Judgment

RAY, C. J.:- This reference has been made by the President under Art. 143(1) of the Constitution of India for the opinion of this Court on certain questions of constitutional importance bearing upon the election to fill the vacancy on the expiry of the term of office of the President on 24 August, 1974.

2. The reference turns on the principal question as to whether the election to fill the vacancy caused on the expiry of the term of office of the President must be completed before the expiry of the term of office notwithstanding the fact that the Legislative Assembly of the State of Gujarat is dissolved.

3. Article 52 states that there shall be a President of India. Article 56(1) states that the President shall hold office for a term of five years from the date on which he enters upon his office. Article 60 states that every President before entering upon his office shall make and subscribe an oath of affirmation as mentioned therein. Article 62(1) states that an election fill a vacancy caused by the expiration of the term of the office of President shall be completed before the expiration of the term. Article 56(1) (c) states that the President shall notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.

4. The fixed term of office mentioned in Article 56(1) as well as the mandate in Article 62(1) that the election to fill a vacancy caused by the expiration of the term of office shall be completed before the expiration of the term reflects the dominant constitutional purpose and intent regarding the time when the election of the President is to be held. Further, the provision in Article 62(2) that an election to fill a vacancy in the office of the President by reason of his death, resignation or removal or otherwise be held as soon as possible after and in no case later than six months from the date of the occurrence of the vacancy shows that the time to hold an election to fill a vacancy is also mandatory in character.

5. The completion of election before the expiration of the term in the case of vacancy caused by the expiry of the term as well as filling the vacancy by holding an election not later six months from the date of the occurrence of the vacancy in the other case does not contain any provision for extension of time. By way of contrast reference may be made to Article 83 where it is said that though the expiration of the period of five years shall operate as a dissolution of the house the period may, while a proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the proclamation has ceased to operate.

6. The interveners suggested that the word "otherwise" occurring in Article 62(2) of the Constitution contemplates a case of filling a vacancy occurring by the expiration of the term but where such vacancy cannot be filled up by completing the election before the expiration of the term by reason of dissolution of the Assembly. The interveners submitted that a vacancy could in such a case be filled up not later than six months from the date of the occurrence of the vacancy. The submission of the interveners is unsound. The word "otherwise" does not refer to a vacancy caused by the expiration of the term of office for the obvious reason that the same is the subject-matter of Article 62(1). The marginal note to Article 62 fully bears this out. Further, a President whose term has expired can continue to hold the office only under Article 56(1) (c) until his successor enters upon his office. Article 56(1)(c) is complementary to Article 62(1). Here successor means a successor elected before or even after the expiration of the term stated in Article 62(1) and as fully explained later on.

7. The word "otherwise" may take in cases, where, for example, a President becomes disqualified to hold the office or where his election is declared vo