TaxTMI 
TaxTMI 
2002 (10) TMI 813
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....nd Tiwari, Samir Ali Khan, Ashish Tiwari, Irshad Ahmad, Krishna Sharma, Asha Gopalan Nair, Anil Shrivastav, Jyoti Dutt, G. Prabhakar, Kamini Jaiswal, Saket Singh, Kumar Rajesh Singh, B.B. Singh, Prakash Shrivastava, I.C. Pandey, R.M. Sharma and A. Subhashini, Advs., Kamal Trivedi, Addl. Adv. Gen. for Gujarat, Hemantika Wahi, J.P. Dhanda, Raj Rani Dhanda, Sunder Khatri, Naresh K. Sharma, Ashok Mathur, Rajesh Pathak, Anis Suhrawardy, Raj Shekhar Rao, K.R. Sasiprabhu, John Mathew, Sanjay R. Hegde, Satya Mita, Ashok Kumar Pandey, G. Balaji, Dhirendra Pandey, R.K. Mehta, M. Sarada, Suman Kukrety, R.S. Jena, R.S. Suri, Jagjit Singh Chhabra, K.N. Madhusoodhanan, Sunita Hazarika, Joy Basu, Prashant Chandra Sen, S.S. Shinde, V.N. Raghupathy, Kartik Singh, Ranjan Mukherjee, K.H. Nobin Singh, S.K. Agnihotri, K.C. Kaushik, Rohit Kumar Singh, W.A. Nomani, Suren Uppal, Vikram Mehta, Pradip Tiwari, Anil Kumar Pandey, Sanjay K. Shandilya, V.D. Khanna and V.G. Pragasam, S.M. Mehta, Dv. Genl. for Rajasthan, Bharat Upadhyaya, Sushil K. Tekriwal, Javed Mahmud Rao, A. Mariarputham, Gopal Singh, Rahul Singh, Rajiv Mahapatra, P.N. Ramalingam, V. Balaji, R.C. Verma, Mukesh Verma, Vivek Vishnoi, Rachana Sr....
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....AS 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 Assembly 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 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 can not come into existence so as to meet within the stipulated period of s....
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....learned counsel appearing for the Election Commission, several national political parties and counsel for various States that this reference need not be answered and it requires to be returned unanswered, inter alia, on the grounds: (a) that, the reference raises issues already decided or determined by earlier Supreme Court judgments regarding the plenary and all encompassing powers of the Election Commission to deal with all aspects of an election under Articles 324 - 329; (b) that, if the Supreme Court considers the said question again, it would convert advisory Article 143 jurisdiction into an appellate jurisdiction, which is impermissible; (c) that, if Article 174 were override Article 324, question No. 3 is unnecessary. Also, if question No. 1 is answered in the affirmative, question No. 3 is automatically answered. In any event, the last part of question No. 3 raises a question to the effect as to whether the Election Commission is obliged to ensure free and fair elections, the answer to which is axiomatic,obvious and completely unnecessary to be answered in a Presidential Reference; (d) that, since question No. 2 can not stand in the abstr....
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.... in broad terms which provide that any question of law or fact may be referred by the President for the consideration of the Supreme Court if it appears to him that such a question has arisen or is likely to arise and if the question is of such a nature and of such public importance that it is expedient to obtain the opinion of the Court upon it. Though questions of fact have not been referred to this Court in any of the six references made under Article 143(1), that Article empowers the President to make a reference even on questions of fact provided the other conditions of the Article are satisfied. It is not necessary that the question on which the opinion of the Supreme Court is sought must have arisen actually. It is competent to the President to make a reference under Article 143(1) at an anterior stage, namely, at the stage when the President is satisfied that the question is likely to arise. The satisfaction whether the question has arisen or is likely to arise and whether it is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, is a matter essentially for the President to decide. The plain duty and functi....
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....o advisory opinion would furnish a good root of title such as might spring from a declaration of this Court in proceedings taken under Section204(1) of the Act by one government against the other". 8. In re: Levy of Estate Duty, 1944 FCR 317, it was held that Section 213 of the Government of India Act empowers the Government General to make a reference when question of law are "likely to arise". 9. From the aforesaid decisions it is clear that this Court is well within its jurisdiction to answer/advise the President in a reference made under Article 143(1) of the Constitution of India 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. 10. In the present case what we find is that one of the questions is as to whether Article 174(1) prescribes any period of limitation for holding fresh election for constituting Legislative Assembly in the event of the premature dissolution of earlier Legislative Assembly. The recitals contained in the Presidential reference manifestly demonstrate that the reference arises out of the order of the Election Comm....
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....ate appointed for its first meeting of the next session is mandatory in nature and it applies when the Governor either prorogues either of the Houses or dissolves the Legislative Assembly; b) that, Article 174(2) empowers the Governor to prorogue or dissolve the Legislative Assembly and Article 174(1) does not make any exception in respect of the interregnum irrespective of whether the Governor has prorogued the House or dissolved the Legislative Assembly under Article 174(2); c) that, on the correct interpretation of Article 174, the mandate of Article 174(1) is applicable to the dissolved Assembly also. Such an interpretation would be in the defence of a democracy and, therefore, as and when an Assembly is prematurely dissolved, the Election Commission has to fix its calendar for holding fresh election within the time mandated under Article 174(1); d) that, alternatively, it was argued that in a situation where mandate under Article 174(1) cannot be complied with, it does not mean that the mandate is directory in nature; and e) that, the holding of election immediately after dissolution of The Assembly is also necessary in vi....
