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Brundaban Nayak Vs. Election Commission of India and anr. - Court Judgment

LegalCrystal Citation
CourtSupreme Court of India
Decided On
Reported inAIR1965SC1892; [1965]3SCR53
ActsConstitution of India - Articles 101, 102, 103, 103(1), 103(2), 190(3), 191, 191(1), 192, 192(1), 192(2), 199(3) and 226; Representation of the People Act, 1951 - Sections 7
AppellantBrundaban Nayak
RespondentElection Commission of India and anr.
Cases ReferredIndia v. Saka Venkata Subba Rao and Unionof India
.....disqualified under article 191 (1) (e) read with section 7 - notice served to appellant by election commission in response to complaint filed by respondent - election commission reserved its decision till after enquiry - competence and jurisdiction for making enquiry by election commission was challenged in high court - high court dismissed petition - in appeal supreme court to decide question whether election commission competent to hold such enquiry - impugned question is question of law depending upon construction of article 192 (1) - scheme of articles 192 (1) and192 (2) is very clear - all complaints in respect of disqualification of validly elected member to be tried only by election commission though formally decision to be pronounced by governor - decision must be in..........(2) before giving any decision onany such question, the governor shall obtain the opinion of the electioncommission and shall act according to such opinion'. 9. mr. setalvad for the appellant contends that in the present case, noquestion can be said to have arisen as to whether the appellant has become subjectto any of the disqualifications mentioned in clause (1) of art. 191, becausehis case is that such a question can be raised only on the floor of thelegislative assembly and can be raised by members of the assembly and not by anordinary citizen or voter in the form of a complaint to the governor. mr.setalvad did not dispute the fact that this contention has not been taken bythe appellant either in his writ petition before the high court or even in hisapplication for special leave.....

Gajendragadkar, C.J.

1. The principal question which this appeal by special leave raises for ourdecision relates to the construction of Article 192 of the Constitution. Thesaid question arises in this way. The appellant Brundaban Nayak was elected tothe Legislative Assembly of Orissa from the Hinjili Constituency in Ganjamdistrict in 1961, and was appointed one of the Ministers of the Council ofMinisters in the said State. On August 18, 1964, respondent No. 2, P. Biswal,applied to the Governor of Orissa alleging that the appellant had incurred adisqualification subsequent to his election under Art. 191(1)(e) of theConstitution read with section 7 of the Representation of the People Act, 1951(No. 43 of 1951) (hereinafter called the Act). In his application, respondentNo. 2 made several allegations in support of his contention that the appellanthad become disqualified to be a member of the Orissa Legislative Assembly. OnSeptember 10, 1964, the Chief Secretary to the Government of Orissa forwardedthe said complaint to respondent No. 1, the Election Commission of India, underthe instructions of the Governor. In this communication, the Chief Secretarystated that a question had arisen under Article 191(1) of the Constitutionwhether the member in question had been subject to the disqualification allegedby respondent No. 2 and so, he requested respondent No. 1 in the name of theGovernor to make such enquiries as it thinks fit and give its opinion forcommunication to the Governor to enable him to give a decision on the questionraised.

2. On November 17, 1964, respondent No. 1 served a notice on the appellantforwarding to him a copy of the letter received by it from respondent No. 2dated the 4th November, 1964. The notice intimated to the appellant thatrespondent No. 1 proposed to enquire in the matter before giving its opinion onthe Governor's reference, and, therefore, called upon him to submit on orbefore the 5th December, 1964, his reply with supporting affidavits anddocuments, if any. The appellant was also told that the parties would be heardin person or through authorised counsel at 10-30 A.M. on the 8th December,1964, in the office of respondent No. 1 in New Delhi.

3. On December 1, 1964, the appellant sent a telegram to respondent No. 1requesting it to adjourn the hearing of the matter. On the same day, he alsoaddressed a registered letter to respondent No. 1 making the same request.Respondent No. 2 objected to the request made by the appellant for adjourningthe hearing of the complaint. On December 8, 1964, respondent No. 1 took upthis matter for consideration. Respondent No. 2 appeared by his counsel Mr.Chatterjee, but the appellant was absent. Respondent No. 1 took the view thatan enquiry of the nature contemplated by Art. 192(2) must be conducted asexpedtiously as possible, and so, it was necessary that whatever his othercommitments may be, the appellant should arrange to submit at least hisstatement in reply to the allegations made by respondent No. 2, even if herequired some more time for filing affidavits and/or documents in support ofhis statement. Even so, respondent No. 1 gave the appellant time until the 2ndJanuary, 1965, 10-30 A.M. when it ordered that the matter would be heard.

