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PETITIONER: ELECTION COMMISSION OF INDIA & ANOTHER

       Vs.

RESPONDENT: DR. SUBRAMANIAN SWAMY & ANOTHER

DATE OF JUDGMENT:       23/04/1996

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) SINGH N.P. (J) KIRPAL B.N. (J)

CITATION:  1996 AIR 1810            1996 SCC  (4) 104  JT 1996 (4)   463        1996 SCALE  (3)734

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T AHMADI, CJI.      This is  an appeal preferred by the Election Commission of  India   and  Shri   T.N.  Seshan,   the  Chief  Election Commissioner,  (when   the  former   was   a   single-member commission) against  the decision  of the  Division Bench of the  High   Court  of  Madras  dated  15.11.1993  by  which, reversing the  view taken by the learned single Judge of the High Court  dated 2.7.1993,  it held  that in  view  of  the promulgation of  Ordinance (Ordinance  No.32  of  1993)  the doctrine of  necessity was  no more attracted and applicable in the  facts and  circumstances of  the case.  The question raised in  this appeal  arises  in    the  backdrop  of  the following facts:      Ms. J.  Jayalalitha  was  elected  to  the  Legislative Assembly of  Tamil Nadu  on or,  the AIADMK  ticket  in  the General Elections  held in June 1991 and on being elected as the leader  of the  party she  was  sworn-in  as  the  Chief Minister of  the State.  On 2.10.1992, Dr. Subramanian Swamy preferred a petition to the State Governor under Article 192 of  the  Constitution  of  India  alleging  that  the  Chief Minister had  incurred a  disqualification of being a member of the Legislative Assembly of the State, in that, she being a partner  in the partnership firm run in the name and style of Messrs Jaya Publications had entered into a contract with the State  Government and  which contract  was subsisting on the date  of the  petition, in  view of  sub-clause  (e)  of clause (1)  of Article  191 of  the Constitution  read  with Section 9A  of the  Representation of  the People  Act, 1951 (hereinafter  called   ’the  R.P.   Act’).   It   would   be advantageous to  reproduce the  said two  provisions at this stage:      "191(1)   A    person   Shall    be      disqualified for  being chosen  as,

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    and for  being,  a  member  of  the      Legislative Assembly or Legislative      Council of 9 State-      (a) ......      (b) ......      (c) ......      (d) ......      (e) if  he is so disqualified by or      under any law made by Parliament.      Explanation--- For  the purposes of      this clause,  a person shall not be      deemed to hold an office  of profit      under the  government of  India  of      the   Government   of   any   state      specified in  the first Schedule by      reason only  that  he  is  Minister      either for  the Union  or for  such      State."      "9A. Disqualification of Government      contracts, etc. - A person shall be      disqualified if,  and for  so  long      as,  there   subsists  a   contract      entered into  by him  in the course      of his  trade or  business with the      appropriate  Government   for   the      supply of  goods  to,  or  for  the      execution of  any works  undertaken      by, that Government.      Explanation--For  the  purposes  of      this section,  where a contract has      been fully  performed by the person      by whom  it has  been entered  into      with ’the  appropriate  Government,      the contract shall be deemed not to      subsist by  reason only of the fact      that   the   Government   has   not      performed its  part of the contract      either wholly or in part." Since the  Governor did  not forward  the  petition  to  the Election Commission,  Dr. Swamy moved a Writ Petition No.942 of 1992  against  the  Governor  for  a  direction  that  he forthwith forward  the same  to the  Election Commission  as required by  Article 192(2)  of  the  Constitution  for  its opinion. While  the said  writ petition  was pending  in the High Court,  the Governor  forwarded  the  petition  to  the Election Commission  on 27.3.1943 for its opinion. Thereupon M,. J.Jayalalitha moved two Writ Petitions Nos.6094 and 6095 of 1993,  the first  for a  writ of prohibition against Shri Seshan not to deal with the petition forwarded to him by the Governor as  she had  a reasonable  apprehension that he was biased  in    favour  of  Dr.Swamy  and  the  second  for  a declaration that  she had  not incurred the disqualification as alleged by Dr.Swamy.      Both these writ petitions came up for disposal before a learned Single Judge of the High Court. He allowed the first writ petition  holding that  the evidence  placed on  record clearly established  that Ms.  J.Jayalalitha’s  apprehension that Shri  Seshan may  not be able to take an impartial view because of  his strong  bias in favour of Dr.Swamy could not be said  to be  misplaced or  unreasonable and  it would  be just, fair  and  proper  to  issue  a  writ  of  prohibition directing Shri Seshan to refrain from expressing any opinion on Dr.Swamy’s  petition alleging  disqualification, since at the relevant  time the  Election Commission was a one-member body. On  the plea  based on  the doctrine of necessity, the

