Full Judgment Text
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PETITIONER:
SPECIAL REFERENCE NO. 1 OF 1974
Vs.
RESPONDENT:
DATE OF JUDGMENT05/06/1974
BENCH:
RAY, A.N. (CJ)
BENCH:
RAY, A.N. (CJ)
REDDY, P. JAGANMOHAN
KHANNA, HANS RAJ
PALEKAR, D.G.
MATHEW, KUTTYIL KURIEN
BEG, M. HAMEEDULLAH
CHANDRACHUD, Y.V.
CITATION:
1974 AIR 1682 1975 SCR (1) 504
1974 SCC (2) 33
ACT:
Constitution of India, 1950, Article 54--An electoral
college consisting of meaning of.
Constitution of India, Article 71 (4)--Dissolution of a
State Legislative Assembly--Vacancy in the electoral
college, if occurs on such dissolution.
Constitution of India, 1950, Articles 54, 55 and
62--Election to the office of the President--Completion of
election before the expiration of the term in case of
vacancy caused by the expiry of the term--Whether mandatory.
Presidential and Vice-Presidential Elections Act, 1952,
Section 7 read with section 4--Completion of the election
before the expiration of the term--Whether contemplated.
Constitution of India. 1950, Article 56(1)(c) "successor".
meaning of--President, whether can continue in office after
the expiration of his term.
Constitution of India, 1950, Article 143(1)--Statement of
facts set out in order of Reference--Supreme Court, whether
can go behind the recitals.
HEADNOTE:
The Gujarat State Legislative Assembly having been dissolved
on the 15th day of March, 1974. a general election for
constituting a new Legislative Assembly can be held only
after the Assembly constituencies have been delimited afresh
on the basis of the 1971 census under article 170 of the
Constitution of India and the provisions of the Delimitation
Act, 1972. In as much as it will be impossible to complete
the general election to the Legislative Assembly for the
State of Gujarat before the expiration of the term of office
of the President of India i.e. on the 14th day of August,
1974, in exercise of the powers conferred upon him by clause
(1) of article 143 of the Constitution of India, the
President of India referred the following question to the
Supreme Court of India for consideration and report its
opinion thereon :
(1) Whether on a true and correct
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interpretation of articles 54. 55, 56, 62 and
71 of the Constitution of India the electoral
college mentioned in article 54 is to consist
only of the elected members of such of the
Legislative Assemblies of the States as are in
existence at or before the expiration of the
term of office of President under article
56(1) of Constitution of India.
(2) Whether on a true and correct
interpretation of the provisions of article
71(4) of the Constitution of India, when the
Legislative Assembly or Assemblies of any
State or States is or are dissolved it will
amount to a vacancy or vacancies having
occurred in the electoral college within the
meaning of the said article.
(3) Whether in view of the Provisions
contained in, inter alia. articles 54, 62(1)
and 71(4) of the Constitution of India
election of the office of President must be
held before the expiration of the term of the
outgoing President notwithstanding the fact
that at the time of such election the
Legislative Assembly or Assemblies of any
State or States is or are dissolved.
(4) Whether the dissolution of the
Legislative Assembly or Assemblies of any
State or States precludes the holding of
election to the office of President.
(5) Where the Legislative Assembly or
Assemblies of any State or States is or are
dissolved before the expiration of the term of
office of the outgoing President under article
56(1) of the Constitution of
505
India. how and when is the election to fill
the vacancy in the office of President to be
held and completed on a correct interpretation
of the relevant provisions of the Constitution
of India to make the Constitution of India
workable regarding the office of President.
(6) Whether in the event of the election to
the office of President not being completed
before the expiration of the term of office of
President under article 62(1) of the
Constitution, the President can
notwithstanding the expiration of the term,
continue to hold office under clause (c) of
the proviso to article 56(1) of the Constitu-
tion of India.
HELD that : (1) Only such persons who are elected members of
both Houses of Parliament and the Legislative Assemblies of
the States on the date of the election to fill the vacancy
caused by the expiration of the term of office of the
President will be entitled to cast their votes at the
election. [523C]
The members of electoral college mentioned in Article 54 are
not both Houses of Parliament and the Legislative Assemblies
of the States. The words ,an electoral college consisting
of’ in Article 54 mean that the electoral college shall
consist of persons mentioned therein. The words ’consisting
of refer to the strength of the electoral college. The
Houses of Parliament and the Legislative Assemblies are
mentioned in Article 54 for the purpose of showing the
qualifications of members of electoral college. If the
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Legislative Assembly of a State is dissolved, the members of
the dissolved Assembly do not fulfill the character of
elected members of a State Assembly. The elected members of
a dissolved Legislative Assembly being no longer members of
the electoral college consisting of the elected members of
both Houses of Parliament and elected members of the
Legislative Assemblies of the States, are not entitled to
cast votes at the Presidential election. [517 E-F; 518 F-H]
(2) The vacancies caused by the dissolution of an Assembly
or Assemblies will be covered by Article 71(4).
In Narayan Bhaskar Khare v. The Election Commissioner of
India. [1957] S.C.R. 1081, this Court found that not holding
the election in Himachal Pradesh could not hold up the
election of the President. It may be said on the analogy of
the observations in the Khare case that there are vacancies
in the electoral college by reason of the fact that there
are no elected members of the Legislative Assembly of a
State where the Legislative Assembly is dissolved. Article
71(4) was really introduced after the Khare case to shut out
any challenge to the election on the ground that there was
any vacancy among members of the electoral college. In view
of the Constitutional declaration or exposition of Article
71(4), it is manifest that the language is of wide
amplitude,viz., existence of any vacancy for any reason
’whatever among the members of the electoral college. It
will take in any case where a personwho as an elected member
of the Houses of Parliament or the Legislative Assembly of a
State became entitled to be a member of the electoral
college but ceased to be an elected member at the relevant
date of the election and therefore became disentitled to
cast vote at the election and that vacancy among members of
the electoral college was not filled up.
Questions as to, what would be the position if there is
"mala fide dissolution" of a State Legislative Assembly or
Assemblies or if there is, after the dissolution of the
Assembly or Assemblies a "mala fide refusal" to hold
elections thereto within reasonable time before the
Presidential election and also the question as to what would
be the effect of the dissolution of a substantial number of
State Legislative Assemblies before the Presidential
election left open ? [516 E; 520 C; E-H]
3. 4 and 5. The election to the office of the President
must be held before the expiration of the term of the
President notwithstanding the fact that at the time of such
election the Legislative Assembly of a State is dissolved.
The election to fill the vacancy in, the office of the
President is to be held and completed having regard to Arti-
cles 62(1), 54. 55 and the Presidential and Vice-
Presidential Elections Act, 1952. [523F]
506
The fixed term of Office mentioned.in Article. 56(1) as well
as the mandate in Article 62(1) that the election to fill a
vacancy caused by the expiration of the item of office shall
be completed before the expiration of the term reflects the
dominant constitutional purpose and intent regarding the
time when the election of the President is to be held.
Further, the provision in Article 62(2)
that an election to fill a vacancy in the office of the
President by reason of his death, resignation or removal or
otherwise be held as soon as possible after and in no case
later than six months from the date of the occurrence of the
vacancy shows that the time to ’hold an election to fill a
vacancy is also mandatory in chapter. [513 B]
Khare case followed.