4. On January 2, 1965, the appellant appeared by his counsel Mr. Patnaik andrespondent No. 2 by his counsel Mr. Chatterjee. On this occasion, Mr. Patnaikraised the question about the maintainability of the proceedings beforerespondent No. 1 and its competence to hold the enquiry. Mr. Chatterjeerepelled Mr. Patnaik's contention. Respondent No. 1 over-ruled Mr. Patnaik'scontention and recorded its conclusion that it was competent to hold theenquiry under Art. 192(2). Mr. Patnaik then asked for adjournment and made itclear that he was making the motion for adjournment without submitting to thejurisdiction of respondent No. 1. In view of the attitude adopted by Mr.Patnaik, respondent No. 1 took the view that it would be pointless to adjournthe proceedings, and so, it heard Mr. Chatterjee in support of the case ofrespondent No. 2. After hearing Mr. Chatterjee, respondent No. 1 reserved itsorders on the enquiry and noted that its opinion would be communicated to theGovernor as early as possible.

5. When matters had reached this stage before respondent No. 1, theappellant moved the Punjab High Court under Art. 226 of the Constitutionpraying that the enquiry which respondent No. 1 was holding, should be quashedon the ground that it was incompetent and without jurisdiction. This writpetition was summarily dismissed by the said High Court on January 6, 1965.Thereafter, the appellant applied to this Court for special leave on January 8,1965, and special leave was granted to him on January 14, 1965. The appellantthen moved this Court for stay of further proceedings before respondent No. 1,and the said prayer was granted. When special leave was granted to theappellant, this Court had made an order that the preparation of the record andthe filing of statements of the case should be dispensed with and the appealshould be heard on the paper-book filed along with the special leave petitionand must be placed for hearing within three weeks. That is how the matter hascome before us for final disposal.

6. Since the Punjab High Court had dismissed the writ petition filed by theappellant in limine, neither of the two respondents had an opportunity to filetheir replies to the allegation made by the appellant in his writ petition.That is why both respondent No. 1 and respondent No. 2 have filedcounter-affidavits in the present appeal setting out all the relevant facts onwhich they wish to rely. The appellant has filed an affidavit-in-reply. Allthese documents have been taken on the record at the time of the hearing ofthis appeal. It appears from the affidavit filed by Mr. Prakash Narain,Secretary to respondent No. 1, that when notice issued by respondent No. 1 onthe 17th November, 1964, was served on the appellant, through oversight theoriginal complaint filed by respondent No. 2 before the Governor of Orissa andthe reference made by the Governor to respondent No. 1 were not forwarded tothe appellant. At the hearing before us, it is not disputed by the appellantthat a complaint was in fact made by respondent No. 2 before the Governor ofOrissa and that the Governor had then referred the matter to respondent No. 1for its opinion.

7. Let us then refer to Article 192 which falls to be construed in thepresent appeal. Before reading this article, it is relevant to refer to Art.191. Article 191(1) provides that a person shall be disqualified for beingchosen as, and for being, a member of the Legislative Assembly or LegislativeCouncil of a State if, inter alia, he is so disqualified by or under any lawmade by Parliament. There are four other disqualifications prescribed byclauses (a) to (d) with which we are not concerned in the present appeal. It isthe disqualification prescribed by clause (e) on which respondent No. 2 reliesin support of the complaint made by him to the Governor. As we have alreadyindicated, respondent No. 2's case is that the appellant has incurred thedisqualification under Art. 191(1)(e) read with s. 7(d) of the Act, and thisdisqualification has been incurred by him subsequent to his election. It iswell-settled that the disqualification to which Art. 191(1) refers, must beincurred subsequent to the election of the member. This conclusion follows fromthe provisions of Art. 190(3)(a). This Article refers to the vacation of seatsby members duly elected. Sub-Article (3)(a) provides that if a member of aHouse of the Legislature of a State becomes subject to any of thedisqualifications mentioned in clause (1) of Art. 191, his seat shall thereuponbecome vacant. Incidentally, we may add that corresponding provisions withregard to the disqualification of members of both Houses of Parliament areprescribed by Articles 101, 102 and 103 of the Constitution. It has been heldby this Court in Election Commission, India v. Saka Venkata Subba Rao and Unionof India - Intervener/that Articles 190(3) and 192(1) are applicable only todisqualifications to which a member becomes subject after being elected assuch. There is no doubt that the allegations made by respondent No. 2 in hiscomplaint before the Governor, prima facie, indicate that the disqualificationon which respondent No. 2 relies has arisen subsequent to the election of theappellant in 1961.