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learned Judge  observed that  while the principle of natural justice may  have to  yield in  favour of  the  doctrine  of necessity, it was not obligatory to invoke the said doctrine in all  cases, in  particular in  the case on hand, since it was permissible  under Article  324 of  the Constitution  to appoint  an   additional  Election   Commissioner,  who,  if appointed, would constitute an alternative forum for dealing with the  matter. So  far as  the second  writ  petition  is concerned, while the learned Single Judge held that the decision on  the issue  raised by  Dr. Swamy  lay within the exclusives domain  of  the  Governor,  he  opined  that  Ms. J.Jayalalitha had not incurred the alleged disqualification. Therefore, while  dismissing the  second writ  petition,  he virtually allowed  it, in  that, the Governor while taking a decision under  Article 192(2)  would feel  inhibited by the said decision.      Dr.Swamy filed two Special leave Petitions Nos.10189-90 of 1993 in this Court under ’Article 136 of the Constitution questioning the correctness of the view taken by the learned Single Judge in the said two petitions. This Court, however, did not  entertain the  said two  petitions and by its order dated 20.8.1993 directed the petitioner to move the Division Bench in  appeal. Consequently Dr.Swamy preferred an appeal, being Writ  Appeal No.956  of 1993,  in the  High  Court  of Madras.      At this  stage  we  may  notice  one  development.  The President of  India promulgated an Ordinance (No.32 of 1993) entitled the  Chief Election Commissioner and other Election Commissioners (Condition  of Service)  Amendment  Ordinance, 1993  which  was  published  in  the  Gazette  of  India  on 1.10.1993. (This  Ordinance was  converted into  an Act (Act No.4 of  1994) with  the same title on 4.1.1994). Sections 9 and 10  introduced in  the Chief  Election Commissioner  and other Election  Commissioners (Conditions  of Service)  Act, 1991 (hereinafter called ’the 1999 Act’) provided as under:      "9. The  business of  the  Election      Commission shall  be transacted  in      accordance with  the provisions  of      this Act."      10.(1) The Election Commission may,      by unanimous decision, regulate the      procedure for  transaction  of  its      business as  also allocation of its      business amongst the Chief Election      Commissioner  and   other  Election      Commissioners.      (2) Save as provided in sub-section      (1), all  business of  the Election      Commission   shall,   as   far   as      possible,       be       transacted      unanimously.      (3) Subject  to the  provisions  of      sub-  section  (2),  if  the  chief      Election  Commissioner   and  other      Election  commissioners  differ  in      opinion on  any matter, such matter      shall be  decided according  to the      opinion of the majority." It may be mentioned that the provisions in the Act. were the same as in the Ordinance.      The Division Bench of the Madras High Court which heard the appeal raised three points for determination namely, (i) whether the  learned Judge was justified in examining if Ms. J. Jayalalitha  had incurred the disqualification set out in Article 191(1)  of the  constitution read  with Section  9A,

