Judgment sc-s-2002-3-366-472

A SPECIAL REFERENCE NO. I OF 2002

OCTOBER 28, 2002

B

Constitution of India, 1950:

Arti~les 174(1) and 324-Applicability of-Held, Art. 174(1) is applicable to an- existing and funCtional Legislative Assembly and not to a dissolved C Assembly -It neither relates to elections nor provides 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-Hence, Article 174(/) and D Article 324 operate on different fields-Neither Article 174(1) is subject to Article 324 nor Article 324 is subject to Article 174(1).

Articie 324-Whether there are limitations on the powers of Election Commission to frame Schedule for holding elections-Held, plenary powers of the Election Commission cannot be taken away by law ji-amed by Parliament- E If Parliament makes any such law, it would be repugnant to Article 324- Ho/ding periodic, free and fair elections by the Election Commission are part of the basic structure-However, the power of superintendence, direction and control of election are subject to law made either by Parliament or by the State Legislature, as the case may be provided the same does not encroach F upon the plenary powers of the Election Commission-Article 327 rlw Entry 72 of List I of VII Schedule, Article 328 rlw entry 37 of List II of VII Schedule and Article 324.

Article I74(1),172(1), 123, 213, 109, I JO and I I JI Representation of People Act, 1951-Sections 14 and 15-Premature dissolution of Legislative G Assembly-:-Conducting fresh election for constitution of new Assembly- Whether any period of limitation provided for holding election in such case- He/d, no period of limitation has been prescribed-However, in view of the scheme of the Constitution and the Act, the elections should be held within six months for constituting Legislative Assembly from !he date of dissolution of the legislative Assembly. H 366

SPECIAL REFERENCE NO. I OF 2002 367 Articles 324 and 356-Fixation of the election schedule-For holding A election to Legislative Assembly-Declaration of state of emergency- Applicability of-Held, declaration of emergency has no relevance for.fixation of election schedule.

Article 143-Reference under-Scope and maintainability of-Held, Court cannot go into disputed questions of fact in its advisory jurisdiction- B It is within jurisdiction ofSupreme Court to advise the President in a reference, if the questions referred are likely to arise in future or are ofpublic importance or there is no decision of Supreme Court which has already decided the question referred ·c Interpretation of Statute:

To discern the intention behind enacting a provision of the Constitution and to interpret the same is to look into the Historical Legislative Development, Constituent Assembly Debates or any document preceding enactment of the Constitutional provision. D On premature dissolution of Legislative Assembly of Gujarat, Election Commission took steps for holding fresh elections. Election Commission in its order acknowledged that though Article 174(1) of the Constitution of India is mandatory and applicable to a dissolved Assembly and hence fresh elections must be held within six months of the last session of the dissolved assembly, but it was not in a position to hold first elections within six months from the last sitting of the Assembly, and so on non- observance of provisions of Article 174(1 ), Article 356(1) may be resorted to.

Since doubts arose with regard to the Constitutional validity of the order of the Election Commission, President of India referred following questions for opinion of Supreme Court in exercise of his power conferred under Article 143(1) of the Constitution :-

I. Is Article 174 subject to the decision of the Election G Commission of India under Article 324 as to the schedule of elections of Assembly?

2Copy pinpoint2. Can the Election Commission frame a schedule for the elections to an Assembly on the premise that any infraction of the mandate of Article 174 would be remedied by a resort H

p. 368 Copy page pinpoint

A to Article 356 by the President?

3Copy pinpoint3. Is Election Commission under a duty to carry out the mandate of Article 174, by drawing upon all the requisite resources of the Union and State to ensure free and fair elections?

I.I. It is well within the jurisdiction of Supreme Court to answer/ C advise the President in a reference made under Article 143(1) of the Constitution oflndia if the questions referred are likely to arise in future or such questions are of public importance or there is no decision of this Court which has already decided the question referred. [393-C]

The Kera/a Education Bill 1957, [1959] SCR 995; Re: Special Courts D Bill, (1978) Special Reference No. 1 of 1978 [1979] l sec 380 and Keshav Singh, Special Reference No.I of 1964 (1965] I SCR 413, relied on. I, All~cation ofLands and Buildings (1943) FCR 20.and Re: Levy ofEstate Duty, 1944 FCR 317, referred to.

E 1.²." The legal premise on which the order of Election Commission was passed raises questions of public importance and these questions are likely to arise in future. It is not disputed that there is no decision of this Court directly on the questions referred and further a doubt has arisen in the mind of the President of India as regards the interpretation of F Article 174(1) of the Constitution. Under such circumstances, it is imperative that this reference must be answered. [393-G-H; 394-A, Bl

Re: Presidential Poll, (1974] 2 SCC 33, referred-to

2.¹. Question No.I proceeds on the assumption that Article 174(1) G is also applicable to a dissolved Legislative Assembly. The provision of Article 174(1) of the Constitution 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, H Article 174(1) neither relates to elections nor does it provide any outer

SPECIAL REFERENCE NO.I OF 2002 369

limit for holding elections for constituting Legislative Assembly. The A 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 B 324 nor Article 324 is subject to Article 174(1) of the Constitution. [427-B-E]

