Full Judgment Text
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PETITIONER:
ELECTION COMMISSION OF INDIA
Vs.
RESPONDENT:
N.G. RANGA AND ORS.
DATE OF JUDGMENT17/08/1978
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
SARKARIA, RANJIT SINGH
UNTWALIA, N.L.
KOSHAL, A.D.
SEN, A.P. (J)
CITATION:
1978 AIR 1609 1979 SCR (1) 210
1978 SCC (4) 181
ACT:
A.D. KOSHAL AND A. P. SEN, JJ.]
HEADNOTE:
Constitution of India, 1950, Arts, 84, 101, 102.
1O3(2) and 1O4-Scope of- Powers of the Election Commission
under Sections 10A, 146 (1) (2) of the Representation of the
People Act, read with Art. 103 (2) of the constitution.
Respondent No. 2 who is a voter in the Srikakulam
Constituency submitted a petition to the President of India
under Articles 84, 101. 102. 103 and 104 of the Constitution
of India alleging that respondent No. 1, a returned
candidate to the Lok Sabha on April 28, 1967 in a bye-
election from that constituency, had become subject to the
disqualifications contained in Article 102(1). The
President. exercising his powers under Article 103(2) of the
Constitution. sought the opinion of the appellant by an
order dated May 18, 1968. The appellant issued a notice
dated June 6, 1968 to respondent No. 1 calling upon him to
submit his reply to the allegations contained in
respondent’s petition lo the President. Earlier to this, the
appellant condoned the delay in submission; of account of
election expenses by respondent No. 1.
On June 26, 1968, respondent No. 1, therefore, filed a
Writ Petition in the Andhra Pradesh High Court asking for a
writ of prohibition forbidding the appellant from taking
further action pursuant to the Notice dated June 6 and for a
declaration that the appellant had no jurisdiction to
inquire into the petition submitted by respondent No. 2 to
the President. The High Court allowed the petition and
issued a writ of Prohibition. It has granted to the
appellant a certificate of fitness under Article 133(1)(c)
of the Constitution.
Allowing the appeal, the Court
^
HELD: 1. The President acted both in the exercise of
constitutional authority and in the discharge of his
constitutional obligation in referring the question raised
by respondent No. 2’s petition for the opinion of the
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appellant. Upon the presentation of a petition by
respondent 2 to the President of India;,. alleging that
respondent 1 had become subject to the disqualifications
mentioned in article 102(1) of the Constitution, a question
clearly arose as to whether respondent 1 had truly become
subject to any of the disqualifications mentioned in that
article. By clause (2) of article 103 the President was
bound to obtain the opinion of the appellant before giving‘
his decision on the question. Not only that, but the
President was further bound to act according to the opinion
given by the appellant. [213D-E]
2. The Election Commission, by reason of the provisions
of Section 146(1) and (2) of the Representation of the
People Act, 1951, had the power and authority to require
respondent 1 to furnish information on matters which were
relevant to the subject matter of the inquiry, namely, the
allegations contained in the petition presented by
respondent 2 to the President of India.. [214B-C]
(a) The Representation of the People Act, 1951, confers
extensive powers on the Election Commission in regard to
inquiries pertaining to the questions referred by the
President for its opinion under Article 103 of the
Constitution. [213F-G]
211
(b) Art. 103(2), as it stood then, required the
President to obtain the opinion of the Election Commission
before deciding the question referred to in clause (1) of
that article. The President was bound to act according to
the opinion given by the Commission. By the Forty-second
Amendment Article 103(2) requires the President to consult
the Election Commission. The Amendment Article expressly
confers power on the Commission to make? for that purpose,
"such inquiry as it thinks fit". The implication of the
unamended Article was in truth and substance the same
namely. that since the Commission was charged with the
obligation to tender its opinion to the President, it had
the power to make such inquiry as it thought fit in order to
enable it to express its opinion. which under the law as it
stood then, was binding on the President. The Forty-second
amendment expressed clearly what was necessarily implicit in
the old provision. If the Constitution envisages that the
Commission should have the power to make such inquiry as it
thinks fit even when its opinion is not binding on the
President who is merely required to "consult‘’ the
Commission, it cannot be that the Commission could tender
its binding opinion without the right and pay the duty, of
making, the necessary inquiry. [214D-G]
(c) Article 103(1) gives finality to the President’s
decision which, under old provision, had to be in conformity
with the opinion of the Election Commission. Before giving
an opinion which thus had finality, the Commission acted but
fairly in asking respondent l to submit his say. In giving
to respondent I an opportunity to submit his explanation.