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....n in this Reference and also in view of the fact that Article 174 on its plain reading does not show that it provides a period of limitation for holding fresh election after the premature dissolution of the Assembly, it is necessary to interpret the said provision by applying accepted rules of interpretations. 15. One of the known methods to discern the intention behind enacting a provision of the Constitution and also to interpret the same is to look into the Historical Legislative Development, Constituent Assembly Debates or any document preceding the enactment of the Constitutional provision. 16. In His Holiness Kesavananda Bharati Sripadagalvaru etc. v. State of Kerala and Anr. etc., it was held that Constituent Assembly debates although not conclusive, yet show the intention of the framers of the Constitution in enacting provisions of the Constitution and the Constituent Assembly Debates can throw light in ascertaining the intention behind such provisions. 17. In R.S. Nayak v. A.R. Antulay, it was held that reports of the Commission which preceded the enactment of a legislation, reports of Joint Parliament Commission, report of a Commission set up for collecting in....
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.... year, by notification in the official gazette of the province, if in special circumstances (to be specified in the notification) he so think fit; and c) after the dissolution of the council the Governor shall appoint a date not more than six months or, with the sanction of the Secretary of the State, not more than nine months from the date of dissolution for the next session of the council. 20. After repeal of Government of India Act 1915, Government of India act1919 came into force. Section 8 of the Government of India Act 1919 provided for sitting of Legislative Council in provinces. Section 8 read as follows: "Section 8(1): Every Governor's legislative council shall continue for three years from its first meeting: Provided that: a) the Council may be sooner dissolved by the Governor, and b) the said period may be extended by the Governor for a period not exceeding one year, by notification in the official gazette of the province, if in special circumstances (to be specified in the notification) he so think fit; and c) after the dissolution of the council the Governor shall appoint a date not more than six months or, with the s....
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.... Commons after its dissolution. Further the power of Governor General to extend the period of Legislative Council or to prematurely dissolve it was also based on British conventions. Government of India Act 1935 24. The Government of India Act, 1919 was repealed by the Government of India Act, 1935, Section 19(1) provided for the sittings of the Federal Legislature. Section 19(1) runs as under: Section 19(1): The Chambers of the Federal Legislature shall be summoned to meet once at least in every year, and twelvemonths shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session." 25. Similarly, Section 62(1) of the Act provided for sittings of Provincial Legislature. Section 62(1) runs thus: "62(1): The Chamber or Chambers of each Provincial Legislature shall be summoned to meet once at least in every year and twelvemonths shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session" 26. We find that under the Government of India Act, 1935, there was a complete departure from the provisions contained in the Government....
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....the Legislative Assembly. It may be noted that Articles 85(1) and 174(1) which were physically borrowed from Govt. of India Act, 1935 were only for the purposes of providing the frequencies of sessions of existing Houses of Parliament and State Legislature and they do not relate to dissolved Houses. Constituent Assembly Debates with regard to Articles 85 & 174 of the Constitution. 28. Draft Articles 69 and 153 correspond to Article 85 and Article 174 of the Constitution respectively. Article 69 dealt with the Parliament and Article 153dealt with State Legislature Assembly. When the aforesaid two draft Articles were placed before the Constituent Assembly for discussion, there was not much debate on Draft Article 153. But there was a lot of discussion when Draft Article 69 was placed before the Constituent Assembly. Draft Articles 69 and 153 run as under: "69(1) : The Houses of Parliament, shall be summoned to meet twice at least in every year, and six months shall not intervene between their last sitting in one session and the date appointed for their first shifting in the next session (2) Subject to the provisions of this Article, the President may from time....
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....ot rushed through. Prof. K.T. Shah was very much concerned about the regular sitting of the Parliament and, therefore he moved an amendment 1478 which read as follows: "at the end of Article 69(2)(c), the following proviso is to be added: Provided that if any time the President does not summon as provided for in this Constitution for more than three months the House of the People of either House of Parliament at anytime after the dissolution of the House of the People, or during the currency of the lifetime of the House of the People for a period of more than 90 days the Speaker of the House of the People or the Chairman of the Council of States may summon each his respective House which shall then be deemed to have been validly summoned and entitled to deal with any business placed or coming before it". 30. Further, Prof KT Shah also moved amendment No. 1483, which provided for insertion of Clause (3) after Article 69(2), and a proviso thereto, which is very relevant. Clause (3) runs as under: "(3): If any time the President is unable or unwilling to summon Parliament for more than three months after the prorogation or dissolution of the House of the ....
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.... so that Parliament could sit for longer duration to transact the business shows that it was intended for existing House of Parliament and not dissolved ones, as a dissolved House cannot sit and transact legislative business at all. 33. It is interesting to note that during the debate Prof. K.T. Shah suggested amendment Nos. 1478 and 1483 quoted above, which specifically contemplated the possibility of a dissolved House of the People and convening of the Council of States in an emergency session by the President or the Speaker if the circumstances so necessitated. Even these amendments were not accepted. This shows that Draft Article 69 was visualized in the context of a scenario applicable only to a living and functional House and that the stipulation of six months intervening period between the two sessions is inapplicable to a dissolved House. 34. Moreover, it may be noticed that if the suggestion put forth during the course of the debate that the House of Parliament should sit for eight to nine months in a year was accepted, it would not have given sufficient time for holding fresh elections in the event of premature dissolution of either Parliament or Legislative Assembl....