The completion of election before the expiration of the term
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in the case of vacancy caused by the expiry of the term as
well as filling the vacancy by holding an election not later
than six months from the date, of the occurrence of the
vacancy in the other case does not contain any provision for
extension of time. Provisions contained in Article 83
providing for extension of the period beyond the period of
five years may be referred here by way of contrast. [513 D]
The word "otherwise" occurring in Article 62(2) of the
Constitution does not refer to a vacancy caused by the
expiration of the term of office for the obvious reason that
the same is the subject matter of Article 62(1). The margi-
nal note to Article 62 fully bears this out. Further a
President whose term has expired can continue to hold the
office only under Article 56(1) (c) until his successor
enters upon his office. Article 56(1)(c) is complementary
to Article 62(1). Vacancy under this Article does not
enable the President to continue in office. [513 6; 514 B]
Provisions of section 7 of the Presidential and Vice-
Presidential Elections Act, 1952, are to be considered along
with section 4 of the Act. This Act indicates that the
provisions contemplate the completion of the election before
the expiration of the term. If the completion of the
election before the expiration of the term is not possible
because of the death of the prospective candidate, it is
apparent that the election has commenced before the
expiration of the term but completion before the expiration
of the term is rendered impossible by an act beyond the
control of human agency. The necessity for completing the
election before the expiration of the term is enjoined by
the Constitution in public and State interest to see that
the governance of the country is not paralysed by non-
compliance with the provision in Article 52 that there shall
be a President of India. The impossibility of the
completion of the election to fill the vacancy in the office
of the term of office in case of death of a candidate as may
appear from section 7 of the 1952 Act does not rob Article
62(1) of its mandatory character. [514 D-E; 515 D-E]
Article 55 which indicates the methods of calculating as to
how many votes an elected member of the electoral college
can cast at the Presidential election, has no concern with
the competence of the election of the President because of
the dissolution of the Legislative Assembly of a State. [518
C-D]
Article 62 is the constitutional mandate and other
provisions like Article 54, 55 subserve Article 62. The
Legislative Assemblies of the States are not members of the
electoral college. None of the Articles 368, 54, 55 can rob
Article 62 of its constitutional content. Article 62
stands-by itself independent of any
other provision. [519 F]
Khare case discussed. Bratt v. Brat (1826) 3 Adams 210 ,it
p. 216 and Raburton v. Loveland (1832) 2 D & Cf. 480
referred to.
(6) Article 56 (1) (c) applies to a case where a successor
has not entered his office and only in such circumstances
can a President whose term has expired continue. [523 E-F]
The expression "successor" in Article 56 (1) (c) means a
successor elected before or even after the expiration of the
term stated Article 62(1). The term of office of the
President is fixed. The election to fill the vacancy caused
by the expiration of the term is to be completed before the
expiration of the term. It is in that cortex, that the
outgoing President, notwithstanding the expiration of
507
the term, continues to hold office under Art. 56(1) until
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his successor enters upon office. The successor can only
enter upon his office after he takes the oath under Article
60. He can take oath only after the election. it is
possible that the successor cannot enter upon his office on
the day following the expiration of the term of office of
the outgoing President for unavoidable reasons. That is why
Articles 56 (1), 56(1) (c) and 62 (1) are to be read
together to give effect to the constitutional intent and
content that the election to fill the vacancy caused by the
expiration of the term of the President is to be completed
before the expiration of the term. [516 F-G]
Held also that : (1) This Court is bound by the recitals in
the order of Reference. Under Article 143(1) this Court
accepts the statement of fact set out in the reference. The
truth or otherwise of the facts cannot be enquired or gone
into nor can this Court go into the question of bona fides
or otherwise of the authority making the reference. This
Court cannot go behind the recital. This Court cannot go
into disputed questions of fact in its advisory jurisdiction
under Article 143 (1). [521 D-E]
Re. Kerala Education Bill case, [1959] S.C.R. 995 followed.
Re Allocation of Lands and Building in a Chief
Commissioner’s Province [1943] F.C.R. 20 and Re Levy of
Estate Duty, [1944] F.C.R. 317 referred.
(ii) The Legislative Assembly of the State of Gujarat has
been dissolved. Therefore, any election which has to be
held to the Legislative Assembly of the State of Gujarat can
only be held after the delimitation of the constituencies
under the Delimitation Act, 1972. Any Legislative Assembly
of a State which is to be composed after 1971 census is to
be in accordance with Article 170 of the Constitution. The
expression "Population" in Article 170 means the population
as ascertained at the last preceding census of which the
relevant figure have been published. [523 BC; 522 E]
ARGUMENTS
Attorney-General
The provisions of Articles 52, 53 and 77 (1) as well as
several other provisions of our Constitution clearly show
that without a President the governance of the country under
our Constitution will come to a standstill. The makers of
the Constitution of every country providing for a President
consider a definite term of office for the President to be
of primary importance and express their intention
accordingly in their constitution. The makers of our
Constitution have also done so. The election of the
President before the expiration of the definite period of
term of his office must necessarily also be of primary
importance in order to achieve, the intention of the makers
of the Constitution to give the President a definite Period
of his term as President.
Thus clause (1) of Article 62 is expressed in peremptory and
mandatory language to give effect to the intention of the
makers of the Constitution-, it operates independently and
is not circumscribed or conditioned by or dependent on any
other provision of the Constitution. Clause (2) of Article
62 makes this still clearer. The contingencies referred in
65 (1) are the same as those referred to in 62 (2). Sub-
sections (3) and (4) of Section 4 of the Presidential and
Vice Presidential Elections Act, 1952, enacted in pursuance
of powers conferred under Art. 71(3) point to the same
conclusion regarding the peremptory and mandatory character
of Art. 62. Reading proviso (c) to clause (1) of Art. 56 in
the context of 56 (1) and 62, it becomes clear that,
notwithstanding the expiration of his term, the President
will continue to hold office only for a very brief period
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until his successor enters upon his office. A comparison of
clause (3) 3 of Article 12 of the Constitution of Eire with
Art. 62 of our Constitution will also indicate the
peremptory and mandatory character of the latter.
Peremptory and mandatory character of 62(1) is no longer res
integra : Narayan.Bliaskar Khare v. The Election
Commission of India [1957] S.C.R. 1081.
Article 54 merely lays down the qualifications for
membership of the ’electoral college"-mentioned therein and,
in’ effect, only specifies the electorate for the
Presidential election. Nominated members have no place in
that. Art. 54 may be read in either of the two ways; one
the electoral college denotes the full strength of the
elected members of the Legislatures, if all the elective
seats therein had been
508
filled up at the relevant time or, two, it is to consist of
such of the elected members of the Legislatures as are
actually elected members at the relevant time. On the first
view, it would almost be impossible to hold the Presidential
election, because the full strength of elected members is
rarely available at the relevant time. On the second view,
in the context of 71(4) there will be no difficulty in
holding the election at the relevant time. If the first
view is accepted, after 1961 Article 71(4) will bar any
question as to the validity of the election on the plea of
existence of any vacancy among the members of the electoral
college electing the President. Whichever view of Article
54 be taken, it would not affect the validity of
Presidential election held at a time when the Legislative
Assembly of a State is not in existence. Art. 71(4) will
operate as a bar to questioning the validity of the
election.
