Full Judgment Text
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PETITIONER:
RAM DEO BHANDARI & OTHERS
Vs.
RESPONDENT:
ELECTION COMMISSION OF INDIA & OTHERS
DATE OF JUDGMENT17/01/1995
BENCH:
AHMADI A.M. (CJ)
BENCH:
AHMADI A.M. (CJ)
BHARUCHA S.P. (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1995 AIR 852 1995 SCC (2) 153
JT 1995 (1) 671 1995 SCALE (1)178
ACT:
HEADNOTE:
JUDGMENT:
ORDER
1. Article 168 of the Constitution provides that every
State shall have a Legislature and Article 172(1) provides
that 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
expiration of the said period of five years shall operate as
a dissolution of the Assembly. Under this Article the five
year term of the Legislative Assemblies of two States,
namely, the States of Bihar and Orissa will expire on March
15, 1995. It is obvious that on expiration of the said term
the assemblies of the said two States will stand dissolved.
To satisfy the mandate of Article 168 it is necessary that
elections should be held in the aforesaid two States in a
manner that the election results are declared for March 15,
1995. The latest Press Note issued by the Election Com-
mission on December 8, 1994 states that the elections in the
States of Bihar and Orissa would be completed before March
10, 1995. Ordinarily no objection can be raised by either
of the States to the schedule of elections fixed with a view
to completing the same before March 15, 1995.
2. However, in paragraph 06 of the said Press Note it is
ordained :
"A poll in any of these States will not be
taken without the supply of electoral identity
cards to all eligible electors. The State
Government will be called upon to furnish a
certificate that photo identity cards have
been supplied to all eligible electors. "
On a plan reading of the said paragraph it is clear that
unless ’all’ eligible electors are supplied electoral
identity cards and a certificate to that effect is rot
furnished by the concerned State Government no poll will be
taken in that State. It is, therefore, apprehended by the
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petitioners of writ petitions Nos. 2 and 6 of 1995 which
concern the States of Bihar and Orissa that since the said
two States are not in a position to complete the requirement
of supplying photo identity cards to ’all’ eligible electors
before the last date fixed for the same, elections may not
be taken in the said two States thereby denying to the
electors thereof their constitutional right to elect a new
assembly for their respective States. The petitioners
contend that
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that would tantamount to the eligible electors of the State
being denied their constitutional and democratic right to
elect a new assembly. This apprehension arises in the
background of the following events.
3. On August 28, 1993, the Election Commission in
purported exercise of powers under Rule 28 of
the.Registration of Electoral Rules, 1960 read with Section
130(2) of the Representation of Peoples Act 1950, read with
Section 130 (2) of the Representation of People’s Act,
issued a directive for the supply of photo identity cards to
electors in the assembly as well as parliamentary
constituencies in each State, with a view to prevent
impersonation of electors and facilitating their iden-
tification at the polls. It was also made clear in no
uncertain terms that no polling at elections for which the
Election Commission is responsible shall take place after
January 1, 1995 unless ’all’ eligible electors have been
supplied with identity cards. What features the identity
cards shall bear was also indicated with a caution that
’there will be no departure from these features in any
manner whatsoever.’ This was followed by High Level Meetings
at which certain State Governments, including the
representatives of be said two Sum: of Bihar and Orissa,
pointed out certain difficulties in the implementation of
the said directive. The Chief Election Officers of the
States were held responsible for maintaining the schedule
for completion of the identity cards to the electors before
deadline fixed by the Election Commission. On May 11, 1994,
the Election Commission wrote to the Chief Secretary and
Chief Election Officer, Bihar that there was virtually no
progress made towards issuance of identity cards and added
’the commission hereby forewarns you that the responsibility
for any constitutional stalemate that may arise because of
your failure to comply with the instructions of the
commission...... will rest squarely with you and the State
Government.’ This was followed by a letter dated November 6,
1994 drawing the attention of the State of Bihar that the
progress was very unsatisfactory and warned that should any
constitutional crisis arise on account of elections not be-
ing held for want of identity cards, the responsibility will
rest squarely on the State Government. Then by the letter
of December 29, 1994, the Election Commission stated that
the notification calling the elections would be issued only
after the receipt of the certificate from officers of the
State Government that all eligible voters had been supplied
with photo identity cards. By die order of November 30,
1994, the Election Commission stated that in no case will
any request for extension of deadline be entertained. This
gave rise to the apprehension that the elections to the leg-
islative assemblies of the States of Bihar and Orissa will
not be held before March 15, 1995, for their failure to
comply with the directive of grant of identity cards.
4.When the writ petitions filed under Article 32 of the
Constitution came up for admission before us yesterday we
heard counsel for the petitioners, Shri Fali S. Nariman for
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the State of Orissa in Writ Petition No 6 of 1995 and Shri
Soli J. Sorabjee in Writ Petition No 2 of 1995 and Shri Bhat
for the State of Bihar as well as counsel for the petitioner
in Writ Petitions Nos.4 and 37 of 1995 and Shri G.