2.². Intention of the framers of the Constitution was that the provisfons contained in Article 174 were meant for a living and existing Legislative Asse:nbly and not to a dissolved Legislative Assembly. From C the debates of Constituent Assembly on the draft Articles 69 and 153 which correspond to Article 85 and 174 of the Constitution, it is very much manifest that Articles 85 and Article 174 were enacted on the pattern of Sections 19(1) and 62(1) of the Government oflndia Act, 1935 respectively which dealt with the frequency of sessions of the existing Legislative Assembly and were not intended to provide any period of limitation for D holding elections for constituting new House of the People or Legislative Assembly in the event of their premature dissolution. Further, the suggestions to reduce the intervening period between the two sessions to three months from six months so that Parliament could sit for•longer duration to transact the pµsines~ shows that it ~as intended for existing E Houses of Parliament and not dissolved ones, as a dissolved House cannot sit and transact iegislative business at all. [404-D; 403-E, F]

.².3. The parliamentary debate in the First Amendment Bill with regard to the proposed amendment of Article 85 and Article 174 were concerned only with the current session and working of the existing House F of the People. The proceedings of the debate further show that the entire debate revolvec! around prorogation and summoning. There was no discussion as regards dissolution or Constitution of the House at all and the amendment was sought to remove the absurdity which has crept into the original Articles 85 and 174. For these reasons Art.174(1) is inapplicable to a dissolved Assembly. [407-C-D] G

2.⁴. The expression 'date appointed for its first sitting in the next session' in Article 174(1) cannot possibly refer to either an event after the dissolution of the house or an event of a new Legislative assembly meeting for the first time after getting freshly elected. When there is a session of H

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A the new Legislative Assembly after elections, the new Assembly will sit in its "first session" and not in the "next session". The expression 'after each general election' has been employed in other parts of the Constitution and one such provision is Article 176. The absence of such phraseology 'after each general election' in Article 174 is a clear indication that the said B Article does not apply to a dissolved Assembly or to a freshly elected Assembly. Further, Article 174(1) uses expressions i.e. 'its last sitting in one sessio~', 'first sitting in the next session'. None of these expressions suggest that the sitting and the session would include an altogether different assembly i.e. a previous assembly which has been dissolved and its successor Assembly that has come into being after elections. Again, C Article 174 also employs the word 'summon' and not 'constitute'. Article 174 empowers the Governor to summon an Assembly which can only be an existing Assembly. The constitution of an Assembly can only be under Section 73 of the Representation of the People Act, 1951 and the requirement of Art. 188 of the Constitution suggests that the Assembly comes into existence even before its first sitting commences. D [407-F-H; 408-A, Bl

2.5. Article 174 contemplates a session, i.e. sitting of an existing Assembly and not a new Assembly after dissolution and this can be appreciated from the expression 'its last sitting in one session and its first sitting in the next session'. Further, the marginal note 'sessions' occurring in Articles 85 and 174 is an unambiguous term and refers to an existing Assembly \vhich a Governor can summon. When the term 'session or sessions' is used, it is employed in the context of a particular assembly or a particula~ House of the People and not the legislative body whose life is terminated after dissolution. Dissolution ends the life of legislature and brings an end to all business. The entire chain of sittings and sessions gets broken and there is no next session or the first sitting of the next session after the House itself has ceased to exist. Dissolution of Legislative Assembly ends the representative capacity of legislators and terminates the responsibility of the Cabinet to the members of the Lok Sabha or the G Legislative Assembly, as the case may he. [408-C-E[

2.6. Conceptually, Article 174 deals with a live legislature. The purpose and object of the said provision is to ensure that an existing legislature meets at least every six months, as it is only an existing legislature that can be prorogued or dissolved. Thus Article 174 which is H a complete code in itself deals only with a live legislature. [408-G, H]

SPECIAL REFERENCE NO. I OF 2002 371 2.7. Article 174(1) shows that it does not provide that its stipulation A is applicable to a dissolved legislature as well. Further, Article 174 does not specify that interregnum of six months period stipulated between the two sessions would also apply to a new legislature vis-a-vis an outgoing legislature. If such be the case then there was no need to insert the proviso to Article 172(1) and insertion of the said proviso is rendered meaningless and superfluous. 1409-A, Bl B

2.8. Further, if Article 174 is held to be applicable to a dissolved House as well, it would mean that Article 174(2) is controlled by Article 174(1) inasmuch as the power has to be exercised under Article 174(2) in conformity with article 174(1). Moreover, if the House is dissolved in 5th C month of the last session, the election will have to be held within one month so as to comply with the requirement of Article 174(1) which would not have been the intention of the framers of the Constitution. [409-CI

2.9. Each Legislative Assembly after Constitution is unique and distinct from the previous one and no part of the dissolved House is carried forward to a new Legislative Assembly. Therefore, Article 174(1) does no¹ linl< the last session of the dissolved House with the newly formed one. 1409-DI

2.10. A perusal of Articles 172 and 174 would show that there is a distinction between the frequency of meetings of an existing Assembly a.nd periodicity of elections in respect of a dissolved Assembly wllich are governed by the aforesaid provisions. As far as frequency of meetings of Assembly is concerned, the six months rule is mandatory, while as far as periodicity of election is concerned, there is no six months rule either expressly or impliedly in Article 174. Therefore, it cannot be held that F Article 174 is applicable to dissolved House and also provides for period of limitation within which the Election Commission is required to hold fresh election for constituting the new Legislative Assembly. 1409-E-GI