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R.P.. Act, (ii) whether the doctrine basis and (iii) whether the  doctrine  of  necessarily  stood  attracted  after  the enactment of  ordinance No.32 of thereof. The Decision bench by its  judgment and  order dated  15311.1993 held  that the question whether  Ms. J.Jayalalitha  had of had not incurred the disqualification  read with  Section 9A  of the R.P. Act ought to  have  been  left  for  decision  by  the  Election Commission under  Article 192(2) of the Constitution and the learned Single Judge should not have gone into it as it felt within the  exclusive domain  of the Election Commission. On the second  question the  Division Bench  held that  on  the facts and  in the circumstances of the case Ms.J.Jayalalitha would be justified in entertaining a reasonable apprehension of bias  or atleast  the likelihood  of bias  on the part of Shri  Seshan  in  favour  of  Dr.Swamy  and  consequently  a reasonable doubt  that she would not get a fair hearing from Shri Seshan.  Insofar as  the third  point is concerned, the Division Bench  held that  in view of the appointment of two Election  Commissioner   after  the   promulgation  of   the Ordinance and  in  view  of  Sections  9  and  10  extracted earlier, the  doctrine of  necessity cannot be applied since the decision  could be  taken by  the Election Commission if need be  by majority.  On this  line of  reasoning,  on  the question of relief to be granted, the Division Bench allowed the Writ  Appeal and modified ’he order in writ petition No. 6094 of 1993 by giving the following direction:      "A writ of prohibition is issued to      the  first   respondent  (Mr.  T.N.      Seshan) from  in any manner dealing      with, hearing, adjudicating upon or      disposing of  the memorandum  dated      2.10.1992  filed   by  the   second      respondent (Dr.  Subramanian Swamy)      and forwarded  by the  Governor  of      Tamil Nadu to the first respondent.      We make  it clear  that it  is open      to the  Election Commission,  While      regulating   the    procedure   for      transaction  of   its  business  or      allocation of its business to allot      it to  by  one  of  the  other  two      members or  to both,  as  it  deems      necessary and proper." However, insofar  as Writ  Petition  No.  4095  of  1993  is concerned, Division  Bench allowed  the Writ  Appeal and set aside the order and decision of the learned Single Judge and dismissed  Writ  Petition  No.4095  of  1993.  The  Election Commission of  India  as  well  as  Shri  T.N.  Seshan  felt aggrieved by  the decision  of the  Division  Bench  in  the appeal  arising   out  of  Writ  Petition  No.6094  of  1993 extracted earlier.  This  Court  granted  Special  Leave  to Appeal and  hence we have before us this Civil Appeal No.504 of 1994.  So in  this appeal  this Court  is called  upon to decide the  limited question  regarding the participation of Shri  Seshan   in  decision-making   having  regard  to  the allegation of bias made against him.      We have  extracted the  relevant part of Article 191(1) of the Constitution. That article plainly says that a person shall be  disqualified for being a member of the Legislative Assembly of  the State if he is disqualified by or under any law made  by Parliament. Section 9A of the R.P. Act provides that a  person shall  be disqualified  if there  subsists  a contract entered  into by  him in the course of his trade or business with  the appropriate  government for the supply of goods to,  or for  the execution  of any  work undertaken by

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that government.  The duration  of the  disqualification  is limited, namely,  so long  as  the  contract  subsists.  The allegation of  Dr.Swami is  that Ms.  J.Jayalilitha being  a partner of  the firm  carrying on  business in  the State of Tamil Nadu  under the  name and style of ’Jaya Publications’ had incurred  the disqualification  since that  firm  had  a subsisting contract  with the  State Government  which was a business enterprise  to make  profit. According to Dr. Swamy she has  incurred the  disqualification under  Section 9A of the R.P. Act, which being a law made by Parliament, attracts the application  of Article  191(1)(e) of  the Constitution. Article 192(1)  provides that  if any  question arises as to whether a  member of  a House  of the Legislature has become subject to any disqualification mentioned in Article 191(1), of the  Constitution shall  be referred  for the decision of the Governor whose decision ’shall be final’. Thus it is the Governor who  has, to  take a  decision and such decision is made final.  Then we turn to clause (2) of Article 192 which reads as under :      "192(2)   -   Before   giving   any      decision on  any such question, the      Governor shall  obtain the  opinion      of  the   Election  Commission  and      shall   act   according   to   such      opinion." It is  clear from  the use  of the  wards shall  obtain’ the opinion of the Election Commission, that it is obligatory to obtain the  opinion  of  the  Election  Commission  and  the further stipulation  that the Governor "shall act" according to such  opinion leaves  no room for doubt that the Governor is bound  to act  according to that opinion. The position in law is well settled by this Court’s decision in Brundaban v. Election Commission  (1965) 3SCR 53 where in this court held that it  is the  obligation of the Governor to take decision in accordance  with the  opinion of the Election Commission. It is  thus clear  on conjoint  reading of the two clause of article 192  that once  a question  of the type mentioned in the first  clause  is  referred  to  the  governor,  meaning thereby is raised before the Governor, the Governor, meaning thereby is  raised before the Governor, the Governor and the Gover alone  must decide  it but this decision must be taken after obtaining  the opinion  of the Election Commission and the decision  which is  made file is that decision which the Governor  has  taken  in  accordance  with  the  opinion  of Election Commission. In effect and substance the decision of the Governor  must dependent  of the opinion of the Election Commission and none else, not even the council of Ministers. Thus the  opinion of  the election  Commission  is  decisive since the final order would be based solely on that opinion.      The same  view came  to be  expressed in  the  case  of Election Commission  of India  v. N.G.  Ranga, (1979)  1 SCR 210, while  interpreting   Article 103  (2), that instead of the Government  in Article  192(2), here the decision has to be made  by the  President. So also the language of Articles 192 (1)  and 103(1) is identical except for the same change. The Constitution  Bench of  this Court  reiterated that  the President was  hound to  seek and  obtain the opinion of the Election Commission  and only thereafter decide the issue in accordance therewith.  In other  words, it  is the  Election Commission’s opinion which is decisive.      Having  realised  that  the  opinion  of  the  Election Commission  is  a  sine-qua-non  for  the  Governor  or  the President, as  the case  may be,  to give  a decision on the question whether or not the concerned member of the House of the Legislature  of the  State or either House of Parliament