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....of the State shall be summoned to meet twice at least in every year, and six months shall not intervene between their last sitting in one Session and the date appointed for their first sitting in the next session (1) The Governor shall from time to summon the House or each House to the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. (2) Subject to the provisions of cl. (1), the Governor may from time to time- (2) the Governor may from time to time- (a) Summon the House or either House to meet at such time and place as he thinks fit; (a) prorogue the House or either House; (b) prorogue the House or Houses (b) dissolve Legislative Assembly 36. The aforesaid original Articles show that what was mandated was that the House of Parliament and State Legislature were required to meet at least twice in a year and six months shall not intervene between the last sitting in one session and the date appointed for their first sitting in the next session. This resulted in absurdi....
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....Parliament, the new session shall be called within six months is retained." (emphasis mine) 37. Even other members of the Parliament who participated in the debate 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 of the People. The proceedings of the debate further show that the entire debate revolved 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 reasonswe are of the view that Article 174(1) is inapplicable to a dissolved Assembly. Textually 38. The question at hand may be examined from another angle. As noticed earlier, the language employed in Article 85 and Article 174 is plan and simple and it does not contemplate an interval of six months between the last sitting in one session and the date appointed for its first sitting in the next session of the new Assembly after premature dissolution of Assembly. Yet we will examine Article174 textually also. 39. Article 174 shows that the ex....
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.... 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 Legislative Assembly, as the case may be. 41. The act of summoning, sitting, adjourning, proroguing or dissolving of the Legislature is necessarily referable to an Assembly in praesenti i.e. an existing,functional legislature and has nothing to do with the Legislative Assembly which is not in existence. It is well understood that a dissolved House is incapable of being summoned or prorogued and in this view of the matter also Article 174(1) has no application to a dissolved Legislative Assembly, as nothing survives after dissolution. Conceptually 42. Yet, Article 174 may be examined conceptually. Conceptually, Article 174deals 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 a complete code in itself deals only with a live legislature. 43. Article 174(1) shows that....
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.... 48. It was also urged on behalf of the Union of India that Indian Constitution is enacted on paten of Westminster system of parliamentary democracy and, therefore, election has to be held within the stipulated time following the British conventions as reflected in Article 174(1) of the Constitution. It was urged that since the Parliament was a single entity with the responsibility to debate matters affecting public interest on a continuous basis, it was most appropriate that long gaps were not there between its sessions. 49. Learned counsel relied upon certain passages from several books in support of his contention which run as under: Erskine May's Treatise on the Law, Privileges,Proceedings and Usage of Parliament 21st Edn.: "A Parliament' in the sense of a Parliamentary period, is a period not exceeding five years which may be regarded as a cycle beginning and ending with a proclamation. Such a proclamation on the one hand dissolves an existing Parliament, and on the other, orders the issue of writs for the election of a new Parliament and appoints the day and place for its meeting. This period, of course,contains an interregnum between the dissolution of ....
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....2000, but the conventions sought to be relied upon are prior to the year 2000 and the Election Commission also does not have the power to fix dates for holding elections for constituting the House of Commons. 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 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. Is there any difference between the British Parliamentary practice and Parliamentary practice under the Indian Constitution as regards Prorogation, Adjournment and Dissolution? 51. In this context, learned counsel appearing for Union of India also relied upon the following passages -- from (SIC) May, Parliamentary Practice, 20thEdn. as regards Prorogation, Adjournment and Dissolution under British conventions and argued that the session is the period of time between the meeting of a Parliament whether after prorogation or dissolution. Ac....
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....s postponement of the sitting or proceedings of either House to reassemble on another specified date. During currency of a session the House may be adjourned for a day or more than a day. Adjournment of the House is also sine die. When a house's adjourned, pending proceedings, or Bills do not lapse. So far as. the dissolution of either House of the People or State Legislative Assembly is concerned, the same takes place on expiration of the period of five years from the date appointed for its first meeting or under Article 85(2) or Article 174(2). It is only an existing or functional Lok Sabha or Legislative Assembly which is capable of being dissolved. A dissolution brings an end to the life of the House of the People or State Legislative Assembly and the same cannot be revived by the President. When dissolution of House of the People or State Legislative Assembly takes places all pending proceedings stand terminated and pending Bill lapses and such proceedings and Bills are not carried over to the new House of the people or State Legislative Assembly when they are constituted after fresh elections. 53. From the afore-mentioned passages relied upon it is apparent that there ....
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.... the People or The Assembly is constituted. On that premise, it was further urged that the fresh elections for constituting new Legislative Assembly has to be held within six months from the last session of the dissolved Assembly. 56. At first glance, the argument appeared to be very attractive, but after going deeper into the matter we do not find any substance for the reasons stated hereinafter. 57. Drafting the text of a Statute or a Constitution is not just an art but is a skill. It is not disputed that a good legislation is that the text of which is plain, simple unambiguous precise and there is no repetition of words or usage of superfluous language. The skill of a draftsman in the context of drafting a Statute or the Constitution lies in brevity and employment of appropriate phraseology where in superfluous word's r repetitive words as avoided. It appears that the aforesaid principle was kept in mind while drafting the Government of India Act 1935, the Government of India Act, 1919, and the Government of India Act 1935. The draftsman of the Constitution of India has taken care to maintain brevity and the phraseology used is such that there is no ambiguity while mak....
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....ons"either Chamber" are referable to Council of States as well as Legislative Assembly, Under Government of India Act, 1919 again, the Indian Legislature consisted of the Governor General and two Chambers viz., Council of States and the Legislative Assembly. Under Section 21(1)(a) of the Act, "either Chamber" of the Legislature could be dissolved by the Governor General and under Section 21(1)(c) it was provided that after dissolution of either Chamber, the Governor General shall appoint a date not more than six months or with the sanction of the Secretary of the State not more than nine months after the date of dissolution, the next session. This provision is in pari materia with Section 63D of Government of India Act, 1915. In this case also, we find that since both the Chambers viz.,Council of State and Legislative Assembly were subjected to dissolution, therefore,in Section 21(1)(c) the Council of State or Legislative Assembly both were referred to as 'either Chamber' and not as Council of State or Legislative Assembly. 60. Section 18 of Government of India Act, 1935 provided that the Federal Legislature was to consist of His Majesty represented by Governor General a....