8. Reverting then to Art. 192, the question which we have to decide in thepresent appeal is whether respondent No. 1 is entitled to hold an enquirybefore giving its opinion to the Governor as required by Art. 192(2). Let usread Art. 192 :-

'(1) If any question arisesas to whether a member of a House of the Legislature of a State has becomesubject to any of the disqualifications mentioned in clause (1) of Article 191,the question shall be referred for the decision of the Governor and hisdecision shall be final.

(2) Before giving any decision onany such question, the Governor shall obtain the opinion of the ElectionCommission and shall act according to such opinion'.

9. Mr. Setalvad for the appellant contends that in the present case, noquestion can be said to have arisen as to whether the appellant has become subjectto any of the disqualifications mentioned in clause (1) of Art. 191, becausehis case is that such a question can be raised only on the floor of theLegislative Assembly and can be raised by members of the Assembly and not by anordinary citizen or voter in the form of a complaint to the Governor. Mr.Setalvad did not dispute the fact that this contention has not been taken bythe appellant either in his writ petition before the High Court or even in hisapplication for special leave before this Court. In fact, the case sought to bemade out by the appellant in the present proceedings appears to be that thougha question may have arisen about his disqualification, it is the Governor alonewho can hold the enquiry and not respondent No. 1. Even so, we have allowed Mr.Setalvad to raise this point, because it is purely a question of law dependingupon the construction of Art. 192(1).

10. In support of his argument, Mr. Setalvad refers to the fact that Art.192 occurs in Chapter III of Part v. which deals with the State Legislature,and he invited our attention to the fact that under Art. 199(3) which dealswith a question as to whether a Bill introduced in the Legislature of a Statewhich has a Legislative Council is a Money Bill or not, the decision of theSpeaker of the Legislative Assembly of such State thereon shall be final. Heurges that just as the question contemplated by Art. 199(3) can be raised onlyon the floor of the House, so can the question about a subsequentdisqualification of a member of a Legislative Assembly be raised on the floorof the House and nowhere else. He concedes that whereas the questioncontemplated by Art. 199(3) has to be decided by the Speaker and his decisionis final, the authority to decide the question under Art. 192(1) is not vestedin the Speaker, but is vested in the Governor. In other words, the context inwhich Art. 192(1) occurs is pressed into service by Mr. Setalvad in support ofhis argument.

11. Mr. Setalvad also relies on the fact that Art. 192(1) provides that ifany question arises, it shall be referred for the decision of the Governor andthis clause, says Mr. Setalvad, suggests that there should be some referringauthority which makes a reference of the question to the Governor for hisdecision. According to him, this referring authority, by necessary implication,is the Speaker of the Legislative Assembly. There is another argument which hehas advanced before us in support of this construction. Article 192(2) requiresthat whenever a question is referred to the Governor, he shall obtain theopinion of the Election Commission and Mr. Setalvad suggests that it could nothave been the intention of the Constitution to require the Governor to refer tothe Election Commission every question which is raised about an allegeddisqualification of a member of a Legislative Assembly even though such aquestion may be patently frivolous or unsustainable.

12. We are not impressed by these arguments. It is significant that thefirst clause of Art. 192(1) does not permit of any limitations such as Mr.Setalvad suggests. What the said clause requires is that a question shouldarise; how it arises, by whom it is raised, in what circumstances it is raised,are not relevant for the purpose of the application of this clause. All that isrelevant is that a question of the type mentioned by the clause should arise;and so, the limitation which Mr. Setalvad seeks to introduce in theconstruction of the first part of Art. 192(1) is plainly inconsistent with thewords used in the said clause.