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has incurred  a disqualification,  the next question is, can the Election  Commission take  a  decision  if  one  of  its members  is  disqualification.  from  participating  in  the decision-making? Article  324(1) of the Constitution invests in the  Election Commission the function of superintendence, direction and  control of  elections and  clause (2) of that Article provides  that the Election Commission shall consist of the  Chief Election Commissioner and such number of other Election Commissioners,  if any,  as the  President may from time to  time fix.  Thus, Article  324(2) envisages a multi- member  Election   Commission  with   the   Chief   Election Commissioner as  its Chairman,  [see Article 324(3)]. In the instant case,  to begin  with the  Election Commission was a single-member body  with Shri  Seshan as  the Chief Election Commissioner when the learned Single Judge devided the write petition on  2.7.1993. On the question of  Ms. J.Jayalalitha entertaining a  reasonable apprehension of bias, the learned Judge, on  a scrutiny  of the facts and circumstances of the case, came to the conclusion that having regard to the close association of  Dr. Swamy with Shri Seshan, besides the fact that Dr.  Swamy’s wife  was the lawyer of Shri Seshan in the suit filed  by him  at Bombay,  the apprehension of bias was real and  not imaginary  and if  Shri Seshan  has to  take a decision on  Dr. Swamy’s  complaint, the decision may not be impartial and  will atleast  not be seen to be impartial and therefore the  learned  Single  Judge  restrained  him  from deciding  the  issue  and  communicating  the  same  to  the Governor. However,  on the  application of  the doctrine  of necessity, the  learned Judge held that since Article 324(2) of the  Constitution permitted  appointment of  one or  more Election commissioners,  it was  not necessary to invoke the doctrine of  necessity and  allow  Shri  Seshan  to  make  a decision, the  apprehension of  bias,  notwithstanding.  The Division Bench  of the High Court has upheld the view of the learned  Single  Judge  on  the  question  of  existence  of circumstances which  go to  show that  the’ apprehension  of bias entertained  by Ms.  J. Jayalalitha  was reasonable and the possibility  of her not getting an impartial hearing and decision was real and not imaginary merely an excuse trotted out  to   avoid   a   decision   on   the   issue   of   her disqualification. Thus,  there is  a concurrent  finding  of fact  that   having  regard   to  the   close  and  intimate relationship between  Dr. Swamy  and Shri T.N. Seshan, apart from the  fact that the former’s wife is the latter’s lawyer in the rupees one crore damages suit filed by him in Bombay, the apprehension  of bias  in the  mind of Ms. J.Jayalalitha cannot be said to be misplaced and her fear that she may not get justice  if the  decision is taken by Shri Seshan cannot be brushed  aside as  imaginary. Shri  Sanghl,  the  learned counsel for Shri Seshan, very frankly stated that his client is not  in the  least keen  to participate  in the decision- making in  view of  the findings  recorded  by  the  learned Single Judge as well as the Division Bench of the High Court but he  contested the  litigation because  in  his  view  he cannot excuse  himself from  the process of decision-making. He contended  that when  the matter  was before  the learned Single Judge, he had invoked the doctrine of necessity as he honesely believed that he was duty bound to decide the issue referred to  him and  if he  refused to  do so  he would  be failing tn  discharge his constitutional obligation. This is not to  say, contended  Shri Sanghi,  that he  admitted that allegation of  bias made  against his  client hut  merely to emphasise that  he was  under a constitutional obligation to decide the issue and communicate his opinion to the Governor to enable him to discharge his function under Article 192(2)

