1. Complaint to Governor alleging subsequent disqualification of a State Legislative Assembly member under Article 191(1)(e) and Representation of the People Act, 1951 — Challenge to Election Commission's jurisdiction. (Para 1 , 7 )
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1965 Supreme(SC) 40
SUPREME COURT OF INDIA
12th February, 1965
P.B. GAJENDRAGADKAR, C.J.I., HIDAYATULLAH, RAGHUBAR DAYAL, S.M. SIKRI AND V. RAMASWAMI, JJ.
Brundaban Nayak, Appellant
Versus
Election Commission of India and another, Respondents.
Civil Appeal No. 50 of 1965. 1893
Advocates Appeared
Mr. M. C. Setalvad, Senior Advocate, (M/s. Ravinder Narain, J. B. Dadachanji and O. C. Mathur, Advocates of M/s. J. B. Dadachanji & Co. with him), for Appellant; Mr. C. K. Daphtary. Attorney General for India and Mr. S. V. Gupte, Solicitor General for India, (M/s. B. R. Iyengar and R. H. Dhebar, Advocates with them), (for No. 1) and M/s. Santosh Chatterjee, B. B. Ratho and M. L. Chhibber, Advocates (for No. 2), for Respondents.
Under Article 192 of the Constitution, any citizen can raise a question of a member's subsequent disqualification to the Governor. The Election Commission is competent to conduct the enquiry, as the Governor is constitutionally mandated to act according to the Commission's opinion.
Headnote:(A) Constitution of India - Articles 190(3)(a), 191(1)(e), 192(1) and 192(2); Representation of the People Act, 1951 - Section 7(d) - Disqualification of member of State Legislature - Subsequent disqualification - Initiation of proceedings - A question as to whether a member of a House of the Legislature of a State has become subject to any disqualification under Article 191(1) can be raised by any citizen through a complaint to the Governor; it is not necessary that such a question be raised only on the floor of the House or by the Speaker. The words "if any question arises" in Article 192(1) do not permit limitations on how or by whom the question is raised. (Paras 12-14)
(B) Constitution of India - Article 192 - Governor's decision and Election Commission's opinion - Competence to hold enquiry - Although the formal decision on disqualification is pronounced by the Governor, the Governor is constitutionally mandated to act according to the opinion of the Election Commission. Consequently, the Election Commission is competent to conduct an enquiry to form its opinion, as the opinion is in substance decisive. (Paras 15-16)
Facts of the case:
A member of a State Legislative Assembly was alleged to have incurred a disqualification subsequent to election under the relevant constitutional and statutory provisions. A complaint was made by a citizen to the Governor, who referred the matter to the Election Commission for its opinion. The member challenged the jurisdiction of the Election Commission to conduct an enquiry into the allegations, contending that the enquiry should be held by the Governor and that the question of disqualification could only be raised on the floor of the House.
Findings of Court:
The court held that Article 192(1) does not limit how a question of disqualification arises or who can raise it, and thus a complaint by a citizen is maintainable. Furthermore, since the Governor must act according to the opinion of the Election Commission under Article 192(2), the Election Commission is competent to hold the necessary enquiry to arrive at that opinion.
Issues: Whether a complaint of subsequent disqualification can be initiated by a citizen to the Governor and whether the Election Commission has the jurisdiction to conduct an enquiry before providing its opinion to the Governor.
Ratio Decidendi: The phrase "if any question arises" in Article 192(1) is broad and allows any citizen to bring a disqualification to the Governor's notice. Under Article 192(2), the Governor's decision is bound by the Election Commission's opinion, making the Commission the substantive adjudicating authority entitled to conduct the enquiry.
Result: Appeal dismissed.
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Table of Contents
2. Whether disqualification questions must be raised only by members in the House and whether the Governor, rather than the Election Commission, must conduct the enquiry. (Para 9 , 10 , 11 , 15 )
3. Article 192(1) allows any citizen to raise disqualification questions; the Election Commission substantively decides the matter through an enquiry to provide a binding opinion to the Governor. (Para 12 , 13 , 14 , 16 )
4. The Election Commission is competent to hold an enquiry under Article 192(2) to form the opinion upon which the Governor must act regarding member disqualification. (Para 16 )
5. Appeal dismissed with costs; Election Commission directed to expeditiously conclude the enquiry and forward its opinion to the Governor. (Para 20 )
6. Who can raise a question regarding the subsequent disqualification of a member of a State Legislative Assembly?
Any citizen is entitled to make a complaint to the Governor alleging that a member has incurred a disqualification under Article 191(1). Article 192(1) does not limit how the question arises or who raises it. (Para 12 , 14 )
7. Does the Governor or the Election Commission hold the enquiry into a member's disqualification under Article 192?
The Election Commission is competent to hold the enquiry. While the Governor formally pronounces the decision, he must act according to the Election Commission's opinion, making the Commission the substantive deciding authority. (Para 16 )
8. Is the Governor required to consult the Council of Ministers when deciding on a member's disqualification under Article 192?
