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2002(7) Supreme 437
SUPREME COURT OF INDIA
In the Matter of Special Reference No. 1 of 2002
(Under Article 143(1) of the Constitution of India)
B.N. Kirpal, CJI., V.N. Khare, K.G. Balakrishnan, Ashok Bhan and Arijit Pasayat, JJ.
By the President of India for the opinion of the Supreme Court
Opinion given on 28-10-2002
Counsel for the Parties :
For the Appearing Parties : Harish N. Salve, Solicitor General, Kirit N. Raval, Additional Solicitor General, K.K. Venugopal, Arun Jaitley, Dr. Rajeev Dhavan, Jitendra Sharma, Kapil Sibal, A. Sharan, Milon K. Banerjee, M.C. Bhandare, D.N. Dwivedi, Gopal Subramanium, P.P. Rao, Dr. A.M. Singhvi, Ashwani Kumar, K. Parasaran, Kailash Vasdev, Vijay Bahaguna, Yetin Oza, O.P. Sharma, Ram Jethmalani, T.M. Mohammed Youseff, Sr. Advocates, Preetesh Kapur, Ms. Meenakshi Sakhardanade, Siddhartha Chowdhury, Ms. Aparajita Singh, Ms. Gayatri Goswami, P. Parmeswaran, R.N. Poddar, S. Muralidhar, S.K. Mendiratta, Shreyas Jayasimha, Ms. Bina Gupta, Ms. Vanita Bhargava, Ms. Rakhi Ray, Ms. Divya Roy Jha, H.K. Puri, S.K. Puri, Ujjwal Banerjee, Ms. Anindita Gupta, B.K. Pal, P.N. Jha, Er. Anil Mittal, Dayan Krishnan, Ranji Thomas, Arun Baradwaj, Gautam Narayan, Pranab Kumar Mullick, Shail Kumar Dwivedi, Ms. Madhu Sharan, Amit Kumar, Amit Anand Tiwari, Samir Ali Khan, Ashish Tiwari, Irshad Ahmad, Ms. Krishna Sarma, Ms. Asha G. Nair, Anil Shrivastava, Jyoti Dutt, G. Prabhakar, Ms. Ms. Kamini Jaiswal, Saket Singh, Kumar Rajesh Singh, B.B. Singh, Prakash Shrivastava, I.C. Pandey, R.M. Sharma, Ms. A. Subhashini, Kamal Trivedi, Addl. Adv. Gen. for Gujarat, Ms. Hemantika Wahi, J.P. Dhanda, Ms. Raj Rani Dhanda, Sunder Khatri, Naresh K. Sharma, Ashok Mathur, Rajesh Pathak, Anis Suhrawardy, Raj Shekhar Rao, K.R. Sasiprabhu, John Mathew, Sanjay R. Hegde, Satya Mita, Ashok Kumar Pandey, G. Balaji, Dhirendra Pandey, R.K. Mehta, Ms. M. Sarada, Ms. Suman Kukreti, R.S. Jena, R.S. Suri, Jagjit Singh Chhabra, K.N. Madhusoodhanan, Ms. Sunita Hazarika, Joy Basu, Prashant Chandra Sen, S.S. Shinde, V.N. Raghupathy, Kartik Singh, Ranjan Mukherjee, K.H. Nobin Singh, M. Gireesh Kumar, Satish K. Angnihotri, K.C. Kaushik, Rohit K. Singh, W.A. Nomani, Suren Uppal, Vikram Mehta, Pradip Tiwari, Anil K. Pandey, Sanjay K. Shandilya, Ms. V.D. Khanna, V.G. Pragasam, S.M. Mehta, Advocate Genl. for Rajasthan, Ms. Bharati Upadhyaya, Sushil Tehkriwal, Javed M. Rao, A. Mariarputham, Gopal Singh, Rahul Singh, Rajiv Mahapatra, P.N. Ramalingam, V. Balaji, R.C. Verma, Mukesh Verma, Vivek Vishnoi, Ms. Rachana Srivastava, Kamlendra Mishra, Sanjay Visen, Tara Chandra Sharma, Rajeev Sharma, Ms. Neelam Sharma, Ajay Sharma, Rupesh Kumar, Ms. Kirti Singh, D.S. Mahra, S. Wasim A. Qudri, Jana Kalyan Das, Ms. Bina Mahavan, S. Udaya Kumar Sagar, Prashanth P., Ms. Meena C.R., Advocates.