the appellant, far from acting beyond the scope of the
statutory and constitutional powers acted in conformity with
the principles of natural justice. [215B]
3. In the instant case? though respondent 2 was not in
a position to make a categorical assertion in his petition
that respondent 1 had incurred a specific disqualification,
he did make allegations, generally, in regard to
disqualifications said to have been incurred by respondent
1. Upon the making of those allegations a question arose as
contemplated by Article 103(1)(a) of the Constitution and
the President had to obtain the opinion of the Election
Commission on that question. Respondent 2’s petition could
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not have been rejected by the President without reference to
the Election Commission on the around that the allegations
made by respondent 2 were unfounded or unsubstantial. The
High Court was not correct when it held that the question
whether respondent 1 had become subject to any
disqualification under Section 10A of the Representation of
the People Act did not arise on the facts stated in the
petition by respondent No. 2. [215H, 216A-B]
Brundeban Nayak v. Election Commission of India and
Anr., [1965] (3) S.C.R. 53; discussed and applied.
(b ) By Section 10A of the Representation of the People
Act. the Election Commission has the power to declare a
person to be disqualified if it is satisfied that he has
failed to lodge an account of election expenses within the
time and in the manner required by or under the Act and has
no good reason or justification for the failure. A
declaration of disqualification made in pursuance of power
conferred by section 10(A) is a declaration made by the
Election Commission under a law made by Parliament. It,
therefore, attracts Article 102(1) (e) and consequently
article 103(1) of the Constitution. The High Court therefore
misdirected itself in reaching the conclusion that the
appellant acted beyond
212
its jurisdiction in issuing notice to respondent I in
calling upon him to submit his explanations in regard to the
allegations made by respondent No. 2 in his petition to the
President. [215C-D, F-H]
JUDGMENT:
ClVIL APPELLATE JURISDICTION: Civil Appeal No. 1265 of
1969. From the Judgment and order dt. 3-1-1969 of the Andhra
Pradesh High Court in Writ Petition No. 2763 of 1968.
S. V. Gupte, Att. General of India, K. N. Bhatt and R.
N. Sachthey for the Appellant.
P. A. Chowdhary and B. Kanta Rao for Respondent No. 1.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J.-Respondent 1, Shri N. G. Ranga, was
declared elected to the Lok Sabha on April 28, 1967 in a
bye-election . From Srikakulam Constituency, defeating
respondent No. 3, Shri B. Rajagopalarao. The Election
Commission of India, the appellant herein, called upon
respondent 1 by a notice dated July 7, 1967 to show cause
why he should not be disqualified for failure to lodge the
account of his election expenses within the time and in the
manner required by law. Accepting the explanation submitted
by Respondent 1, the appellant condoned the delay caused in
submitting the account of election expenses and sent a
communication dated August 167 1967 informing respondent 1
that it was decided not to take any further action in the
matter.
Respondent 2, who is a voter in the Srikakulam
constituency, thereafter submitted a petition to the
President of India under Articles 84, 101,102,103 and 104 of
the Constitution alleging that respondent 17 who was a
sitting member of the Lok Sabha, had become subject to the
disqualification mentioned in Article 1 102(1). The
President, exercising his powers under Article 103(2) of the
Constitution, sought the opinion of the appellant by an
order dated May 18, 1968. The appellant issued a notice
dated June 6, 1968 to respondent 1 calling upon him to
submit his reply to the allegations contained in respondent
2’s petition to the President.
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On June 26, 1968 respondent l filed writ petition No.
2763 of 1968 in the High Court of Andhra Pradesh asking for
a writ Prohibition forbidding the appellant from taking
further steps pursuant to the June 6 notice and for a
declaration that the appellant had no jurisdiction to
inquire into the petition submitted by respondent 2 to the
President of India. By its Judgment dated January 3, 1969
the High Court allowed the writ petition and issued a writ
of Prohibition as prayed for. It has granted to the Election
Commission certificate of fitness under Article 133(1)(e) of
the Constitution to appeal to this Court.
213
The narrow question for consideration is whether the
appellant had jurisdiction to issue the notice to
respondent 1 calling upon him to submit his explanation in
regard to the allegations contained in the petition
presented by respondent 2 to the President of India who, in
turn, had referred the petition for the opinion of the
appellant. Article 103 of the Constitution read thus at the
relevant time:
"103(1) If any question arises as to whether a member
of either House of Parliament has become subject to any
of the disqualifications mentioned in clause (1) of
Article 102, the question shall be referred for the
decision of the President and his decision shall be
final.