13. Then as to the argument based on the words 'the question shall bereferred for the decision of the Governor', these words do not import theassumption that any other authority has to receive the complaint and after aprima facie and initial investigation about the complaint, send it on or referit to the Governor for his decision. These words merely emphasise that anyquestion of the type contemplated by clause (1) of Art. 192 shall be decided bythe Governor and Governor alone; no other authority can decide it, nor can thedecision of the said question as such fall within the jurisdiction of theCourts. That is the significance of the words 'shall be referred for thedecision of the Governor'. If the intention was that the question must beraised first in the Legislative Assembly and after a prima facie examination bythe Speaker it should be referred by him to the Governor, Art. 192(1) wouldhave been worded in an entirely different manner. We do not think there is anyjustification for reading such serious limitations in Art. 192(1) merely byimplication.

14. It is true that Art. 192(2 requires that whenever a question arises asto the subsequent disqualification of a member of the Legislative Assembly, ithas to be forwarded by the Governor to the Election Commission for its opinion.It is conceivable that in some cases, complaints made to the Governor may befrivolous or fantastic; but if they are of such a character, the ElectionCommission will find no difficulty in expressing its opinion that they shouldbe rejected straightaway. The object of Art. 192 is plain. No person who hasincurred any of the disqualifications specified by Art. 191(1), is entitled tocontinue to be a member of the Legislative Assembly of a State, and since the obligationto vacate his seat as a result of his subsequent disqualification has beenimposed by the Constitution itself by Art. 190(3)(a), there should be nodifficulty in holding that any citizen is entitled to make a complaint to theGovernor alleging that any member of the Legislative Assembly has incurred oneof the disqualifications mentioned in Art. 191(1) and should, therefore, vacatehis seat. The whole object of democratic elections is to constitute legislativechambers composed of members who are entitled to that status, and if any memberforfeits that status by reason of a subsequent disqualification, it is in theinterest of the constituency which such a member represents that the mattershould be brought to the notice of the Governor and decided by him inaccordance with the provisions of Art. 192(2)CONSTITUTION OF INDIA^. Therefore, we must reject Mr.Setalvad's argument that a question has not arisen in the present proceedingsas required by Art. 192(1).

15. The next point which Mr. Setalvad has raised is that even if a questionis held to have arisen under Art. 192(1), it is for the Governor to hold theenquiry and not for the Election Commission. He contends that Art. 192(1)requires the question to be referred to the Governor for his decision andprovides that his decision shall be final. It is a normal requirement of therule of law that a person who decides should be empowered to hold the enquirywhich would enable him to reach him decision, and since the Governor decidesthe question, he must hold the enquiry and not the Election Commission. That,in substance, is Mr. Setalvad's case. He concedes that Art. 192(2) requiresthat the Governor has to pronounce his decision in accordance with the opiniongiven by the Election Commission; that is a Constitutional obligation imposedon the Governor. He, however, argues that the Election Commission which has togive an opinion, is not competent to hold the enquiry, but it is the Governorwho should hold the enquiry and then forward to the Election Commission all thematerial collected in such an enquiry to enable it to form its opinion andcommunicate the same to the Governor.

16. We are satisfied that this contention also is not well-founded. Thescheme of Article 192(1) and (2) is absolutely clear. The decision on thequestion raised under Art. 192(1) has no doubt to be pronounced by theGovernor, but that decision has to be in accordance with the opinion of theElection Commission. The object of this provision clearly is to leave it to theElection Commission to decide the matter, though the decision as such wouldformally be pronounced in the name of the Governor. When the Governorpronounces his decision under Art. 192(1), he is not required to consult hisCouncil of Ministers; he is not even required to consider and decide the matterhimself; he has merely to forward the question to the Election Commission forits opinion, and as soon as the opinion is received, 'he shall actaccording to such opinion'. In regard to complaints made against theelection of members to the Legislative Assembly, the jurisdiction to decidesuch complaints is left with the Election Tribunal under the relevantprovisions of the Act. That means that all allegations made challenging thevalidity of the election of any member, have to be tried by the ElectionTribunals constituted by the Election Commission. Similarly, all complaints inrespect of disqualifications subsequently incurred by members who have beenvalidly elected, have, in substance, to be tried by the Election Commission,though the decision in form has to be pronounced by the Governor. If thisscheme of Art. 192(1) and (2) is borne in mind, there would be no difficulty inrejecting Mr. Setalvad's contention that the enquiry must be held by theGovernor. It is the opinion of the Election Commission which is in substancedecisive and it is legitimate to assume that when the complaint is received bythe Governor, and he forwards it to the Election Commission, the ElectionCommission should proceed to try the complaint before it gives its opinion.Therefore, we are satisfied that respondent No. 1 acted within its jurisdictionwhen it served a notice on the appellant calling upon him to file his statementand produce his evidence in support thereof.