The "electoral college" mentioned in Art. 71(4) is the same
"electoral college" as in Art. 54. This "electoral college"
is independent of the Legislatures mentioned in Article 54,
notwithstanding that the elected members of these Legis-
latures constitute the "electoral college". The words "any
vacancy" in Art. 71 (4) indicate that the vacancy may be of
any nature, that is due to any cause, or may be of any
magnitude.’ The expression "any vacancy for whatever reason’
does not admit of any limitation on its purport or scope.
The words "for whatever reason" emphasis that the nature or
magnitude of the reason for any such vacancy is immaterial.
The dissolution of Legislative Assembly of a State would
only be a cause resulting in vacancies among members of the
electoral college within the meaning of 71(4).
The clear implication of 71 (4) read with Articles 54, 56
(1), 62 (1) and 65 is that the election of President must be
held before the expiration of the term of office of
President, as peremptorily laid down in 62(1), or, as the
case may, as soon as possible, and in no case later than six
months from the date of occurrence of the vacancy due to any
of the causes mentioned in 62(2), as also peremptorily laid
down in that clause.
Article 55 has no more effect than indicating how the votes
to be cast at the Presidential election are to be
calculated. This Article lays down that if the formula laid
down therein are applied. uniformity and parity would be
secured. If there should be a vacancy in the "electoral
college" on either of the two interpretations on Article 54,
the formula laid down in Art. 55 will still be applicable
and will be applied and no question regarding the validity
of the election of the President for non-compliance with
Art. 55 can possibly arise.
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Solicitor-General
It is fairly clear that the Electoral College consists of
individual members and not of the various legislatures. The
usual language in other statutes where qualifications are
prescribed does not occur in Article 54. This is because in
the other statutes after laying down the qualifications a
judicial procedure for determination as to who qualifies
becomes necessary. By the very nature of provisions of Art.
54 all that is eliminated.
The provisions of Art. 56(1)(c) while enabling the outgoing
President to continue reiterate that his term nonetheless
has expired. Art. 62(1) binds itself with the limit of time
within which the election of a successor must take place.
The limit of time is the expiry of the term of the out-going
President.
There is no reason to depart from the natural interpretation
of the language of Art. 54, 56 and 62, by any supposed
principles to be inferred from the so-called federal nature
of the Indian Constitution. Although the President is Part
of the constitutional machinery, but having regard to
functions assigned to him, namely that of a Constitutional
head, always acting according to the advice of the Central
Cabinet, it does not matter to any state as to who occupies
the office of the President nor is there any federal
principle violated by permitting the members of the existing
legislatures constituting the electoral college to elect the
President. The Union Territories have their representation
only through the Members of Parliament. This is no reason
why the same principle should not be applicable for
instance, when the Gujarat Assembly is not there, the
Members of Parliament from Gujarat constituencies are there
to represent
509
it in the electoral college, The electoral college is always
duly constituted consisting of the members to answer the
description of Art. 54.
Art. 71(4) excludes a plea based on the contrary
interpretation by using the expression "for whatever
reasons" qualifying the vacancy.
Additional Solicitor General :
In the working of the Constitution the framers clearly
contemplated dissolution of Legislative Assemblies and even
of the House of the People not only by expiration of time
but even earlier Articles 172(1) and 174(2) regarding
Legislative Assemblies; Articles 83(2) and 85(2)(b)
regarding the House of the People. The framers of the
Constitution, therefore. knew that there may not be in
existence an elected House of the People or a Legislative
Assembly of a State at every point of time in the working of
the Constitution. Therefore, when Article 54 speaks of
elected members of the House of the People and elected
members of the Legislative Assemblies of the States, it only
prescribes the composition or strength of the elected
college. It does not specify at what point of time this
strength or composition is to be determined. The words
,.consisting of" do not mean "Must at the time of election
consist of".
Deliberative assemblies are not incompetent to perform their
duties or exercise powers because of vacancies in their
membership Fishwill v. Cleland C.L.R. 186 (188-89 and 198-
99) and Amayal Achi v. Lakshmi Achi [1945] F.C.R.
1. If the vacancies resulting in non-representation of an
entire State in the Council of States or the Houses of the
People do not affect the constitution of the Council of
States or the House of the People or its power to carry on
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its functions, it is difficult to understand how the absence
or representation of an entire State in the electoral
college makes a difference in the composition or functioning
of the electoral college.
Article 62(1) deals with periodical vacancies and Article
62(2) deals with casual vacancies. Reading articles 54 and
62 together it becomes clear that before the end of the
periodical vacancy or within six months of the occurrence of
the casual vacancy the new President must be elected-from
amongst the members of the electoral college mentioned in
Art. 54.
Article 55 relates to the mode of calculation of votes and
guarantees that the elections will be held and must be held
in the time schedule prescribed in Art. 62. The mode of
computation of votes on the basis of total strength has been
followed by the Election Commission, ever since the first
Presidential election in 1952.
If any doubt remained with regard to the composition of the
electoral college that doubt stood resolved by Art. 71(4).
The words "any vacancy" in this article would also include
vacancy arising by reason of compulsion of law namely,
dissolution. The words "for whatever reason" put the matter
beyond doubt. Article 71(4) is based on two pre-
suppositions; (1) that Art, 54 deals with the total strength
of the electoral college but not the time of election and
(2) that Art. 62 deals with the time of election and the
election must be held at the time there mentioned
irrespective of whether or not the total strength factually
exists at that time.
The speeches made in the Parliament during the Constitution
(Eleventh Amendment) Bill disclose that the contingency that
has now arisen, namely, a State of the Union being
unrepresented through members of its Legislative Assembly
consequent upon dissolution was contemplated and provided
for in Art. 7 (4).
Article 56(1)(c) does not contemplate any possible
"successor" but only a successor who has been elected-that
is the President-elect. This is clear from the words "until
his successor enters upon his office."
Death is a contingency contemplated under sec. 7 of the
Presidential and Vice-Presidential Elections Act 1952 would
have to be worked out within the time schedule fixed in
article 62(1) of the Constitution read with sec. 4(1) of
510
the AcT and if necessary by amending sec. 4(1) of the Act
to, meet the contingency of death occurring at a date very
near the date of expiry of the term of office of outgoing
President.
The notification under sec. 8 of the Delamination Act 1972
having already been published under sec. 10 of that Act
prior to the date of dissolution of the Gujarat Legislative
Assembly, the constituencies have to be delimited so as to
accommodate 182 seats in the place of 168 seats.
Bihar :
Except in cases specifically provided for under clause (2)
of Art. 62 this article requires that the election to fill
the vacancy at the expiration of the period of 5 years from
the date on which the President entered upon his office,
shall be completed before the expiration of the term. This
mandate of the framers of the Constitution is not qualified
by the Proviso to Art. 56. In fact, Article 62 peremptorily
and in absolute terms enjoins that election be held in the
natural course before the expiration of the term; and even
in unforeseen circumstances "not later than 6 months from
the date of the occurrence of the vacancy."
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Though Art. 71(4) does not envisage a contingency where a
State Legislature has been dissolved, the words of Art. 62
have an inexorable force. There can be no difficulty in
applying the formula contained in Art. 55 and workIng out
the scale of representation in spite of the dissolution of
Legislative Assembly of a State.