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....rticle 85 is in pari materia with Section 19 of the Government of India Act, 1935. Similarly Article 174 is in pari materia with Section 62 of Government of India Act, 1935. Article 79 of Constitution of India provides that thee shall be a Parliament for the Union which shall consist of President and two Houses respectively to be known as Council of States and House of People. Article 83 provides that the Council of States shall not be subject to dissolution. Article 85 provides that the President may, from time to time, prorogue the Houses or either House and dissolve the House of People. Here again, since Council of States is a permanent body and not liable to dissolution, therefore, instead of using the expression 'either House', the expression 'House of People' has been employed, the same being liable to dissolution. The same thing holds for the State Legislature under Article 168, Article 172and Article 174 of the Constitution. 63. From the aforesaid provisions, it is clear that 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 inter....
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....d the other as the Legislative Assembly, and where there is only one House it shall be known as Legislative Assembly. Sub-clause (2) of Article 172 provides that the Legislative Council of a State is permanent body which is not subject to dissolution. under Article 174(1), the Governor is empowered to summon the House or each House of Legislature of the State to meet at such time and place as the deems fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. Under Clause (2) of Article 174the Governor has power to pirogue the House or either House and dissolve the Legislative Assembly. Here again, we find that since Legislative Council is a permanent body, it cannot be dissolved and therefore, the expression 'House' does not find place in Clause (2)(b) of Article 174. 66. Similarly, in the case of State Legislature, there are provisions where the Constitution makers have used the expression 'either House' 'both Houses' and 'House of Legislature' wherever they intended to apply similar provisions to both the Legislative Council as well as Legislative Assembly. ....
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.... or when not qualified or disqualified. Articles 99, 103 and 104 employ the expression 'either House' while Articles 188, 191 and 193 mention "Legislative Assembly or Legislative Council". This difference in phraseology can be explained on the basis of the fact that there are many states where there is no Legislative Council, and therefore, in this context, use of the expression "either House" in Articles 188, 191 and 193 could have been misleading. 70. From the aforesaid provisions, it is manifest that 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 a provisions exclusively for the Legislative Assembly, it has been referred to as Legislative Assembly. For the aforesaid reasons out conclusion is that the expressions "The House" or "either House" in Clause (2) of Article 174 of the Constitution and Legislative Assembly are synonymous and are interchangeable expressions. The use of expression "the House" denotes the....
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.... Thus, the question arises as to whether the Constitution framers have omitted by oversight to provide any such period for holding election for constituting new Assembly in an event of premature dissolution or it was purposely not provided for in the Constitution. For that purpose, we must look into the legislative developments and the Constitutional debates preceding the enactment of Constitution of India. 73. As earlier noticed, Sections 63D and 72B(1) of the Government of India Act, 1915 and Sections 8(1) and 21(1) of the Government of India Act, 1919empowered the Governor General in case of Indian Legislature and the Governor in case of Provincial Legislature to dissolve either chambers sooner than their stipulated period and appoint a date, nor more than six months or, with the sanction of the Secretary of the State, not more than nine months from the date of dissolution for the next session of that Chamber. Thus the statutes themselves provided a period of limitation within which elections were to be held for constituting the new Chamber. The power of the Governor General to fix a date for the next chamber was similar to the powers exercised by the British Monarch historic....
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....is in light of the aforesaid discussion, Article 324 was enacted and the superintendence, direction, control and conduct of election was no more left in the hands of the Executive but was entrusted to an autonomous Constitutional Authority i.e. the Election Commission. It appears that 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 provide any period of limitation for holding fresh election for 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 VIIth 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 Article328 read with Entry 37 of List II, the Legislature was empowered to make provisio....
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.... - (1978) 1 SCC 464thus: "A free and fair election based on universal adult franchise is the basic, the regulatory procedures vis-a-vis the repositories of functions and the distribution of legislative, executive and judicative roles in the total scheme, directed towards the holding of free elections, are the specifies. The super authority is the Election Commission, the Kingpin is the returning officer, the minions are the presiding officers in the polling stations and the electoral engineering is in conformity with the elaborate legislative provision." 78. Similar concern was raised in the case of A.C. Jose v. Sivan Pillai and Ors.. In that case, it was argued that if the Commission is armed with unlimited arbitrary powers and if it happens that the persons manning the Commission shares or is wedded to a particular ideology, he could be giving odd directions cause a political havoc or bring about a Constitutional crisis, setting at naught the integrity and independence of the electoral process, so important and indispensable to the democratic system. Similar apprehension was also voiced in M.S. Gill v. Chief Election Commissioner (supra). The aforesaid concern was met....
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....t 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 can not be taken away by law framed by Parliament. If Parliament makes any such law, it would repugnant to Article 324. Holding periodic, free and fair elections by the Election Commission are part of the basic structure and the same was reiterated in Indira Nehru Gandhi v. Raj Narain which run as under: "198. This Court in the case of Kesavananda Bharati (supra) held by majority that the power of amendment of the Constitution contained in Article 368 does not permit altering the basic structure of the Constitution. All the seven Judges who constituted the majority were also agreed that democratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair so that the voters may be in a position to vote....