17. Mr. Setalvad faintly attempted to argue that the failure of respondentNo. 1 to furnish the appellant with a copy of the complaint made by respondentNo. 2 before the Governor and of the order of reference passed by the Governorforwarding the said complaint to respondent No. 1, rendered the proceedingsbefore respondent No. 1 illegal. This contention is plainly misconceived. Assoon as respondent No. 1 received the complaint and the order of referencewhich was communicated to it by the Chief Secretary to the Government ofOrissa, it was seized of the matter and it was plainly acting within itsjurisdiction under Art. 192(2) when it served the notice on the appellant. Aswe have already indicated, it was through oversight that the two documents werenot forwarded to the appellant along with the notice, but that cannot in anysense affect the jurisdiction of respondent No. 1 to hold the enquiry. In fact,as respondent No. 2 has pointed out in his affidavit, the fact that a referencehad been made by the Governor to respondent No. 1 was known all over the State,and it is futile for the appellant to suggest that when he received the noticefrom respondent No. 1, he did not know that a complaint had been made againsthim to the Governor alleging that subsequent to his election, he had incurred adisqualification as contemplated by Art. 191(1)(e) of the Constitution readwith s. 7(d) of the Act. It would have been better if the appellant had notraised such a plea in the present proceedings.

18. In this connection, we ought to point out that so far the practicefollowed in respect of such complaints has consistently recognised that theenquiry is to be held by the Election Commission both under Art. 192(2) andArt. 103(2). In fact, the learned Attorney-General for respondent No. 1 statedbefore us that though on several occasions, the Election Commission has heldenquiries before communicating its opinion either to the President under Art.103(2) or to the Governor under Art. 192(2), no one ever thought of raising thecontention that the enquiry must be held by the President or the Governorrespectively under Art. 103(1) and Art. 192(1). He suggested that the mainobject of the appellant in taking such a plea was to prolong the proceedingsbefore respondent No. 1. In the first instance, the appellant asked for a longadjournment and when that request was refused by respondent No. 1, he adoptedthe present proceedings solely with the object of avoiding an early decision bythe Governor on the complaint made against the appellant by respondent No. 2.We cannot say that there is no substance in this suggestion.

19. There is one more point to which we may refer before we part with thisappeal. Our attention was drawn by the learned Attorney-General to theobservations made by the Chief Election Commissioner when he rendered hisopinion to the Governor on May 30, 1964, on a similar question under Art.192(2) in respect of the alleged disqualification of Mr. Biren Mitra, a memberof the Orissa Legislative Assembly, 'Where, as in the present case',observed the Chief Election Commissioner, 'the relevant facts are indispute and can only by ascertained after a proper enquiry, the Commissionfinds itself in the unsatisfactory position of having to give a decisiveopinion on the basis of such affidavits and documents as may be produced beforeit by interested parties. It is desirable that the Election Commission should bevested with the powers of a commission under the Commissions of Enquiry Act,1952, such as the power to summon witnesses and examine them on oath, the powerto compel the production of documents, and the power to issue commissions forthe examination of witnesses'. We would like to invite the attention ofParliament to these observations, because we think that the difficultyexperienced by the Election Commission in rendering its opinion under Art.103(2) or Art. 192(2) appears to be genuine, and so Parliament may wellconsider whether the suggestion made by the Chief Election Commissioner shouldnot be accepted and appropriate legislation adopted in that behalf.

20. The result is, the appeal fails and is dismissed with costs. In view ofthe fact that the present proceedings have unnecessarily protracted the enquirybefore respondent No. 1, we suggest that respondent No. 1 should proceed toconsider the matter and forward its opinion to the Governor as early aspossible. It is hardly necessary to point out that in case the allegations madeagainst the appellant are found to be valid, and the opinion of respondent No.1 is in favour of the case set out by respondent No. 2, complications may ariseby reason of the Constitutional provision prescribed by Art. 190(3). In view ofthe said provision, it is of utmost importance that complaints made under Art.192(1) must be disposed of as expeditiously as possible.

21. Appeal dismissed.

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