Manipur
Art. 62(1) is mandatory and the election to elect a new
President to the vacancy is to be completed before the
expiration of the’ term oF office of the President
irrespective of the dissolution of the Legislative Assembly
or Assemblies of a State or States. The elected members of
both Houses of Parliament can represent the people of State
whose legislative assembly has been dissolved. Art. 71(4)
is also intended to cover the vacancy caused by the
dissolution of a Legislative Assembly.
Tamil Nadu :
On a true and correct sense of the interpretation of
Articles 54, 55, 56, 62 and 71, the electoral college need
consist only of the elected members of such assemblies as
are in existence at the time of expiration of the period of
office of the outgoing President. Dissolution of a
Legislative Assembly will amount to "Vacancy" in electoral
college within the meaning of Art. 71(4). It follows,
therefore, that the election of the President must be held
before the expiration of the term of the outgoing President
notwithstanding the fact that at the time of such election
the Legislative Assembly of a State is dissolved.
On a correct interpretation of the relevant articles of the
Constitution, Art. 71(4) cannot include within its scope
"vacancies" by reason of dissolution of Assemblies or the
House of People made mala fide or in colourable exercise of
power or with an ulterior purpose. Further, if the House of
the People or majority of the Assemblies is dissolved and
reelection to the House or Assembly is deliberately not
conducted within a specified period, the election of the
President should not take place. Ordinarily, election to
the dissolved House or Assemblies should be completed within
reasonable time before the expiry of the term of the
outgoing President. Art. 62(1) should be construed as
subject to the implied limitation that if election to the
dissolved assembly or the House of People is not held within
a specified period except for a sufficient cause, the
election to the office of the President should not take
place. The question whether there is sufficient cause or
not for not holding the election is for the Supreme Court to
decide.
Bharatiya Jana Sangh
Under Article 143(1) of the Constitution it is not
obligatory for the Supreme Court to give opinion. It may in
certain cases decline to express opinion under its advisory
jurisdiction. As this Reference has not been made by reason
of
511
any bonafide doubt existing in the mind of Govt.-but with a
view to trying to secure judicial approval for a course of
political action Govt. has already decided on, the Supreme
Court should decline to express any opinion on this
Reference unless :
(a) The Govt. agrees to modify the Terms of Reference so as
to cover the two important aspects, namely, (1) inclusion of
Art. 170 and also the Delamination Act and (ii) inclusion of
the question as to whether the election would be valid if
the Govt. by its own acts of omission or commission, denies
to the representatives of Gujarat an opportunity of
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participating in the elections; and
(b) Government unreservedly commits itself to abiding by
Supreme Court’s opinion.
The "electoral college" mentioned in Article 54 does not
consist only of the elected members of such Legislative
Assemblies as are in existence at the time of the holding of
Presidential election but consists of elected members of all
the State Legislative Assemblies, and of the two House of
Parliament, and if any one of the Assemblies is not in
existence. the electoral college is incomplete. When the
Legislative Assembly of any State is dissolved, it will not
amount to ,.any vacancy" in the electoral college within the
meaning of Article 71(4) The functioning of the Constitution
is predicated upon the existence of and not on the absence
of the Legislatures. This is evident from Articles 79 and
168.
Art. 55(2) is so designed as to maintain parity between the
States as a whole and the Union, and uniformity amongst
States inter se, There is a purpose behind this. That
purpose is to maintain the neutral character of the
President as between the Centre and the States, and the
States inter se.
If the election to the office of the President be held in
the absence of the Legislative Assembly in one or more
States, the federal structure of the Constitution would be
undermined and the people of the States who have not parti-
cipated in the election of the President might develop a
doubt that they may not get justice from the President in
their disputes with the Union or States which participated
in the election.
Immediate holding of elections after dissolution of the
State Legislative Assembly or the Lok Sabha is mandatory and
the provisions of Art. 170 and of the Delimitation Act of
1972 should be interpreted as directory in order to
harmonise these provisions with the provisions of Articles
54. 56, 62, 79 and 168 of the Constitution.
The election to the office of President cannot be validly
held, when at the time of such election the Legislative
Assembly of any State is dissolved. To hold the election in
the absence of a Legislative Assembly will directly violate
the provisions of Articles 54, 55, 79 and 168 of the
Constitution.
The President can continue to hold the office under 56(1)(c)
notwithstanding the expiration of the term. But a healthy
convention will be to abide by the directory provision given
in Art. 62(1) and to hold the election during the term of
the President.
Indian National Congress (O)
The members of Electoral College are not specifically
elected for the purpose of voting in Presidential Election.
The parity between the States and the Centre provided for in
Art. 55 cannot be possibly achieved if one or more States
remain totally unrepresented. Art. 71(4) is intended to
cover an altogether different situation. The vacancy in the
electoral college can only mean that certain seats in an
assembly may be vacant but not that the whole House is
absent on account of its dissolution.
A harmonious construction of the relevant provisions of the
Constitution will reveal that if any State Assembly is not
in existence a fresh election to the State Assembly should
be held before the election to the office of the President.
Indian Muslim League :
The "electoral college" spoken of in Article 54 consists of
both the Houses of Parliament as well as of all the State
Assemblies. It is not legal to hold
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512
election if one or more State Assemblies are not in
existence at or before the expiration of the term of office
of the President. Otherwise the uniformity in the scale of
representation of the different States at the election of
the President cannot be maintained. The parity between the
States as a whole and the Union will also be destroyed. The
dissolution of a Legislative Assembly amounts to non-
existence of a constituent unit of the electoral college.
It is not a casual vacancy contemplated in Art. 71(4).
Though ordinarily the President’s election must be completed
before tile expiration of the term, the aid of Art. 62
cannot be so taken as to affect the basic provision in Art.
54 regarding the composition of the electoral college. The
proviso to Art. 56(1)(c) enables the President to continue
in office even after the expiry of his term. There is no
provision that the election of the President cannot be
postponed for a very short and reasonable period. No
election can be held in the absence of complete electoral
college. The elections to the State Assembly can be
completed without any unreasonable delay and Presidential
election held thereafter.
Socialist Party :
The President can continue in office beyond his term of
office. but not beyond six months from the date on which
vacancy occurs. However. even without the President or the
Vice-President, there can be no constitutional vacuum for
the office of the President because the Chief Justice or the
senior most judge of the Supreme Court can officiate as a
President of India under President (Discharge of Functions)
Act 1969.
The vacancy spoken of in Art. 71(4) is only a casual
vacancy. Vacancies caused by the non-existence of any State
Legislative Assembly or even of Lok Sabha in future would
disturb the uniformity in the scale of representation of
different states as well as parity between the states as a
whole and the Union. Holding of election to the office of
the President in the absence of a Legislative Assembly will
clearly violate Art. 55. Not only that. It with also
amount to destruction of the Federal structure and also the
basic principle, of republicanism, namely, equality of
States in the Union to take part in the Presidential
Election.
JUDGMENT:
ADVISORY JURISDICTION : Special Reference No. 1 of 1974.
(Reference under Article 143 of the Constitution of India.)
Niren De, Attorney General of India, Lal Narain Sinha, Sol.
General of India and R. N. Sachthey, for Attorney General of
India.
F. S. Nariman Addl. Solicitor General of India, S. P.
Nayar and Girish Chandra, for Election Commission.
Lal Narain Sinha, Solicitor General of India, and M. N.