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of the Constitution. Shri Sanghi further contended that even after the  Election Commission  was converted  into a multi- member body  with effect  from 1.10.1993,  on which date the other two  Election Commissioners  came to be appointed, the position in  law remained unaltered because the Constitution does not  conceive of an Election Commission without a Chief Election Commissioner.  According to  him, the  structure of Articles 324(2)  and 324(3)  and the  use of  the word ’and’ after the  words ’Chief  Election Commissioner’ and the word ’other’ preceding  the words ’Election Commissioners’ leaves no room  for doubt  that the  Constitution-makers visualised the existence  of the  Chief Election  Commissioner  at  all times and  safeguarded the  said office by providing for the removal of  the incumbent  occupying the  said office in the same manner  as a  Judge of  the Supreme  Court. Shri Sanghi reiterated that  assuming without admitting that the finding of bias  is correct,  Shri Seshan  was not at all anxious to participate in  the decision-making  process if  lt  is  not obligatory under  the extant  constitutional scheme  on  his part to  participate in  the decision-making.  Stated  in  a nutshell the  line of  reasoning adopted  by Shri  Sanghi is that the  decision of  the ’Election Commission’ is a ’must’ for the  Governor to  decide the  issue; the constitution of the Election  Commission under  the scheme of Article 324 of the Constitution clearly is that it must comprise the Chief- Election Commissioner  as its  Chairman if  it is  a  multi- member body  ,  other  words  there  cannot  be  a  properly constituted Election  Commission without  its  Chairman  and hence his  participation in  the decision-making  cannot  be excused and  must be permitted on the doctrine of necessity. Thus, according to Shri Sanghi, the constitution of a multi- member Election  Commission and  the insertion  of Section 9 and 10 in the 1991 Act would make no difference because they do not speak of exclusion of the Chief Election Commissioner from the  decision-making process.  These provisions  merely set out  the procedure  to be  followed in  the event  of  a difference of opinion.      On the  other hand,  the learned  Counsel  for  Ms.  J. Jayalalitha reiterated  the contention of bias on the ground that the  facts on  record revealed that there was unity and identity of  interest between  Dr. Swamy,  his wife and Shri Seshan since  it was  established beyond any manner of doubt that they  had developed family friendship which went beyond mere professional  relationship and it would be embarrassing both for  Shri Seshan  and Ms.  J. Jayalalitha if the former sat in  judgment over the complaint of disqualification made by Dr.  Swamy. It  was further  pointed out  that after  the learned Single  Judge repelled  the contention  based on the doctrine of necessity, Shri Seshan did not prefer any appeal against  the  said  decision  but  has  now  preferred,  the pleasant appeal  on that  the realizing  that  the  Election Commission has  been converted  into a multi-member body and the  view  taken  by  the  learned  Single  Judge  would  be translated into  a reality if the two Election Commissioners decide the  issue of  disqualification  arising  before  the Election  Commission.  There  can  be  no  doubt,  contended counsel, that  the function which the Election Commission is expected to perform under Article 192(2) of the Constitution can be said to be quasi-judicial in character and once it is shown that  the  apprehension  of  bias  is  reasonable  and genuine,   the   participation   of   the   Chief   Election Commissioner in  the decision-making  process  would  be  in breach of the principles of natural justice and unless it is shown that  there is  no alternative  but for  him to sit in judgment, the  rule of  natural justice must prevail because

