘both Houses’, and ‘Houses’ while
\nreferring to both the Legislature Assembly and Legislative Council.
\nSimilarly, Article 197(2)<\/a> also provides for passage of a Bill by the
\n‘Houses of the Legislature’ of the State. Article 202<\/a> and Article 209<\/a> also
\nuse the expression Houses’ while referring to both the Legislative Assembly
\nand Legislative Council.\n<\/p>\n
These provisions may be contrasted while Articles 169, 170, 171, 178, 179,
\n180, 181, 182, 183, 184, 185 and Article 186<\/a> which deal exclusively either
\nwith the Legislative Council or the Legislative Assembly, Similarly,
\nArticles 197 and 198 also mention Legislative Assembly and Legislative
\nCouncil separately. Thus, the Constitution makers have specifically
\nreferred to Legislative Assembly and the Legislative Council wherever there
\nwas a need to do so. Moreover, Articles 188, 191 and 193 while dealing with
\nthe respective matters specified therein mention both Legislative Assembly
\nor Legislative council separately. Since the Constitution was being drafted
\nfor the entire country and not for a particular State, the Constitution
\nframers thought it fit to specify the Legislative Assembly or Legislative
\nCouncil separately to avoid confusion in States having just the Legislative
\nAssembly and not the Legislative Council.\n<\/p>\n
It may be noted here that there is a difference is phraseology used in
\nArticles 99 and 188, which deal with oath or affirmation of members,
\nArticles 103 and 191, which deal with disqualification of members and
\nArticles 104 and 193 which deal with penalty for sitting and voting before
\nmaking oath or affirmation or when not qualified or disqualified. Articles
\n99, 103 and 104 employ the expression ‘either House’ while Articles 188,
\n191 and 193 mention “Legislative Assembly or Legislative Council”. This
\ndifference in phraseology can be explained on the basis of the fact that
\nthere are many states where there is no Legislative Council, and therefore,
\nin this context, use of the expression “either House” in Articles 188, 191
\nand 193 could have been misleading.\n<\/p>\n
From the aforesaid provisions, it is manifest that there is no distinction
\nbetween the ‘House’ and ‘Legislative Assembly’. Wherever the Constitution
\nmakers wanted to make similar provisions for Legislative Council as well as
\nLegislative Assembly, both together have been referred to as Houses and
\nwherever the Constitution makers wanted to make a provisions exclusively
\nfor the Legislative Assembly, it has been referred to as Legislative
\nAssembly. For the aforesaid reasons out conclusion is that the expressions
\n“The House”or “either House” in Clause (2) of Article 174<\/a> of the
\nConstitution and Legislative Assembly are synonymous and are
\ninterchargeable expressions. The use of expression “the House” denotes the
\nskill of Draftsman using appropriate phraseology in the text of the
\nConstitution of India. Further the employment of expressions “the House or
\n“either House” do not refer to different bodies other than the Legislative
\nAssembly or the legislative Council, as the case may be, and have no
\nfurther significance.\n<\/p>\n
2.(a) Is there any period of limitation provided under the Constitution of
\nIndia or Representation of the People Act<\/a> for holding fresh election for
\nconstituting new Legislative Assembly in the event of premature dissolution
\nof a Legislative Assembly?\n<\/p>\n
In the context, we have looked into the provisions of the Constitution of
\nIndia, but we do not find any provision expressly providing for any period
\nof limitation for constituting a fresh Legislative Assembly on the
\npremature dissolution of the previous Legislative Assembly. On our
\ninterpretation of Article 174(1<\/a>), we have already held that it does not
\nprovide for any period of limitation for holding elections within six
\nmonths from the date of last sitting of the session of the dissolved
\nAssembly. Section 15<\/a> of the Representation of the People Act, 1951 provides
\nthat general election is required to be held for the purpose of
\nconstituting a new Legislative Assembly on the expiration of duration of
\nthe existing Assembly or on its dissolution. Sub-section (2) thereof
\nprovides that for constituting new Legislative Assembly, the Governor shall
\nby notification, on such date or dates, as may be recommended by the
\nElection Commission, call upon all Assembly constituencies in the State to
\nelect members in accordance with the provisions of the Act, rules and
\norders made thereunder. The proviso to Sub-section (2) of Section 15<\/a> of the
\nAct provides that where an election is held otherwise than on the
\ndissolution of the existing Legislative Assembly, no such notification
\nshall be issued at any time earlier than six months prior to the dates on
\nwhich the duration of that Assembly would expire under the provision of
\nClause (1) of Article 172.<\/a>\n<\/p>\n
The aforesaid provisions also do not provide for any period of limitation
\nfor holding elections for constituting new Legislative Assembly in the
\nevent of premature dissolution of an existing Legislative Assembly,
\nexcepting that election process can be set in motion by issuing a
\nnotification six months prior to the date on which the normal duration of
\nthe Assembly expires. Thus, the question arises as to whether the
\nConstitution framers have omitted by oversight to provide any such period
\nfor holding election for constituting new Assembly in an event of premature
\ndissolution or it was purposely not provided for in the Constitution. For
\nthat purpose, we must look into the legislative developments and the
\nConstitutional debates preceding the enactment of Constitution of India.\n<\/p>\n
As earlier noticed, Sections 63D and 72B(1) of the Government of India Act,
\n1915 and Sections 8(1) and 21(1) of the Government of India Act, 1919
\nempowered the Governor General in case of Indian Legislature and the
\nGovernor in case of Provincial Legislature to dissolve either chambers
\nsooner than their stipulated period and appoint a date, nor more than six
\nmonths or, with the sanction of the Secretary of the State, not more than
\nnine months from the date of dissolution for the next session of that
\nChamber. Thus the statutes themselves provided a period of limitation
\nwithin which elections were to be held for constituting the new Chamber.
\nThe power of the Governor General to fix a date for the next chamber was
\nsimilar to the powers exercised by the British Monarch historically under
\nthe British conventions.\n<\/p>\n
However, in Government of India Act, 1935, the period of limitation fixed
\nfor holding election for constituting Legislative Council and Legislative
\nAssembly were dispensed with the under Schedule V Para 20 to the Government
\nof India Act, 1935, the Governor General was empowered to make rules for
\ncarrying out the provisions of the Vth and VIthSchedule. Para 20 thereof as
\na whole, related to matters consisting of elections and Clause (3)
\nparticularly pertains to conduct of elections. Similarly, Schedule VI of
\nGovernment of India Act, 1935 contained provisions with respect to
\nelectoral roll and franchise. Thus, the conduct of election was entrusted
\nto the Executive and the Executive was empowered to fix the date or dates
\nfor holding elections for constituting Federal Legislature as well as
\nProvincial Legislature.\n<\/p>\n
When the question, who would conduct the elections under Indian
\nConstitution was debated upon before the Constituent Assembly, concerns
\nwere expressed by the members of the Constituent Assembly in entrusting the
\nsame in the hands of the Executive and, in fact, there was unanimity among
\nthe members that an independent Constitutional Authority be set up for
\nsuperintendence, direction, control and the conduct of elections to
\nParliament and Legislature of every State. In this connection, Dr. B.R.
\nAmbedkar stated before the Constituent Assembly thus:
\n\t“But the House affirmed without any kind of dissent that in the
\n\tinterest of purity and freedom of elections to the legislative
\n\tbodies, it was of the utmost importance that they should be freed
\n\tfrom any kind of interference from the executive of the day. In
\n\tpursuance of the decision of the House, the Drafting Committee
\n\tremoved this question from the category of Fundamental Rights and
\n\tput it in a separate part containing ‘Articles 289, 290 and so on.
\n\tTherefore, so far as the fundamental question is concerned that the
\n\telection machinery should be outside the control of the executive
\n\tGovernment, there has been no dispute. What Article 289<\/a> does is to
\n\tcarry out that part of the decision of the Constituent Assembly. It
\n\ttransfers the superintendence, direction and control of the
\n\tpreparation of the electoral rolls and of all elections to
\n\tParliament and the Legislatures of States to a body outside the
\n\texecutive to be called the Election Commission.”\n<\/p>\n
It is in light of the aforesaid discussion, Article 324<\/a> was enacted and the
\nsuperintendence, direction, control and conduct of election was no more
\nleft in the hands of the Executive but was entrusted to an autonomous
\nConstitutional Authority i.e. the Election Commission. It appears that
\nsince the entire matter relating to the elections was entrusted to the
\nElection Commission, it was found to be a matter of no consequence to
\nprovide any period of limitation for holding fresh election for
\nconstituting new Legislative Assembly in the event of premature
\ndissolution. This was deliberate and conscious decision. However, care was
\ntaken not to leave the entire matter in the hands of the Election
\nCommission and, therefore, under Article 327<\/a> read with Entry 72 of List I
\nof VIIth Schedule of the Constitution, Parliament was given power subject
\nto the provisions of the Constitution to make provisions with respect to
\nmatters relating to or in connection with the election of either House of
\nParliament or State Legislature, as the case may be, including preparation
\nof electoral roll. For the States also, under Article 328<\/a> read with Entry
\n37 of List II, the Legislature was empowered to make provisions subject to
\nthe provisions of the Constitution with respect to matters relating to or
\nin connection with election of either House of Parliament or State
\nLegislature, including preparation of electoral roll. Thus, the Parliament
\nwas empowered to make law as regards matters relating to conduct of
\nelection of either Parliament or State Legislature, without affecting the
\nplenary powers of the Election Commission. In this view of the matter, the
\ngeneral power of superintendence, direction, control and conduct of
\nelection although vested in the Election Commission under Article 324(1<\/a>),
\nyet it is subject to any law either made by the Parliament or State
\nLegislature, as the case may be which is also subject to the provisions of
\nthe Constitution. The word ‘election’ has been interpreted to include all
\nthe steps necessary for holding election. In M.S. Gill v. Chief Election
\nCommissioner<\/a> (suprs), A.C. Jose v. Sivan Pillai<\/a> and Ors. – and Kanhiya Lal
\nOmar v. R.K. Trivedi and Ors<\/a>., it has been consistently held that Article
\n324<\/a> operates in the area left unoccupied by legislation and the words
\n‘superintendence, ‘controi’ ‘direction’ as well as ‘conduct of all
\nelections’ are the broadest of the terms. Therefore, it is no more in doubt
\nthat the power of superintendence, direction and control are subject to law
\nmade by either Parliament or by the State Legislature, as the case may
\nprovided the same does not encroach upon the plenary powers of the Election
\nCommission under Article 324.<\/a>\n<\/p>\n
We find that the Representation of the People Act<\/a>, 1951 also has not
\nprovided any period of limitation for holding election for constituting
\nfresh Assembly election in the event of premature dissolution of former
\nAssembly. In this context, concerns were expressed by learned counsel for
\none of the national political parties and one of the States that in the
\nabsence of any period provided either in the Constitution or in the
\nRepresentation of the People Act<\/a>, the Election Commission may not hold
\nelection at all and in that event it would be the end of democracy. It is
\nno doubt true that democracy is a part of the basic structure of the
\nConstitution and periodical, free and fair election is substratum of
\ndemocracy. If there is no free and fair periodic election, it is end of
\ndemocracy and the same was recognized in M.S. Gill v. Chief Election
\nCommissioner<\/a> – (1978) 1 SCC 464 thus:\n<\/p>\n
\t“A free and fair election based on universal adult franchise is the
\n\tbasic, the regulatory procedures vis-a-vis the repositories of
\n\tfunctions and the distribution of legislative, executive and
\n\tjudicative roles in the total scheme, directed towards the holding
\n\tof free elections, are the specifies. The super authority is the
\n\tElection Commission, the Kingpin is the returning officer, the
\n\tminions are the presiding officers in the polling stations and the
\n\telectoral engineering is in conformity with the elaborate
\n\tlegislative provision.”\n<\/p>\n
Similar concern was raised in the case of A.C. Jose v. Sivan Pillai and
\nOrs.  In<\/a> that case, it was argued that if the Commission is armed with
\nunlimited arbitrary powers and if it happens that the persons manning the
\nCommission shares or is wedded to a particular ideology, he could be giving
\nodd directions cause a political havoc or bring about a Constitutional
\ncrisis, setting at naught the integrity and independence of the electoral
\nprocess, so important and indispensable to the democratic system. Similar
\napprehension was also voiced in M.S. Gill v. Chief Election Commissioner<\/a>
\n(supra). The aforesaid concern was met by this Court by observing that in
\ncase such a situation ever arises, the Judiciary which is a watchdog to see
\nthat Constitutional provisions are upheld would step in and that is enough
\nsafeguard for preserving democracy in the country.\n<\/p>\n
However, we are of the view that the employment of words “on an expiration”
\noccurring in Sections 14<\/a> and 15<\/a> of the Representation of the People Act,
\n1951 respectively show that Election Commission is required to take steps
\nfor holding election immediately on expiration of the term of the Assembly
\nor its dissolution, although no period has been provided for. Yet, there is
\nanother indication in Sections 14<\/a> and 15<\/a> of the Representation of the
\nPeople Act that the election process can be set in motion by issuing of
\nnotification prior to the expiry of six months of the normal term of the
\nHouse of People of Legislative Assembly. Clause (1) of Article 172<\/a> provides
\nthat while promulgation of emergency is in operation, the Parliament by law
\ncan extend the duration of the Legislative Assembly not exceeding one year
\nat a time and this period shall not, in any case, extend beyond a period of
\nsix months after promulgation has ceased to operate. Further, under
\nArticles 123 and 213, the life of an ordinance promulgated either by the
\nPresident or by the Governor, as the case may be, is six months and
\nrepeated promulgation of ordinance after six months has not been welcomed
\nby this Court. Again, under Articles 109, 110, and 111 and analogous
\nArticles for State Assembly, Money Bill has to be passed by the House of
\nPeople or by the Legislative Assembly. The aforesaid provisions to indicate
\nthat on the premature dissolution of Legislative Assembly the Election
\nCommission is required to initiate immediate steps for holding election for
\nconstituting Legislative Assembly on the first occasion and in any case
\nwithin six months from the date of premature dissolution of the Legislative
\nAssembly.\n<\/p>\n
2(b) Is there any limitation on the powers of the Election Commission to
\nframe schedule for the purpose of holding election for constituting
\nLegislative Assembly?\n<\/p>\n
So far as the framing of the schedule or calendar for election of the
\nLegislative Assembly is concerned, the same is in the exclusive domain of
\nthe Election Commission, which is not subject to any law framed by the
\nParliament. The Parliament is empowered to frame law as regards conduct of
\nelections but conducting elections is the sole responsibility of the
\nElection Commission. As a matter of law, the plenary powers of the Election
\nCommission can not be taken away by law framed by Parliament. If Parliament
\nmakes any such law, it would repugnant to Article 324.<\/a> Holding periodic,
\nfree and fair elections by the Election Commission are part of the basic
\nstructure and the same was reiterated in Indira Nehru Gandhi v. Raj Narain<\/a>
\nwhich run as under:\n<\/p>\n
\t“198. This Court in the case of Kesavananda Bharati (supra) held by
\n\tmajority that the power of amendment of the Constitution contained
\n\tin Article 368<\/a> does not permit altering the basic structure of the
\n\tConstitution. All the seven Judges who constituted the majority
\n\twere also agreed that democratic set-up was part of the basic
\n\tstructure of the Constitution. Democracy postulates that there
\n\tshould be periodical elections, so that people may be in a position
\n\teither to re-elect the old representatives or, if they so choose,
\n\tto change the representatives and elect in their place other
\n\trepresentatives. Democracy further contemplates that the elections
\n\tshould be free and fair so that the voters may be in a position to
\n\tvote for candidates of their choice. Democracy can indeed function
\n\tonly upon the faith that elections are free and fair and not rigged
\n\tand manipulated, that they are effective instruments of
\n\tascertaining popular will both in reality and form and are not mere
\n\trituals calculated to generate illusion of defence to mass
\n\topinion…..”\n<\/p>\n
The same is also evident from Sections 14<\/a> and 15<\/a> of the Representation of
\nPeople Act, 1951 which provide that the President or the Governor shall fix
\nthe date or dates for holding elections on the recommendation of the
\nElection Commission. It is, therefore, manifest that fixing schedule for
\nelections either for the House of People or Legislative Assembly is in the
\nexclusive domain of the Election Commission.\n<\/p>\n
(3) Application of Article 356<\/a><\/p>\n
It appears that the interpretation of Article 174(1)<\/a> of the Constitution by
\nthe Election Commission in its order was mainly influenced by the past
\npractice adopted by the Election Commission holding elections for
\nconstituting fresh Legislative Assembly within six months of the last