Shroff, for Advocate General for the State of Maharashtra.
S. Govind Swaminathan, G. Ramaswamy and A. Subhashini for
Tamil Nadu Balbhadra Prasad Singh and U. P. Singh for Bihar.
M. Veerappa for Karnataka.
R. P. Kapoor, for Madhya Pradesh.
M. N. Abdul Khader and K. R. Nambiyar for Kerala.
N. Ibotambi Singh and R. N. Sachthey for Manipur.
S. N. Kachker and O. P. Rana for Uttar Pradesh.
L. M. Singhvi, U. P. Singh and S. M. Jain for, Rajasthan.
For the Applicants Interverners: Rajinder Lal Kohli, S. K.
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Bagga, S. Bagga, Satish Kohli and Yash Bagga, for P. S.
Walace.
C. L, Lakhanpal, S. K. Mehta, K. R. Nagaraja, M.
Qamaruddin, Vinod Dhawan and V. Mayakrishnan, for Indian
National Congress (O)
513
Santokh Singh and N. R. Choudhry for Socialist Party.
Bashir Ahmed, Shakeel Ahmed and K. L. Hathi for Indian Union
Muslim League.
L. K. Advani, President, Bhartiya Jana Sangh, appeared in
person for Bhartiya Jana Sangh.
M. M. Bajaj and Harinder Singh Khera appeared in persons,
The Judgment of the Court was delivered by
RAY, C.J.-This Reference has been made by the President
under Article 143(1) of the ’ Constitution of India for the
opinion of this Court on certain questions of constitutional
importance bearing upon the election to fill the vacancy on
the expiry of the term of office of the President on 24th
August, 1974.
The Reference turns on the principal question as to whether
the election to fill the vacancy caused on the expiry of the
term of office of the President must be completed before the
expiry of the term of office notwithstanding the fact that
the Legislative Assembly of the State of Gujarat is
dissolved.
Article 52 states that there shall be a President of India.
Article 56(1) states that the President shall hold office
for a term of five years from the date on which he enters
upon his office. Article 60 states that every President
before entering upon his office shall make and subscribe an
oath or affirmation as mentioned therein. Article 63(1)
states that an election to fill a vacancy caused by the
expiration of the term of the office of President shall be
completed before the expiration of the term. Article 56(1)
(c) states that the President shall, notwithstanding, the
expiration of his term, continue to hold office until his
successor enters upon his office.
The fixed term of office mentioned in Article 56(1) as will
as the, mandate in Article 62(1) that the election to fill a
vacancy caused by the expiration of the term of office shall
be completed before the expiration of the term reflects the
dominant constitutional purpose and intent regarding the
time when the election of the President is to be held. Fur-
ther, the provision in Article 62(2) that an election to
fill a vacancy in the office of the President by reason of
his death, resignation or removal or otherwise be held as
soon as possible after and in no case later than six months
from the date of the occurrence of the vacancy shows that
the time to hold an election to fill a vacancy is also
mandatory in. character.
The completion of election before the expiration of the term
in the: case of vacancy caused by the expiry of the term as
well as filling the vacancy by holding an election not later
than six months from the dateof the occurrence of the
vacancy in the other case does not contain any provision for
extension of time. By way of contrast reference may be made
to Article 83 where it is said that though the expiration of
the period of five years shall operate as a dissolution of
the house the period may, while a Proclamation of Emergency
is in operation, be extended by Parliament by law for a
period not exceeding one year at a time and not extending in
any case beyond a period of six months after the Proclama-
tion has ceased to operate.
514
The interveners suggested that the word "otherwise"
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occurring in Article 62(2) of the Constitution contemplates
a case of filling a vacancy occurring by the expiration of
the term but where such vacancy cannot be filled up by
completing the election before the expiration of the term by
reason of dissolution of the Assembly. The interveners
submitted that a vacancy could in such a case be filled up
not later than six months from .the date of the occurrence
of the vacancy. The submission of the interveners is
unsound. The word "otherwise" does not refer to a vacancy
caused by the expiration of the term of office for the
obvious reason that the same is the subject matter of
Article 62(1). The marginal note to Article 62 fully bears
this out. Further, a President whose term has ,expired can
continue to hold the office only under Article 56(1) (c)
until his successor enters upon his office. Article 56(1)
(c) is complementary to Article 62(1). Here successor means
a successor elected before or even after the expiration of
the term stated in Article 62(1) and as fully explained
later on.
The word "otherwise" may take in cases where, for example,
a President become disqualified to hold the office or where
his election is declared void, and, therefore, he cannot
hold the office. In such cases, an election is to be held
not later than six months from the date of the ,occurrence
of the vacancy.
Article 65(1) provides that where the office of the
President by reason of his death, resignation or removal or
otherwise becomes vacant, the Vice-President shall act as
President until the date on which a new President elected to
fill vacancy enters upon his office. Article 56(1) is
complementary to Article 62(2). An election to fill a
vacancy in the office of the President for the reasons
mentioned in Article 62(2) obviously does not attract
Article 56(1) (c). This is another reason which establishes
that the word "otherwise" used in relation to vacancy in the
office of the President under Article 62(2) cannot cover the
case of a vacancy in the office of the President by the
expiration of the term. Vacancy under Article 62(2) does
not enable the President to continue in office.
The interveners suggested that section 7 of the Presidential
and Vice-Presidential Elections Act, 1952 hereinafter
referred to as the 1952 Act shows that an election to fill
the vacancy in the office of the President may not be
completed before the expiration of the term. The
interveners, therefore, submitted that it could not be held
that the completion of election before the expiration of the
term was a mandatory provision.
Section 7 of the 1952 Act states that if a candidate whose
nomination has been made and is found to be in order on
scrutiny, dies after the time fixed for nomination and a
report of his death is received by the Returning Officer
before the commencement of the poll, the Returning Officer
shall, upon being satisfied of the fact of the death of the
candidate, countermand the poll and report the fact to the
Election Commission, and all proceedings with reference to
the election shall be commenced a new in all respects as if
for a new election.
These provisions in section 7 of the 1952 Act are to be
considered ;along with section 4 of the 1952 Act. Section
4(3) of the 1952 Act
515
states that in the case of an election to fill a vacancy
caused by the expiration of the term of office of the
President or Vice-President, the notification under sub-
section (1) shall be issued on, or as soon as conveniently-
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may be after, the sixtieth day before the expiration of the
term. of office of the outgoing President or Vice-President,
as the case may be, and the dates shall be so appointed
under the said sub-section that the. election will be
completed at such time as will enable the President or the
Vice-President thereby elected to enter upon his office on
the day following the expiration of the term of office of
the outgoing President or Vice-President, as the case may
be.
The 1952 Act indicates that the provisions contemplate the
completion of the election before the expiration of the
term. Section 7 of the 1952 Act speaks of the contingency
of death. In spite of the countermanding of the election in
the case of death of a person whose nomination has been
found in order it is provided that any other candidate whose
nomination was valid at the time of the countermanding of
the poll will not be required to present a fresh nomination.