2.11. Under British Parliamentary system, it is the exclusive right of the Monarch to dissolve the Parliament and the Monarch by the same G proch1mation also provides for the election and meeting of its successor, which is not the case under the Indian Constitution. Under the Indian Constitution, the power has been entrusted to the Election Commission under Article 324 to conduct, supervise, control and issue direction and, therefore, the British convention cannot be pressed into service. In our democratic system, the Election Commission is the only authority to H

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A conduct and fix dates for fresh elections for constituting new House of People or Legislative Assembly, as the case may be. Therefore, the British conventions cannot be said to be reflected in Article 174. Yet another reason why the British convention for fixing a date for newly constituted Parliament cannot. be applied in India is that under British Parliamentary B system, there is a continuity of Parliament, whereas in India once the Parliament gets dissolved, all the business which is to be transacted comes to an end and the House of People cannot be revived. 1411-B-E]

2.12. There is a difference in the British parliamentary practice and the Indian practice under the Indian Constitution as regards dissolution and prorogation. Under Indian Constitution dissolution brings a legislative body to an end and terminates its life. Prorogation, on the other hand, only terminates a session and does not preclude another session, unless it is coincident with the end of a legislative term. In so far as the effects following from prorogation and dissolution on pending legislative business are concerned in England, prorogation puts an end to all pending business in the Parliament. whereas in India, this is not the case. Under Articles 107 and 196, there is a specific provision that mere prorogation will not lead to lapsing of Bills pending at t.hat point of time.. It is only on dissolution that the pending Bills lapse under Articles 107(5) and 196(5) of the 'c . Constitution. Thus there is practically no difference in the effects following prorogation and dissolution in England, which differe!Jce is specifically contemplated under the Indian Constitution. In England, dissolution does not bring with it any special or additional consequences apart from those that attend upon prorogation. Therefore the British convention with respect to summoning, proroguing and dissolution of the House of' Commons.is also .of not much relevance in the fodi;m context. E (413-E-H; 4L4-AI.

Erskine May, Parliamentary Practice, 20tli Edition, referred to.

2.13. Article 174(1} is neither applicable to a dissolved House nor does it provide for any period for holding election for constituting fresh G Legislative Assembly. Wherever the Constitution makers wanted to confer power, duties, or functions or wanted to make s'imilar provisions both for Council of Stat~s as well as House of the People or to the State, Legislative Council and the Legislative Assembly, they have referred both the institutions under Part V Chapter II and Part VI Chapter Ill of the Constitution as 'two Houses', 'each House', 'either House' & 'both H Houses'. On the other hand, the Constitution makers, when they wanted

SPECIAL REFERENCE NO. I OF 2002 373

to confer powers, functions and duties or wanted to make similar provisions both for the Legislative Council and the Legislative Assembly, they referred both the institutions as 'Houses', 'either House', 'both Houses', 'each House' and where there was no Legislative Council, and power was to give exclusively to Legislative Assembly, it is referred as Legislative Assembly. The expressions "Houses", "both Houses" and "either House" and "the House" are used synonymously with the institutions known as Council of States and House of the People and are interchangeable expressions. (414-A, B; 415-B, C; 417-CJ

2.14. There is no distinction between the 'House' and 'Legislative Assembly'. Wherever the Constitution makers wanted to make similar provisions for Legislative Council as well as Legislative Assembly, both together have been referred to as Houses and wherever the Constitution makers wanted to make provisions exclusively for the Legislative Assembly, it has been referred to as Legislative Assembly. For the aforesaid reasons it is concluded th.1t the expressions "The House" or "either House" in clause (2) of Art.I 74 of the Constitution and Legislative D Assembly are synonymous and are interchangeable ei:pressions. The u~e of expression "the House" denotes the skill of Draftsman using appropriate phraseology in the text of the Constitution of India. Further the employment of expressions "the House" or "either House" do not refer to different bodies other than the Legislative Assembly or the legislative E Council, as the case may be, and have no further significance. (419-F-H(

3. l. Neither under the Constitution nor under the Representation·-of the People Act, any period of limitation has been prescribed for holding election for constituting Legislative Assembly after premature dissolution of the existing one. However, in view of the scheme of the Constitution F and the Representation of the People Act, the elections should be field· within six months for,constituting Legislative Assembly from the date of dissolution of the Legislative Assembly. Under the Constitution, the power to frame the calendar or schedule for elections for constituting Legislative Assembly is within the exclusive domain of the election Commission and such a power is not subject to any law either made by Parliament or State G Legislature. (426-F, G)

3.². Since the entire matter relating to the elections was entrusted to the Election Commission, it was found to be a matter of.no consequence to prov·ide any period of limitation for holding fresh election for H

