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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 214 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