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....sen in the mind of the President in regard to the interpretation of Article 174(1) of the Constitution, the Reference is required to be answered. b) Article 174(1) of the Constitution relates to an existing, live and functional Legislative Assembly and not to a dissolved Assembly. c) The provision in Article 174(1) that six months shall not intervene between its last sitting in one session and the date appointed for its sitting in the next session is mandatory and relates to the frequencies of the sessions of a live and existing Legislative Assembly and does not provide for any period of limitation for holding fresh elections for constituting Legislative Assembly on premature dissolution of the Assembly. d) The expressions "the House", "either House" is synonymous with Legislative Assembly or Legislative Council and they do not refer to different bodies other than the Legislative Assembly or the Legislative Council, as the case may be. e) 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 ....
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....tion Commission in its written submissions stated thus: "The decision, contained in the Election Commission's order dated 16.8.2002, was taken without reference to Article 356. However, it was merely pointed out that there need be no apprehension that there would be a constitutional impasse as Article 356 could provide a solution in such a situation". In that view of the matter, the question of applicability of 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. Question No. (iii): 87. Again, this question proceeds on the assumption that the provision of Article 174(1) also apply to a dissolved Assembly. In view of our answer to question No. (i), we have already reported that 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 does not arise. Under Article 324, it is the duty and responsibility of the Election Commission to hold free and fair elections at the....
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.... such riots were put in the relief camps. Election Commission, which was requested to conduct the election, visited Gujarat and in the Order passed by the Election Commission on 16thAugust,2002, the following observations were made: (1) The Commission was of the opinion that Article 174(1) of the Constitution was applicable even in respect of dissolved Assemblies and in the Order it is stated that the Commission has, in the past, been taking the view that the six months mentioned in Article 174(1) of the Constitution applies not only to a Legislative Assembly in existence but also to dissolved assembly and elections to constitute a new Legislative Assembly have always been held within such time so as to enable the new Assembly to meet within the period of six months from the last sitting of the last session of the dissolved Assembly; (2) Commission was of the opinion that any other view on the interpretation of Article 174(1) of the Constitution may lead to extensive gaps between two Houses of a Legislative Assembly and the abuse of democracy, there being no provision in the Constitution or in any law in force prescribing a period during which an election to be he....
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.... all along been consistent that normally, a Legislative Assembly should meet at least every six months as contemplated by Article 174(1) of the Constitution, even where it has been dissolved, and the Order of the Election Commission of India dated August 16,2002 had not recommended any date for holding general election for constituting a new Legislative Assembly for the State of Gujarat. The 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. The following observation of the Election Commission was also noted in the Reference: "AND WHEREAS the Election Commission has held that the non-observation 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....
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....wer under Article 356 is utterly irrelevant for ascertaining the constitutional mandate for holding elections and this power is highly discretionary and is to be exercised where there is a breakdown of the constitutional machinery. The executive government has no legal authority to compel the holding of elections -not even Parliament can, by resolution, legally compel the Election Commission to fix a particular schedule for the elections. By the same token, the Election Commission cannot recommend - or even proceed upon the premise of --imposition of President's Rule, which would require executive action ratified by Parliament. 97. Shri Arun Jaitley, Sr. Advocate, appearing on behalf of the Bharatiya Janata Party contended that the view of the Election Commission that Article 174is subject to Article 324 of the Constitution is wholly erroneous and contrary to the constitutional mandate. It was further submitted that Article 324 does not enable Election Commission to exercise untrammeled powers and the Commission must exercise power either of the Constitution or the law under Article 327 and 328. It was also argued that even when the Assembly is dissolved, the House continue ....
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....issolved Assembly. Similar contentions were raised by counsel for other political parties and counsel who appeared for various States. 101. Shri K.K. Venugopal, Sr. Advocate appearing on behalf of the Election Commission submitted that Article 174 has no application to dissolved Assemblies. It was submitted that free and fair election is the basic feature of the Constitution and the power of superintendence, direction and control of election vests with the Election Commission. It was further submitted that as the Reference has been made on the wrong premise, this Court need not answer the same. it was also submitted that the Election Commission has been trying its best to conduct election at the earliest even under very adverse circumstances and for the past 50 years Election Commission earned a good reputation as a free and independent body, which has conducted elections to various State Legislatures and the House of the People. 102. We are greatly beholden to other Senior Lawyers, M/s. K. Parasaran, P.P.Rao, Milon Banerjee, M.C. Bhandare, Ashwani Kumar, P.N. Puri, A. Sharan, Devendra N. Dwivedi, A.M. Singhvi, Gopal Subramaniam, and Vijay Bahuguna,who had made very enlighten....
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....emocratic form of Government the responsibility of the Government is to the people of the country and the Members of the Legislative Assembly represent the people of the State and the Council of Ministers shall be collectively responsible to the Legislative Assembly. Therefore, frequency of the meeting of the Legislative Assembly is necessary, otherwise, there will not be any check and balance to the actions of the executive government. The Solicitor General contended that Article 174 would apply even to a dissolved assembly because the House as such is not dissolved and it was pointed out that when the British Parliament is dissolved, notice to summon the next session of the Parliament is simultaneously issued. On that basis, it was contended that Article174 is even applicable to a dissolved Assembly. We do not find much force in this contention. 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 174 clearly indicate that the interregnum....
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....he Election Commission to take steps immediately on dissolution of the Assembly. Article324 of the Constitution gives vast powers to the Election Commission and time and again this Court has pointed out the extent of powers and duty vested with the Election Commission. It was argued by various counsel appearing on behalf of the various political parties as to what would be the position if the Election Commission would indefinitely postpone the election under some pretext or the other. So, the question posed was: 'Quis custodiet apses custodes' - who will guard the guards themselves? 107. The Election Commission is vested with the power to decide the election schedule. It can act only in accordance with the Constitutional 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 its 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....