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A constituting new Legislative Assembly in the event of premature dissolution. This was deliberate and conscious decision . However, care was taken not to leave the entire matter in the hands of the Election Commission and, therefore, under Article 327 read with Entry 72 of List I of VII th Schedule of the Constitution, Parliament was given power subject to the provisions of the Constitution to make provisions with respect to matters relating to or in connection with the election of either House of Parliament or State Legislature, as the case may be, including preparation of electoral roll. For the States also, under Article 328 read with entry 37 of List II, the Legislature was empowered to make provisions subject to the provisions of the Constitution with respect to matters relating to or in connection with election of either House of Parliament or State Legislature, including preparation of electoral roll. Thus, the Parliament was empowered to make law as regards matters relating to conduct of election of either Parliament or State Legislature, without affecting the plenary powers of the Election Commission. In this view of the matter, the general power of superintendence, direction, control and conduct of election although vested in the Election Commission under Article 324(1), yet it is subject to any law either made by the Parliament or State Legislature, as the case may be, which is also subject to the provisions of the Constitution. The word 'election' has been interpreted to include all the steps necessary for holding election. The power of superintendence, direction and control are subject to law made by either Parliament or by the State Legislature, as the case may be provided the same does not encroach upon the plenary powers of the Election Commission under Article 324. 1422-C-H; 423-AI

M.S. Gill v. Chief Election Commissioner, 1197811 SCC 404; A.C. Jose F v. Sivan Pillai and Ors., 119841 2 sec 656 and Kanhiya Lal Omar v. R.K. Trivedi and Ors., 119851 4 SCC 628, referred to.

3.3 .. Representation of the People Act, 1951 also has not provided any period of limitation for holdir.g election for constituting fresh Assembly election in the event of premature dissolution of former G Assembly. It is no doubt true that democracy is a part of the basic structure of the Constitution and periodical, free and fair election is substratum of democracy. If there is no free and fair periodic election, it is end of d~mocracy. 1423-B, CJ

MS Gill v. Chief Election Commissioner, 119781 I SCC 404 and A.C. H Jose v. Sivan Pillai and Ors.. 119841 2 SCC 656, relied on.

SPECIAL REFERENCE NO. I OF 2002 375 3.⁴. However, employment of words "on an expiration" occurring in Sections 14 and 15 of the Representation of the People Act, 1951 respectively show that Election Commission is required to take steps for holding election immediately on expiration of the term of the assembly on its dissolution, although no period has been provided for. Yet, there is another indication in sections 14 and 15 of the Representation of the People Act that the election process can be set in motion by issuing of notification prior to the expiry of six months of the normal term of the House of People or Legislative Assembly. Articles 172(1), 123, 213, 109, 110 and 111 indicate that on the premature dissolution of Legislative Assembly, the Election Commission is required to initiate immediate steps for holding election for constituting Legislative Assembly on the first occasion and in any case within six months from the date of premature dissolution of the Legislative Assembly. [423-H; 424-A-Df

3.5. So far as the framing of the schedule or calendar for election of the Legislative Assembly is roncerned, the same is in the exclusive domain of the Election Commission, which is not subject to any law framed by the Parliament. The Parliament is empowered to frame law as regards conduct of elections but conducting elections is the sole responsibility of the Election Commission. As a matter of law, the plenary powers of the Election Commission cannot be taken away by law framed by Parliament. If Parliament makes any such law, it would be repugnant to Article 324. E Holding periodic, free and fair elections by the Election Commission are part of the basic structure. [424-F, G[

Indira Nehru Gandhi v. Raj Narain, [19751 Suppl. I SCC 1, relied on.

4.¹. Article 174(1) is inapplicable to a dissolved Legislative Assembly. Consequently, there is no infraction of the mandate of Article 174(1) in F preparing a schedule for elections to an Assembly by the Election Commission. In view of the written submission of the Election Commission, that Election Commission passed the order without reference to Article 356 and it was merely pointed out that Article 356 could provide solution in situation of infraction of Article 174(1), the question of applicability of G 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. [427-F-H; 428-Af

4.². Interpretation of Art. 174(1) of the Constitution by the Election Commission in its order was mainly influenced by the past practice H

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A adopted :•,by the Election Commission holding elections for constituting fresh Legislative Assembly within six months of the last sitting of the ... dissolved House. It also appears that the gratuitous advice of application of Art. 356 by the Election Commission in its order was in all its sincerity, although on interpretation of Article 174(1), it is found that _it was B misplaced. [425-E, Fl 1~4

5. In view of answer to question No.I, as 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 C 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 concerned to render all assistance, cooperation and aid to the Election Commission for holding free and fair elections. [428-B-DI.

6. One of the known methods to discern tile.intention behind enacting a provision of the Constitution and also to interpret the sa~~ is to look into the Historical Legislative Development, Constituent Assembly De~ates · or any document preceding enactment of the Constitutional provision, . . · CJ [396-B, ,.

His Holiness Keshavanand Bharati shreepadgalvaru etc. v. State of Kera/a and Am. etc., [19731 4 SCC 225 and R.S. Nayak v. A.R. Antulay, F [19841 ~ SCR 495, relied on.