Again, it is provided that no person who has withdrawn his
candidature before the countermanding of the poll shall be
ineligible for being nominated as a candidate for the
election. Therefore, it is the same process of Presidential
election which, was commenced under the Act for completion
before the expiration of the term. It is true that fresh
nominations can be presented by persons other than those
whose nominations have been found to be in order. That is
only because people are given the choice for presenting
fresh nomination papers for candidates of choice because of
the new and unanticipated events. It is not entirely a
fresh election. It is in some respects a new election. It
is in other respects a continuation of the election which
commenced but could not be completed because of death.
In determining the question whether a provision is mandatory
or directory, the subject matter, the importance of the
provision, the relation of that provision to tile general
object intended to be secured by the Act will decide whether
the provision is directory or mandatory. It is the duty of
the courts to get at the real intention of the legislature
by carefully attending the whole scope of the provision to
be construed. The key to the opening of every law, is the
reason and spirit of the law, it is the animus impotentia,
the intention of the law maker expressed in the law itself,
taken as a whole". (See Bratt v. Bratt (1826) 3 Addams 210
at p. 216).
If the completion of election before the expiration of the
term is not possible because of the death of the prospective
candidate it is apparent that the election has commenced
before the expiration of the term but completion before the
expiration of the term is rendered impossible by an act
beyond the control of human agency. The necessity for com-
pleting the election before the expiration of the term is
enjoined by the Constitution in public and State interest to
see that the governance of’ the country is not paralysed by
non-compliance with the provision that there shall be a
President of India.
The impossibility of the completion of the election to fill
the vacancy in the office of the President before the
expiration of the term of office in the case of death of a
candidate as may appear from section 7 of’ the 1952 Act does
not rob Article 62(1) of its mandatory character.
516
The maxim of law impotentia excusat legem is intimately
connected with another maxim of law lex non cogit ad
impossibilia. 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
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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. Where the
act of God prevents the compliance of the words of a
statute, the statutory provision is not denuded of its
mandatory character because of supervening impossibility
caused by the act of God. (See, Broom’s Legal Maxims 10th
Edition at pp. 1962-63 and Craies on Statute Law 6th Ed. p.
268).
The effect of Article 62(1) was considered by this Court in
Narayan Bhasker Khare v. The Election Commission of India
reported in [1957] S.C.R. 1081. Das, C.J. spoke, for the
constitution Bench of seven learned Judges. The petitioner
there made an application under .Article 71(1) of the
Constitution invoking the jurisdiction of this Court to
inquire into and decide what had been described as a grave
doubt in connection with the election of the President and
to direct the Election Commission not to proceed with the
polling which had been fixed for 6 May, 1957 but to hold the
same after completing the elections to the Lok Sabha and the
Legislatures in all the States of the Indian Union including
the Union territory. One of the contentions in that case
was that one of the petitioners was a prospective candidate
for election to the Lok Sabha from one of the Punjab
constituencies where election was yet to be held and he
would be prevented from exercising his right to vote for the
election of the President. This Court held that Article 62
of the Constitution required that the election of the
President must be completed within the time fixed by it and
this provision is conceived in the interest of the people in
general and is mandatory in character. The interveners
submitted that the observation of this Court in the Khare
case (supra) about the peremptory requirement to fill the
vacancy caused by the expiration of the term of .office was
obiter. That is not so. Das, C. J. speaking of Article 62
said "it is necessary to bear in mind this clear mandatory
provision of the Constitution". That is the true position.
There, is another important observation in the Khare case
(supra). It was contended there that the electoral college
mentioned in Article 54 must be constituted after elections
in all States and Union Territories are completed and should
consist of all the elected members falling within both the
categories because the Presidential election could not be
held until the vacancies were filled up. Elections did not
take place in Himachal Pradesh. Elections in two
Constituencies of the State of Punjab also did not take ace.
It was held that the election process could not be held up
till after the expiry of the five years term because it
would involve non-compliance with the mandatory provisions
,of Article 62. Das, C. J. referred to the electoral
college said that
517
if there are vacancies in Parliament or in the Legislature
of one or more States, the election of the President
required by Article 62(1) to be held before the expiry of
the term of the outgoing President cannot be held up until
the vacancies were filled up. This Court found that not
holding the election in Himachal Pradesh could not hold up
the election of the President.
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The term of office of the President is fixed. The election
to fill the vacancy caused by the expiration of the term is
to be completed before the expiration of the term. It is in
that context that the outgoing President notwithstanding the
expiration of the term continues to hold office under
Article 56(1) until his successor enters upon office. The
successor can only enter upon his office after he takes the
oath under Art. 60. He can take oath only after the
election. It is possible that the, successor cannot enter
upon his office on the day following the expiration of the
term of office of the outgoing President for unavoidable
reasons. That is why Articles 56(1), 56(1) (c) and 62(1)
are to be read together to give effect to the constitutional
intent and content that the election to MI the vacancy
caused by the expiration of the term of the President is to
be completed before the expiration of the term.
The interveners submitted that the true character of Article
62 depended on Articles 54 and 55 of the Constitution.
Article 54 states that the President shall be elected by the
members of an electoral college consisting of (a) the
elected members of both Houses of Parliament;. and (b) the
elected members of the Legislative Assemblies of the States.
The Constitution-makers may well have visualised that all
legislative bodies should be in existence at the time of the
Presidential election and all elected members of such bodies
should participate in that election. But that is only an
ideal. The realisation of this ideal is not practicable,
because of the likely vacancies in the legislative bodies
due to death, disqualification, resignation and the like.
Article 55(1) states that as far as practicable, there shall
be uniformity in the scale of representation of the
different States at the election of the President. Article
55(2) states that for the purpose of securing such
uniformity among the States inter se as well as parity
between the States as a whole and the Union, the number of
votes which each elected member of Parliament and of the
Legislative Assembly of each State is entitled to cast at
such election shall be determined in a manner set out in the
sub-article.
The interveners submitted that the units of the electoral
college were Houses of Parliament and the Legislative
Assemblies of States. The Jan Singh submitted that the
democratic character of the Constitution demanded that there
should be elected members of Legislative Assemblies of
States to be entitled to cast votes at such election. It
was said that if States were denied such right, they would
be denied representation. It was also said that if States
were denied the right to cast votes at the election, the
parity between the States and the Union would be disturbed.
The members of electoral college mentioned in Article 54 are
not both Houses of Parliament and the Legislative Assemblies
of the States.
518
The essence as well as scope of. Article 54 is merely to
prescribe qualifications required for electors to elect
President. The elected members of both Houses of Parliament
and the Legislative Assemblies of States are the only
members of the electoral college.
The essence of Article 55 merely lies in the application of
formulae each elector having the required qualifications
under Article 54 shall be entitled to exercise the number of
votes in accordance with Article 55. Neither Article 54 nor
Article 55 has anything to do either with the time of the
election to fill the vacancy before the expiration of the
term or to prevent the holding of the election before the
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expiration of the term by reason of dissolution of
Legislative Assembly of a State.
The electoral college as mentioned in Article 54 is
independent of the Legislatures mentioned in Article 54.
None of the Legislatures mentioned in Article 54 has-for the
purpose of that Article any separate identity vis-a-vis the
electoral college. The electoral college compendiously
indicates a number of persons, holding the qualifications
specified in the Article to constitute the electorate for
the election of the President and to act as independent
electors.