(2) Before giving any decision on any such
question, the President shall obtain the opinion of the
Election Com mission and shall act according to such
opinion."
Upon the presentation of a petition by respondent 2 to
the President of India, alleging that respondent 1 had
become subject to the disqualifications mentioned in Article
102(1) of the Constitution, 2 question clearly arose as to
whether respondent 1 had truly become subject to any of the
disqualifications mentioned in that Article. By clause (2)
of Article 103, the President was bound to obtain the
opinion of the appellant before giving his decision on the
question. Not only that, but the President was further bound
to act according to the opinion given by the appellant. The
President therefore acted both in the exercise of
constitutional authority and in the discharge of his
constitutional obligation in referring the question raised
by respondent 2’s petition for the opinion of the appellant.
The next question for consideration is whether, on
receiving the President’s communication asking for its
opinion, the appellant committed any error of law or acted
beyond its jurisdiction in seeking the explanation of
respondent 1. The Representation of the People Act 43 of
1951, "the Act", confers extensive powers on the Election
Commission in regard to inquiries pertaining to questions
referred by the President for its opinion under Article 103
of the Constitution. Section 146(1) of the Act provides, in
so far as material, that where in connection with the
tendering of any opinion to the President under Article 103,
the Election Commission considers it necessary or proper to
make an inquiry and if it is satisfied that on the basis of
documents produced by the parties it cannot come to a
decisive opinion on the matter which is being inquired into,
it shall have for the purposes of inquiry the powers which a
civil court has while trying a suit in respect, inter alia,
of summoning and enforcing the attendance of
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any person, examining him on oath, the discovery and
production of any document and receiving evidence on
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affidavits. Sub-section (2) of section 146 which is more to
the point provides:
"The Commission shall also have the power to require
any person, subject to any privilege which may be
claimed by that person under any law for the time being
in force, to furnish information on such points or
matters as in the opinion of the Commission may be
useful for. Or relevant to, the subject matter of the
inquiry."
We see no doubt that the Election Commission, by reason of
these provisions, had the power and authority to require
respondent 1 to furnish information on matters which were
relevant to the subject matter of the inquiry, namely, the
allegations contained in the petition presented by
respondent 2 to the President of India.
Article 103(2), as it stood then, required the
President to obtain the opinion of the Election Commission
before deciding the question referred to in clause (1) of
that Article. The President was bound to act according to
the opinion given by the Commission. By the Forty second
Amendment, Article 103(2) requires the President to consult
the Election Commission. The Amended Article expressly
confers power on the Commission to make, for that purpose,
"such inquiry as it thinks fit". The implication of the
unamended Article was in truth and substance the same,
namely, that since the Commission was charged with the
obligation to tender its opinion to the President, it had
the power to make such inquiry as it thought fit in order to
enable it to express its opinion, which under the law as it
stood then, was binding on the President. The Forty-second
amendment expressed clearly what was necessarily implicit in
the old provision. If the Constitution envisages that the
Commission should have the power to make such inquiry as it
thinks fit even when its opinion is not binding on the
President who is merely required to "consult" the Commission
it cannot be that the Commission could tender its binding
opinion without the right and, nay the duty, of making the
necessary inquiry.
Respondent 1 rushed to the High Court some what
hurriedly, thinking probably that the appellant having
already condoned the delay which had occurred in filing the
return of the election expenses, he had not incurred or
become subject to any disqualification as mentioned in
Article 102(1) of the Constitution and therefore the
appellant had no justification for calling upon him to
submit his explanation. That however is a different thing
from saying that either the President of India or the
appellant exceeded his or its jurisdiction when the
215
former referred the matter for the opinion of the latter and
the latter sought an explanation from respondent 1. The
appellant could and should have in the first instance
verified from its own record whether there was any
justification for the grievance made by respondent 2. But in
giving to respondent 1 an opportunity to submit his
explanation. the appellant, far from acting beyond the scope
of its statutory and constitutional powers, acted in
conformity with the principles of natural justice. Article
103 (1) gives finality to the President’s decision which,
under the old provision, had to be in conformity with the
opinion of the Election Commission. Before giving an opinion
which thus had finality, the Commission acted but fairly in
asking respondent 1 to submit his say. As stated above, it
had the power to ascertain what explanation respondent I had
to give an answer to respondent 2’s allegations.