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justice must  not only  be done  but must  also appear to be done. It  was, therefore,  submitted  by  counsel  that  the doctrine of  necessity can  have no play because in the case of a multi-member body, the person, be he the Chief Election Commissioner or  an Election  Commissioner, against whom the charge of  bias is  established ought to excuse himself from the proceedings  so that  the decision taken is not rendered vulnerable and  the apprehension  of  prejudice  is  totally removed. In  short, Ms. J. Jayalalitha supports the decision of both  the learned  Single Judge and the Division Bench on the question  of bias  and applicability  of the doctrine of necessity.      We must  at once  state that we have carefully examined the facts and circumstances laid on record in support of the finding of bias recorded by the learned Single Judge as well as the  Division Bench  and in  our view the said finding is unassailable. Conscious  of the  fact that  Shri  Seshan  is occupying a  high constitutional  office we  have given  our anxious consideration to this aspect of the matter. While we are  inclined   to  think   that  Shri   Seshan  as  a  high constitutional functionary  may  not  carry  any  grudge  or malice against Ms. J.Jayalalitha, there can be no doubt that his close  association  with  Dr.  Swamy’s  family  and  the professional relationship  with his wife who is representing him in  the suit  at Bombay and the other circumstances, all of which  have  been  summarized  in  paragraph  39  of  the Division  Bench   judgment,  are   sufficient  to   raise  a reasonable apprehension  in the  mind of  Ms.  J.Jayalalitha that he may be biased in favour of Dr. Suamy even if he does not entertain any ill-will towards her. Realizing this, Shri Sanghi submitted  that his  client is  not at all anxious to participate in  deciding the  issue referred to the Election Commission  unless   it  is  in  the  constitutional  scheme imperative for  him to do so. He further stated that if this court comes to the conclusion that without his participation the other  two election. Commissioners can decide the issue, his client  will recuse  himself.  That  takes  us  to,  the question whether  Shri Seshan  is bound  to  participate  in expressing his view on the issue referred for the opinion of the Election Commission?      It is  true that  Article 192(2)  of  the  Constitution expects that the Governor ’shall obtain’ the opinion of ’the Election Commission’  and  ’shall  act’  according  to  such opinion  in   giving  his   decision  on   the  question  of disqualification raised before him. Obtaining the opinion of the Election  Commission is,  therefore, imperative.  It  is equally imperative for the Governor to act according to such opinion. Thus,  the opinion  of the  Election Commission  is decisive of  the decision  to  be  taken  by  the  Governor. obviously, the  Election. Commission  referred to in Article 192(2) of  the Constitution would he the one appointed under Article 324(2)  of the  Constitution. This  Article in terms provides that  the Election  Commission shall consist of the Chief  Election   Commissioner  and  such  number  of  other Election Commissioners as the President may fix from time to time. Therefore,  the Chief  Election Commissioner is a must whether it  is a single-member- or multi-member body. In the case of  a multi-member  body, Article 324(3) expects him to act as  the Chairman  of that  body. Section 146 of the R.P. Act cutlines  the procedure  to be  followed in deciding the question arising  under Article  192. That  procedure is the one a civil court follows in deciding matters brought before it. Section 9A was introduced in the R.P. Act to empower the Election Commission to delegate some of its functions to the Secretary or  Deputy Election  Commissioner, subject to such