\nsitting of the dissolved House. It also appears that the gratuitous advice
\nof application of Article 356<\/a> by the Election Commission in its order was
\nin all its sincerity, although now on our interpretation of Article 174(1<\/a>),
\nwe find that it was misplaced. However, the Election Commission in its
\nwritten submission has stated thus:\n<\/p>\n
“The decision, contained in the Election Commission’s order dated
\n16.8.2002, was taken without reference to Article 356.<\/a> However, it was
\nmerely pointed out that there need be no apprehension that there would be a
\nconstitutional impasse as Article 356<\/a> could provide a solution in such a
\nsituation”.\n<\/p>\n
In that view of the matter and the view we have taken in regard to the
\ninterpretation of Article 174(1<\/a>), there is no need to go further into the
\nquestion of application of Article 356<\/a> in the context of the order of the
\nElection Commission out of which the Reference arises.\n<\/p>\n
As a result of the aforesaid discussion, our conclusions are as follows:\n<\/p>\n
a) The Reference made by the President of India under Article 143(1)<\/a> arises
\nout of the order of the Election Commission dated 19.8.2002 and the
\nquestions raised therein are of public importance and are likely to arise
\nin future. Further, there being no decision by this Court on the questions
\nraised and a doubt having arisen in the mind of the President in regard to
\nthe interpretation of Article 174(1)<\/a> of the Constitution, the Reference is
\nrequired to be answered.\n<\/p>\n
b) Article 174(1)<\/a> of the Constitution relates to an existing, live and
\nfunctional Legislative Assembly and not to a dissolved Assembly.\n<\/p>\n
c) The provision in Article 174(1)<\/a> that six months shall not intervene
\nbetween its last sitting in one session and the date appointed for its
\nsitting in the next session is mandatory and relates to the frequencies of
\nthe sessions of a live and existing Legislative Assembly and does not
\nprovide for any period of limitation for holding fresh elections for
\nconstituting Legislative Assembly on premature dissolution of the Assembly.\n<\/p>\n
d) The expressions “the House”, “either House” is synonymous with
\nLegislative Assembly or Legislative Council and they do not refer to
\ndifferent bodies other than the Legislative Assembly or the Legislative
\nCouncil, as the case may be.\n<\/p>\n
e) Neither under the Constitution nor under the Representation of the
\nPeople Act<\/a>, any period of limitation has been prescribed for holding
\nelection for constituting Legislative Assembly after premature dissolution
\nof the existing one. However, in view of the scheme of the Constitution and
\nthe Representation of the People Act<\/a>, the elections should be held within
\nsix months for constituting Legislative Assembly from the date of
\ndissolution of the Legislative Assembly.\n<\/p>\n
f) Under the Constitution the power to frame the calender or schedule for
\nelections for constituting Legislative Assembly is within the exclusive
\ndomain of the Election Commission and such a power is not subject to any
\nlaw either made by Parliament or State Legislature.\n<\/p>\n
g) In view of the affidavit filed by the Election Commission during hearing
\nof the Reference, the question regarding the application of Article 356<\/a> is
\nnot required to be gone into.\n<\/p>\n
In accordance with the foregoing opinion, we report on the questions
\nreferred as follows:\n<\/p>\n
Question No. (i):\n<\/p>\n
This question proceeds on the assumption that Article 174(1)<\/a> is also
\napplicable to a dissolved Legislative Assembly. We have found that the
\nprovision of Article 174(1)<\/a> of the Constitution which stipulates that six
\nmonths shall not intervene between the last sitting in one session and the
\ndate appointed for is first sitting in the next session is mandatory in
\nnature and relates to an existing and functional Legislative Assembly and
\nnot to a dissolved Assembly whose life has come to an end and ceased to
\nexist. Further, Article 174(1)<\/a> neither relates to elections nor does it
\nprovide any outer limit for holding elections for constituting Legislative
\nAssembly. The superintendence, direction and control of the preparation of
\nelectoral roll and conduct of holding elections for constituting
\nLegislative Assembly is in the exclusive domain of the Election Commission
\nunder Article 324<\/a> of the Constitution. In that view of the matter, Article
\n174(1)<\/a> and Article 324<\/a> operate on different fields and neither Article
\n174(1)<\/a> is subject to Article 324<\/a> nor Article 324<\/a> is subject to Article
\n174(1)<\/a> of the Constitution.\n<\/p>\n
Question No. (ii):\n<\/p>\n
This question also proceeds on the assumption that Article 174(1)<\/a> is also
\napplicable to a dissolved House. On our interpretation of Article 174(1<\/a>),
\nwe have earlier reported that the said Article is inapplicable to a
\ndissolved Legislative Assembly. Consequently, there is no infraction of the
\nmandate of Article 174(1)<\/a> in preparing a schedule for elections to an
\nAssembly by the Election Commission. The Election Commission in its written
\nsubmissions stated thus:\n<\/p>\n
“The decision, contained in the Election Commission’s order dated
\n16.8.2002, was taken without reference to Article 356.<\/a> However, it was
\nmerely pointed out that there need be no apprehension that there would be a
\nconstitutional impasse as Article 356<\/a> could provide a solution in such a
\nsituation”.\n<\/p>\n
In that view of the matter, the question of applicability of Article 356<\/a> on
\nthe infraction of the provisions of Article 174<\/a> loses much of its substance
\nand, therefore, application of Article 356<\/a> is not required to be gone into.
\nQuestion No. (iii):\n<\/p>\n
Again, this question proceeds on the assumption that the provision of
\nArticle 174(1)<\/a> also apply to a dissolved Assembly. In view of our answer to
\nquestion No. (i), we have already reported that Article 174(1)<\/a> neither
\napplies to a prematurely dissolved Legislative Assembly nor does it deal
\nwith elections and, therefore, the question that the Election Commission is
\nrequired to carry out the mandate of Article 174(1)<\/a> of the Constitution
\ndoes not arise. Under Article 324<\/a>, it is the duty and responsibility of the
\nelection Commission to hold free and fair elections at the earliest. No
\nefforts should be spared by the Election Commission to hold timely
\nelections. Ordinarily, law and order or public disorder should not be
\noccasion for postponing the elections and it would be the duty and
\nresponsibility of all concern to render all assistance, cooperation and aid
\nto the Election Commission for holding free and fair elections.\n<\/p>\n
The Reference is answered accordingly.\n<\/p>\n
___________________________________________________________________________<\/p>\n
Balakrishnan, J.\n<\/p>\n
I had the advantage of reading the Opinion in draft of my learned brothers
\nV.N. Khare and Arijit Pasayat, JJ. and I fully concur with the opinion
\nexpressed by them regarding interpretation of Article 174<\/a> and the
\nconsequential answers to the reference made by the President of India, and
\nI would like to add the following.\n<\/p>\n
The Legislative Assembly of Gujarat was dissolved by the Governor of
\nGujarat on 19th July, 2002 in exercise of the powers conferred on him under
\nArticle 174(2)(b)<\/a> of the Constitution. The full term of the Legislative
\nAssembly would be expiring on 18thMarch, 2003. After the dissolution of the
\nAssembly, the ruling party in the State of Gujarat requested the Election
\nCommission for conducting fresh General Election urgently so that the new
\nLegislative Assembly would be able to have its first session before
\n6thOctober, 2002. The ruling party of the State of Gujarat made this demand
\non the basis of the premise that under Article 174(1)<\/a> of the Constitution,
\nthere shall not be more than six months period in between the last session
\nof the dissolved assembly and the first meeting of the next session of the
\nAssembly to be newly constituted. Certain other political parties, public-
\nspirited citizens and organisations urged the Election Commission not to
\nhold the general election to the Gujarat State Legislative Assembly but to
\nwait for some more time until the people who were affected by the communal
\nriots and violence returned to their houses from the various relief camps
\nwhere they were staying.\n<\/p>\n
In the last week of February, 2002 an unfortunate incident took place at
\nthe railway station in Godhara in Gujarat in which a railway compartment
\nwas set on fire and several people who were occupants of that compartment
\ndied of burning. After this incident a spate of communal violence erupted
\nin various parts of Gujarat and curfew was clamped in many cities of the
\nState of Gujarat. Many people who had been the victims of such riots were
\nput in the relief camps. Election Commission, which was requested to
\nconduct the election, visited Gujarat and in the Order passed by the
\nElection Commission on 16thAugust, 2002, the following observations were
\nmade:\n<\/p>\n
(1) The Commission was of the opinion that Article 174(1)<\/a> of the
\nConstitution was applicable even in respect of dissolved Assemblies and in
\nthe Order it is stated that the Commission has, in the past, been taking
\nthe view that the six months mentioned in Article 174(1)<\/a> of the
\nConstitution applies not only to a Legislative Assembly in existence but
\nalso to dissolved assembly and elections to constitute a new Legislative
\nAssembly have always been held within such time so as to enable the new
\nAssembly to meet within the period of six months from the last sitting of
\nthe last session of the dissolved Assembly;\n<\/p>\n
(2) Commission was of the opinion that any other view on the interpretation
\nof Article 174(1)<\/a> of the Constitution may lead to extensive gaps between
\ntwo Houses of a Legislative Assembly and the abuse of democracy, there
\nbeing no provision in the Constitution or in any law in force prescribing a
\nperiod during which an election to be held to constitute a new Legislative
\nAssembly on the dissolution of the previous house;\n<\/p>\n
(3) The Commission further observed that Article 174(1)<\/a> of the Constitution
\ncannot be read in isolation and it has to be read along with other relevant
\nprovisions of the Constitution, particularly Article 324<\/a> of the
\nConstitution and this Article being not subject to the provisions of any
\nother Article of the Constitution including Article 174(1<\/a>), vests the
\nsuperintendence, direction and control, inter alia, of the preparation of
\nelectoral rolls for, and conduct of, elections to Parliament and State
\nLegislature in the Election Commission. The Commission further observed
\nthat free and fair election based on universal adult franchise being the
\nbasic feature of the Constitution the same cannot be held in view of the
\nprevailing situation in Gujarat. The Commission was of the view that there
\nwas large scale movement and migration of electors due to communal riots
\nand violence and they had not returned to their homes and they would not be
\nable to go to the polling station to cast their votes and the electoral
\nrolls had to be revised.\n<\/p>\n
Therefore, the Election Commission came to the conclusion that it was not
\nin a position to conduct free and fair election immediately after the
\ndissolution of the Assembly and after the electoral roll is revised, the
\nCommission would be in a position to conduct election to the General
\nAssembly in the month of November\/December, 2002.\n<\/p>\n
The Commission was also of the view that Legislative Assembly should meet
\nat least every six months as contemplated by Article 174(1)<\/a> of the
\nConstitution even when it has been dissolved and in case it was not
\nfeasible, that would mean that the Government of the State cannot be
\ncarried on in accordance with the provisions of the Constitution within the
\nmeaning of Article 356(1)<\/a> of the Constitution and the President would step
\nin and declare a state of emergency.\n<\/p>\n
After the receipt of the report of the Election Commission, the
\nPresidential Reference was made under Article 143(1)<\/a> of the Constitution of
\nIndia and the Order of Reference proceeded on the assumption that the
\nmandate of the Constitution under Article 174(1)<\/a> is that six months shall
\nnot intervene between the last sitting of the previous session and the date
\nappointed for the first sitting in the next session and the Election
\nCommission has all along been consistent that normally, a Legislative
\nAssembly should meet at least every six months as contemplated by Article
\n174(1)<\/a> of the Constitution, even where it has been dissolved, and the Order
\nof the Election Commission of India dated August 16, 2002 had not
\nrecommended any date for holding general election for constituting a new
\nLegislative Assembly for the State of Gujarat. The new Legislative Assembly
\ncannot come into existence so as to meet within the stipulated period of
\nsix months as provided under Article 174(1)<\/a> of the Constitution of India.
\nThe following observation of the Election Commission was also noted in the
\nReference:\n<\/p>\n
\t“AND WHEREAS the Election Commission has held that the non-
\n\tobservation of the provisions of Article 174(1)<\/a> in the present
\n\tsituation would mean that the Government of the State cannot be
\n\tcarried in accordance with the provisions of the Constitution
\n\twithin the meaning of Article 356(1)<\/a> of the Constitution and the
\n\tPresident would then step in;\n<\/p>\n
\tAND WHEREAS doubts have arisen with regard to the constitutional
\n\tvalidity of the said order of the Election Commission of India as
\n\tthe order of the Election Commission which would result in a non-
\n\tcompliance with the mandatory requirement envisaged under Article
\n\t174(1)<\/a> of the Constitution under which not more than six months
\n\tshall intervene between two sittings of the State Legislature;\n<\/p>\n
\tAND WHEREAS in view of what has been hereinbefore stated, it
\n\tappears to me that the questions of law hereinafter set out have
\n\tarisen which are of such a nature and of such public importance
\n\tthat it is expedient to obtain the opinion of the Supreme Court of
\n\tIndia.”\n<\/p>\n
The following three questions were referred to the Supreme Court of India
\nfor consideration:\n<\/p>\n
(i) Is Article 174<\/a> subject to the decision of the Election Commission of
\nIndia under Article 324<\/a> as to the schedule of elections of the Assembly?\n<\/p>\n
(ii) Can the Election Commission of India frame a schedule for the
\nelections to an Assembly on the premise that any infraction of the mandate
\nof Article 174<\/a> would be remedied by a resort to Article 356<\/a> by the
\nPresident?\n<\/p>\n
(iii) Is the Election Commission of India under a duty to carry out the
\nmandate of Article 174<\/a> of the Constitution, by drawing upon all requisite
\nresources of the Union and the State to ensure free and fair elections?\n<\/p>\n
After the receipt of the reference, notices were issued to all the States
\nand all the recognised national political parties. On behalf of the Union
\nof India, Solicitor General Shri Harish N. Salve appeared and raised the
\nfollowing contentions. It was contended on behalf of the Union of India
\nthat Article 174<\/a> is applicable even to dissolved assemblies and since there
\nis no time limit at all for conducting fresh election, it would
\nhypothetically lead to a situation of Council of Ministers continuing
\nperennially after the dissolution of Assembly, which, in turn, would lead
\nto a breakdown of the constitutional democracy. It was argued that there is
\nno question of Article 174<\/a>, or Article 85<\/a>, or Article 85<\/a> or Article 164<\/a>
\ncoming in conflict with Article 324<\/a> and these provisions operate in
\ndifferent fields and the power of superintendence, direction and control of
\nelections vested with the Election Commission should be exercised in the
\nmanner which would be consistent with the constitutional scheme of
\nrepresentative government. It is submitted that the Election Commission
\nmust use all the requisite resources of Union and the State to ensure free
\nand fair election. It was further argued that the power under Article 356<\/a>
\nis utterly irrelevant for ascertaining the constitutional mandate for
\nholding elections and this power is highly discretionary and is to be
\nexercised where there is a breakdown of the constitutional machinery. The
\nexecutive government has no legal authority to compel the holding of
\nelections – not even Parliament can, by resolution, legally compel the
\nElection Commission to fix a particular schedule for the elections. By the
\nsame token, the Election Commission cannot recommend – or even proceed upon
\nthe premise of — imposition of President’s Rule, which would require
\nexecutive action ratified by Parliament.\n<\/p>\n
Shri Arun Jaitley, Sr. Advocate, appearing on behalf of the Bharatiya
\nJanata Party contended that the view of the Election Commission that
\nArticle 174<\/a> is subject to Article 324<\/a> of the Constitution is wholly
\nerroneous and contrary to the constitutional mandate. It was further
\nsubmitted that Article 324<\/a> does not enable Election Commission to exercise
\nuntrammeled powers and the Commission must exercise power either of the
\nConstitution or the law under Article 327<\/a> and 328.<\/a> It was also argued that
\neven when the Assembly is dissolved, the House continue to exist and,
\ntherefore, Article 174<\/a> is applicable even to dissolved assemblies. A
\nreference was made to the Parliamentary practice in various other countries
\nincluding Britain.\n<\/p>\n
Shri Kapil Sibal, Sr. Advocate appearing on behalf of the Indian National
\nCongress contended that Article 174<\/a> has no application to dissolved
\nAssembly. However, he submitted that on dissolution of an Assembly, it is
\nthe duty of the Election Commission is conduct the election immediately and
\nevery step shall be taken to see that the new Legislative Assembly met for
\nits first session at the earliest. However, it was submitted that the
\nElection Commission is the supreme authority, which should take a decision
\nas to when a free and fair election can be held. Article 324<\/a> of the
\nConstitution gives vast power to the Election Commission to decide the
\nquestion as to when the election shall be held and if the Election
\nCommission fails to carry out the constitutional mandate for any other
\nextraneous reason, such decision can be challenged under judicial review.