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The High Court misdirected itself in reaching the
conclusion that the appellant acted beyond its jurisdiction
in issuing the notice to respondent 1 calling upon him to
submit his explanation in regard to the allegations made by
respondent 2 in his petition to the President. According to
the High Court, "facts leading to disqualification under
section 10A" of the Act, "cannot be the subject matter of
inquiry and decision under Article 103 of ’the
Constitution’?. It is impossible to accept this statement of
law in view of the express provision contained in Article
103(1) (a) that if any question arises as to whether a
member of either House of Parliament has become subject to
any of the disqualifications mentioned in Article 102(1),
the question shall be referred for the decision of the
President. Article 102(1) provides by sub-clause (e) that a
person shall be disqualified for being chosen as, and for
being, a member of either House of Parliament if he is so
disqualified by or under any law made by Parliament. By
section 10(A) of the Act, the Election Commission has the
power to declare a person to be disqualified if it is
satisfied that he has failed to lodge an account of election
expenses within the time and in the manner required by or
under the Act and has no good reason or justification for
the failure. A declaration of disqualification made in
pursuance of power conferred by section 10(A) is a
declaration made by the Election Commission under a law made
by Parliament. It, therefore, attracts Article 102(1)(e) and
consequently Article 103(1) of the Constitution.
The High Court thereafter proceeded to hold that the
question whether respondent 1 had become subject to any
disqualification under section 10(A) of the Act did not
arise on the facts stated in the petition by respondent. We
do not see our way to accepting this statement.
216
Though respondent 2 was not in a position to make a
categorical assertion in his petition that respondent 1 had
incurred a specific disqualification he did make allegations
generally in regard to disqualifications said to have been
incurred by respondent 1. Upon the making of these
allegations a question arose or contemplated by Article
103(1)(a) of the Constitution and the President had to
obtain the opinion of the Election Commission on that
question. Respondent 2’s petition could not have been
rejected by the President without reference to the Election
Commission on the ground that the allegations made by
respondent 2 were unfounded or unsubstantial.
A similar question arose before this Court in Brundaban
Nayak v. Election Commission of India and Anr.(1) Article
191(1) of the Constitution provides that a person shall be
disqualified for being chosen as, and for being, a member of
the Legislative Assembly or Legislative Council of a State
if, inter alia, he is so disqualified by or under any law
made by Parliament. Article 192(1), as it then stood,
provided that if any question arises as to whether a member
of a House of the Legislature of a State has become subject
to any of the disqualifications mentioned in clause (1) of
Article 191, the question shall be referred for he decision
of the Governor and his decision shall be final. By Article
192(2) the Governor had to obtain the opinion of the
Election Commission before giving his decision and he was
also under an obligation to act according to the
Commission’s opinion. These provisions correspond to
Articles 102 and 103 respectively with which we are
concerned. While dealing with an argument as to whether it
could be said that the question as contemplated by Article
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192(1) had arisen, Gajendragadkar, C.J. speaking on behalf
of the Court observed that the first clause of Article
192(1) P did not permit of any limitations and that all that
the clause required was that a question should arise. How
the question arose, by whom it was raised and under what
circumstances it was raised were not relevant for the
purpose of the application of the clause. The Court took
notice of the fact that complaints made to the Governor
could be frivolous or fantastic, but it held that if they
were of such a character, the Election Commission would have
no difficulty in expressing its opinion that they should be
rejected. That however did not mean that a question as
contemplated by Article 192(1) did not arise. Lastly it was
urged in that case that it is the Governor and not the
Election Commission who had to hold the enquiry since the
Constitution required the Governor to decide the particular
question. This contention was rejected on the ground that it
was the opinion of the
(1) [1965] (3) S.C.R. 53.
217
Election Commission which in substance was decisive and
therefore it was legitimate to assume that when the
complaint received by the Governor was forwarded by him to
the Election Commission, the latter had the power and the
jurisdiction to go into the matter which meant that it had
the authority to issue notice to the person against whom the
complaint was made, calling him to file his statement and
produce evidence in support of his case. The High Court was
in error in seeing "nothing" in this decision which was
contrary to its view. ;
For these reasons we allow the appeal filed by the
Election Commission and direct that the writ petition filed
in the High Court by respondent 2 shall stand dismissed.
There will be no order as to costs.
S.R. Appeal allowed.
15-520SCI/78
218