Neither Article 54 nor Article 55 prescribes the
circumstances in which or the time when the election of the
President shall take place. Article 55 has no concern with
the competence of the election of the President because of
dissolution of the Legislative Assembly of a State. Article
55(2) deals with the formulae for securing uniformity among
the States inter se and parity between States as a whole and
the Union. It is important to notice that parity is not
between each State separately as a unit on the one hand and
the Union on the other but between the States as a whole and
the Union.
Article 55(1) states that as far as practicable, there shall
be uniformity in the scale of representation. It is
indisputable that the uniformity among the States inter se
and parity between the States as a whole and the Union which
are contemplated in Article 55(2) are not the same thing as
uniformity in the scale of representation of the different
States contemplated in Article 55(1). The words ’as far as
practicable’ in Article 55(1) in relation to uniformity in
the scale of representation of the States are important.
Article 55(1) shows that the words ’as far as practicable’
indicate that in practice the scale of representation may
not be uniform because of the actual number of electors
entitled at the date of election to cast their votes. The
actual number of electors at the date of the election of the
President may not be equal to the total number of all the
elected members of both Houses of Parliament and all
Legislative Assemblies of all States.
Article 55 indicates the methods of calculating as to how
many votes, an elected member of the electoral college can
cast at the Presidential election. Article 55 has nothing
to do with any vacancy in the electoral college I as
mentioned in Article 71 (4), or a cesser of membership of
the electoral college, by reason of a member not. fulfilling
the character of elected member of both Houses of Parliament
or of Legislative Assemblies of States.
The words ’an electoral college, consisting of in Article 54
mean that the electoral college shall consist of persons
mentioned therein. The
519
words ’consisting of’ refer to the strength of the electoral
college. The Houses of Parliament and the Legislative
Assemblies are mentioned in Article 54 only for the purpose
of showing the qualifications of electoral college. The
dissolution of the Assembly means that there are no elected
members of that dissolved Assembly. The electoral college
is always ready to meet the situation at the expiry of the
term of office or any vacancy caused by death, resignation
or removal or otherwise. The elected members of a dissolved
Legislative Assembly of a State are no longer members of the
electoral college consisting of the elected members of both
Houses of Parliament and elected members of the Legislative
Assemblies of the States and are, therefore, not entitled to
cast votes at the Presidential election.
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It was said by the interveners that Article 54 reflects the
democratic pattern of participation by the States in the
choice of the President and if a State were denied such a
right, it would be undemocratic. Recourse was taken to
Article 368 to show that Articles 54 and 55 were mentioned
in the proviso to Article 368 and if any amendment of
Article 54 and 55 was required consent of the States was
necessary. It was, therefore, said by the interveners that
Articles 54 and 55 read with Article 368 would be a key to
the interpretation of Article 62 that no election of the
President could be held without the representation of
elected members of Legislative Assemblies of the State where
the Assembly has been dissolved. These submissions on
behalf of the interveners are without substance.
Article 54 lays down the qualifications for membership of
the electoral college. The Gujarat State Assembly has been
dissolved under Article 174. As a result of the
dissolution, there are no elected members of the Legislative
Assembly in a State. The electoral college consists of
elected members of State Assemblies. If the Legislative
Assembly of a State is dissolved, the members of that
dissolved Legislative Assembly do not fulfil the character
of elected members of a State Assembly. It will not only be
undemocratic but also unconstitutional to deny the elected
members of both the Houses of Parliament as well as the
elected members of the Legislative Assemblies of the States
the right to elect the President in accordance with the pro-
visions of the Constitution only because the Assembly of a
State is dissolved. The true meaning of Article 54 is that
such persons as possess the qualification of being elected
members of both Houses of Parliament and of Legislative
Assemblies of States at the crucial time of the date of
election will be eligible members of the electoral college
entitled to cast vote at the election to fill the vacancy
caused by the expiration of the term of office of the
President.
The submissions of the interveners that Article 62 will be
construed in the light of Articles 54, 55 and 368 are
unsound. It has always to be remembered that Constitution
is "the revelation of great purposes" which were intended to
be achieved by the Constitution as a continuing instrument
of Government. In Warburton v. Loveland (1832) 2D & Cl. 480
it has been said that ’no rule of construction can require
that when the words of one part of a statute convey a clear
meaning, it shall be necessary to introduce another part of
a statute for the purpose of controlling or diminishing the
efficacy of the first part". Article 62 is the
constitutional date and other provisions like
520
Articles 54, 55 subserve Article 62. The Legislative
Assemblies of the States are not members of the electoral
college. None of the Articles 368, 54, 55 can rob Article
62 of its constitutional content. Article 62 stands by
itself independent of any other provision.
It is appropriate at this stage to refer to provisions
contained in Article 71(4) of the Constitution. Article
71(4) was introduced by Constitution (Eleventh Amendment)
Act, 1961. The provision in Article 71(4) is that the
election of a person as President or Vice-President shall
not be called in question on the ground of the existence of
any vacancy for whatever reason among the members of the
electoral college electing him. Article 71(4) was
introduced after the decision of this Court in the Khare
case, (supra). Das, C.J. said in the Khare case (supra)
that though there are vacancies in the Parliament or the
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State Legislative Assemblies by reason of elections not
having been held in Himachal Pradesh and two Constituencies
in the State of Punjab, the holding of Presidential Election
cannot be postponed. This Court in the Khare case (supra)
stated that doubts or disputes of that nature could be
canvassed only after the conclusion of the entire election.
No opinion was expressed in the Khare case (supra) as to
whether a vacancy of the type in that case in the electoral
college could be a ground for calling in question the
election of the President. To remove all doubts, Article 71
(4) was introduced.
If as a result of dissolution of a Legislative Assembly of a
State, there are no elected members of the Legislative
Assembly of a State, a State will not have any elected
members of a State Legislative Assembly to qualify for the
electoral college. It may be said on the analogy of the
observations in the Khare case (supra) that there are
vacancies in the electoral college by reason of the fact
that there are no elected members of the Legislative
Assembly of a State where the Legislative Assembly is
dissolved. That matter will not be a ground either for
preventing the holding of the election on the expiry of the
term of the President or suggesting that the election to
fill the vacancy caused by the expiry of the term of the
office of the President could be held only after the
election to the Legislative Assembly of a State where the
Legislative Assembly is dissolved is held.
Under Article 54 only elected numbers of both Houses of
Parliament and the Legislative Assemblies of the States are
members of the electoral college. The numerical strength of
the electoral college will be the total number of elected
members of both Houses of Parliament and the Legislative
Assemblies of the States. At any particular time there may
not he the full strength of the electoral college. At the
relevant date of the Presidential election if a person who
was prior to that relevant date an elected member of the
Houses of Parliament or of the Legislative Assemblies of the
States and ceased to become an elected member of any of the
legislative bodies by reason of death or resignation or
disqualification or dissolution of the legislative body such
a person would not possess the qualification to be an
elector. Article 71(4) was really introduced after the
Khare case (supra) to shut out any challenge to the election
on the ground that there was any vacancy among members of
the electoral college. In view of the constitutional
declaration or exposition
521
of Article 71(4) it is manifest that the language is of wide
amplitude, viz., existence of any vacancy for any reason
whatever among the members of the electoral college. It
will take in any case where a person who as an elected
member of the Houses of Parliament or the Legislative
Assembly of a State became, entitled to be a member of the
electoral college but ceased to be an elected member at the
relevant date of the election and therefore became
disentitled to cast vote at the election and that vacancy
among members of the electoral college was not filled up.