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....ies. The schedule of the election 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 circumstances. Any decision to postpone election on unreasonable grounds is anathema to democratic form of government and it is subject to judicial review on traditionally accepted grounds. (ii) Can the Election Commission of India frame a schedule for the elections to an Assembly on the premises that any infraction of the mandate of Article 174 would be remedied by a resort to Article 356 by the President? 110. 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 Assembly meets at least within a period of six months of the dissolution. Article 356 regarding ....
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....ion by men' dressed in little, brief authority'. For 'be you ever so high, the law is above you'. 116. The moral may be stated with telling terseness in the words of William Pitt: "Where laws end, tyranny begins'. Embracing both these mandates and emphasizing their combined effect is the elemental law and politics of Power best expressed by Benjamin Disraeli: "I repeat .... that all power is trust - that we are accountable for its exercise-that, from the people and for the people, all springs, and all must exist." 117. At the threshold: why the Reference was made, and in what background. 118. The Gujarat Legislative Assembly met on 3rd April, 2002 and thereafter was dissolved on 19thJuly, 2002. Election Commission passed an order on 16thAugust, 2002 holding that free and fair elections was not possible in Gujarat, even though Article 174 of the Constitution mandatorily provides that the time gap between two sittings of the House should not exceed six months. In that context, the Election Commission held that Article 324 postulates "free and fair election" and when it is not possible to hold it, the provisions contained in Article 174 have to yi....
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.... November, December 2002.Copy of the said order is annexed hereto; 125. 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; 126. 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; 127. 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 anon-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; 128. AND WHEREAS in view of what has been hereinbefore stated,it appears to me that the questions of law hereinafter set o....
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....se or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for this first sitting in the next session'. The last session of the dissolved Legislative Assembly of Gujarat was prorogued on 6thApril,2002 and it is contended that the first session of the new Legislative Assembly should be held before 6thOctober, 2002 and, therefore, it is mandatory for the Commission to hold the election well before 6thOctober, 2002. They also claim that the situation in the State of Gujarat is quite normal and conductive to the holding of free and fair elections, as is evident from the facts that the panchayat elections in large areas were successfully conducted in April 2002, that HSC, SSC examination were held peacefully and that various religious festivals like the Rath Yatra had passed off without any untoward incident. x x x 4. The Commission has carefully examined the provisions of Article 174(1) of the Constitution. It has also considered other relevant provisions in the Constitution having a bearing on functioning of the Legislative Asse....
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....ister is not a member of the Assembly for a consecutive six months period, he shall cease to be a minister [Article 164(4)]. A more alarming situation may arise with Parliament where Article85(1) of the Constitution makes identical provisions relating to the holding of sessions of the House of the People. Any view that the House of the People need not meet every six months and the elections be indefinitely postponed after one House has been dissolved would not only be destructive of the whole Parliamentary system so assiduously built in our Constitution but also be abhorrent to every section of the Indian polity and citizenry. 6. The Commission is also fortified in its above interpretation by the view taken by the President and Parliament on the provisions of Article 174(1) whenever there was an imposition of President's Rule in a State under Article 356 of the Constitution. Whenever the Legislative Assembly of any State has been dissolved in the past by the President under Article 356 of the Constitution, the provisions of Article 174(1) have invariably been expressly suspended in the Proclamation issued by the President under that Article and approved by Parliament d....
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....ch would be insulated from political and/or executive interference.' Again the Constitution Bench of the Supreme Court observed in the famous Keshavanand Bharati v. State of Kerala that 'Free, fair fearless and impartial elections are the guarantee of a democratic polity.' Likewise, the Supreme Court repeatedly under scored the importance of free and faire elections in the case of Mohinder Singh Gill v. Chief Election Commissioner and Ors. Kanhiya Lal Omar v. R.K. Trivedi and a catena of other decisions. In the case of Mohinder Singh Gill (supra), the Supreme Court observed: 'The free and fair election based on universal adult franchise is the basic....it needs little argument to hold that the heart of the Parliamentary system is free and fair election periodically held, based on adult franchise and that social and economic democracy may demand much more.' Similar sentiments of the Supreme Court laying stress on free and fair elections to the legislative bodies have found echo in every other decision of the Supreme Court on elections x x x 11. Thus, the Constitutional mandate given to the Election Commission under Art....
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....ise of the order of the Election Commission though the Preamble is based on the same. It is not imperative for the Court to answer the Reference and even if any doubt is entertained, that cannot be on hypothetical premises and answers which are self-evident and/or issues settled by this Court by its decisions need not be answered. It was submitted that the questions which are inherently incapable of being answered should not be answered. The Reference was as described by some of the learned counsel to be inappropriate and defective. It was submitted that the Reference is potentially political and seeking judicial review though disguised as a Reference. Per contra,submissions were made by some of the learned counsel who have submitted that the questions are of great national interest, and there is no political overtone and in order to avoid controversies in future and to have the law settled, the Reference has been made. 133. The questions referred are intrinsically linked with the conclusions of the Election Commissioner and are clearly relatable to it. The scope and ambit of reference under Article 143(1) has been examined by this Court in several cases. In some cases, this Cou....