Opinion : (Per CJI, V.N. Khare & Ashok Bhan, JJ.) :
This question proceeds on the assumption that Article 174 (1) is also applicable to a dissolved Legislative Assembly. We have found that the provision of Article 174(1) of the Constitution which stipulates that six months shall not intervene between the last sitting in one session and the date appointed for its first sitting in the next session is mandatory in nature and relates to an existing and functional Legislative Assembly and not to a dissolved Assembly whose life has come to an end and ceased to exist. Further, Article 174(1) neither relates to elections nor does it provide any outer limit for holding elections for constituting Legislative Assembly. The superintendence, direction and control of the preparation of electoral roll and conduct of holding elections for constituting Legislative Assembly is in the exclusive domain of the Election Commission under Article 324 of the Constitution. In that view of the matter, Article 174(1) and Article 324 operate on different fields and neither Article 174(1) is subject to Article 324 nor Article 324 is subject to Article 174(1) of the Constitution. (Para 81)
(Per Balakrishnan, J.) :
Article 174 and Article 324 operate in different fields. Article 174 does not apply to dissolved Assemblies. The schedule of the election of the Assembly is to be fixed having regard to the urgency of the situation that a democratically elected Government be installed at the earliest and the process of election shall start immediately on the dissolution of the Assembly. Though the ultimate authority to decide as to when a free and fair election can be conducted is Election Commission, such decisions shall be just and reasonable and arrived at having regard to all relevant circumstance. Any decision to postpone election on unreasonable grounds is anathema to democratic form of government and it is subject to judicial review on traditionally accepted grounds. (Para 105)
(Per Arijit Pasayat, J.) :
The provisions of Article 174 are mandatory in character so far as the time period between two sessions is concerned in respect of live Assemblies and not dissolved Assemblies. Article 174 and Article 324 operate in different fields. Article 174 does not deal with elections which is the primary function of the Election Commission under Article 324. Therefore, the question of one yielding to the other does not arise. There is scope of harmonizing both in a manner indicated supra. [Para 161(1)]
(ii) Constitution of India-Articles 174(1) Sessions of State Legislature Prorogation and dissolution-Article 356-President Rule-Can the Election Commission of India frame a schedule for the elections of an Assembly on the premises that any infraction of the mandate of Article 174 would be remedied by a resort to Article 356 by the President?-(No)-Case Law discussed.
Opinion : (Per CJI, V.N. Khare & Ashok Bhan, JJ.) :
This question also proceeds on the assumption that Article 174(1) is also applicable to a dissolved House. On our interpretation of Article 174(1), we have earlier reported that the said Article is inapplicable to a dissolved Legislative Assembly. Consequently, there is no infraction of the mandate of Article 174 (1) in preparing a schedule for elections to an Assembly by the Election Commission. The Election Commission in its written submissions stated thus:
"The decision, contained in the Election Commission s order dated 16.8.2002, was taken without reference to Article 356. However, it was merely pointed out that there need be no apprehension that there would be a constitutional impasse as Article 356 could provide a solution in such a situation".
In that view of the matter, the question of applicability of Article 356 on the infraction of the provisions of Article 174 loses much of its substance and, therefore, application of Article 356 is not required to be gone into. (Para 82)
(Per K.G. Balakrishnan, J.) :
The framing of schedule for election for the new Legislative Assembly shall start immediately on dissolution of the Assembly and the Election Commission shall endeavour to see that the new Legislative Assembly meets at least within a period of six months of the dissolution. Article 356 regarding declaration of state of emergency in the State has no relevance to the fixation of the election schedule (Para 106)
(Per Arijit Pasayat, J.) :
Article 174 is not relatable to a dissolved Assembly. Similar is the position under Article 85 vis-a-vis House of People. Merely because the time schedule fixed under Article 174 cannot be adhered to, that per se cannot be the ground for bringing into operation Article 356. [Para 161(2)]
(iii) Constitution of India-Article 174 Sessions of State Legislature Prorogation and dissolution-Is the Election Commission of India under a duty to carry out the mandate of Article 174 of the Constitution by drawing upon all the requisite resources of the Union and the State to ensure free and fair election? (No)-Case Law discussed.