Per Balakrishnan, J. (Concurring)

LL , Article . -.,.., 174 and Article 324 operate in different fields. Article 174 does not apply to dissolved Assemblies. The schedule of the election p 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 'H .circumstance. Any decision to postpone election on unreasonable grounds

SPECIAL REFERENCE NO. I OF 2002 377 is anathema to democratic form of Government and it is subject to judicial review on traditionally accepted grounds. 1437-F-H]

1.². The plain meaning of the words used in Article 174 itself would show that Article 174 has no application to a dissolved Assembly. The words "six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session" occurring in. Article 17,4 clearly indicate that the interregnum between the two sessions shall .not be six months and that is applicable only in respect of a live Assembly. Once the Assembly is dissolved, Article 174 has no application. [435-D-E]

1.3. Though, in the Report of the Election Commission it is stated c that the Commission has all along been taking the view that once the Assembly is dissolved it would take all possible steps to see that the first sitting of the next Assembly would be made possible within a period of six months of the last sitting of the dissolved Assembly. This is a very healthy convention which is being followed since the adoption of our D Constitution and hence the action of the Election Commission in scheduling the election in such a way that the first session of the next Assembly meets within the period of six months of the last sitting of the dissolved Assembly is appreciable. But that by itself is no reason to interpret that Article 174 would apply to a dissolved Assembly. Frequency of meeting as provided under Article 174 would apply to an Assembly which is in esse at that time. E [435-F-H]

2.¹. 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 F 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. 1438-B]

2.². Neither the Constitution nor the Representation of People Act, 1951 prescribes any time limit for the conduct of election after the term G of the Assembly is over either by premature dissolution or otherwise. Once there is dissolution of the Assembly, the Election Commission shall take immediate steps to conduct the election and see that the new Assembly is formed at the earliest point of time. A democratic form of Government would survive only if there are elected representatives to rule the country. Any delay on the part of the Election Commission is very crucial and it is H

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A the Constitutional duty of the Election commission to take steps immediately on dissolution of the Assembly. Article 324 of the Constitution gives vast powers to the Election Commission. 1436-B-D]

2.3. The Election Commission is vested with the power to decide the election schedule. It can act only in accordance with the Constitutional B provisions. The election process for electing the new Legislative Assembly should start immediately on the dissolution of the Assembly. There may be cases where the electoral roll may not be up-to-date and in such case the EleCtion Commission is well within the power to update the electoral roll and the time taken for such updating of the electoral roll shall be reasonable time. Ordinarily, the Election Commission would also require time for 'notification, calling of nomination and such other procedure that are required for the proper conduct of election. There may be situation where the Election Commission may not be in a position to conduct free and fair election because of certain natural calamities. Even under such situation the Election Commission shall endeavour to conduct election at the earliest making use of all the resources within its command. Ample powers are given to the Election Commission to coordinate all actions with the help 'of various departments of the Government including military and para-mili~ary forces. When an Assembly is dissolved by the Governor on the advice of the Chief Minister, naturally, the Chief Minister or his political party seeks fresh mandate from the electorate. The duty of the Election Commission is to conduct fresh election and see that a democratically elected Government is installed at the earliest and any decision by the Election Commission, which is intended to defeat this very avowed object of forming an elected Government can certainly be challenged before the Court if the decision taken by the Election F Commission is perverse, unreasonable or for extraneous reasons and if the decision of the Election Commission is vitiated by any of these grounds the Court can give appropriate direction for the conduct of the election. 1436-F-H; 437-A-CI

3. L 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, th.ough Article 174 has no application in the discharge of such

SPECIAL REFERENCE NO. I OF 2002 379 constitutional obligation by the Election Commission. It is the duty of the A 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. 1437-D, El

3.². Reference to Article 356 was incidentally made by the Election Commission to point out that if Article 174 cannot be complied with, the B possible alternative is to invoke Article 356 and declare a state of emergency. Article 356 has no application under any of these situations. It is an independent power to be exercised very rarely and this power is hedged by ever so many Constitutional limitations. 1437-D, El

Per Arijit Pasaya!, J (Concurring) c I. This Court is bound by the recitals in the order of Reference. Under Article 145(1) the Court accepts the statements of fact set out in the Reference. The truth or otherwise of the facts cannot be enquired or gone into nor can Court go into the question of bonafides or otherwise of D the authority making the reference. This Court cannot go behind the recital. This Court cannot go into disputed questions of fact in its advisory jurisdiction under Article 143(1). The judicial aspect of these triple questions alone can attract judicial jurisdiction. 1447-F, G; 455-HI

Dr. M Ismail Faruqui and Ors. v. Union of India and Ors., [1994) 6 E SCC 360 and Cauvery Water Disputes Tribunal, 11993] Suppl. 1 SCC 96 (II); Kera/a Education Bill, 119591 SCR 995; Re Presidential Poll, [19741 2 SCC 33 and Special Reference No.I of 196411965] 1SCR413, referred to

Re: The Allocation of Lands and Buildings in a Chief Commissioner's Province, AIR (1943) FC 13 and Re: Levy of Estate Duty, AIR (1944) FC F 73, referred to

2.¹. 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 G 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. 1472-Cj