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direction as the Election Commission may choose to give. But it  was  pointed  out  that  only  routine  matters  can  be delegated under this provision.      At this  stage it  may  be  advantageous  to  refer  to certain other  provisions which  have a bearing on the point under consideration.  Article  124(1)  of  the  Constitution provides that  there shall  be  a  Supreme  Court  of  India consisting of  the Chief Justice of India and such number of other judges as may from time to time be prescribed. Article 214 provides that every State shall have a High Court and as provided by  Article 216 every High Court shall consist of a Chief Justice  and such  other Judges  as may  be considered necessary to  appoint. Similarly,  Article  324(2)  and  (3) provide that  the Election Commissioner shall consist of the Chief  Election   Commissioner  and  such  number  of  other Election Commissioners,  if any,  as the  President may from time to  time fix.  When the Election Commission is a multi- member body, the Chief Election Commissioner will act as its Chairman.  These  provisions,  therefore,  provide  for  the constitution of  the Supreme  Court,  High  courts  and  the Election Commission.  In the  case of  the first  two, it is well-settled that they need not sit en banc and can transact business in  benches. Is there any distinguishing feature in the case of the Election Commission to take the view that it must sit  en banc  or not  at all? In other words, can it be said  that  the  provisions  of  the  Constitution  make  it imperative  for   the   Chief   Election   Commissioner   to participate in  each and  every decision  that the  Election Commission is required to make under the Constitution?      True it  is that  under Article  192  if  any  question arises in  regard to disqualification referred to in Article 191(1), the  question has  to be  referred to  the  Election Commission for  its opinion and the Governor has to give his decision in  accordance with  that opinion.  Article  324(2) provides for  the constitution of Election Commission; if it is a  single-member body  it  will  comprise  of  the  Chief Election Commissioner  only, if it is a multi-member body he will be joined by the other Election Commissioner(s). In the case of  a single-member  body, if  the Governor  seeks  his opinion, he perhaps can invoke the doctrine of necessity but that question which arose before the learned Single Judge is no more  germane because  during the  pendency of the appeal two more  Election Commissioners  were appointed making it a multi-member body.  Shri Sanghi’s  reading of  the aforesaid constitutional provisions  is that  since the opinion has to he of ’the Election Commission’, it must be of all those who constitute that  body or  not at  all. This in our view is a narrow reading  of the  said provisions.  If Shri  Sanghi is right it must necessarily follow that ail decisions taken by the Election  Commission  must  be  unanimous  and  majority decisions would  be of  no avail. More or less the same line of reasoning  was canvassed before this Court in T.N. Seshan v. The Union of India (1995) 4 SCC 611, but without suecess. In that  case this Court held that the scheme of Article 324 is that  there shall  be a  permanent body  to be called the Election Commission, which shall discharge public functions, essentially administrative  in character  but at  times even adjudicative and  legislative. It  was further  pointed  out that the  Constitution-makers preferred  to remain silent as to  the   manner  in  which  the  Election  Commission  will ’cransact its  business presumably  because they  thought it unnecessary and  perhaps even  improper to  provide for  the same having  regard to the level of personnel it had in mind to man  the  Commission.  Naturally  they  depended  on  the sagacity and  the wisdom  of the Chief Election Commissioner

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and his  colleagues. That,  however, does  not mean that the Parliament could  not enact  Sections 9 and 10 introduced by the amending Ordinance/Act. The submission that the said two provisions were  inconsistent with the scheme of Article 324 was rejected.  Implied in this contention was the submission that  in   the  case  of  multi-member  Election  Commission decisions have  to be  taken by  one voice or not at all and any provision  which introduces  the concept  of decision by majority must  be held to be inconsistent with the scheme of Article 394.  Rejecting this contention this Court held that Parliament  was   competent  to  enact  Sections  9  and  10 introduced by  the  amending  Ordinance/Act  and  there  was nothing in  the scheme  of  Article  324  to  conclude  that decision by  majority would  be an  illegality. In that case this Court  quoted with  approval, the  following  principle found in  footnote 6  at  page  657  of  Halsbury’s  Law  of England, 4th Edition (Re-issue), Volume 7(1):      "The  principle   has  long   beer,      established  that  the  will  of  a      Corporation or  body  can  only  be      expressed  by   the  whole   or   a      majority of  its members,  and  the      act of  a majority  is regarded  as      the act of the whole." The same principle was reiterated in Grindley . Baker 126 ER 875, 879  and 882.  It is, therefore, obvious that after the decision of  the Constitution  Bench reiteration of the same argument, albeit in a different shade, can be of no avail to the appellant.      The  next  question  then  is  if  the  Chief  Election Commissioner, for  reason of  possible bias, is disqualified from  expressing   an  opinion,   how  should  the  Election Commission conduct  itself?  As  pointed  out  earlier  Shri Sanghi, the  learned counsel  for the  appellant,  has  very frankly and  with his  usual fairness  stated that the Chief Election Commissioner  preferred this appeal only because he genuinely believed  that the  scheme of  Article 324 did not conceive of  a decision  by majority, but if the Court comes to the conclusion that a decision can be reached without the Chief Election Commissioner participating in decision-making in the  special circumstances of the case, the latter is not at all  keen or  anxious to  hear and  adjudicate  upon  the matter at issue before the Election Commission. We are quite conscious of the high office the Chief Election Commissioner occupies.  Ordinarily  we  would  be  loath  to  uphold  the submission  of   bias  but   having  regard   to  the   wide ramification the  opinion of the Election Commissioner would have on  the future  of Ms. J.Jayalalitha, we think that the opinion, whatever  it be,  should  not  be  vulnerable.  The participation of  the Chief  Election  Commissioner  in  the backdrop of  the findings  recorded by  the  learned  Single Judge as  well as the Division Bench of the High Court would certainly  permit  an  argument  of  prejudice,  should  the opinion be  adverse to  Ms. J.Jayalalitha.  Therefore, apart from the  legal aspect, even prudence demands that the Chief Election Commissioner  should recuse himself from expressing any opinion  in the matter. However, the situation is not so simple, it  is indeed complex, in that, what would happen if the two  Election Commissioners  do not agree and there is a conflict of  opinion between  them? That  would  lead  to  a stalemate situation and the Governor would find it difficult to take  a decision  based on  any such  opinion. In  such a situation, can  the doctrine  of  necessity  be  invoked  in favour of the Chief Election Commissioner?      We must  have a clear conception of the doctrine. It is