\nAccording to the counsel, any other interpretation of these constitutional
\nprovisions would lead to a situation where the Election Commission would be
\nforced to conduct election when it is not possible to conduct a free and
\nfair election and that would be against the constitutional spirit of a
\ndemocratic government. It was submitted that as the Reference was based on
\nthe wrong assumption of the constitutional provisions, it need not be
\nanswered by this Court.\n<\/p>\n
Shri Ram Jethmalani, Sr. Advocate appearing on behalf of the State of Bihar
\nsubmitted that Article 174<\/a> applies to an Assembly whose
\npersonality\/identity is not interrupted or altered by premature dissolution
\nor expiry of its period of duration. Free and fair elections being a basic
\nfeature of a democratic and Republican Constitution, Article 174<\/a> will have
\nto yield to Article 324.<\/a> It was further submitted that Article 356<\/a> does not
\ninclude the power to suspend the operation of Article 174.<\/a> It was also
\nsubmitted that Article 174<\/a> imposes a mandate only on the Governor of the
\nState and is not concerned with the Election Commission.\n<\/p>\n
Shri Rajeev Dhavan, Sr. Advocate appearing on behalf of the Communist Party
\nof India (Marxist) also supported the contention raised by the counsel who
\nappeared for Indian National Congress and contended that Article 174<\/a> is not
\napplicable to dissolved Assembly. Similar contentions were raised by
\ncounsel for other political parties and counsel who appeared for various
\nStates.\n<\/p>\n
Shri K.K. Venugopal, Sr. Advocate appearing on behalf of the Election
\nCommission submitted that Article 174<\/a> has no application to dissolved
\nAssemblies. It was submitted that free and fair election is the basic
\nfeature of the Constitution and the power of superintendence, direction and
\ncontrol of election vests with the Election Commission. It was further
\nsubmitted that as the Reference has been made on the wrong premise, this
\nCourt need not answer the same. it was also submitted that the Election
\nCommission has been trying its best to conduct election at the earliest
\neven under very adverse circumstances and for the past 50 years Election
\nCommission earned a good reputation as a free and independent body, which
\nhas conducted elections to various State Legislatures and the House of the
\nPeople.\n<\/p>\n
We are greatly beholden to other Senior Lawyers, M\/s. K. Parasaran, P.P.
\nRao, Milon Banerjee, M.C. Bhandare, Ashwani Kumar, P.N. Puri, A. Sharan,
\nDevendra N. Dwivedi, A.M. Singhvi, Gopal Subramaniam, and Vijay Bahuguna,
\nwho had made very enlightening arguments on various vexed legal questions
\ninvolved in this case.\n<\/p>\n
The first and foremost question that arises for consideration is whether
\nArticle 174<\/a> is applicable in respect of a dissolved Assembly. The next
\nquestion that arises for consideration is the interplay of Article 147<\/a> and
\nArticle 324<\/a> of the Constitution. Incidently, a question also may arise
\nwhether the Election Commission can postpone the election indefinitely on
\none pretext or the other and create a situation where there is a breakdown
\nof democratic form of Government. Article 174<\/a> of the Constitution reads
\nthus:\n<\/p>\n
“174. Sessions of the State Legislature, prorogation and dissolution – (1)
\nThe Governor shall from time to time summon the House or each House of the
\nLegislature of the State to meet at such time and place as he thinks fit,
\nbut six months shall not intervene between its last sitting in one session
\nand the date appointed for its first sitting in the next session.
\n(2) The Governor may from time to time-\n<\/p>\n
(a) prorogue the House or either House;\n<\/p>\n
(b) dissolve the Legislative Assembly”.\n<\/p>\n
Article 324<\/a> of the Constitution reads as under:\n<\/p>\n
324. Superintendence, direction and control of elections to be vested in an
\nElection Commission-\n<\/p>\n
(1) The superintendence, direction and control of the preparation of the
\nelectoral rolls for, and the conduct of, all elections of Parliament and to
\nthe Legislature of every State and of elections to the offices of President
\nand Vice-President held under this Constitution shall be vested in a
\nCommission (referred to in this Constitution as the Election Commission).
\n(2) …..\n<\/p>\n
(3) …..\n<\/p>\n
(4) …..\n<\/p>\n
(5) …..\n<\/p>\n
(6) …..”.\n<\/p>\n
Section 8 of the Constitution (First Amendment) Act, 1951 amended Article
\n174<\/a> of the Constitution. The amended Article requires the Governor to
\nsummon the House or each house of the Legislature to the State and this
\nArticle mandates that six months shall not intervene between the last
\nsitting of one session and the date appointed for the first sitting of the
\nnext session. The sole object of Article 174(1)<\/a> is to ensure accountability
\nof executive to the people through their elected representatives. Article
\n164(2)<\/a> states that the Council of Ministers shall be collectively
\nresponsible to the Legislative Assembly of the State. In a democratic form
\nof Government the responsibility of the Government is to the people of the
\ncountry and the Members of the Legislative Assembly represent the people of
\nthe State and the Council of Ministers shall be collectively responsible to
\nthe Legislative Assembly. Therefore, frequency of the meeting of the
\nLegislative Assembly is necessary, otherwise, there will not be any check
\nand balance to the actions of the executive government. The Solicitor
\nGeneral contended that Article 174<\/a> would apply even to a dissolved assembly
\nbecause the House as such is not dissolved and it was pointed out that when
\nthe British Parliament is dissolved, notice to summon the next session of
\nthe Parliament is simultaneously issued. On that basis, it was contended
\nthat Article 174<\/a> is even applicable to a dissolved Assembly. We do not find
\nmuch force in this contention. The plain meaning of the words used in
\nArticle 174<\/a> itself would show that Article 174<\/a> has no application to a
\ndissolved Assembly. The words “six months shall not intervene between its
\nlast sitting in one session and the date appointed for its first sitting in
\nthe next session” occurring in Article 174<\/a> clearly indicate that the
\ninterregnum between the two sessions shall not be six months and that is
\napplicable only in respect of a live Assembly. Once the Assembly is
\ndissolved, Article 174<\/a> has no application.\n<\/p>\n
Of course, in the Report of the Election Commission it is stated that that
\nCommission has all along been taking the view that once the Assembly is
\ndissolved it would take all possible steps to see that the first sitting of
\nthe next Assembly would be made possible within a period of six months of
\nthe last sitting of the dissolved Assembly. This is a very healthy
\nconvention which is being followed since the adoption of our Constitution
\nand we must appreciate the action of the Election Commission in scheduling
\nthe election in such a way that the first session of the next Assembly
\nmeets within the period of six months of the last sitting of the dissolved
\nAssembly. But that by itself is no reason to interpret that Article 174<\/a>
\nwould apply to a dissolved Assembly. Frequency of meeting as provided under
\nArticle 174<\/a> would apply to an Assembly which is in esse at that time.\n<\/p>\n
Therefore, a question may arise that if Article 174<\/a> is not applicable to a
\ndissolved Assembly, can the Election Commission postpone election for
\nindefinite period so as to defeat the democratic form of Government? Is
\nthere any mandate in the Constitution or in the Representative of People
\nAct, 1951 prescribing time to conduct the election? Obviously, neither the
\nConstitution nor the Representation of People Act<\/a>, 1951 prescribes any time
\nlimit for the conduct of election after the term of the Assembly is over
\neither by premature dissolution or otherwise. Proviso to Section 15(2)<\/a> of
\nthe Representation of People Act, 1951 states that where a general election
\nis held otherwise than on dissolution of the existing House of the People,
\nno notification for election shall be issued at any time earlier than six
\nmonths prior to the date on which the duration of that House would expire
\nunder the provisions of Clause (2) of Article 83.<\/a> Once there is dissolution
\nof the Assembly, the Election Commission shall take immediate steps to
\nconduct the election an see that the new Assembly is formed at the earliest
\npoint of time. A democratic form of Government would survive only if there
\nare elected representatives to rule the country. Any delay on the part of
\nthe Election Commission is very crucial and it is the Constitutional duty
\nof the Election Commission to take steps immediately on dissolution of the
\nAssembly. Article 324<\/a> of the Constitution gives vast powers to the Election
\nCommission and time and again this Court has pointed out the extent of
\npowers and duty vested with the Election Commission. It was argued by
\nvarious counsel appearing on behalf of the various political parties as to
\nwhat would be the position if the Election Commission would indefinitely
\npostpone the election under some pretext or the other. So, the question
\nposed was: ‘Quis custodiet ipsos custodes’ – who will guard the guards
\nthemselves?\n<\/p>\n
The Election Commission is vested with the power to decide the election
\nschedule. It can act only in accordance with the Constitutional provisions.
\nThe election process for electing the new Legislative Assembly should start
\nimmediately on the dissolution of the Assembly. There may be cases where
\nthe electoral roll may not be up-to-date and in such case the Election
\nCommission is well within its power to update the electoral roll and the
\ntime taken for such updating of the electoral roll shall be reasonable
\ntime. Ordinarily, the Election Commission would also require time for
\nnotification, calling of nomination and such other procedure that are
\nrequired for the proper conduct of election. There may be situation where
\nthe Election Commission may not be in a position to conduct free and fair
\nelection because of certain natural calamities. Even under such situation
\nthe Election Commission shall endeavour to conduct election at the earliest
\nmaking use of all the resources within its command. Ample powers are given
\nto the Election Commission to coordinate all actions with the help of
\nvarious departments of the Government including military and para-military
\nforces. When an Assembly is dissolved by the Governor on the advice of the
\nChief Minister, naturally, the Chief Minister or his political party seeks
\nfresh mandate from the electorate. The duty of the Election Commission is
\nto conduct fresh election and see that a democratically elected Government
\nis installed at the earliest and any decision by the Election Commission,
\nwhich is intended to defeat this very avowed object of forming an elected
\nGovernment can certainly be challenged before the Court if the decision
\ntaken by the Election Commission is perverse, unreasonable or for
\nextraneous reasons and if the decision of the Election Commission is
\nvitiated by any of these grounds the Court can give appropriate direction
\nfor the conduct of the election.\n<\/p>\n
The next point that arises for consideration to form opinion regarding the
\nquestions referred to this Curt is as to the application of Article 355<\/a> of
\nthe Constitution. Reference to Article 356<\/a> was incidentally made by the
\nElection Commission to point out that if Article 174<\/a> cannot be complied
\nwith, the possible alternative is to invoke Article 356<\/a> and declare a state
\nof emergency. I do not think that the solution suggested by the Election
\nCommission is appropriate or justified. Article 356<\/a> has no application
\nunder any of these situations. It is an independent power to be exercised
\nvery rarely and this power is hedged by ever so many Constitutional
\nlimitations. In view of the above discussion, the three questions made in
\nthe Reference can be answered in the following manner.