We refrain from expressing any opinion on the question which
has been posed during arguments as to what would be the
position if there is "mala fide dissolution" of a State
Legislative Assembly or Assemblies, or if there is, after
the dissolution of the Assembly or Assemblies, a "mala fide
refusal" to hold elections thereto within reasonable time
before the Presidential election because such a question
does not arise on the present Reference. Likewise, we
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refrain from expressing any opinion on the effect of the
dissolution of a substantial number of State Legislative
Assemblies before the, Presidential election.
The intervener Jana Singh submitted that the Reference
should be declined for four reasons. First, that the
recital in the order of Reference that election to the
Legislative Assembly of the State of Gujarat is impossible
is not correct. It was said that the election is possible.
Second, the vital question is not whether the Presidential
election could be valid or not in the absence of the Gujarat
State Assembly but whether the election of the President
would be vaild if the authority charged with election by
acts of omission or commission have not held the Gujarat
Assembly election. Third, the election to the State
Assembly of Gujarat could have been held on the basis of the
1961 census. Fourth, Article 143 stipulates a general doubt
about the Constitution and not doubts of parties.
This Court is bound by the recitals in the order of
Reference. Under Article 143(1) we accept the statements of
fact set out in the reference. The truth or otherwise of
the facts cannot be inquired or gone into nor can Court go
into the question of bona fides or otherwise of the
authority making the reference. This Court cannot go behind
the recital. This Court cannot go into disputed questions
of fact in its advisory jurisdiction under Article 143(1).
The Federal Court in Re. The Allocation of Lands and
Buildings in a Chief Commissioner’s Province [1943] F.C.R.
20 a Reference under section 213(1) of the Government of
India Act which is Similar to Article 143 said that though
the terms of that section do not impose an obligation on the
Court, the court should be unwilling to accept a Reference
except for good reasons. This Court accepted the Reference
for reasons which appeared to be of constitutional impor-
tance as well as in public interest.
In Re. Kerala Education Bill case [1959] S.C.R. 995 Das,
C.J. referred to the Reference in Re. The Allocation of
Lands and Building and the Reference in Re. Levy of Estate
Duty [1944] F.C.R.
522
317 and the observation in both the cases that the Reference
should not be declined excepting for good reasons. This
Court accepted the Reference on the Questions of law arising
or likely to arise. Das, C.J. in In Re. Kerala Education
Bill case said that it is for the President to determine
what questions should be referred and if he does not have
any serious "doubt" on the provisions, it is not for any
party to say that doubts arise out of them. In short,
parties appearing in the Reference cannot go behind the
order of Reference and present new questions by raising
doubts.
On behalf of the intervener Jana Sangh reliance was placed
on section 10(4) of the Delimitation Act, 1972 hereinafter
referred to as the 1972 Act. Broadly stated,. the
submission on behalf of the Jana Sangh is that by reason of
section 10(4) of the 1972 Act election to the Gujarat
Legislative Assembly could be held on the basis of the 1961
census, and the existing electoral rolls.
The 1972 Act in section 8 speaks of the readjustment of
number of seats. This readjustment is on the basis of the
latest census figures. The latest census of 1971. The
Delimitation Commission has by order under section 8 of the
1972 Act determined the total number of seats to be assigned
to the Gujarat State Assembly as 182. The previous number
was 168. Under section 9 of the 1972 Act the Commission
shall distribute the seats in the Legislative Assembly to
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single member territorial constituencies and delimit them on
the latest census. figures. The Commission has published
proposals for de-limitation and invited objections. The
Commission has not yet made any order determining the
delimitation of Assembly constituencies.
The provisions contained in Article 170 repel the submission
that the election to the Gujarat Legislative Assembly can be
held on’ the basis of 1961 census. Article 170 provides
that the Legislative Assembly of each State shall consist of
not more than five hundred, and not less than sixty, members
chosen by direct election from territorial constituencies in
the State. Each State shall be divided into territorial
constituencies in such manner that the ratio between the
population of each constituency and the number of seats
allotted to it shall, so far as practicable, be the same
throughout the State. The expression "population" means the
population as ascertained at the last preceding census of
which the relevant figures have been published. The 1971
census has been published. Upon the completion of each
census, the total number of scats and the division of each
State into territorial constituencies shall be readjusted by
such authority and in such manner as Parliament may by law
determine. The Delimitation Commission under the 1972 Act
is engaged in the division of the State into territorial
constituencies.
It is apparent and there is nothing in section 10(4) of the
1972 Act to the contrary which enjoins the Election
Commission to hold elections to the House of the People or
the Legislative Assembly dissolved after the census of 1971
according to the electoral rolls prepared of the
constituencies delimited on the basis of the census of 1961.
It is evident that under clause (2) of Article 170 read with
the Explanation and clause (3) of Article 170 elections to
the Legislative
523
Assembly after the relevant figures of the population of the
last preceding census have been ascertained and published
can only be held on that basis of the total number of seats
in the Legislative Assembly of each State and the division
of each State into territorial constituencies readjusted by
the Election Commission under the 1972 Act. Now that the
census figures of 1971 have been published elections have to
be held under Article 170 only after delimitation of the
constituencies has been made in accordance with clauses (2)
and (3) of Article 170.
When a notification under section 8 of the 1972 Act has been
published by assigning 182 seats to the Gujarat Assembly’
which notification under section 10(2) of the 1972 Act has
the force of law and cannot be questioned in any court,
elections to these 182 seats cannot be held on the basis of
the old electoral rolls because those electoral rolls
applied only to the 168 seats as fixed under the old
Delimitation Act.
,It is provided in Article 170 that the readjustment by the
Delimitation Commission shall not affect representation in
the Legislative Assembly until the dissolution of the then
existing Assembly. ’The Legislative Assembly of the State
of Gujarat has been dissolved. Therefore, any election
which has to be held to the Legislative Assembly of the
State of Gujarat can only be held after the Delimitation of
constituencies under the 1972 Act. Any Legislative Assembly
of a State which is to be composed after the 1971 census is
to be in accordance with Article 170. The contention of
Jana Sangh is without substance.
On behalf of the intervener Socialist Party, it was said
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that the Constitution (Eleventh Amendment) Act, 1961 is
unconstitutional. We cannot go into that question in this
Reference.
For the foregoing reasons we give the following answers
1. Only such persons who are elected members of both
Houses of Parliament and the Legislative Assemblies of the
States on the date of the election to fill the vacancy
caused by the expiration of the term of office of the
President will be entitled to cast their votes at the
election.
2. Subject to the aforesaid observation as to the effect
of the dissolution of a substantial number of the
Legislative Assemblies the vacancies caused by the
dissolution of an Assembly or Assemblies will be covered by
Article 74(4).
3, 4 and 5. The election to the office of the President must
be held before the expiration of the term of the President
notwithstanding the fact that at the time of such election
the Legislative Assembly of a State is dissolved. The
election to fill the vacancy in the office of the President
is to be held and completed having regard to Articles 62(1),
54, 55 and the Presidential and Vice-Presidential Elections
Act, 1952.
6. Article 56(1)(c) applies to a case where a successor as
explained in the foregoing reasons has not entered on his
office and only in such circumstances can a President whose
term has expired continue.
V.M.K. Reference answered accordingly.
524