2.². The constitutional scheme with rei:ard to the holding of the H

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A elections to Parliament and the State Legislatures is quite clear. First, the Constitution has provided for the establishment of a high power body to be in charge of the elections to Parliament and the State Legislatures and of elections to the offices of President and Vice-President. That body is the Commission. Article 324 of the Constitution contains detailed provision regarding the Constitution of the Commission and its general power. The superintendence, direction and control of the conduct of elections referred to in A~ticle 324(1) of the Constitution are entrusted to the Commission. The words 'superintendence', 'direction' and 'control' are wide enough to include all powers necessary for the smooth conduct of elections. It is, however, seen that Parliament has been vested with the power to make law under Article 327 of the Constitution read with Entry 72 of List I of Seventh Schedule to the Constitution with respect to all mat,ters relating to the elections to either House of Parliament or to the House or either House of the. Legislature of a State subject to the provisions of the Constitution. Subject to the provisions of the Constitution and any law made in that behalf by Parliament, the Legislature of a State may under D Article 328 read with Entry 37 of List II of the Seventh Schedule to the Constitution make law relating to the elections to the Jflouse or Houses of )

Legislature of that State. The general powers of superir;tendence, direction and control of the elections ve:>ted in the Commission under Article 324(1) naturally are subject to any law made either under Article 327 or under E Article 328 of the Constitution. The word 'election' in Article 324 is used in a wide sense so as to include the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the result of the process. Article 324 of the Constitution operates in areas left unoccupied by legislati<Jn and the words 'superintendence', 'direction' and 'control' as well as 'conduct of all F elections' are the broadest terms which would include the power to make all such provisions. (456-G, H; 457-A-El

2.3. The first question essentially relates to the interplay between two Articles i.e. Article 174 and Article 324 of the Constitution. A bare reading H of the aforesaid two Articles makes it clear that they operate in different

SPECIAL REFERENCE NO. I OF 2002 381 fields. Article 174 appears in Chapter III of Part YI of the Constitution A relating to State Legislature. The parallel provision, so far as the Union is concerned, is contained in Article 85 in Chapter II of Part V of the Constitution. Article 174 does not deal with elections. On the contrary, the occasion for holding of elections to be conducted by the Election Commission arise only after dissolution of the House. 1458-F, G; 459-C] B 2.⁴. Dissolution brings a legislative body to an end. It essentially terminates the life of such body and is followed by a constitution of new body (a Legislative Assembly or a House of People, as the case may be). · Prorogation on the hand relates to termination of a session and thus preclude another session, unless it coincides with end of the legislative term. C The basic difference is that prorogation unlike dissolution does not affect a legislative body's life which may continue from session to session, until brought to an end of dissolution. Dissolution draws the final curtain upon the House. Once the House is dissolved it becomes irrevocable. There is no power to recall the order of dissolution and/or revive the previous House. Consequently effect of dissolution is absolute and irrevocable. The D effect of dissolution is in essence termination of current business of the legislative body, its sittings and sessions. Th~re is a cessation of chain of sessions, sittings and for a dissolved legislative body and there cannot be any next session or its first sitting. With the election of legislative body a new Chapter comes into operation. Till that is done, the sine qua non of E responsible government i.e. accountability is non-existent. Consequentially, the time stipulation is non-existent. Any other interpretation would render use of the word "its" in relation to "last sitting in one session" and "first sitting iii the next session" without significance. 1461-H; 462-A-B]

Purushothaman Nambudiri v. The State of Kera/a, 11962] Supp. 1 stR , I p 753 and K.K. Aboo v. Union of India, AIR (1965) Kera la 229, referre~ to

3.¹. 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 td that per se cannot be the ground for bringing into operation Article 356. (472-DJ G 3.². Sections 14 and 15 of the Representation of People Act, 1951 deal with notification for general election to the House of the People and the State Legislative Assemblies respectively. It is clearly stipulated that notification for holding the election cannot be issued at any time earlier than 6 months prior to the date on which the duration of the House will H

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A expire under provisions of clause (2) of Article 83 or under clause (1) of Article 172 respectively. The obvious purpose is that the President or the Governor, as the case may be, to call upon the electorate tp elect members in accordance with the provisions of the Rules, Act and the orders made thereunder on such dates as may be recommended by the Election Commission. The dates are to be so fixed that they are not much prior- to B the expiry of the duration. Here also, the underlying object is that the elected members are to continue for th1~ full term. It has been fairly accepted by counsel for the parties who submitted that there is no time limit fixed that there should always be a responsible Government. Our Constitution establishes a democratic republic as is indicated in the C Preamble to the Constitution itself and Cabinet system of Government is generally known as the responsible Government. In a democracy the sovereign powers vest collectively to the three limbs i.e., the executive, legislature and the judiciary. Section 14 of the Representation of People Act, 1951 mandates that general elections shall be held for the purpose of constituting the new House of People on the expiry of the duration of the D existing House or on its dissolution. Similar is in the case of Legislative Assembly in the background of Section 15. When the election is to be held on the expiry of the fixed term, the Election Commissioner knows thf date in advance and can accordingly fix up schedule of the election. The problem arises when there is a premature dissolution. In that case, the E Election Commissioner becomes aware only after the dissolution takes place. He cannot, therefore, fix up any schedule in advance in such a case. The consequential fall out of not holding election for a long time is the functioning of a caretaker Government which is contrary to the principles of responsible Government. The caretaker Government is not the solution to deterring elections for unduly long periods: As noted above, due to unforeseen contingencies it may become impossible to constitute new House of People or the Legislative Assembly. Deferring an election is an exception to .the requirement that election should be held as early as practicable. The requirement of summoning the House has inbuilt in it the existence of a House capable of being summoned. Therefore even in the case of pre-mature dissolution, effort of the Election Commission should be to hold that where free and fair election is not possible to be held, there may be inevitable delay. But reasons for deferring elections should be relatable to acts of God and ~ormally not acts of man. Myriad reasons may be there for not holding elections. 1465-E-H; 466-A-El