\n(I) Is Article 174<\/a> subject to the decision of the Election Commission of
\nIndia under Article 324<\/a> as to the schedule of elections of the Assembly?\n<\/p>\n
Article 174<\/a> and Article 324<\/a> operate in different fields. Article 174<\/a> does
\nnot apply to dissolved Assemblies. The schedule of the election of the
\nAssembly is to be fixed having regard to the urgency of the situation that
\na democratically elected Government be installed at the earliest and the
\nprocess of election shall start immediately on the dissolution of the
\nAssembly. Though the ultimate authority to decide as to when a free and
\nfair election can be conducted is Election Commission, such decisions shall
\nbe just and reasonable and arrived at having regard to all relevant
\ncircumstances. Any decision to postpone election on unreasonable grounds is
\nanathema to democratic form of government and it is subject to judicial
\nreview on traditionally accepted grounds.\n<\/p>\n
(ii) Can the Election Commission of India frame a schedule for the
\nelections to an Assembly on the premises that any infraction of the mandate
\nof Article 174<\/a> would be remedied by a resort to Article 356<\/a> by the
\nPresident?\n<\/p>\n
The framing of schedule for election for the new Legislative Assembly shall
\nstart immediately on dissolution of the Assembly and the Election
\nCommission shall endeavour to see that the New Legislative Assembly meets
\nat least within a period of six months of the dissolution. Article 356<\/a>
\nregarding declaration of state of emergency in the State has no relevance
\nto the fixation of the election schedule.\n<\/p>\n
(iii) Is the Election Commission of India under a duty to carry out the
\nmandate of Article 174<\/a> of the Constitution, by drawing upon all the
\nrequisite resources of the Union and the State to ensure free and fair
\nelections?\n<\/p>\n
The Election Commission is under a constitutional duty to conduct the
\nelection at the earliest on completion of the term of the Legislative
\nAssembly on dissolution or otherwise. If there is any impediment in
\nconducting free and fair election as per the schedule envisaged by the
\nElection Commission, it can draw upon all the requisite resources of Union
\nof State within its command to ensure free and fair election, though
\nArticle 174<\/a> has no application in the discharge of such constitutional
\nobligation by the Election Commission. It is the duty of the Election
\nCommission to see that the election is done in a free and fair manner to
\nkeep the democratic form of Government vibrant and active.\n<\/p>\n
___________________________________________________________________________<\/p>\n
Arijit Pasayat, J.\n<\/p>\n
Free, far and periodic elections are the part of the basic structure of the
\nConstitution of India, 1950 (in short the ‘Constitution). In a democracy
\nthe little man – voter – has overwhelming importance and cannot be hijacked
\nfrom the course of free and fair elections.\n<\/p>\n
‘Democracy’ and ‘free and fair election’ are inseparable twins. There is
\nalmost an insevereable umbilical cord joining them. The little man’s ballot
\nand not the bullet of those who want to capture power (starting with booth
\ncapturing) is the heartbeat of democracy. Path of the little man to the
\npolling booth should be free and unhindered, and his freedom–to-elect a
\ncandidate of his choice is the foundation of a free and fair election.\n<\/p>\n
The message relates to the pervasive philosophy of democratic elections
\nwhich Sir Winston Churchill vivified in matchless words:
\n“At the bottom of all tributes paid to democracy is the little man, walking
\ninto a little booth, with a little pencil, making a little cross on a
\nlittle bit of paper-no amount of rhetoric or voluminous discussion can
\npossibly diminish the overwhelming importance of the point.”\n<\/p>\n
If we may add, the little, large Indian shall not be hijacked from the
\ncourse of free and fair elections by mob muscle methods, or subtle
\nperversion of discretion by men’ dressed in little, brief authority’. For
\n‘be you ever so high, the law is above you’.\n<\/p>\n
The moral may be stated with telling terseness in the words of William
\nPitt: “Where laws end, tyranny begins’. Embracing both these mandates and
\nemphasizing their combined effect is the elemental law and politics of
\nPower best expressed by Benjamin Disraeli:\n<\/p>\n
“I repeat …. that all power is trust – that we are accountable for its
\nexercise-that, from the people and for the people, all springs, and all
\nmust exist.”\n<\/p>\n
At the threshold: why the Reference was made, and in what background.\n<\/p>\n
The Gujarat Legislative Assembly met on 3rd April, 2002 and thereafter was
\ndissolved on 19thJuly, 2002. Election Commission passed an order on
\n16thAugust, 2002 holding that free and fair elections was not possible in
\nGujarat, even though Article 174<\/a> of the Constitution mandatorily provides
\nthat the time gap between two sittings of the House should not exceed six
\nmonths. In that context, the Election Commission held that Article 324<\/a>
\npostulates “free and fair election” and when it is not possible to hold it,
\nthe provisions contained in Article 174<\/a> have to yield. That gave rise to
\ndoubts and the President of India has made reference to this Court under
\nArticle 143(1)<\/a> of the Constitution, basically on that core issue and three
\nquestions have been referred. First question specifically refers to Article
\n174<\/a> and Article 324.<\/a> The Election Commission observed that even if the
\nperiod prescribed under Article 174<\/a> cannot be adhered to the situation can
\nbe met by imposition of President’s Rule by Article 356<\/a> of the
\nConstitution. The Reference (including the preambles) and relevant portion
\nof Election Commission’s order so far as relevant for the Reference read as
\nfollows:\n<\/p>\n
President Address:\n<\/p>\n
WHEREAS the Legislative Assembly of the State of Gujarat was dissolved on
\nJuly 19, 2002 before the expiration of this normal duration on March 18,
\n2003;\n<\/p>\n
AND WHEREAS Article 174(1)<\/a> of the Constitution provides that six months
\nshall not intervene between the last sitting of the Legislative Assembly in
\none session and the date appointed for its first sitting in the next
\nSession;\n<\/p>\n
AND WHEREAS the Election Commission has also noted that the mandate of
\nArticle 174<\/a> would require that the Assembly should meet every six months
\neven after the dissolution of the House, and that the Election Commission
\nhas all along been consistent that normally a Legislative Assembly should
\nmeet at least every six months as contemplated by Article 174<\/a>, even where
\nit has been dissolved;\n<\/p>\n
AND WHEREAS under Section 15<\/a> of the Representation of the People Act, 1951,
\nfor the purpose of holding general elections on the expiry of the duration
\nof the Legislative Assembly or its dissolution the Governor shall, by
\nnotification, call upon all Assembly Constituencies in the State to elect
\nmembers on such date or dates as may be recommended by the Election
\nCommission of India;\n<\/p>\n
AND WHEREAS the last sitting of the Legislative Assembly of the State of
\nGujarat was held on 3rd April, 2002, and as such the newly constituted
\nLegislative Assembly should sit on or before 3rd October, 2002;\n<\/p>\n
AND WHEREAS the Election Commission of India by its order No. 464\/GJ-
\nLA\/2002 dated August 16, 2002 has not recommended any date for holding
\ngeneral election for constituting a new Legislative Assembly for the State
\nof Gujarat ad observed that the Commission will consider framing a suitable
\nschedule for the general election to the State Assembly in November,
\nDecember 2002. Copy of the said order is annexed hereto;\n<\/p>\n
AND WHEREAS owing to the aforesaid decision of the Election Commission of
\nIndia, a new Legislative Assembly cannot come into existence so as to meet
\nwithin the stipulated period of six months as provided under Article 174(1)<\/a>
\nof the Constitution of India;\n<\/p>\n
AND WHEREAS the Election Commission has held that the non-observance of the
\nprovisions of Article 174(1)<\/a> in the present situation would mean that the
\nGovernment of the State cannot be carried in accordance with the provisions
\nof the Constitution within the meaning of Article 356(1)<\/a> of the
\nConstitution and the President would then step in;\n<\/p>\n
AND WHEREAS doubts have arisen with regard to the constitutional validity
\nof the said order of the Election Commission of India as the order of the
\nElection Commission which would result in a non-compliance with the
\nmandatory requirement envisaged under Article 174(1)<\/a> of the Constitution
\nunder which not more than six months shall intervene between two sittings
\nof the State Legislature;\n<\/p>\n
AND WHEREAS in view of what has been hereinbefore stated, it appears to me
\nthat the questions of law hereinafter set out have arisen which are of such
\na nature and of such public importance that it is expedient to obtain the
\nopinion of the Supreme Court of India;\n<\/p>\n
NOW, THEREFORE, in exercise of the powers conferred upon me under Clause
\n(1) of Article 143<\/a> of the Constitution. I, A.P.J. Abdul Kalam, President of
\nIndia, hereby refer the following questions to the Supreme Court of India
\nfor consideration and report thereon, namely:-\n<\/p>\n
(i) Is Article 174<\/a> subject to the decision of the Election Commission of
\nIndia under Article 324<\/a> as to the schedule of elections of the Assembly?\n<\/p>\n
(ii) Can the Election Commission of India frame a schedule for the
\nelections to an Assembly on the premise that any infraction of the mandate
\nof Article 174<\/a> would be remedied by a resort to Article 356<\/a> by the
\nPresident?\n<\/p>\n
(iii) Is the Election Commission of India under a duty to carry out the
\nmandate of Article 174<\/a> of the Constitution, by drawing upon all the
\nrequisite resources of the Union and the State to ensure free and fair
\nelections?\n<\/p>\n
Order of the Election Commission (Relevant portions)\n<\/p>\n
1. The term of the Legislative Assembly of the State of Gujarat was
\nnormally due to expire, in terms of Article 172(1)<\/a> of the Constitution, on
\nthe 18thMarch, 2003. Keeping that in view, the Commission had been planning
\nto hold the next general election in the State for constituting a new
\nLegislative Assembly in the early part of the year 2003, along with the
\ngeneral elections to the Legislative Assemblies of Himachal Pradesh,
\nMeghalaya, Nagaland and Tripura whose terms are also normally due to expire
\nin the month of March, 2003.\n<\/p>\n
2. The Legislative Assembly of the State of Gujarat was, however, dissolved
\nprematurely by the Governor of Gujarat on the 19thJuly, 2002 in exercise of
\nhis powers under Article 174(2)(b)<\/a> of the Constitution. On such premature
\ndissolution of the State Legislative Assembly, a demand is being made,
\nparticularly by the Bhartiya Janta Party and a few other smaller parties
\nand NGOs, that the general election to constitute the new Legislative
\nAssembly be urgently held by the Commission so as to enable the new
\nLegislative Assembly so constituted to meet for its first session before
\n6thOctober, 2002. In support of such demand, they are citing Article 174(1)<\/a>
\nof the Constitution which provides that the ‘the Governor shall, from time
\nto time, summon the House or each House of the Legislature of the State to
\nmeet at such time and place as he thinks fit, but six months shall not
\nintervene between its last sitting in one session and the date appointed
\nfor this first sitting in the next session’. The last session of the
\ndissolved Legislative Assembly of Gujarat was prorogued on 6thApril, 2002
\nand it is contended that the first session of the new Legislative Assembly
\nshould be held before 6thOctober, 2002 and, therefore, it is mandatory for
\nthe Commission to hold the election well before 6th October, 2002. They
\nalso claim that the situation in the State of Gujarat is quite normal and
\nconductive to the holding of free and fair elections, as is evident from
\nthe facts that the panchayat elections in large areas were successfully
\nconducted in April 2002, that HSC, SSC examination were held peacefully and
\nthat various religious festivals like the Rath Yatra had passed off without
\nany untoward incident.\n<\/p>\n
 x x x x x x\n<\/p>\n
4. The Commission has carefully examined the provisions of Article 174(1)<\/a>
\nof the Constitution. It has also considered other relevant provisions in
\nthe Constitution having a bearing on functioning of the Legislative
\nAssemblies and the conduct of elections to constitute them. The Commission
\nhas, in the past, been taking the view that the six months in Article
\n174(1)<\/a> of the Constitution applies not only to a Legislative Assembly in
\nexistence but also to elections to constitute the new Assembly on the
\ndissolution of the previous Assembly and in all past cases, like the recent
\ndissolution of the Goa Legislative Assembly on 27th February, 2002,
\nwherever any Assembly has been dissolved prematurely by the Governor under
\nArticle 174(2)(b)<\/a> of the Constitution (and where the President has not
\ntaken over the administration of the State under Article 356<\/a> of the
\nConstitution on the dissolution of the Assembly), elections to constitute a
\nnew Legislative Assembly have always been held in such time as have enabled
\nthe new Assembly to meet within the period of six months from the last date
\nof the last session of the dissolved Assembly. Similar action has been
\ntaken by the Commission wherever the House of the People has been
\nprematurely dissolved by the President under Article 85(2)(b)<\/a> of the
\nConstitution-for example the dissolution of the House of the People in
\n1999, 1998 and earlier in 1991, 1979 and 1971 – so that the new House of
\nthe People could meet within the period of six months from the last sitting
\nof the dissolved House.\n<\/p>\n
5. Thus, the Commission has all along been consistent that, normally, a
\nLegislative Assembly should met at least every six months as contemplated
\nby Article 174(1)<\/a> of the Constitution, even when it has been dissolved
\n(except where President’s Rule has been imposed in the State under Article
\n356<\/a> of the Constitution). The Commission sees no convincing\/justifiable
\nreason to take a different view in the present case. In fact, any other
\nview on the interpretation of Article 174(1)<\/a> of the Constitution might lead
\nto extensive gaps between two Houses of a Legislative Assembly and the
\nabuse of democracy, there being no provision in the Constitution or in any
\nlaw in force prescribing a period during which an election is to be held to
\nconstitute a new Legislative Assembly on the dissolution of the previous
\nHouse. This will be contrary to the basic scheme of the Constitution which
\nprescribes that there shall be a State Legislative Assembly (Article 168<\/a>)
\nand the Council of Ministers shall be collectively responsible to that
\nAssembly [Article 164(2)]<\/a> and that if a minister is not a member of the
\nAssembly for a consecutive six months period, he shall cease to be a
\nminister [Article 164(4)].<\/a> A more alarming situation may arise with
\nParliament where Article 85(1)<\/a> of the Constitution makes identical
\nprovisions relating to the holding of sessions of the House of the People.
\nAny view that the House of the People need not meet every six months and
\nthe elections be indefinitely postponed after one House has been dissolved
\nwould not only be destructive of the whole Parliamentary system so
\nassiduously built in our Constitution but also be abhorrent to every
\nsection of the Indian polity and citizenry.\n<\/p>\n
6. The Commission is also fortified in its above interpretation by the view
\ntaken by the President and Parliament on the provisions of Article 174(1)<\/a>
\nwhenever there was an imposition of President’s Rule in a State under
\nArticle 356<\/a> of the Constitution. Whenever the Legislative Assembly of any
\nState has been dissolved in the past by the President under Article 356<\/a> of
\nthe Constitution, the provisions of Article 174(1)<\/a> have invariably been
\nexpressly suspended in the Proclamation issued by the President under that
\nArticle and approved by Parliament during the operation of that
\nProclamation (See for example, the latest Proclamation dated 10thFebruary,
\n1999 issued by the President dissolving the Goa Legislative Assembly an
\nimposing President’s Rule in that State). If Article 174(1)<\/a> has no
\napplication after an Assembly has been dissolved, as is being contended by
\none set of representations, there is no question of the suspension of that
\nprovision after the dissolution of the Assembly by the said Proclamation.
\n x x x x x x\n<\/p>\n
8. There is, to the Commission’s knowledge, no authoritative pronouncement
\nof the Supreme Court or of any High Court on this aspect of the issue. But
\nthe most plausible view that appears to the Commission in that Article
\n174(1)<\/a> of the Constitution envisages that normally, the Legislative
\nAssembly of a State should meet every six months even after the dissolution
\nof one House.\n<\/p>\n
9. The next question for consideration of the Commission is whether the
\nCommission is obliged whatever may be the circumstances to hold the general
\nelection within the period remaining out of six months from the date of the
\nlast sitting of the dissolved Assembly. The Commission does not accept this
\nview. Article 174(1)<\/a> of the Constitution cannot be read in isolation and it
\nhas to be read along with other relevant provisions of the Constitution,
\nparticularly Article 324<\/a> of the Constitution. Article 324<\/a>, which is not
\nsubject to the provisions of any other Article of the Constitution
\nincluding Article 174(1<\/a>), vests the superintendence, direction and control,
\ninter alia, of the preparation of electoral rolls for, and conduct of,
\nelections to Parliament and State Legislature in the Election Commission.
\nElections, in the context of democratic institutions, mean free and faire
\nelections and not merely a ritual to be gone through periodically. In the
\nwords of the Constitution Bench of the Supreme Court in T.N. Seshan v.
\nUnion of India and Ors<\/a>. [(1995) 4 SCC 61]:\n<\/p>\n
‘Democracy being the basic feature of our constitutional set up, there can
\nbe no two opinions that free and fair elections to our Legislative bodies
\nalone would guarantee the growth of a healthy democracy in the country. In
\norder to ensure the purity of the election process, it was thought by our
\nConstitution-makers that the responsibility to hold free and fair election
\nin the country should be entrusted to an independent body which would be
\ninsulated from political and\/or executive interference.’
\nAgain the Constitution Bench of the Supreme Court observed in the famous
\nKeshavanand Bharati v. State of Kerala that ‘Free, fair fearless and
\nimpartial elections are the guarantee of a democratic polity.’ Likewise,
\nthe Supreme Court repeatedly underscored the importance of free and faire
\nelections in the case of Mohinder Singh Gill v. Chief Election Commissioner<\/a>
\nand Ors.,  Kanhiya Lal Omar v. R.K. Trivedi<\/a> and a catena of other
\ndecisions. In the case of Mohinder Singh Gill (supra), the Supreme Court
\nobserved:\n<\/p>\n
‘The free and fair election based on universal adult franchise is the
\nbasic….it needs little argument to hold that the heart of the
\nParliamentary system is free and fair election periodically held, based on
\nadult franchise and that social and economic democracy may demand much
\nmore.’
