2015 Supreme(SC) 317

SUPREME COURT OF INDIA
J. Chelameswar, R.K. Agrawal, JJ.
Election Commission of India – Petitioner
Versus
Bajrang Bahadur Singh & Others – Respondents
SPECIAL LEAVE PETITION (CIVIL) No.8850 OF 2015
Bajrang Bahadur Singh – Petitioner
Versus
His Excellency, the Governor of U.P. & Others – Respondents
WITH TRANSFERRED CASE NO.60 OF 2015
Decided On : 09-04-2015

IMPORTANT POINTS
Governor necessarily has the authority to examine the question of supervening disqualification under Article 192.
Article 192 only prescribes the forum and stipulates the procedure for determination of disqualification. It does not provide for removal of a member from the Legislature by an action of the Governor.
Governor, under Article 192, does not declare the seat falling vacant. Heonly decides whether a Legislator has incurred any disqualifications under Article 191(1) on a particular date.
Disqualification u/s 9A and 10 is co-terminus with currency of disqualifying event and ceases with the event. However such cessation cannot put the legislator back in legislature. He will be entitled to have to contest election afresh.
Provisions of Article 192 and 226 and section 150 and 151A of Representation of the People Act, 1951 reconciled.

Headnote:(a) Constitution of India – Articles 190, 191 and 192 – Basis of disqualification of appellant arising after his election – Supervening disqualification – Governor necessarily has the authority to examine the question. (Para 25)

       (1953) 4 SCR 1144 – Relied upon

       (b) Constitution of India – Article 190(1) and 192 – Disqualification – In terms of Article 190(3) the seat of disqualified legislature becomes vacant the moment he incurs disqualification by operation of Article 191(2) – Article 192 only prescribes the forum and stipulates the procedure for determination of disqualification – Article 192 does not provide for removal of a member from the Legislature by an action of the Governor – Consequences flowing from the occurrence of such disqualifying EVENT – Duration of disqualification u/s 9A of Representation of the People Act, 1951 makes no difference. (Para 33)

       (1998) 4 SCC 626 – Relied upon

       (c) Constitution of India – Articles 190, 191 and 192 – Disqualification of legislator – On happening any event under Article 191(1) a Legislator ceases to be so and his seat falls vacant by operation of Article 190(3) – Governor, under Article 192, does not declare the seat falling vacant – Governor only decides whether the a Legislator has incurred any disqualifications under Article 191(1) on a particular date. (Para 35, 37)

       (1998) 4 SCC 626 – Relied upon

       (d) Representation of the People Act, 1951 – Section 9A and 10 r/w Article 191(1) – Disqualification u/s 9A and 10 – Akin to disqualification under clauses (a) to (d) of Article 191(1) – Such disqualification co-terminus with currency of disqualifying event – Disqualification ceasing with the event – However such cessation cannot put him back in legislature – He will be entitled to have to contest election afresh. (Para 38)

       (e) Representation of the People Act, 1951 – Section 9A and 10 – "If and for so long as" – Tenure of disqualification co-terminus with currency of the EVENT creating a disqualification – On the event ceasing, the disqualified legislator would not be debarred from contesting any election including a bye-election to the seat vacated by him – Interpretation reverting back the legislator on the disqualifying event ceasing to exist as given by petitioner – Would nullify the constitutional declaration in Article 190(3) read with Article 191. (Para 43)

       (f) Representation of the People Act, 1951 – Section 9A – Purpose of Section 9A – To maintain purity of the legislature and to avoid conflict of personal interest and duty of the legislators – Contention that even though a person with a subsisting contract is disqualified to become legislature, an elected legislator can have government contracts – Not tenable. (Para 53)

       AIR 1969 SC 447; AIR 1969 SC 447; (1985)1 SCC 151; (2006) 2 SCC 682 – Relied upon

       (2002) 5 SCC 568; (1977) 1 SCC 70 – Distinguished

       (2002) 2 SCC 704 – Referred

       (g) Constitution of India – Article 329(b) and 226 – Bar on interference by courts in election process – Instantly, what is under challenge is not the election process – What is challenged under Article 226 is Governor’s declaration of the appellant incurring disqualification – The very existence of a vacancy in the legislature is in question – Notwithstanding statutory finality to Governor’s order, it is amenable to judicial scrutiny – High Court could decide either way – If the vacancy is negatived by High Court, there is no question of bye-election – Election in question being inextricably interlinked with legality of the decision of the Governor resulting in the declaration of the vacancy in the Legislative Assembly, instant case does not fall within the "blanket ban on the litigative challenges to the electoral steps" – Interim order granted by the High Court is perfectly justified. (Para 64, 65, 67)

       (1952) 3 SCR 218; (1978) 1 SCC 405 – Relied upon

       1992 Supp (2) SCC 651; (2004) 8 SCC 747 – Referred

       (h) Constitution of India – Article 192 and 226 and section 150 and 151A, Representation of the People Act, 1951 – Legality of Governor’s order under Article 192 challenged under Article 226 – High Court duty bound to adjudicate – Vacancy in Legislative Assembly arising out of order under Article 192 may be unsettled obviating need for bye-election – Election Commission, on the other hand, bound to hold election within six months of creation of vacancy – No time limit for the Legislator aggrieved by Governor’s order to challenge the same – No law to reconcile the situation – Held, ‘any person aggrieved by a decision of the Governor under Article 192 must approach the High Court within a period of eight weeks from the date of the decision – High Court would dispose such application within eight weeks – Thus Election Commission would get eight weeks to comply with section 151A. (Para 70, 71)

       Facts of the case:

       One Bajrang Bahadur Singh contested in the general elections held in the year 2012 to the UP Legislative Assembly from 315 Pharenda Assembly Constituency. On 6.3.2012, he was declared elected.

       On 29.1.2015, the Governor of Uttar Pradesh made a declaration that the petitioner incurred the disqualification stipulated under Section 9A of the Representation of the People Act, 1951. Such a declaration came to be made on an undisputed finding of fact that the petitioner entered into four contracts with the State of U.P. sometime in the year 2013 after his election to the Legislative Assembly and performed his obligations arising under the said contracts.

       As a consequence of the above-mentioned decision of the Governor, a notification came to be issued by the Secretariat of the Legislative Assembly on 17.2.2015 stating that a seat occupied by the petitioner representing 315 Pharenda Assembly Constituency fell vacant. On 10.3.2015, the Election Commission of India issued a press note by which the election schedule for filling up 7 casual vacancies in 7 different Assembly constituencies in four different States was announced, one of them being 315 Pharenda Assembly Constituency.

       On 13.3.2015, the petitioner filed a writ petition challenging the decision of the Governor dated 29.01.2015 and sought various reliefs. On 17.3.2015, a notification was issued by COMMISSION notifying, inter alia, the election to fill up 315 Pharenda Assembly Constituency. Thereupon, on an application by the petitioner, the High Court of Allahabad passed an interim order on 20.3.2015 - staying the election process to the above-mentioned constituency.

       The COMMISSION moved SLP(C)No. 8850/2015. On 23.3.2015, notice was issued and also an interim suspension of the impugned order of the High Court was granted. However, by subsequent order dated 30.3.2015 the writ petition filed by the petitioner was transferred to Supreme Court and the notification dated 17.3.2015 was kept in abeyance.

       Finding of the Court:

       The instant case does not fall within section 9A, R.P. Act, 1951.

       Result: Transferred case dismissed. SLP disposed of.