H 3.3. The impossibility of holding the election is not a factor against

SPECIAL REFERENCE NO. I OF 2002 383 the Election Commission. The maxim of law impote11tia excusat /egem is intimately connected with another maxim of law lex 11011 cogit ad impossibilia. lmpote11tia excusat /egem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. "Where the law creates a duty or charge, and the part is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him". Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible in circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. Situations may be created by interested persons to see that elections do not take place and the caretaker Government continues in office. This certainly would be against the scheme of the Constitution and the basic structure to that extent shall be corroded. [467-A-D[

Special Reference 1 of 1974 [ 1975[ I SCR 504, referred to

Legal Maxims by Broom 10th Edn. pp. (1962-63) and Statute law by Craies 6th Edn. P.268, referred to E 3.⁴. So far as applicability of Article 356 is concerned, though the order of Election Commission has specifically dealt with the possibility of applying that situation, in the written submissions and the arguments made before this Court the view was given a go by. Mere non-compliance of Article 174 so far as the time period is concerned, does not automatically F bring in Article 356. It is made clear that the order of the Election Commissioner is the foundation and not what is stated subsequently by way of an affidavit or submissions to clarify. [469-8, C[

KN Rajgopal v. Thirn M. Karunanidhi, [1972[ 4 SCC 733 and Aru11 Kumar Rai Choudhury v. Union of India. AIR (1992) All. I and S.R. Bommai G v. Union of India, [1994[ 3 SCC I, referred to

4.¹. Article 174 does not deal with election, the question of Election Commissioner taking the aid,' assistance or co-operation of the Central or the State Government or to draw upon their resources to hold the election H does not arise. On the contrary for effective operation of Article 324 the

p. 384 Copy page pinpoint

A Election Commission can do so to ensure holding of free and fair election. The question whether free and fair election i.s 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. [472-E, F[

B Election Commission of India v. State of Haryana, [1984[ 3 SCR 554 and Election Commission of India v. Union of India and Ors., [1995[ Suppl. 3 SCC 643 and Election Commission ofIndia v. State ofT.N. and Ors., [1995[ Suppl. 3 SCC 379, referred to

C 4.². Free and fair election is the sine qua non of democracy. The scheme of the Constitution makes it clear that two distinct Constitutional authoriti~s deal with election.and calling of session. As a matter of practice the elections are completed within a period of six months from the date of dissolution. As a matter of practice the elections are completed within a period of six months from the date of dissolution, on completing the D prescribed tenure or on pre-mature dissolution except when for inevitable reasons there is a delay. The Election Commissioner is a high constitutional authority charged with the duty of ensuring free and fair elections and the purity of electoral process. To effectuate the constitutional objective and purpose it is to draw upon all incidental and ancillary powers. 'Six E months' period applicable to elections held on expiry of the prescribed term would be imperatively applicable to elections held after pre-mature dissolution. This of course would be subject to such rare exceptional cases occasioned on account of facts situation (like acts of God) which make holding of elections impossible. But man made situation intended to defer holding of elections should be sternly dealt with and should not normally be a ground for deferring elections beyond six months period, starting point of which would be the date of dissolution. Timely election which is not free and fair subverts democracy and frustrates the ultimate responsibility to assess objectively whether free and fair election is possible. Any man made attempt to obstruct free and fair election is antithesis to democratic norms and should be overcome by garnering resources from the intended sources and by holding the elections within the six months' period. [468-B-F]

Digvijay Mote v. Union of India and Ors., [1993[ 4 SCC 175, referred to H 5.¹. in interpreting the statute the words used therein cannot be read

SPECIAL REFERENCE N0.¹ OF 2002 385 in isolation. Their colour and content are derived from their context and, therefore, every word in a statute must be examined in its context. By the word 'context', it means in its widest sense as including not only other enacting provisions of the same statute but its preamble, the existing state of the law, other statutes in pari materia and the mischief which the statute intended to remedy. While making such interpretation the roots of the past, the foliage of the present and the seeds of the future cannot be lost sight of. Judicial interrpretation should not be imprisoned in verbalism and words lose their thrust when read in vacuo. Context would quite often provide the key to the meaning of the word and the sense it should carry, its setting would give colour to it and provide a cue to the intention of the Legislature in using it. A word is not a crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which the same is used. 1462-E-Hl

Towne v. Eisner, (1917) 245 US 418, 425, referred to. D Statutory Interpretation by Justice G.P. Singh (Eighth Edition 2001 pp. 81-82), referred to.