\nSimilar sentiments of the Supreme Court laying stress on free and fair
\nelections to the legislative bodies have found echo in every other decision
\nof the Supreme Court on elections
\n x x x x x x\n<\/p>\n
11. Thus, the Constitutional mandate given to the Election Commission under
\nArticle 324<\/a> of the Constitution is to hold free and fair elections to the
\nlegislative bodies. And, in the Commissioner’s considered view, if a free
\nand fair election cannot be held to a legislative body at a given point of
\ntime because of the extraordinary circumstances then prevailing, Article
\n174<\/a> of the Constitution must yield to Article 324<\/a> in the interest of
\ngenuine democracy and purity of elections. Further, in the Commission’s
\nconsidered view, such interpretation of the provisions of Articles 174(1)
\nand 324 would not create a situation which is not contemplated or envisaged
\nunder the Constitution and which cannot be met thereunder. The non-
\nobservance of the provisions of Article 174(1)<\/a> in the aforesaid eventuality
\nwould mean that the Government of the State cannot be carried on in
\naccordance with the provisions of the Constitution within the meaning of
\nArticle 356(1)<\/a> of the Constitution and the President would then step in.
\n x x x x x x\n<\/p>\n
61. After completion of this exercise to correct the electoral rolls and
\nbringing them as up-to-date as possible and creation of conditions
\nconducive for free and fair elections in the State, the Commission will
\nconsider framing a suitable schedule for the general election to the State
\nAssembly in November-December 2002.\n<\/p>\n
It may be noted here that the Election Commission in the written
\nsubmissions filed and the submissions made before us has stated that the
\nobservations regarding imposition of Presidents rule were not made in the
\ncontext of Article 356<\/a> of the Constitution, which we shall deal in detail
\ninfra. The third question relates to the exercise of power in the context
\nof Article 174.<\/a>\n<\/p>\n
When the Reference was taken up for hearing we made it clear to the parties
\nthat the correctness of factual conclusions arrived at by Election
\nCommission in its order shall not be considered by us. Only legal issues
\nand the foundations therefore i.e. as recorded in the order were to be
\nanalysed. We also pointed out to learned counsel for the parties that while
\nconsidering a Reference there is no adversarial lis involved. We record our
\nappreciation that learned counsel appearing for the parties have placed
\ntheir submissions as amicus curiae, though there was divergence in
\napproach.\n<\/p>\n
It was argued by some of the learned counsel that the Reference need not be
\nanswered because the questions do not arise of the order of the Election
\nCommission though the Preamble is based on the same. It is not imperative
\nfor the Court to answer the Reference and even if any doubt is entertained,
\nthat cannot be on hypothetical premises and answers which are self-evident
\nand\/or issues settled by this Court by its decisions need not be answered.
\nIt was submitted that the questions which are inherently incapable of being
\nanswered should not be answered. The Reference was as described by some of
\nthe learned counsel to be inappropriate and defective. It was submitted
\nthat the Reference is potentially political and seeking judicial review
\nthough disguised as a Reference. Per contra, submissions were made by some
\nof the learned counsel who have submitted that the questions are of great
\nnational interest, and there is no political overtone and in order to avoid
\ncontroversies in future and to have the law settled, the Reference has been
\nmade.\n<\/p>\n
The questions referred are intrinsically linked with the conclusions of the
\nElection Commissioner and are clearly relatable to it. The scope and ambit
\nof reference under Article 143(1)<\/a> has been examined by this Court in
\nseveral cases. In some cases, this Court had declined to answer References
\non the ground that political issues are involved or that the Court does not
\nact in exercise of appellate jurisdiction while dealing with a Reference.
\nIt will be proper to take note of few decisions on this aspect where
\nReferences were not answered on the ground that they are potentially
\npolitical or that the Advisory Jurisdiction is not appellate in character
\n[See Dr. M. Ismail Faruqui and Ors. v. Union of India and Ors<\/a>. and in the
\nmatter of Cauvery Water Disputes Tribunal (1993) Supp 1 SCC 96(II)].\n<\/p>\n
The Federal Court in Re The Allocation of Lands and Buildings in a Chief
\nCommissioner’s Province (AIR 1943 FC 13) a Reference under Section 213(1)
\nof the Government of India Act which is similar to Article 143<\/a> said that
\nthough the terms of the at section do not impose an obligation on the
\nCourt, the Court should be unwilling to accept a Reference except for good
\nreasons. This Court accepted the Reference for reasons which appeared to be
\nconstitutional importance as well as in public interest.\n<\/p>\n
In Re Kerala Education Bill (AIR 1958 SC 956 – 1959 SCR 995) Das, C.J.
\nreferred to the Reference in Re The Allocation of Lands and Buildings
\n(supra) and the Reference in Re Levy of Estate Duty (AIR 1944 FC 73) and
\nthe observations in both the cases that the Reference should not be
\ndeclined excepting for good reasons. This Court accepted the Reference on
\nthe questions of law arising or likely to arise. Das, C.J. in Re Kerala
\nEducation Bill (supra) said that it is for the President to determine what
\nquestions should be referred and if he does not have any serious “doubt” on
\nthe provisions, it is not for any party to say that doubts arise out of
\nthem. In short, parties appearing in the Reference cannot go behind the
\norder of the Reference and present new questions by raising doubts. (See In
\nRe: Presidential Poll).\n<\/p>\n
This Court is bound by the recitals in the order of Reference. Under
\nArticle 145(1)<\/a> we accept the statements of fact set out in the Reference.
\nThe truth or otherwise of the facts cannot be enquired or gone into nor can
\nCourt go into the question of bona fides or otherwise of the authority
\nmaking the Reference. This Court cannot go behind the recital. This Court
\ncannot got into disputed questions of fact in its advisory jurisdiction
\nunder Article 143(1).<\/a>\n<\/p>\n
The correct approach according to us has been laid down by a 7 Judge Bench
\nin Special Reference No. 1 of 1964 [commonly known as Keshav Singh Contempt
\nCase] (1965) 1 SCR 413. After culling out the core issues (as seen at page\n<\/p>\n
439) from the questions set out at pages 429, 430 at page 440 it was
\nobserved as follows:\n<\/p>\n
\t“Though the ultimate solution of the problem posed by the questions
\n\tbefore us would thus lie within a very narrow compass, it is
\n\tnecessary to deal with some wider aspects of problem which
\n\tincidentally arise and the decision of which will assist us in
\n\trendering our answers to the questions framed in the present
\n\tReference”.\n<\/p>\n
\t\t\t\t\t(Underlined for emphasis)<\/p>\n
It would be appropriate to take note of certain pivotal provisions in the
\nConstitution; Representation of Peoples’ Act, 1951 (in short ‘R.P. Act,
\n1951) and the Government of India Act, 1935 (in short ‘Government Act<\/a>‘).
\nArticle 172:<\/a> Duration of State Legislature-(1) Every Legislative Assembly
\nof every State, unless sooner dissolved, shall continue for five years from
\nthe date appointed for its first meeting and no longer and the expiration
\nof the said period of five years shall operate as a dissolution of the
\nAssembly:\n<\/p>\n
Provided that the said period may, while a Proclamation of Emergency is in
\noperation, be extended by Parliament by law for a period not exceeding one
\nyear at a time and not extending in any case beyond a period of six months
\nafter the Proclamation has ceased to operate.\n<\/p>\n
(2) The Legislative Council of a State shall not be subject to dissolution,
\nbut a nearly as possible one-third of the members thereof shall retire as
\nsoon as may be on the expiration of every second year in accordance with
\nthe provisions made in that behalf by Parliament by law.
\nArticle 174:<\/a> Sessions of the State Legislature, prorogation and
\ndissolution-(1) The Governor shall from time to time summon the House or
\neach House of the Legislature of the State to meet as such time and place
\nas he thinks fit, but six months shall not intervene between its last
\nsitting in one session and the date appointed for its first sitting in the
\nnext session.\n<\/p>\n
(2) The Governor may from time to time-\n<\/p>\n
(a) prorogue the House or either House;\n<\/p>\n
(b) dissolve the Legislative Assembly
\nArticle 324:<\/a> Superintendence, direction and control of elections to be
\nvested in an Election Commission – (1) The superintendence, direction and
\ncontrol of the preparation of the electoral rolls, for and the conduct of,
\nall elections to Parliament and to the Legislature of every State and of
\nelections to the offices of President and Vice-President held under this
\nConstitution shall be vested in a Commission (referred to in this
\nConstitution as the Election Commission).\n<\/p>\n
(2) The Election Commission shall consist of the Chief Election
\nCommissioner and such number of other Election Commissioners, if any, as
\nthe President may from time to time fix and the appointment of the Chief
\nElection Commissioner and the other Election Commissioners shall, subject
\nto the provisions of any law made in that behalf by Parliament, be made by
\nthe President.\n<\/p>\n
(3) When any other Election Commissioner is so appointed the Chief Election
\nCommissioner shall act as the Chairman of the Election Commission.
\n(4) Before each general election to the House of the People and to the
\nLegislative Assembly of each State, and before the first general election
\nand thereafter before each biennial election to the Legislative Council of
\neach State having such Council, the President may also appoint after
\nconsultation with the Election Commission such Regional Commissioners as he
\nmay consider necessary to assist the Election Commission in the performance
\nof the functions conferred on the Commission by Clause (1).
\n(5) Subject to the provisions of any law made by Parliament, the conditions
\nof service and tenure of office of the Election Commissioners and the
\nRegional Commissioners shall be such as the President may be rule
\ndetermine:\n<\/p>\n
Provided that the Chief Election Commissioner shall not be removed from his
\noffice except in like manner and on the like grounds as a Judge of the
\nSupreme Court and the conditions of service of the Chief Election
\nCommissioner shall not be varied to his disadvantage after his appointment:\n<\/p>\n
Provided further that any other Election Commissioner or a Regional
\nCommissioner shall not be removed from office except on the recommendation
\nof the Chief Election Commissioner.\n<\/p>\n
(6) The President, or the Governor of a State, shall, when so requested by
\nthe Election Commission, make available to the Election Commission or to a
\nRegional Commissioner such staff as may be necessary for the discharge of
\nthe functions conferred on the Election Commission by Clause (1).
\nArticle 327:<\/a> Power of Parliament to make provision with respect to
\nelections to Legislatures. – Subject to the provisions of this
\nConstitution, Parliament may from time to time by law make provision with
\nrespect to all matters relating to, or in connection with, elections to
\neither House of Parliament or to the House or either House of the
\nLegislature of a State including the preparation of electoral rolls, the
\ndelimitation of constituencies and all other matters necessary for securing
\nthe due constitution of such House or Houses.\n<\/p>\n
Article 356:<\/a> Provisions in case of failure of constitutional machinery in
\nStates – (1) If the President, on receipt of report from the Governor of a
\nState or otherwise, is satisfied that a situation has arisen in which the
\ngovernment of the State cannot be carried on in accordance with the
\nprovisions of this Constitution, the President may be Proclamation –\n<\/p>\n
(a) assume to himself all or any of the functions of the Government of the
\nState and all or any of the powers vested in or exercisable by the Governor
\nor any body or authority in the State other than the Legislature of the
\nState;\n<\/p>\n
(b) declare that the powers of the Legislature of the State shall be
\nexercisable by or under the authority of Parliament;\n<\/p>\n
(c) make such incidental and consequential provisions as appear to the
\nPresident to be necessary or desirable for giving effect to the objects of
\nthe Proclamation, including provisions for suspending in whole or in part
\nthe operation of any provisions of this Constitution relating to any body
\nor authority in the State:\n<\/p>\n
Provided that nothing in this clause shall authorize the President to
\nassume to himself any of the powers vested in or exercisable by a High
\nCourt, or to suspend in whole or in part the operation of any provision of
\nthis Constitution relating to High Courts.\n<\/p>\n
(2) Any such Proclamation may be revoked or varied by a subsequent
\nProclamation.\n<\/p>\n
(c) Every Proclamation under this Article shall be laid before each House
\nof Parliament and shall, except where it is a Proclamation revoking a
\nprevious Proclamation, cease to operate at the expiration of two months
\nunless before the expiration of that period it has been approved by
\nresolutions of both Houses of Parliament.\n<\/p>\n
Provided that if any such Proclamation (not being a Proclamation revoking a
\nprevious Proclamation) is issued at a time when the House of the People is
\ndissolved or the dissolution of the House of the People takes place during
\nthe period of two months referred to in this clause, and if a resolution
\napproving the Proclamation has been passed by the Council of States, but no
\nresolution with respect to such Proclamation has been passed by the House
\nof the People before the expiration of that period, the Proclamation shall
\ncease to operate at the expiration of thirty days from the date on which
\nthe House of the People first sits after its reconstitution unless before
\nthe expiration of the said period of thirty days a resolution approving the
\nProclamation has been also passed by the House of the People.
\n(4) A Proclamation so approved shall, unless revoked, cease to operate on
\nthe expiration of a period of six months from the date of issue of the
\nProclamation.\n<\/p>\n
Provided that if and so often as a resolution approving the continuance in
\nforce of such a Proclamation is passed by both Houses of Parliament, the
\nProclamation shall, unless revoked, continue in force for a further period
\nof six months from the date on which under this clause it would otherwise
\nhave ceased to operate, but no such Proclamation shall in any case remain
\nin force for more than three years;\n<\/p>\n
Provided further that if the dissolution of the House of the People takes
\nplace during any such period of six months and a resolution approving the
\ncontinuance in force of such Proclamation has been passed by the Council of
\nStates, but no resolution with respect to the continuance in force of such
\nProclamation has been passed by the House of the People during the said
\nperiod, the Proclamation shall cease to operate at the expiration of thirty
\ndays from the date on which the House of the People first sits after its
\nreconstitution unless before the expiration of the said period of thirty
\ndays a resolution approving the continuance in force of the Proclamation
\nhas been also passed by the House of the People.\n<\/p>\n
Provided also that in the case of the Proclamation issued under Clause (1)
\non the 11thday of May, 1987 with respect to the State of Punjab, the
\nreference in the first proviso to this clause to “three years” shall be
\nconstrued as a reference to five years.\n<\/p>\n
(5) Notwithstanding anything contained in Clause (4), a resolution with
\nrespect to the continuance in force of a Proclamation approved under Clause
\n(3) for any period beyond the expiration of one year from the date of issue
\nof such proclamation shall not be passed by either House of Parliament
\nunless-\n<\/p>\n
(a) a Proclamation of Emergency is in operation, in the whole of India or,
\nas the case may be, in the whole or any part of the State, at the time of
\nthe passing of such resolution, and\n<\/p>\n
(b) the Election Commission certifies that the continuance in force of the
\nProclamation approved under Clause (3) during the period specified in such
\nresolution is necessary on account of difficulties in holding general
\nelections to the Legislative Assembly of the State concerned:\n<\/p>\n
Provided that nothing in this clause shall apply to the Proclamation issued
\nunder Clause (J) on the 11thday of May, 1987 with respect to the State of
\nPunjab.\n<\/p>\n
Representation of People Act<\/a>, 1951
\nSection 14<\/a>: Notification for general election to the House of the People –
\n(1) A general election shall be held for the purpose of constituting a new
\nHouse of the People on the expiration of the duration of the existing House
\nor on its dissolution.\n<\/p>\n
(2) For the said purpose the President shall, by one or more notifications
\npublished in the Gazette of India on such date or dates as may be
\nrecommended by the Election Commission, call upon all parliamentary
\nconstituencies to elect members in accordance with the provisions of this
\nAct and of the rules and orders made thereunder:\n<\/p>\n
Provided that where a general election is held otherwise than on the
\ndissolution of the existing House of the People, no such notification shall
\nbe issued at any time earlier than six months prior to the date on which
\nthe duration of that House would expire under the provisions of Clause (2)
\nof Article 83.<\/a>\n<\/p>\n
Section 15<\/a>: Notification for general election to a State Legislative
\nAssembly – (1) a general election shall be held for the purpose of
\nconstituting a new Legislative Assembly on the expiration of the duration
\nof the existing Assembly or on its dissolution.\n<\/p>\n
(2) For the said purpose the Governor or the Administrator as the case may
\nbe shall, by one or more notifications published in the Official Gazette of
\nthe State on such date or dates as may be recommended by the Election
\nCommission, call upon all Assembly constituencies in the State to elect
\nmembers in accordance with the provisions of this Act and of the rules and
\norders made thereunder:\n<\/p>\n
Provided that where a general election is held otherwise that on the
\ndissolution of existing Legislative Assembly on such notification shall be
\nissued at any time earlier than six months prior to the date on which the
\nduration of that Assembly would expire under the provisions of Clause (1)
\nof Article 172<\/a> or under the provisions of Section 5<\/a> of the Government of
\nUnion Territories Act, 1963, as the case may be.\n<\/p>\n
Section 30<\/a>: Appointment of dates for nomination etc. – As soon as the
\nnotification calling upon a constituency to elect a member or members is
\nissued, the Election Commission shall, by notification in the Official
\nGazette, appoint-\n<\/p>\n
(a) the date of publication of the first mentioned notification or, if that
\nday is a public holiday the last date for making nominations, which shall
\nbe the seventh day after holiday, the next succeeding day which is not a
\npublic holiday.\n<\/p>\n
(b) The date for the scrutiny of nomination, which shall be, the day
\nimmediately following the last day for making nominations or, if that day
\nis a public holiday, the next succeeding day which is not a public holiday,\n<\/p>\n
(c) The last date for the withdrawal of candidature, which shall be the
\nsecond day after the date for the scrutiny of nominations or, if that day
\nis a public holiday, the next succeeding day which is not a public holiday.\n<\/p>\n
(d) The date or dates on which a poll shall, if necessary, be taken which
\nor the first of which shall be a date not earlier than the fourteenth day
\nafter the last date for the withdrawal of candidature; and\n<\/p>\n
(e) the date before which the election shall be completed.