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well settled  that the law permits certain things to be done as a  matter of  necessity  which  it  would  otherwise  not countenance on  the touchstone of judicial propriety. Stated differently, the  doctrine of  necessity makes it imperative for the  authority to  decide and considerations of judicial propriety must  yield. It  is often invoked in cases of bias where there  is no  other authority  or Judge  to decide the issue. If the doctrine of necessity is not allowed full play in certain  unavoidable  situations,  it  would  impede  the course of  justice itself  and the  defaulting  party  would benefit therefrom. Take the case of a certain taxing statute which taxes  certain perquisites  allowed to  Judges. If the validity of  such a  provision is  challenged  who  but  the members of  the judiciary  must decide it. If all the Judges are disqualified  on the  plea that  striking down of such a legislation would  benefit them,  a stalemate  situation may develop. In  such cases the doctrine of necessity comes into play. If  the choice  is between  allowing biased  person to act or to stifle the action altogether, the choice must fall in favour  of the  former as  it is  the only way to promote decision-making.  In  the  present  case  also  if  the  two Election  Commissioners   are  able  to  reach  a  unanimous decision,  there   is  no   need  for  the  Chief.  Election Commissioner  to   participate,  if   not  the  doctrine  of necessity may have to be he invoked.      We think  that is  the only  alternative    in  such  a situation. We are, therefore. of the opinion that the proper course to  follow is  that the  Chief Election  Commissioner should  call  a  meeting  of  the  selection  Commission  to adjudicate  on   the  issue   of  disqualification   of  Ms. J.Jayalalitha on  the groands  alleged  by  Dr.Swamy.  After callinq the  meeting he  should act as the Chairman but then he may  recuse himself  by  announcing  that  he  would  not participate in the formation of opinion. If the two Election Commissioners reach  a unanimous opinion, the Chief Election Commissioner will  have  the  opinion  communicited  to  the Governor. If  the two  Election Commissioners do not reach a unanimous decision in the Matter of expressing their opinion on the  issue referred  to the Election Commission, it would be necessary  for the Chief Election Commissioner to express his opinion  on the  doctrine of necessity. We think that in the special circumstanees of this case this course of action would he  the most  dppropriate one  to follow beause if the two Election  Commissioners do  not agree,  we have no doubt that the  doctrine  of  necessity  would  compel  the  Chief Election Commissioner  to express  his  views  so  that  the majority opinion  could be  communicated to  the Governor to enable him  to take  a decision  in accordance  therewith as required by Article 192(1) of the Constitution.      In the  result, while  we largely  agree with  the view expressed by  the Division Bench, we modify the order of the Division Bench  of the  High  Court  to  the  aforementioned limited extent regarding the procedure to be followed by the Election Commission in reaching a decision and communicating its opinion  to the  Governor to enable the latter to decide the issue  in accordanee  with the  opinion. The appeal will stand  disposed   of   accordingly.   In   the   facts   and circumstances of the case we make no order as to costs.