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....e No. 1 of 1964 [commonly known as Keshav Singh Contempt Case] (1965) 1 SCR 413. After culling out the core issues (as seen at page 439) from the questions set out at pages 429, 430 at page 440 it was observed as follows: "Though the ultimate solution of the problem posed by the questions before us would thus lie within a very narrow compass, it is necessary to deal with some wider aspects of problem which incidentally arise and the decision of which will assist us in rendering our answers to the questions framed in the present Reference". (Underlined for emphasis) 138. It would be appropriate to take note of certain pivotal provisions in the Constitution; Representation of Peoples' Act, 1951(in short 'R.P. Act, 1951) and the Government of India Act, 1935 (in short 'Government Act'). Article 172: Duration of State Legislature-(1) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the Assembly: 139. Provided that the said period may, while a Proclamation of....
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....ssist the Election Commission in the performance of the functions conferred on the Commission by Clause (1). (5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may be rule determine: 140. Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: 141. Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by Clause (1). Article 327: Power of Parliament to make provision with respect to elections to Legis....
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....People takes place during the period of two months referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People. (4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation. 144. Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which under this clause it would otherwise have ceased to operate, but no such Proclamation shall in any case remain in force for more than three years; 145. Provid....
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.... call upon all parliamentary constituencies to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder: 148. Provided that where a general election is held otherwise than on the dissolution of the existing House of the People, no such notification shall be issued at any time earlier than six months prior to the date on which the duration of that House would expire under the provisions of Clause (2) of Article 83. Section 15: Notification for general election to a State Legislative Assembly - (1) a general election shall be held for the purpose of constituting a new Legislative Assembly on the expiration of the duration of the existing Assembly or on its dissolution. (2) For the said purpose the Governor or the Administrator as the case may be shall, by one or more notifications published in the Official Gazette of the State on such date or dates as may be recommended by the Election Commission, call upon all Assembly constituencies in the State to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder: 149. Provided that where a general election is held otherwise that on the....
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....cted for those constituencies and upon the issue of such notification that House or Assembly shall be deemed to be duly constituted: 150. Provided that the issue of such notification shall not be deemed- (a) to preclude- (i) the taking of the poll and the completion of the Election in any Parliamentary or Assembly constituency or constituencies in which the poll could not be taken for any reason on the date originally fixed under Clause (d) of Section 30; or (ii) the completion of the election in any Parliamentary or Assembly constituency or constituencies for which time has been extended under the provisions of Section 153; or (b) to affect the duration of the House of the People or the State Legislative Assembly if any functioning immediately before the issue of the said notification. Government of India Act, 1935: 18. Constitutional of the Federal Legislative - (1) There shall be a Federal Legislature which shall consist of His Majesty, represented by the Governor General, and two Chambers, to be known respectively as the Council of State and the House of Assembly (in this Act referred to as "the Federal Assembly"). (2) The Council....
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....s crises of human affairs' as they reach the forensic stage and seek dispute-resolution in terms of the rule of law. Justice Cardozofelicitously set the perspective: The great generalities of the Constitution have a content and significance that vary from age to age. Chief Justice Hidayatullah perceptively articulated the insight: One must, of course, take note of the synthesized authoritative content or the moral meaning of the underlying principle of the prescriptions of law, but not ignore the historic evolution of the law itself or how it was connected in its changing moods with social requirements of a particular age. 153. The old Articles of the supreme lex meet new challenges of life,the old legal pillars suffer new stresses. So we have to adopt the law and develop its latent capabilities if novel situations, as here, are encountered. That is why in the reasoning we have adopted and the perspective we have projected, not literal nor lexical but liberal and visional is our interpretation of the Articles of the Constitution and the provisions of the Act. Lord Denning's words are instructive: "Law does not stand still. It moves continual....
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....y have an important bearing on the result of the process. Article 324 of the Constitution operates in areas left unoccupied by legislation and the words 'superintendence', 'direction' and 'control' and well as 'conduct of all elections' are the broadest terms which would include the power to make all such provisions. [See Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, A.C. Jose v. Sivan Pillai and Kanhiya Lal Omar v. R.K. Trivedi and Ors.]. 154. Before the scheme of the Constitution is examined in some detail it is necessary to give the pattern which was followed in framing it. The constituent Assembly was unfettered by any previous commitment in evolving a constitutional pattern "suitable to the genius and requirements of the Indian people as a whole". The Assembly had before it the experience of the working of the Government Act several features of which would be accepted for the new Constitution. Our Constitution borrowed a great deal from the Constitutions of other countries, e.g. United Kingdom, Canada,Australia, Ireland, United States of America and Switzerland. the Constitution being supreme all the organs and bodies owe the....
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....akes it clear that they operate in different fields. Article 14 appears in Chapter III of Part VI of the Constitution relating to State Legislature. The parallel provision, so far as the Union is concerned, is contained in Article 85in Chapter II of Part V of the Constitution. Chapter III of Part VI with which we are presently concerned deals with State Legislature. Article 168 provides that for every State there shall be Legislature which shall consist of the Governor and in for States with two Houses and in other States one House of the State. Where there are two Houses of the Legislature of a State, one is known as a Legislative Council and other is Legislative Assembly and when there is only one House, it is known as the Legislative Assembly. Article172 provides for the duration of State Legislatures. Article 174 deals with sessions of the State Legislatures, prorogation and dissolution. Under Clause (1), the Governor is required to summon the House or each House of the Legislature of the State from time to time to meet at such time and place as he thinks fit. It further provides that six months shall not intervene between its last sitting of one session of the House and the da....