Opionion : (Per CJI, V.N. Khare, Ashok Bhan, JJ.) :
Again, this question proceeds on the assumption that the provisions of Article 174(1) also apply to a dissolved Assembly. In view of our answer to question No. (i), we have already reported that Article 174(1) neither applies to a prematurely dissolved Legislative Assembly nor does it deal with elections and, therefore, the question that the Election Commission is required to carry out the mandate of Article 174(1) of the Constitution does not arise. Under Article 324, it is the duty and responsibility of the Election Commission to hold free and fair elections at the earliest. No efforts should be spared by the Election Commission to hold timely elections. Ordinarily, law and order or public disorder should not be occasion for postponing the elections and it would be the duty and responsibility of all concern to render all assistance, cooperation and aid to the Election Commission for holding free and fair elections. (Para 83)
(In K.G. Balakrishnan, J.) :
The Election Commission is under a constitutional duty to conduct the election at the earliest on completion of the term of the Legislative Assembly on dissolution or otherwise. If there is any impediment in conducting free and fair election as per the schedule envisaged by the Election Commission, it can draw upon all the requisite resources of Union and State within its command to ensure free and fair election, though Article 174 has no application in the discharge of such constitutional obligation by the Election Commission. It is the duty of the Election Commission to see that the election is done in a free and fair manner to keep the democratic form of Government vibrant and active. (Para 107)
(Per Arijit Pasayat, J.) :
As Article 174 does not deal with election; the question of Election Commissioner taking the aid, assistance or co-operation of the Center or the State Governments or to draw upon their resources to hold the election does not arise. On the contrary for effective operation of Article 324 the Election Commission can do so to ensure holding of free and fair election. The question whether free and fair election is possible to be held or not has to be objectively assessed by the Election Commission by taking into consideration all relevant aspects. Efforts should be to hold the election and not to defer holding of election. [Para 161(3)]
JUDGMENT
V.N. Khare, J.-The dissolved Legislative Assembly of the State of Gujarat was constituted in March 1998 and its five-year term was to expire on 18.3.2003. On 19.7.2002 on the advice of the Chief Minister, the Governor of Gujarat dissolved the Legislative Assembly. The last sitting of the dissolved Legislative Assembly was held on 3rd April 2002. Immediately after dissolution of the Assembly, the Election Commission of India took steps for holding fresh elections for constituting the new Legislative Assembly. However, the Election Commission by its order dated 16th August, 2002 while acknowledging that Article 174(1) is mandatory and applicable to an Assembly which is dissolved and further that the elections for constituting new Legislative Assembly must be held within six months of the last session of the dissolved Assembly, was of the view that it was not in a position to conduct elections before 3rd of October, 2002 which was the last date of expiry of six months from last sitting of the dissolved Legislative Assembly. It is in this context the President of India in exercise of powers conferred upon him by virtue of clause (1) of Article 143 of the Constitution of India referred three questions for the opinion of the Supreme Court by his order dated 19th August, 2002 which run as under:
"WHEREAS the Legislative Assembly of the State of Gujarat was dissolved on July 19, 2002 before the expiration of its normal duration on March 18, 2003;
AND WHEREAS Article 174(1) of the Constitution provides that six months shall not intervene between the last sitting of the Legislative Assembly in one session and the date appointed for its first sitting in the next Session:
AND WHEREAS the Election Commission has also noted that the mandate of Article 174 would require that the Assembly should meet every six months even after the dissolution of the House, and that the Election Commission has all along been consistent that normally a Legislative Assembly should meet at least every six months as contemplated by Article 174, even where it has been dissolved;
AND WHEREAS under section 15 of the Representation of the People Act, 1951, for the purpose of holding general elections on the expiry of the duration of the Legislative Assembly or its dissolution, the Governor shall, by notification, call upon all Assembly Constituencies in the State to elect members on such date or date as may be recommended by the Election Commission of India;
AND WHEREAS the last sitting of the Legislative Assembly of the State of Gujarat was held on 3rd April, 2002, and as such the newly constituted Legislative Assembly should sit on or before 3rd October, 2002;
AND WHEREAS the Election Commission of India by its order No. 464/GJ-LA/2002 dated August 16, 2002 has not recommended any date for holding general election for constituting a new Legislative Assembly for the State of Gujarat and observed that the Commission will consider framing a suitable schedule for the general election to the State Assembly in November-December 2002. Copy of the said order is annexed hereto;
AND WHEREAS owing to the aforesaid decision of the Election Commission of India, a new Legislative Assembly cannot come into existence so as to meet within the stipulated period of six months as provided under Article 174( 1) of the Constitution of India;
AND WHEREAS THE Election Commission has held that the non-observance of the provisions of Article 174(1) in the present situation would mean that the Government of the State cannot be carried in accordance with the provisions of the Constitution within the meaning of Article 356(1) of the Constitution and the President would then step in;
AND WHEREAS doubts have arisen with regard to the Constitutional validity of the said order of the Election Commission of India as the order of the Election Commission which would result in a non-compliance with the mandatory requirement envisaged under Article 174(1) of the Constitution under which not more th
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