\nSection 73<\/a>: Publication of results of general elections to the House of the
\nPeople and the State Legislative Assemblies and of names of persons
\nnominated thereto – Where a general election is held for the purpose of
\nconstituting a new House of the People or a new State Legislative Assembly,
\nthere shall be notified by the Election Commission in the Official Gazette,
\nas soon as may be, after the results of the elections in all the
\nconstituencies other than those in which the poll could not be taken for
\nany reason on the date originally fixed under Clause (d) of Section 30<\/a> or
\nfor which the time for completion of the election has been extended under
\nthe provisions of Section 153<\/a> have been declared by the returning officer
\nunder the provisions of Section 53<\/a> or, as the case may be, Section 66<\/a>, the
\nnames of the members elected for those constituencies and upon the issue of
\nsuch notification that House or Assembly shall be deemed to be duly
\nconstituted:\n<\/p>\n
Provided that the issue of such notification shall not be deemed-\n<\/p>\n
(a) to preclude-\n<\/p>\n
(i) the taking of the poll and the completion of the election in any
\nParliamentary or Assembly constituency or constituencies in which the poll
\ncould not be taken for any reason on the date originally fixed under Clause\n<\/p>\n
(d) of Section 30<\/a>; or\n<\/p>\n
(ii) the completion of the election in any Parliamentary or Assembly
\nconstituency or constituencies for which time has been extended under the
\nprovisions of Section 153<\/a>; or\n<\/p>\n
(b) to affect the duration of the House of the People or the State
\nLegislative Assembly if any functioning immediately before the issue of the
\nsaid notification.\n<\/p>\n
Government of India Act, 1935:\n<\/p>\n
18. Constitutional of the Federal Legislative – (1) There shall be a
\nFederal Legislature which shall consist of His Majesty, represented by the
\nGovernor General, and two Chambers, to be known respectively as the Council
\nof State and the House of Assembly (in this Act referred to as “the Federal
\nAssembly”).\n<\/p>\n
(2) The Council of State shall consist of one hundred and fifty-six
\nrepresentatives of British India and not more than one hundred and four
\nrepresentatives of the Indian States, and the Federal Assembly shall
\nconsist of two hundred and fifty representatives of British India and not
\nmore than one hundred and twenty-five representatives of the Indian States.
\n(3) The said representatives shall be chosen in accordance with the
\nprovisions in that behalf contained in the First Schedule to this Act.
\n(4) The Council of State shall be a permanent body not subject to
\ndissolution, but as near as may be one-third of the members thereof shall
\nretire in every third year in accordance with the provisions in that behalf
\ncontained in the said First Schedule.\n<\/p>\n
(5) Every Federal Assembly, unless sooner dissolved, shall continue for
\nfive years from the date appointed for their first meeting and no longer,
\nand the expiration of the said period of five years shall operate as a
\ndissolution of the Assembly.\n<\/p>\n
19. Session of the Legislature, prorogation and dissolution – (1) The
\nChambers of the Federal Legislature shall be summoned to meet once at least
\nin every year, and twelve months shall not intervene between their last
\nsitting in one session and the date appointed for their first sitting in
\nthe next session.\n<\/p>\n
(2) Subject to the provisions of this section, the Governor-General may in
\nhis discretion from time to time-\n<\/p>\n
(a) summon the Chambers or either Chamber to meet at such time and place as
\nhe thinks fit;\n<\/p>\n
(b) prorogue the Chambers;\n<\/p>\n
(c) dissolve the Federal Assembly.\n<\/p>\n
(3) The Chambers shall be summoned to meet for their first session on a day
\nnot later than such day as may be specified in that behalf in His Majesty’s
\nProclamation establishing the Federation.\n<\/p>\n
In the aforesaid background it would be expedient to render answers to the
\nquestions framed in the Reference.\n<\/p>\n
The judicial aspect of these triple questions alone can attract judicial
\njurisdiction. However, even if we confine ourselves to legal problematic,
\neschewing the political overtones, the words of Justice Holmes will haunt
\nthe Court: “We are quite here, but it is the quite of a storm center”. The
\njudicature must, however, be illumined in its approach by a legal –
\nsociological guideline and a principled- pragmatic insight in resolving
\nwith jural tools and techniques, the various crises of human affairs’ as
\nthey reach the forensic stage and seek dispute-resolution in terms of the
\nrule of law. Justice Cardozo felicitously set the perspective:
\nThe great generalities of the Constitution have a content and significance
\nthat vary from age to age.\n<\/p>\n
Chief Justice Hidayatullah perceptively articulated the insight:
\nOne must, of course, take note of the synthesized authoritative content or
\nthe moral meaning of the underlying principle of the prescriptions of law,
\nbut not ignore the historic evolution of the law itself or how it was
\nconnected in its changing moods with social requirements of a particular
\nage.\n<\/p>\n
The old Articles of the supreme lex meet new challenges of life, the old
\nlegal pillars suffer new stresses. So we have to adopt the law and develop
\nits latent capabilities if novel situations, as here, are encountered. That
\nis why in the reasoning we have adopted and the perspective we have
\nprojected, not literal nor lexical but liberal and visional is our
\ninterpretation of the Articles of the Constitution and the provisions of
\nthe Act. Lord Denning’s words are instructive:\n<\/p>\n
“Law does not stand still. It moves continually. Once this is recognized,
\nthen the task of the Judge is put on a higher plane. He must consciously
\nseek to mould the law so as to serve the needs of the time. He must not be
\na mere mechanic a mere working mason, laying brick on brick, without
\nthought to the overall design. He must be an architect – thinking of the
\nstructure as a whole building for society a system of law which is strong,
\ndurable and just. It is on his work that civilized society itself depends.
\nThe constitutional scheme with regard to the holding of the elections to
\nparliament and the State Legislatures is quite clear. First, the
\nConstitution has provided for the establishment of a high power body to be
\nin charge of the elections to Parliament and the State Legislature and of
\nelections to the offices of President and Vice-President. That body is the
\nCommission. Article 324<\/a> of the Constitution contains detailed provision
\nregarding the constitution of the Commission and its general power. The
\nsuperintendence, direction and control of the conduct of elections referred
\nto in Article 324(1)<\/a> of the Constitution are entrusted to the Commission.
\nThe words ‘superintendence’, ‘direction’ and ‘control’ are wide enough to
\ninclude all powers necessary for the smooth conduct of elections. It is,
\nhowever, seen that Parliament has been vested with the power to make law
\nunder Article 327<\/a> of the Constitution read with Entry 72 of List I of the
\nSeventh Schedule to the Constitution with respect to all matters relating
\nto the elections to either House of Parliament or to the House or either
\nHouse of the Legislature of a State subject to the provisions of the
\nConstitution. Subject to the provisions of the Constitution and any law
\nmade in that behalf by Parliament, the Legislature of a State may under
\nArticle 328<\/a> read with Entry 37 of List II of the Seventh Schedule to the
\nConstitution make law relating to the elections to the House or Houses of
\nLegislature of that State. The general powers of superintendence, direction
\nand control of the elections vested in the Commission under Article 342(1)<\/a>
\nnaturally are subject to any law made either under Article 327<\/a> or under
\nArticle 328<\/a> of the Constitution. The word ‘election’ in Article 324<\/a> is used
\nin a wide sense so as to include the entire process of election which
\nconsists of several stages and it embraces many steps, some of which may
\nhave an important bearing on the result of the process. Article 324<\/a> of the
\nConstitution operates in areas left unoccupied by legislation and the words
\n‘superintendence’, ‘direction’ and ‘control’ and well as ‘conduct of all
\nelections’ are the broadest terms which would include the power to make all
\nsuch provisions. [See Mohinder Singh Gill v. Chief Election Commissioner<\/a>,
\nNew Delhi, A.C. Jose v. Sivan Pillai<\/a> and Kanhiya Lal Omar v. R.K. Trivedi
\nand Ors<\/a>.].\n<\/p>\n
Before the scheme of the Constitution is examined in some detail it is
\nnecessary to give the pattern which was followed in framing it. The
\nconstituent Assembly was unfettered by any previous commitment in evolving
\na constitutional pattern “suitable to the genius and requirements of the
\nIndian people as a whole”. The Assembly had before it the experience of the
\nworking of the Government Act<\/a> several features of which would be accepted
\nfor the new Constitution. Our Constitution borrowed a great deal from the
\nConstitutions of other countries, e.g. United Kingdom, Canada, Australia,
\nIreland, United States of America and Switzerland. The Constitution being
\nsupreme all the organs and bodies owe their existence to it. Noen can claim
\nsuperiority over the other and each of them has to function within the
\nfour-corners of the constitutional provisions. The preamble embodies the
\ngreat purposes, objectives and the policy underlying its provisions apart
\nfrom the basic character of the State which was to come into existence,
\ni.e. a Sovereign Democratic Republic. It is the executive that has the main
\nresponsibility for formulating the government policy by “transmitting it
\ninto law” whenever necessary. “The executive function comprises both the
\ndetermination of the policy as well as carrying it into execution. This
\nevidently includes the initiation of legislation, the maintenance of order,
\nthe promotion of social and economic welfare, the direction of foreign
\npolicy, in fact the carrying on or supervision of the general
\nadministration of the State”. With regard to the civil services and the
\nposition of the judiciary the British model has been adopted inasmuch as
\nthe appointment of Judges both of the Supreme Court of India and the High
\nCourts of the States is kept free from political controversies. Their
\nindependence has been assured. But the doctrine of parliamentary
\nsovereignty as it obtains in England does not prevail here except to the
\nextent provided by the Constitution. The entire scheme of the Constitution
\nis such that it ensures the sovereignty and integrity of the country as a
\nRepublic and the democratic way of life by parliamentary institutions based
\non free and fair elections. These aspects have been highlighted in
\nKesavananda Bharati’s case (supra).\n<\/p>\n
Democracy is a basic features of the Constitution. Whether any particular
\nbrand or system of government by itself, has this attribute of a basic
\nfeature, as long as the essential characteristics that entitle a system of
\ngovernment to be called democratic are otherwise satisfied is not necessary
\nto be gone into. Election conducted at regular, prescribed intervals is
\nessential to the democratic system envisaged in the Constitution. So is the
\nneed to protect and sustain the purity of the electoral process. That may
\ntake within it the quality, efficacy and adequacy of the machinery for
\nresolution of electoral disputes.\n<\/p>\n
The first question essentially relates to the interplay between two
\nArticles i.e. Article 174<\/a> and Article 324<\/a> of the Constitution. A bare
\nreading of the aforesaid two Articles makes it clear that they operate in
\ndifferent fields. Article 14<\/a> appears in Chapter III of Part VI of the
\nConstitution relating to State Legislature. The parallel provision, so far
\nas the Union is concerned, is contained in Article 85<\/a> in Chapter II of Part
\nV of the Constitution. Chapter III of Part VI with which we are presently
\nconcerned deals with State Legislature. Article 168<\/a> provides that for every
\nState there shall be Legislature which shall consist of the Governor and in
\nfor States with two Houses and in other States one House of the State.
\nWhere there are two Houses of the Legislature of a State, one is known as a
\nLegislative Council and other is Legislative Assembly and when there is
\nonly one House, it is known as the Legislative Assembly. Article 172<\/a>
\nprovides for the duration of State Legislatures. Article 174<\/a> deals with
\nsessions of the State Legislatures, prorogation and dissolution. Under
\nClause (1), the Governor is required to summon the House or each House of
\nthe Legislature of the State from time to time to meet at such time and
\nplace as he thinks fit. It further provides that six months shall not
\nintervene between its last sitting of one session of the House and the date
\nappointed for its first sitting in the next session of the House. The
\nrequirement relating to the meeting within the prescribed time period is
\nthe crucial issue in the reference. Clause (2) deals with power of the
\nGovernor to (a) prorogue the House or either House or (b) dissolve the
\nLegislative Assembly. Almost in similar language are couched Articles 83
\nand 85. As has been rightly contended by some of the learned counsel,
\nArticle 174<\/a> does not deal with elections. ON the contrary, the occasion for
\nholding of elections to the conducted by the Election Commission arise only
\nafter dissolution of the House. It is the stand of the Union of India, the
\nElection Commission and some of the parties that the Election Commission is
\nduty bound to ensure meeting of the House within the time indicated in
\nArticle 174(1).<\/a> According to them, the urgency and desirability involved in
\ncalling the meeting of the House cannot be frustrated by postponing
\nelections. Thus, according to them, the Election Commission has to ensure
\nthat the elections are held in time, so that the State Legislature can meet
\nwithin the prescribed time period. On the other hand, learned counsel for
\nsome of the other parties have submitted that the period of six months does
\nnot operate in respect of the dissolved Assemblies. Election Commissioner
\nunder the Constitution is required to hold “free and fair election” and
\nelection which is not free and fair is, sham or manipulated, and no
\nelection at all. Article 174<\/a> according to them relates to the live assembly
\nand not assembly which on dissolution has suffered civil death. It has been
\npointed out by them that no time period is prescribed for holding the
\nelections after dissolution either in the Constitution or Representation of
\nPeople’ Act, 1950 (in short R.P. Act 1950) and R.P. Act 1951′. The stand of
\nthe Union of India, the Election Commission and some of the parties is that
\nin the scheme of the Constitution and the laws framed under Article 327<\/a>, it
\nis impossible to conceive that elections can be deferred indefinitely.