5.². The judicial function of the Court in interpreting the Constitution thus becomes anti nomi. It calls for a plea upon a continuity of members found in the instrument and for meeting the dominant needs E and aspirations of the present. A constitutional court like this Court is a nice balance of ju1risdiction and it declares the law as contained in the Constitution but in doing so it rightly reflects that the Constitution is a living and organic thing which of all instruments has the greatest claim to be construed brnadly and liberally. 1463-El F Mis Goodyeair India ltd v. State of Haryana and Anr., AIR (1990) SC 781 and Synthetics and Chemicals ltd v. State of UP. and Ors., AIR (1990) SC 927, referred to

5.3. In the int•erpretation of a constitutional document words arc but. G the framework of concepts and concepts may change more than words themselves. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of words without an acceptance of the line of their growth. It is aptly said that the intention of the Constitution is rather to outline principles th:an to engrave details. 1463-GJ H

p. 386 Copy page pinpoint

A R. C. Poudval v. Union of India and Ors., AIR (1993) SC 1804, referred to

6. In determining the question whether a provision is mandatory or directory, the subject matter, the importance of the provision, the relation of the provision to the general object intended to be secured by the Act B will decide whether the provision is directory or mandatory. It is the duty of the courts to get the real intention of the law maker expressed in the law itself, taken as a whole. 1466-F, HI

Bra// v. Bratt, (1826) 3 Addams 210, referred to

c 7. Section 164(4) is not really concerned with holding of elections and primarily relates to a requirement to get elected within the time prescribed. The said provision contemplates a situation where a Minister in a Legislature in existence has to be elected, it does not deal with a non- existing House and in this background, there is nothing to do with Article

D 174. [468-G, Hf

S.R. Chaudhuri v. State of Punjab and Ors., [20011 7 SCC 126, distinguished

ADVISORY JURISDICTION IN THE MATTER OF SPECIAL E REFERENCE NO. I OF 2002.

(Under Article 143 (I) of the Constitution of India).

Harish N. Salve, Solicitor General, Kirit N. Raval, Additional Solicitor General, K.K. Venugopal, Arun Jaitley, Dr. Rajeev Dhavan, Jitendra Shrama, F 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, Preetesh Kapur, Ms. Meenakshi Sakhardanade, Siddhartha Chowdhury, Ms. Aparajita Singh, Ms. Gayatri G 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.An ii Mittal, D:iyan Krishnan, Ranji Thomas, Arun Baradwaj, Gautam Narayan, Pranab Kumar Mullick, Shail Kumar Dwivedi, Ms. Madhu Sharan, Amit Kumar, Amit Anand Tiwari, H Samir Ali Khan, Ashish Tiwari, lrshad Ahmad, Ms. Krishna Sarma, Ms.

SPECIAL REFERENCE NO. I OF 2002 [V.N. KHARE, J.] 387

Asha G. Nair, Anil Shrivastav, Jyoti Dutt, G. Prabhakar, Ms. Kamitii A Jaiswal, Saket Singh, Kumar Rajesh Singh, B.B. Singh, Prakash Shrivastava, J.C. Pandey, R.M. Sharma, Ms. A. Subhashini, Kamal Trivedi, Addi. 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. Hedge, Satya Mitra, Ashok Kumar Pandey, G. Balaji, Dhirendra Pandey, B R.K. Mehta, Ms. M. Sarada, Ms. Suman Kukreti, R.S. Jena, R.S. Suri, Jagjit Singh Chhabra, K.N. Madhusoodhnan, Ms. Sumita 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. Agnihotri, K.C. Kaushik, Rohit K. Singh, W.A. Nomani, Suren Uppal, Vikram Mehta, C Pradip Tiwari, Anil K. Pandey, Sanjay K. Shandilya, Ms. V.D. Khanna, V.G. Pragasam, S.M. Mehta, Adv. Gen!, for Rajasthan, Ms. Bharati Upadhyaya, Sushi! Tekriwal, 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, D 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. for the appearing parties.

The Opinions of the Court were delivered by E 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 (I) of Article 143 of the Constitution of India H

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A 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; B 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 C 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 Assembiy should meet at least every six months as contemplated by Article 174, even where it has been dissolved; D AND WHEREAS under section 15 of the Representation of the People Act, 195 l, 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 E Commission of India; I 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/ F 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;

G AND WHEREAS owing Jo 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- H

SPECIAL REFERENCE NO.I OF 2002 [V.N. KHARE, J.] 389

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 than six months shall intervene between two sittings of the State Legislature;

AND WHEREAS in view of what has been hereinbefore stated, it c appears to me that the questions of law hereinafter set out have arisen which are of a such nature arrd of such public importance that it is expedient to obtain the opinion of the Supreme Court of India;

NOW, THEREFORE, in exercise of the powers conferred upon me D under clause (!) of Article 143 of the Constitution, I, A.P.J. Abdul Killam, President of India, hereby refer the following questions to the Supreme Court of India for consideration and report thereon, namely:-

(i) Is Article 174 subject to the decision of the Election Commission of India under Article 324 as to the schedule of elections of the E Assembly?

(ii) Can the Election Commission of India frame a schedule for the elections to an Assembly on the premise that any infraction of the mandate of Article 174 would be remedied by a resort to Article 356 by the President? F (iii) Is the Election Commission oflndia 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 elections?" G Much before the matter was taken up for hearing it was made clear by the Bench hearing the reference that it would neither answer the reference in the context of the election in Gujarat nor look into the questions of facts arising out of the order of the Election Commission and shall confine its opinion only on questions of law referred to it. H

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