No. When pronouncing a decision under Article 192(1), the Governor is not required to consult the Council of Ministers; he must simply forward the question to the Election Commission and act according to its opinion. (Para 16 )
9. Does the failure to provide the original complaint to the member invalidate the Election Commission's enquiry?
No. Such an oversight does not affect the jurisdiction of the Election Commission to hold the enquiry once the Governor has made the reference. (Para 17 )
Judgement
GAJENDRAGADKAR, C.J.I.: The principal question which this appeal by special have raises for our decision relates to the construction of Article 192 of the Constitution. The sais question arises in this way. The appellant Brundaban Nayak was elected to the Legislative Assembly of . Orissa from the Hinjili constituency in Ganjam district in 1961, and was appointed one of the Ministers of the Council of Ministers in the said State. On August 18, 1964, respondent No. 2, P. Biswal, applies to the Governor of Orissa alleging that the appellant had incurred a disqualification subsequent to his election under Article 191(1)(e) of the Constitution read with Section of the Representation of the People Act, 1951(No.43 of 1951) (hereinafter called the Act. In his application, respondent No. 2 made several allegations in support of his contention that the appellant had become disqualified to be a member of the Orissa Legislative Assembly. On September 10, 1964, the Chief Secretary to the Government of Orissa forwarded the said complaint to respondent No. 1, the Election Commission of India, under the instructions of the Governor. In this communication the Chief Secretary stated that a question had arisen under Article 19(1) of the Constitution whether the member in question had been subject to the disqualification alleged by respondent No. 2, and so, he requested respondent No. 1 in the name of the Governor to make such enquiries as it thinks fit and give its opinion for communication to the Governor to enable him to give a decision on the question raised.
2. On November 17, 1964, respondent No. 1 served a notice on the appellant forwarding to him a copy of the letter received by it from respondent No. 2 dated the 4th November, 1964. The notice intimated to the appellant that respondent No, I proposed to enquire in the matter before giving its opinion on the Governor s reference, and, therefore, called upon him to submit on or before the 5th December, 1964, his reply with supporting affidavits and documents, if any. The appellant was also told that the parties would be heard in person or through authorised counsel at 10-30 a.m. on the 8th December, 1964, in the office of respondent No. 1 in New Delhi.
3. On December 1, 1964, the appellant sent a telegram to respondent No. 1 requesting it to adjourn the hearing of the matter. On the same day, he also addressed a registered letter to respondent No. 1 making the same request. Respondent No. 2 objected to the request made by the appellant for adjourning the hearing of the complaint. On December 8, 1964, respondent No. 1 took up this matter for consideration, Respondent No. 2 appeared by his counsel Mr. Chatterjee, but the appellant was absent. Respondent No. 1 took the view that an enquiry of the nature contemplated by Art. 192(2) must be conducted as expeditiously as possible, and so, it was necessary that whatever his other commitments may be, the appellant should arrange to submit at least his statement in reply to the allegations made by respondent No. 2, even if he required some more time for filing affidavits and/or documents in support of his statement. Even so, respondent No. 1 gave the appellant time until the 2nd January, 1965, 1030 am, when it ordered that the matter would be heard.
4. On January 2, 1965, the appellant appeared by his counsel Mr. Patnaik and respondent No. 2 by his counsel Mr. Chatterjee. On this occasion. Mr. Patnaik raised the question about the maintainability of the proceedings before respondent No. 1 and its competence to hold the enquiry. Mr. Chatterjee repelled Mr. Patnaik s contention. Respondent No. 1 overruled Mr. Patnaik s contention and recorded its conclusion that it was competent to hold the enquiry under Art. 192 (2). Mr. Patnaik then asked for adjournment and made it clear that he was making the motion for adjuournment without submitting to the jurisdiction of respondent No. I. In view of the attitude adopted by Mr. Patnaik, respondent No. 1