\nAccording to them, the fact that elections constitute basic structure of
\nthe Constitution, the care taker Ministry is not the answer and not even
\nimposition of President’s Rule. According to them, President Rule can be
\nimposed only if the enumerated circumstances exist and not otherwise.
\nImposition of President’s Rule has to be ratified by both the Houses of
\nParliament. It is further submitted that Election Commissioner has to
\nensure holding of elections and not holding up the elections, and effort
\nshould be to take necessary assistance from the Center and the States, if
\nnecessary, to hold the elections and that is why the third question has
\nbeen referred. With reference to the language used in Article 174<\/a> that is
\n\t“between its last sitting in one session and the date appointed for
\n\tits first sitting in the next session”, it is pointed out that the
\n\tHouse does not get dissolved, it is only the Legislative Assembly
\n\twhich gets dissolved. Therefore, the Election Commissioner is duty
\n\tbound to see that Article 324<\/a> is exercised in such a manner that
\n\tprescription under Article 174<\/a> is not diluted or rendered
\n\tineffective.\n<\/p>\n
So far as Chapter III of Part VI is concerned, like Chapter III of Part V.
\ndifference is made between the Legislature, the Legislative Assembly and
\nthe House of the People, as the case may be, Article 79<\/a> says that there
\nshall be a Parliament for the Union which shall consist of the President
\nand the two Houses to be known respectively as the Council of States and
\nthe House of the People. As indicated above, in almost identical language
\nis couched Article 168<\/a>, Clause (1) of which provides that for every State
\nthere shall be a Legislature which shall consist of the Governor etc. It
\nwas submitted by some of the learned counsel that the House is known as
\nLegislative Assembly so far as the States are concerned and so far as the
\nParliament is concerned, two Houses are known as Legislative Council and
\nthe Legislative Assembly. According to them, it is only the nomenclature
\nand that on the dissolution of the Legislative Assembly or the House of the
\nPeople, as the case may be, there is no House in existence. This plea
\nthough attractive is not tenable. The question of holding elections by the
\nElection Commissioner to meet the dead line fixed under Article 174<\/a>, some
\ntimes becomes impossible of being performed. In a hypothetical case if the
\nHouse of People or the Legislative Assembly is dissolved a month before the
\nexpiry of the six months period, it becomes a practical impossibility to
\nhold the election to meet the dead line. There may be several cases where
\nacts of God intervene, rendering holding of election impossible even though
\na time schedule has been fixed. In such cases, even if the elections are
\nheld after six months period they do not become invalid. The Election
\nCommission in such cases cannot be asked to perform the impossible. There
\nlies the answer to the question whether Article 174<\/a> has mandatory
\nattributes.\n<\/p>\n
The House of the people or the Legislature is a permanent body. On
\ndissolution of the House of the People or the Legislative Assembly, the
\nHouse does not cease to be in existence. Dissolution in its broadest sense
\nmeans decomposition, disintegration, undoing a bond. In a broad sense – the
\nConstitutional – it implies the dismissal of an Assembly or the House of
\nthe People. Dissolution is an act of the Executive which dismisses the
\nlegislative body and starts the process through exercise of franchise by
\nthe little men who are the supreme arbitrators of the State to put the new
\nlegislative body in place. The natural dissolution is on expiry of period
\nfixed under the Constitution, and other mode of dissolution is by an act of
\nthe Executive. It is the lawful act of the Executive that prematurely
\ndissolution ends the life of the Legislature. We are not concerned whether
\nsuch an act of the Executive can be subject to judicial review which is
\nanother matter.\n<\/p>\n
The exercise of the right of the Executive to dissolve the House of the
\nPeople or the Legislative Assembly pre-supposes certain conditions i.e. (i)
\nthe existence of a representative body which is the object of dissolution
\nand (ii) the act of the Executive which implies a separate and distinct
\nstate organ vested with the power to dissolve (iii) the consequential
\nsummoning of a new House of People or Legislative Assembly after the
\nelection is held by the Election Commission and the result notified after
\nits conclusion.\n<\/p>\n
The State organ vested with the right to dissolve Parliament must express
\nits will to do so in a manner which accords with the Constitution, and the
\nrelevant laws. The primary consequence of dissolution is that House of
\nPeople or the Legislative Assembly, as the case may be, legally ceases to
\nexist and cannot perform its legislative functions. Such pre-mature
\ninterruption of the life of the House of the People or the Legislative
\nAssembly as the case may be, amongst others factors affects it as a body as
\nwell as its individual members likewise its work is also abruptly ended,
\nsubject to prescribed exclusions, if any. Any further meeting of the ex-
\nmembers has to be considered an ordinary meeting of citizens, and not an
\nofficial session of the Legislative Assembly or House of People in the
\nlegislative capacity.\n<\/p>\n
When the House meets after the results of election are notified and
\nnotification has been issued under the relevant law, it becomes a live body
\nafter it is duly constituted. The constituents of the body may have been
\nchanged but the constitutional body which is permanent one becomes alive
\nagain. Therefore, the submission that under Article 174(1)<\/a> time period
\nfixed does not apply to dissolved Legislative Assembly has substance.\n<\/p>\n
Dissolution brings a legislative body to an end. It essentially terminates
\nthe life of such body and is followed by a constitution of new body (a
\nLegislative Assembly or a House of People, as the case may be). Prorogation
\non the other hand relates to termination of a session and thus preclude
\nanother session, unless it coincides with end of the legislative term. The
\nbasic difference is that prorogation unlike dissolution does not affect a
\nlegislative body’s life which may continue from session to session, until
\nbrought to an end of dissolution. Dissolution draws the final curtain upon
\nthe House. Once the House is dissolved it becomes irrevocable. There is no
\npower to recall the order of dissolution and or \t\trevive the
\nprevious House. Consequently effect of dissolution is absolute and
\nirrevocable. It has been described by some learned authors that dissolution<\/p>\n
\t“passes a sponge ever the parliamentary slate”. The effect of
\n\tdissolution is in essence termination of current business of the
\n\tlegislative body, its sittings and sessions. There is a cessation
\n\tof chain of sessions, sittings and for a dissolved legislative body
\n\tand there cannot be any next session or its first sitting. With the
\n\telection of legislative body a new Chapter comes into operation.
\n\tTill that is done, the sine qua non of responsible government i.e.
\n\taccountability is non-existent. Consequentially, the time
\n\tstipulation is non-existent. Any other interpretation would render
\n\tuse of the word “its” in relation to “last sitting in one session”
\n\tand “first sitting in the next session” without significance.\n<\/p>\n
In providing key to the meaning of any word or expression the context in
\nwhich it is said has significance. Colour and content emanating from
\ncontext may permit sense being preferred to mere meaning depending on what
\nis sought to be achieved and what is sought to be prevented by the
\nlegislative scheme surrounding the expression. It is a settled principle
\nthat in interpreting the statute the words used therein cannot be read in
\nisolation. Their colour and content are derived from their context and,
\ntherefore, every word in a statute must be examined in its context by the
\nword ‘context’. it means in its widest sense as including not only other
\nenacting provisions of the same statute but its preamble, the existing
\nstate of the law, other statutes in pari materia and the mischief which the
\nstatute intended to remedy. While making such interpretation the roots of
\nthe past the foliage of the Present and the seeds of the future cannot be
\nlost sight of Judicial interpretation should not be imprisoned in verbalism
\nand words lose their thrust when read in vacuo. Context would quite often
\nprovide the key to the meaning of the word and the sense it should carry.
\nIts setting would give colour to it and provide a cue to the intention of
\nthe Legislature in using it. A word is not a crystal, transparent and
\nunchanged; it is the skin of living thought and may vary greatly in colour
\nand content according to the circumstances and the time in which the same
\nis used as was observed by Homes, J. in Towne v. Eisner [(1917) 245 US 418m\n<\/p>\n
425.]<\/p>\n
The following passage from Statutory Interpretation by Justice G.P. Singh
\n(Eighth Edition, 2001 at pp. 81-82) is an appropriate guide to the case at
\nhand:\n<\/p>\n
“No word”, says Professor H.A. Smith “has an absolute meaning, for no words
\ncan be defined in vacuo, or without reference to some context”. According
\nto Sutherland there is a “basic fallacy” in saying “that words have meaning
\nin and of themselves”, and “reference to the abstract meaning of words”,
\nstates Craies, “if there be any such thing, is of little value in
\ninterpreting statutes” ….in determining the meaning of any word or phrase
\nin a statute the first question to be asked is—“what is the natural or
\nordinary meaning of that word or phrase in its context in the statute? It
\nis only when that meaning leads to some result which cannot reasonably be
\nsupposed to have been the intention of the Legislature, that it is proper
\nto look for some other possible meaning of the word or phrase”. The
\ncontext, as already seen, in the construction of statutes, means the
\nstatute as a whole, the previous state of the law, other statutes in pari
\nmaterial the general scope of the statute and the mischief that was
\nintended to remedy”.\n<\/p>\n
The judicial function of the Court in interpreting the Constitution thus
\nbecomes anti nomi. It calls for a plea upon a continuity of members found
\nin the instrument and for meeting the domain needs and aspirations of the
\npresent. A constitutional court like this Court is a nice balance of
\njurisdiction and it declares the law as contained in the Constitution but
\nin doing so it rightly reflects that the Constitution is a living and
\norganic thing which of all instruments has the greatest claim to be
\nconstrued broadly and liberally. [See Goodyear India Ltd. v. State of
\nHaryana<\/a> and Anr. and Synthetics and Chemicals Ltd. v. State of U.P. and
\nOrs<\/a>.].\n<\/p>\n
In the interpretation of a constitutional document words are butthe
\nframework of concepts and concepts may change more than wordsthemselves.
\nThe significance of the change of the concepts themselvesis vital and
\nconstitutional issues are not solved by a mere appeal tothe meaning of
\nwords without an acceptance of the line of theirgrowth. It is aptly said
\nthat the intention of the Constitution is rather tooutline principles than
\nto engrave details. (See R.C. Poudval v. Union of India and Ors<\/a>.).\n<\/p>\n
In Purushothaman Nambudiri v. The State of Kerala<\/a>, a Constitution Bench of
\nthis Court observed as follows:\n<\/p>\n
\t“Dissolution of Parliament is sometimes described as ‘a civil death
\n\tof Parliament’. Ilbert, in his work on ‘Parliament’, has observed
\n\tthat ‘prorogation means the end of a session (not of a
\n\tParliament)’;”\n<\/p>\n
\t“in any case, there is no continuity in the personality of the
\n\tAssembly where the life of one Assembly comes to an end another
\n\tAssembly is in due course elected.”\n<\/p>\n
It will be also clear from the Constituent Assembly Debates (vis-a-vis
\nArticle 153 –<\/a> presently Article 174<\/a>) that the stress was on frequent
\nmeetings of long durations of live Legislative Assembly.\n<\/p>\n
In May’s Parliamentary Practice, the following paragraph reinforces the
\nview:\n<\/p>\n
\t“A session is the period of time between the meeting of a
\n\tParliament, whether after the prorogation or dissolution, and its
\n\tprorogation…During the course of a session either House may
\n\tadjourn itself of its own motion to such as ti pleases. The period
\n\tbetween the prorogation of Parliament and its reassembly in a new
\n\tsession is termed as ‘recess’; while the period between the
\n\tadjournment of either House and the resumption of its sitting is
\n\tgenerally called an ‘adjournment’.\n<\/p>\n
A prorogation terminates a session; an adjournment is an interruption in
\nthe course of one an the same session.”\n<\/p>\n
There is a direct decision of the Kerala High Court in K.K. Aboo v. Union
\nof India<\/a> on the point. It was inter alia observed as follows:
\n\t“A Legislature can be summoned to meet only if it is in esse at the
\n\ttime. A dissolved Legislature is incapable of being summoned to
\n\tmeet under Article 174<\/a> of the Constitution. The question therefore
\n\tis not whether the Legislature should or could have been summoned
\n\tto meet, but whether its dissolution ordered by the President, is
\n\tconstitutionally valid.”\n<\/p>\n
The view is well founded.\n<\/p>\n
The position gets further clear that one looks at the original Article 174<\/a>
\nwhich was amended in 1951. The un-amended Article 174<\/a> reads as follows:
\n\t“174(1) The House or Houses of the Legislature of the State shall
\n\tbe summoned to meet twice at lest in every year, and six months
\n\tshall not intervene between their last sitting in one session and
\n\tthe date appointed for their first sitting in the next session.
\n(2) Subject to the provisions of Clause (1), the Governor may from time to
\ntime–\n<\/p>\n
(a) summon the House or either House to meet at such time and place as he
\nthinks fit;\n<\/p>\n
(b) prorogue the House or Houses.”\n<\/p>\n
Having reached the conclusion that Article 174<\/a> in terms does not apply to
\ndissolved Assembly (similar in the case of Article 85<\/a> in case of House of
\nPeople), the other question that survives consideration is that can there
\nbe a time limit fixed for holding the elections in such cases? It has been
\nemphatically submitted by some of the learned counsel that the Constitution
\ndoes not provide for any time of limitation, nor does not R.P. Act.\n<\/p>\n
Can it be said that the framers of the Constitution intended that in case
\nof life of the elected body comes to an end on expiry of the fixed
\nduration, a time limit for holding elections is imperative, while in the
\ncase of a pre-mature dissolution it does not so?\n<\/p>\n
Sections 14 and 15 of the R.P. Act, 1951 deal with notification for general
\nelection to the House of the People and the State Legislative Assemblies
\nrespectively. It is clearly stipulated that notification for holding the
\nelection cannot be issued at any time earlier than 6 months prior to the
\ndate on which the duration of the House will expire under provisions of
\nClause (2) of Article 83<\/a> or under Clause (1) of Article 172<\/a> respectively.
\nThe obvious purpose is that the President or the Governor, as the case may
\nbe, to call upon the electorate to elect members in accordance with the
\nprovisions of the Rules, Act and the orders made thereunder on such dates
\nas may be recommended by the Election Commission. The dates are to be so
\nfixed that they are not much prior to the expiry of the duration. Here
\nalso, the underlying object is that the elected members are to continue for
\nthe full term. It has been fairly accepted by learned counsel for the
\nparties who submitted that there is no time limit fixed that there should
\nalways be a responsible Government. Our Constitution establishes a
\ndemocratic republic as is indicated in the Preamble to the Constitution
\nitself and Cabinet system of Government is generally known as the
\nresponsible government. We may notice here that in a democracy the
\nsovereign powers vest collectively to the three limbs i.e. the executive,
\nlegislature and the judiciary. Section 14 of the R.P. Act, 1951 mandates
\nthat general elections shall be held for the purpose of constituting the
\nnew House of People on the expiry of the duration of the existing House or
\non its dissolution. Similar is in the case of Legislative Assembly in the
\nbackground of Section 15<\/a>. When the election is to be held on the expiry of
\nthe fixed term, the Election Commissioner knows the date in advance and can
\naccordingly fix up schedule of the election. The problem arises when there
\nis a pre-mature dissolution. In that case, the Election Commissioner
\nbecomes aware only after the dissolution takes place. He cannot, therefore,
\nfix up any schedule in advance in such a case. The consequential fall out
\nof not holding election for a long time is the functioning of a care-taker
\ngovernment which is contrary to the principles of responsible Government.