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....be ratified by both the Houses of Parliament. It is further submitted that Election Commissioner has to ensure holding of elections and not holding up the elections, and effort should be to take necessary assistance from the Center and the States, if necessary, to hold the elections and that is why the third question has been referred. With reference to the language used in Article 174 that is "between its last sitting in one session and the date appointed for its first sitting in the next session",it is pointed out that the House does not get dissolved, it is only the Legislative Assembly which gets dissolved. Therefore, the Election Commissioner is duty bound to see that Article 324 is exercised in such a manner that prescription under Article 174 is not diluted or rendered ineffective. 157. So far as Chapter III of Part VI is concerned, like Chapter III of Part V. difference is made between the Legislature, the Legislative Assembly and the House of the People, as the case may be, Article 79says that there shall be a Parliament for the Union which shall consist of the President and the two Houses to be known respectively as the Council of States and the House of the People. As....
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....h is another matter. 159. The exercise of the right of the Executive to dissolve the House of the People or the Legislative Assembly pre-supposes certain conditions i.e. (i) the existence of a representative body which is the object of dissolution and (ii) the act of the Executive which implies a separate and distinct state organ vested with the power to dissolve (iii) the consequential summoning of a new House of People or Legislative Assembly after the election is held by the Election Commission and the result notified after its conclusion. 160. The State organ vested with the right to dissolve Parliament must express its will to do so in a manner which accords with the Constitution, and the relevant laws. The primary consequence of dissolution is that House of People or the Legislative Assembly, as the case may be, legally ceases to exist and cannot perform its legislative functions. Such pre-mature interruption of the life of the House of the People or the Legislative Assembly as the case may be, amongst others factors affects it as a body as well as its individual members likewise its work is also abruptly ended, subject to prescribed exclusions, if any. Any further meet....
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....rred to mere meaning depending on what is sought to be achieved and what is sought to be prevented by the legislative scheme surrounding the expression. It is a settled principle that in interpreting the statute the words used therein cannot be read 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 interpretation 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 ....
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.... the intention of the Constitution is rather to outline principles than to engrave details. (See R.C. Poudval v. Union of India and Ors.). 167. In Purushothaman Nambudiri v. The State of Kerala, a Constitution Bench of this Court observed as follows: "Dissolution of Parliament is sometimes described as 'a civil death of Parliament'. Ilbert,in his work on 'Parliament', has observed that' prorogation means the end of a session (not of a Parliament)';" "in any case, there is no continuity in the personality of the Assembly where the life of one Assembly comes to an end another Assembly is in due course elected." 168. It will be also clear from the Constituent Assembly Debates(vis-a-vis Article 153 - presently Article 174) that the stress was on frequent meetings of long durations of live Legislative Assembly. 169. In May's Parliamentary Practice, the following paragraph reinforces the view: "A session is the period of time between the meeting of a Parliament, whether after the prorogation or dissolution, and its prorogation...During the course of a session either House may adjourn itself of its own motion to such as it pl....
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....e 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 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 to 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 the expiry of the duration. Here also, the underlying object is that the elected members are to continue for the full term. It has been fairly accepted by learned 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 Preamble to the Constitution itself and Cabinet system of Government is generally known as the responsible government. We may notice here that in a democracy the sover....
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....mus impotentia, the intention of the lawmaker expressed in the law itself, taken as a whole". (See Bratt v.Bratt (1826) 3 Add 210. 177. The necessity for completing the election expeditiously is enjoined by the Constitution in public and State interest to see that the governance of the country is not paralysed. 178. The impossibility of holding the election is not a factor against the Election Commission. The maxim of law impotentia exist legemis intimately connected with another maxim of law lex non cogit adimpossibilia. Impotentia excusat legem 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 party 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 by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Whe....
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....m the date of dissolution. 180. Free and fair election is the sine qua non of democracy. The scheme of the Constitution makes it clear that two distinct Constitutional authorities deal with election and calling of session. It has been pointed out to us that as a matter of practice the elections are completed within a period of six months from the date of dissolution,on completing the 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 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 norm....
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....lia, observed as follows: "......Article 356 of the Constitution makes provisions in case of failure of constitutional machinery in the State. But when an Assembly is dissolved there is no failure of constitutional machinery within Article 356. " 184. A similar observation was made by one of us (Hon'ble V.N.Khare, J. as His Lordship was then) in Arun Kumar Rai Chaudhary v.Union of India. His Lordship succinctly stated the position as follows: "This question came up for consideration before Supreme Court in the case of U.N.R. Rao v. Indira Gandhi and Thiru K.N.Rai Gopal v. M. Karuna Nidhi. The Supreme Court while interpreting Articles 74 and75 as well as Articles 163 and 164 of the Constitution held that even if the House is dissolved, the Council of Ministers continues. These decisions squarely cover the case before us. Following these decisions we hold that after the Governor of the State of U.. dissolved the Legislative Assembly and directions were issued for holding fresh poll for constituting the Legislative Assembly, the Council of Ministers continues. Further there being no failure of constitutional machinery within the meaning of Article 356 of the C....
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....tion which he may receive otherwise - that situation of the nature contemplated by Article356(1) has arisen....." 186. The third question is to be considered in the background of what has been observed supra about scope and ambit of Article 174. It does not relate to holding of elections. Therefore, he question of seeking control or State assistance does not arise. However, the Election Commission and the Governments (Central and or State)have well-defined roles to play to ensure free and fair election. The parameters have been laid down by this Court in several cases e.g.Election Commission of India v. State of Haryana,. Election Commission of India v. Union of India and Ors. Election Commission of India v. State of T.N. and Ors.. Some of the relevant observations need to be noticed. 187. In Tamil Nadu's case (supra) it was observed: "The Election Commission of India is a high constitutional authority charged with the function and the duty of ensuring free and fair elections and of the purity of the electoral process. It has all the incidental and ancillary powers to effectuate the constitutional objective and purpose. The plenitude of the Commission's power....