Ramaswamy, counsel for the Election Commission at some
length. We also heard them on the question of grant of
interim relief During the course of the hearing Shri Soli
Sorabjee briefly indicated in writ-
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ing the points arising for consideration. Shri G.Ramasamy,
learned senior counsel for the Election Commission
stated that since the State of Orissa had virtually
complied with the direction, in that, it had supplied photo
identity cards to almost 86% of voters, the Election
Commission will not enforce its instruction contained in
paragraph 06 extracted earlier. In other words Shri
Ramaswamy contended that in the State of Orissa elections
will not be held up for want of supply of identity cards to
’all’ electors eligible to vote and for want of an
undertaking/certificate in that behalf from the State
Governmental. That should settle the matter insofar as
Orissa is concerned. As far as the State of Bihar is
concerned, Shri Ramaswamy submitted that it was a willful
defaulter since it made no serious effort to comply with its
direction for the supply of identity cards. On the other
hand Shri Bhat contended that the Chief Election
Commissioner had failed to appreciate the economic as well
as the social conditions in Bihar and without taking into
account the ground realities had tried to press, may, coerce
the State into submission. At that stage Shri Guptoo, the
learned Advocate General for West Bengal, who was in court,
stated that as far as his State Government is concerned, the
Chief Election Commissioner had gone to the length of saying
that failure to implement his order would tantamount to a
break down of he constitutional machinery in the State and
threatened to inform the President of India accordingly.
While there may be force in the submission that the language
used in the correspondence by the Election commission is
unduly harsh and abrasive, ordinarily not used in
correspondence between high-level functionaries, the fact
remains that. the State of Bihar had lagged far behind in
implementing the orders of the Election Commission. Counsel
for the State of Bihar stated that his Government was firmly
of the opinion that the Election Commission had no power or
authority to hold up or to threaten to hold up the election
process if the identity cards were not issued. This would
be a larger question to be answered at the final hearing.
5.Shri Ramaswamy in the light of discussion made a statement
at the Bar and followed it up by placing it in writing,
which runs thus:
"The Commission has no intention of creating
any constitutional crisis. Since 18 months
time has been given for completion of the
exercise, the deadline of 1. 1. 1995 fixed 18
months ago was insisted upon.
Since elections to the legislative assembly of
the State of Bihar have been notified, the
Election Commission will not withhold the
elections on the ground that identity cards
have not been supplied to all voters provided
the Government of Bihar gives an undertaking
to this court that it will complete the
exercise of issuing identity cards before
30.9.1995.
This is without prejudice to the contentions
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of the parties to the writ petitions.
sd/.
(S.K. Mendiratta)
Secretary Election Commission
of India"
6. From above statement it becomes clear that whatever the
Election Commission may have said in the earlier corre-
spondence and no matter how forcefully it may have insisted,
the Election Commission is mindful of the consequence that
may follow should the two States not be
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allowed to go to the polls for their failure to supply
identity cards to ’all’ eligible electors. It has also
assured us that since elections to the legislative assembly
of Bihar have been notified, the Election Commission will
not withhold the elections for want of identity cards. The
Election Commission has, however, desired that the State of
Bihar should undertake to complete the entire exercise
before September 30, 1995. Such an undertaking would
ofcourse be without prejudice to the contentions of the
parties. Shri Bhat on the other hand contended that the
Election Commission has no power or authority to withhold
elections for failure to issue identify cards and it cannot
refuse to permit an elector to cast his vote for want of
such a card, and therefore, there is no question of the
State of Bihar giving any such undertaking and in any case
he cannot do so without the express authority of his client.
We appreciate his difficulty.
7. Taking all the above facts and circumstances into
consideration we direct rule nisi to issue in all the four
writ petitions and direct counsel to complete the paper
books within four weeks. Printing dispensed with.
8. We further direct that the Election Commission shall
not withhold the elections to the legislative assemblies of
Bihar and Orissa on the ground that the said Governments had
failed to complete the process of insurance of photo
identity cards by the deadline prescribed by it. There will
be an interim stay in the said terms. The Election
Commission will, however, be free to take Such other steps
as it considers necessary and arc permissible to ensure a
fair free poll.
9. As regards the grant of undertaking, no Such
undertaking having been sought from the State of Orissa, the
learned counsel for the State of Bihar may obtain
instruction, in that behalf from his clients and report
within four weeks.
10. Let the writ petitions come up with Transferred Cases
Nos. 13,14,16 and 18 of 1994 and Civil Appeal No.6106 of
1994 (Shri T.N. Seshan V. State of West Bengal)
11. Liberty to mention for early hearing.
12. Since the averments in the Writ Petitions filed
subsequent to writ petition No.2 of 1995 are more less
identical we have mainly referred to the averments in the
first petition.
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