\nThe caretaker government is not the solution to deferring elections for
\nunduly long periods.\n<\/p>\n
As noted above, due to unforeseen contingencies it may become impossible to
\nconstitute new House of People or the Legislative Assembly. Deferring an
\nelection is an exception to the requirement that elections should be held
\nas early as practicable. The requirement of summoning the House has inbuilt
\nin it; the existence of a House capable of being summoned. Therefore even
\nin the case of pre-mature dissolution, effort of the Election Commission
\nshould be to hold elections in time so that a responsible government is in
\noffice. At the cost of repetition it may be indicated that where free and
\nfair election is not possible to be held, there may be inevitable delay.
\nBut reasons for deferring elections should be relatable to acts of God and
\nnormally not acts of man. Myriad reasons may be there for not holding
\nelections.\n<\/p>\n
In determining the question whether a provision is mandatory or directory,
\nthe subject matter, the importance of the provision, the relation to the
\nprovision to the general object intended to be secured by the Act will
\ndecide whether the provision is directory or mandatory. It is the duty of
\nthe courts to get the real intention of the legislature by carefully
\nattending the whole scope of the provision to be construed. The key to the
\nopening of every law is the reason and spirit of the law, it is the animus
\nimpotentia, the intention of the law maker expressed in the law itself,
\ntaken as a whole”. (See Bratt v. Bratt (1826) 3 Addams 210 at p. 216).\n<\/p>\n
The necessity for completing the election expeditiously is enjoined by the
\nConstitution in public and State interest to see that the governance of the
\ncountry is not paralysed.\n<\/p>\n
The impossibility of holding the election is not a factor against the
\nElection Commission. The maxim of law impotentia exusat legem is intimately
\nconnected with another maxim of law lex non cogit ad impossibilia.
\nImpotentia excusat legem is that when there is a necessary or invincible
\ndisability to perform the mandatory part of the law that impotentia
\nexcuses. The law does not compel one to do that which one cannot possibly
\nperform. “Where the law creates a duty or charge, and the party is disabled
\nto perform it, without any default in him, and has no remedy over it, there
\nthe law will in general excuse him.” Therefore, when it appears that the
\nperformance of the formalities prescribed by a statute has been rendered
\nimpossible by circumstances over which the persons interested had no
\ncontrol, like the act of God, the circumstances will be taken as a valid
\nexcuse. Where the act of God prevents the compliance of the words of a
\nstatute, the statutory provision is not denuded of its mandatory character
\nbecause of supervening impossibility caused by the act of God. (See Broom’s
\nLegal Maxims 10th Edition at pp. 1962-63 and Craies on Statute Law 6th Ed.
\nP. 268). These aspects were highlighted by this Court in Special Reference
\n1 of 1974 (1975 (1) SCR 504). Situations may be created by interested
\npersons to see that elections do not take place and the caretaker
\ngovernment continue in office. This certainly would be against the scheme
\nof the Constitution and the basic structure to that extent shall be
\ncorroded.\n<\/p>\n
A responsible Government provides for a healthy functioning. The democracy
\nhas to be contrasted with a caretaker government which is ad hoc in all its
\ncontext and which is not required to take any policy decision. A piquant
\nsituation may arise when a Cabinet of Ministers being sure that it will
\nloose the vote of confidence, calls for a dissolution a few days before the
\nexpiry of the six months’ period in terms of Article 174<\/a> knowing fully well
\nthat the elections cannot be held immediately continues as the care taker
\ngovernment. Let us take another hypothetical case, where free and fair
\nelections are not possible and caretaker government continues in office
\nbecause of man made situations. Here the Election Commissioner has a duty
\nto lift the veil, see the design and make all possible efforts to hold the
\nelections so that a responsible government takes place in office. Question
\nthen arises as to how a impasse can be avoided when an Assembly or the
\nHouse of People is dissolved and election can be held immediately so that
\nsix month’s period is not given a go by, between the last sitting of the
\ndissolved one and the first sitting of the duly constituted subsequent one.
\nOne of the solutions can be that an emergent session which is usually
\ndescribed as ‘lame duck’ session can be convened, and immediately
\nthereafter the dissolution can be notified. In such a situation, the
\nElection Commissioner gets sufficient time to hold the election subject of
\ncourse to the paramount consideration that it is free and fair one; thereby
\nenabling functioning of the next session of the duly constituted elected
\nbody to meet within six months from the date of dissolution. For practical
\npurposes the six months’ period then would begin from the date of
\ndissolution.\n<\/p>\n
Free and fair election is the sine qua non of democracy. The scheme of the
\nConstitution makes it clear that two distinct Constitutional authorities
\ndeal with election and calling of session. It has been pointed out to us
\nthat as a matter of practice the elections are completed within a period of
\nsix months from the date of dissolution, on completing the prescribed
\ntenure or on pre-mature dissolution except when for inevitable reasons
\nthere is a delay. The Election Commissioner is a high constitutional
\nauthority charged with the duty of ensuring free and fair elections and the
\npurity of electoral process. To effectuate the constitutional objective and
\npurpose it is to draw upon all incidental and ancillary powers. Six months’
\nperiod applicable to elections held on expiry of the prescribed term would
\nbe imperatively applicable to elections held after pre-mature dissolution.
\nThis of course would be subject to such rare exceptional cases occasioned
\non account of facts situation (like acts of God) which make holding of
\nelections impossible. But man made situation intended to defer holding of
\nelections should be sternly dealt with and should not normally be a ground
\nfor deferring elections beyond six months period, starting point of which
\nwould be the date of dissolution. As was observed in Digvijay Mote v. Union
\nof India and Ors<\/a>., timely election which is not free and fair subverts
\ndemocracy and frustrates the ultimate responsibility to assess objectively
\nwhether free and fair election is possible. Any man made attempt to
\nobstruct free and fair election is antithesis to democratic norms and
\nshould be overcome by garnering resources from the intended sources and by
\nholding the elections within the six months’ period.”\n<\/p>\n
Reference was made to Article 164(4)<\/a> of the Constitution to contend that
\nsix months’ period for holding election is in built in Article 174.<\/a> It has
\nto be noted that as observed by this Court in S.R. Chaudhuri v. State of
\nPunjab and Ors<\/a>. the provisions is not really concerned with holding of
\nelections and primarily relates to a requirement to get elected within the
\ntime prescribed. The said provision contemplates a situation where a
\nMinister in a Legislature in existence has to be elected, it does not deal
\nwith a non-existing House and in the background, there is nothing to do
\nwith Article 174.<\/a>\n<\/p>\n
The second question has really lost its sting because of the submissions
\nmade before this Court on behalf of the Election Commission.\n<\/p>\n
So far as applicability of Article 356<\/a> is concerned, though in the order
\nthe Election Commission has specifically dealt with the possibility of
\napplying that situation, in the written submissions and the arguments made
\nbefore this Court the view was given a go by; and in our view rightly. Mere
\nnon-compliance of Article 174<\/a> so far as the time period is concerned, does
\nnot automatically bring in Article 356.<\/a> It is made clear that the order of
\nthe Election Commissioner is the foundation and not what is stated
\nsubsequently by way of an affidavit or submissions to clarify. But in view
\nof the concession, which according to us is well founded, we need not go
\ninto the question in detail. It was submitted by some of the learned
\ncounsel that the Election Commission’s order otherwise makes out a case for
\napplying Article 356.<\/a> We are not concerned with those as the Reference only
\nrelated to application of Article 356<\/a> when the requirement of Article 174<\/a>
\nis not met. In K.N. Rajgopal v. Thiru M. Karunanidhi<\/a>, a Constitution Bench
\nof this Court inter alia, observed as follows:\n<\/p>\n
\t“……Article 356<\/a> of the Constitution makes provisions in case of
\n\tfailure of constitutional machinery in the State. But when an
\n\tAssembly is dissolved there is no failure of constitutional
\n\tmachinery within Article 356.”<\/a>\n<\/p>\n
A similar observation was made by one of us (Hon’ble V.N. Khare, J. as His
\nLordship was then) in Arun Kumar Rai Chaudhary v. Union of India<\/a>. His
\nLordship succinctly stated the position as follows:
\n\t“This question came up for consideration before Supreme Court in
\n\tthe case of U.N.R. Rao v. Indira Gandhi<\/a> and Thiru K.N. Rai Gopal v.
\n\tM. Karuna Nidhi. The Supreme Court while interpreting Articles 74
\n\tand 75 as well as Articles 163 and 164 of the Constitution held
\n\tthat even if the House is dissolved, the Council of Ministers
\n\tcontinues. These decisions squarely cover the case before us.
\n\tFollowing these decisions we hold that after the Governor of the
\n\tState of U.. dissolved the Legislative Assembly and directions were
\n\tissued for holding fresh poll for constituting the Legislative
\n\tAssembly, the Council of Ministers continues. Further there being
\n\tno failure of constitutional machinery within the meaning of
\n\tArticle 356<\/a> of the Constitution, the contention that the President
\n\tof India ought to have promulgated President Rule in the State for
\n\tcarrying on the function of the Government must be rejected.”\n<\/p>\n
Situations when Article 356<\/a> can be resorted to have been illuminatingly
\nhighlighted in S.R. Bommai v. Union of India<\/a>,. The following observations
\nvery aptly summarized the position:\n<\/p>\n
\t“…..Article 356<\/a> is an emergency provision though, it is true, it
\n\tis qualitatively different from the emergency contemplated by
\n\tArticle 352<\/a>, or for that matter, from the financial emergency
\n\tcontemplated by Article 360.<\/a> Undoubtedly, breakdown of the
\n\tconstitutional machinery in a State does give rise to a situation
\n\tof emergency. Emergency means a situation which is not normal, a
\n\tsituation which calls for urgent remedial action. Article 356<\/a>
\n\tconfers a power to be exercised by the President in exceptional
\n\tcircumstances to discharge the obligation cast upon him by Article\n<\/p>\n
\t355. It is a measure to protect and preserve the Constitution,
\n\tconsistent with his oath. He is as much bound to exercise this
\n\tpower in a situation contemplated by Article 356<\/a> as he is bound not
\n\tto use it where such a situation has not really arisen.”
\nIt has been further observed:\n<\/p>\n
\t“…..He has to exercise his powers with the aid and advice of the
\n\tCouncil of Ministers with the Chief Minister at its head (Article\n<\/p>\n
\t163). He takes the oath prescribed by Article 159<\/a>, to preserve,
\n\tprotect and defend the Constitution and the laws to the best of his
\n\tability. It is this obligation which requires him to report to the
\n\tPresident the commissions and omissions of the Government of his
\n\tState which according to him are creating or have created a
\n\tsituation where the Government of the State cannot be carried on in
\n\taccordance with the provisions of the Constitution. In fact, it
\n\twould be a case of his reporting against his own Government but
\n\tthis may be a case of his wearing two hats, one as the head of the
\n\tState Government and the other as the holder of an independent
\n\tconstitutional office whose duty it is to preserve, protect and
\n\tdefend the Constitution (See Shamsher Singh v. State of Punjab<\/a>).
\n\tSince he cannot himself take any action of the nature contemplated
\n\tby Article 356(1<\/a>), he reports the matter to the President and it is
\n\tfor the President to be satisfied – whether on the basis of the
\n\tsaid report or on the basis of any other information which he may
\n\treceive otherwise – that situation of the nature contemplated by
\n\tArticle 356(1)<\/a> has arisen…..”\n<\/p>\n
The third question is to be considered in the background of what has been
\nobserved supra about scope and ambit of Article 174.<\/a> It does not relate to
\nholding of elections. Therefore, he question of seeking control or State
\nassistance does not arise. However, the Election Commission and the
\nGovernments (Central and or State) have well-defined roles to play to
\nensure free and fair election. The parameters have been laid down by this
\nCourt in several cases e.g. Election Commission of India v. State of
\nHaryana<\/a>, (1984 (3) SCR 554). Election Commission of India v. Union of India
\nand Ors<\/a>. (1995) Supp (3) SCC 643), Election Commission of India v. State of
\nT.N. and Ors. (1995 Supp (3) SCC 379). Some of the relevant observations
\nneed to be noticed.\n<\/p>\n
In Tamil Nadu’s case (supra) it was observed:\n<\/p>\n
\t“The Election Commission of India is a high constitutional
\n\tauthority charged with the function and the duty of ensuring free
\n\tand fair elections and of the purity of the electoral process. It
\n\thas all the incidental and ancillary powers to effectuate the
\n\tconstitutional objective and purpose. The plenitude of the
\n\tCommission’s powers corresponds to the high constitutional
\n\tfunctions it has to discharge. In an exercise of the magnitude
\n\tinvolved in ensuring free and fair elections in the vastness of our
\n\tcountry, there are bound to be differences of perception as to the
\n\tlaw and order situation in any particular constituency at any given
\n\ttime and as to the remedial requirements. Then again, there may be
\n\tintrinsic limitations on the resources of the Central government to
\n\tmeet in full the demands of the Election Commission. There may
\n\tagain be honest differences of opinion in the assessment of the
\n\tmagnitude of the security machinery. There must, in the very nature
\n\tof the complexities and imponderables inherent in such situations,
\n\tbe a harmonious functioning of the Election Commission and the
\n\tGovernments, both State and Central. If there are mutually
\n\tirreconcilable viewpoints, there must be a mechanism to resolve
\n\tthem. The assessment of the Election Commission as to the State of
\n\tlaw and order and the nature and adequacy of the machinery to deal
\n\twith situations so as to ensure free and fair elections must, prima
\n\tfacie, prevail. But, there may be limitations of resources.
\n\tSituation of this kind should be resolved by mutual discussion and
\n\tshould not be blown up into public confrontations. This is not good
\n\tfor a healthy democracy. The Election Commission of India and the
\n\tUnion Government should find a mutually acceptable coordinating
\n\tmachinery for resolution of these differences.”\n<\/p>\n
To sum up, answers to the questions set out in the Reference are as
\nfollows:\n<\/p>\n
1. The provisions of Article 174<\/a> are mandatory in character so far as the
\ntime period between two sessions is concerned in respect of live Assemblies
\nand not dissolved Assemblies. Article 174<\/a> and Article 324<\/a> operate in
\ndifferent fields. Article 174<\/a> does not deal with elections which is the
\nprimary function of the Election Commission under Article 324.<\/a> Therefore,
\nthe question of one yielding to the other does not arise. There is scope of
\nharmonizing both in a manner indicated supra.\n<\/p>\n
2. Article 174<\/a> is not relatable to a dissolved Assembly. Similar is the
\nposition under Article 85<\/a> vis-a-vis House of People. Merely because the
\ntime schedule fixed under Article 174<\/a> cannot be adhered to, that per se
\ncannot be the ground for bringing into operation Article 356.<\/a>\n<\/p>\n
3. As Article 174<\/a> does not deal with election, the question of Election
\nCommissioner taking the aid, assistance or co-operation of the Center or
\nthe State Governments or to draw upon their resources to hold the election
\ndoes not arise. On the contrary for effective operation of Article 324<\/a> the
\nElection Commission can do so to ensure holding of free and fair election.
\nThe question whether free and fair election is possible to be held or not
\nhas to be objectively assessed by the Election Commission by taking into
\nconsideration all relevant aspects. Efforts should be to hold the election
\nand not to defer holding of election.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Under Article 143(1) Of The … vs ——– on 28 October, 2002 Author: V Khare Bench: B.N.Kirpal Cji, V.N.Khare, K.G.Balakrishnan, Ashok Bhan, Arijit Pasayat 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 & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-249487","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnder Article 143(1) Of The ... vs - on 28 October, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/under-article-1431-of-the-vs-on-28-october-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Under Article 143(1) Of The ... vs - 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