1996 Supreme(SC) 845

1996(3) Supreme 679
SUPREME COURT OF INDIA
A.M. Ahmadi, C.J.I., N.P. Singh & B.N. Kirpal, JJ.
Election Commission of India & Ors. ---Appellants
versus
Dr. Subramanian Swamy & Ors. ---Respondents
Civil Appeal No. 504 (NC) of 1994
Decided on 23-4-1996

VERY IMPORTANT POINT
For reason of possible bias, apart from the legal aspect, even prudence demands that the Chief Election Commissioner should recuse himself from expressing any opinion on the issue of disqualification of Ms.J. Jayalalitha on the grounds alleged by Dr. Swamy and if the two Election Commissioners do not reach a unanimous decision on the issue, it would be necessary for the Chief Election Commissioner to express his opinion on the doctrine of necessity.

Headnote:Constitution of India ---Articles 191, 192 & 324 -Disqualification from membership of State Legislative Assembly---Ground of holding an office of profit ---Procedure to be followed by Election Commission---Allegation of bias against Chief Election Commissioner ---Order restraining Election Commissioner from deciding issue of disqualification---Appeal ---Election Commission converted, into a multi-member body during pendency of appeal---Question regarding participation of Chief Election Commissioner in decision making having regard to allegation of bias against him ---Chief Election Commissioner should recuse himself from expressing any opinion in matter---In case of conflict of opinion between two Election Commissioners---Chief Election Commissioner to express his opinion on doctrine of necessity.

       Held : that Under Article 192 if any question arises in regard to disqualification referred to in Article 191(1), the question has to referred to the Election Commission for its opinion and the Governor has to give his decision in accordance with that opinion. Article 324(2) provides for the constitution of Election Commission; if it is a single member body it will comprise of the Chief Election Commissioner only, if it is a multi-member body he will be joined by the other Election Commissioner(s). In the case of a single-member body, if the Governor seeks his opinion, he perhaps can invoke the doctrine of necessity but that question which arose before the learned Single Judge is no more germane because during the pendency of the appeal two more Election Commissioners were appointed making it a multi-member body. (Para 12)

        Further held: If the Chief Election Commissioner, for reason of possible bias, is disqualified from expressing an opinion, now should the Election Commission conduct itself ? As pointed out earlier Shri Sanghi, the learned counsel for the appellant, has very frankly and with his usual fairness stated that the Chief Election Commissioner preferred this appeal only because he genuinely believed that the scheme of Article 324 did not conceive of a decision by majority, but if the Court comes to the conclusion that a decision can be reached without the Chief Election Commissioner participating in decision making in the special circumstances of the case, the latter is not at all keen or anxious to hear and adjudicate upon the matter at issue before the Election Commission. We are quite conscious of the high office the Chief Election Commissioner occupies. Ordinarily we would be loath to uphold the submission of bias but having regard to the wide ramification the opinion of the Election Commissioner would have on the future of Ms.J.Jayalalitha, we think that the opinion, whatever it be, should not be vulnerable. The participation of the Chief Election Commissioner in the backdrop of the findings recorded by the learned Single Judge as well as the Division Bench of the High Court would certainly permit an argument of prejudice, should the opinion be adverse to Ms. J. Jayalalitha. Therefore, apart from the legal aspect, even prudence-demands that the Chief Election Commissioner should recuse himself from expressing any opinion in the matter. However, the situation is not so simple, it is indeed complex, in that, what would happen if the two Election Commissioners do not agree and there is a conflict of opinion between them? That would lead to a stalemate situation and the Governor would find it difficult to take a decision based on any such opinion. In such a situation, can the doctrine of necessity be invoked in favour of the Chief Election Commissioner? (Para 13)

       Consequently held that the proper course to follow is that the Chief Election Commissioner should call a meeting of the Election Commission to adjudicate on the issue of disqualification of Ms. J. Jayalalitha on the grounds alleged by Dr. Swamy. After calling the meeting he should act as the Chairman but then he may recuse himself by announcing that he would not participate in the formation of opinion. If the two Election Commissioners reach a unanimous opinion, the Chief Election Commissioner will have the opinion, communicated to the Governor. If the two Election Commissioners do not reach a unanimous decision in the matter of expressing their opinion on the issue referred to the Election Commission, it would be necessary for the Chief Electron Commissioner to express his opinion on the doctrine of necessity. We think that in the special circumstances of this case this course of action would be the most appropriate one to follow because if the two Election Commissioners do not agree, we have no doubt that the doctrine of necessity would compel the Chief Election Commissioner to express his views so that the majority opinion could be communicated to the Governor to enable him to take a decision in accordance therewith as required by Article 192(1) of the Constitution. (Para 15)

       Judicial Decisions-Doctrine of Necessity-Applicability.

       Held : It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the. doctrine of necessity comes into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decisions, there is no need for the Chief Election Commissioner to participate, if not the doctrine of necessity may have to be invoked. (Para 14)