Judgment

V. N. KHARE, J.

( 1 ) 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 assemble 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 noncompliance with the mandatory requirement envisaged under Article 174 (1) of the Constitution under