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PETITIONER: RAM DEO BHANDARI

       Vs.

RESPONDENT: ELECTION COMMISSION OF INDIA

DATE OF JUDGMENT17/01/1995

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) BHARUCHA S.P. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1995 AIR  852            1995 SCC  (2) 153  JT 1995 (1)   671        1995 SCALE  (1)178

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.Article  168  of the Constitution provides  that  every State  shall have a legislature and Article 172(1)  provides that  every  Legislative  Assembly of  every  State,  unless sooner  dissolved,  shall continue for five years  from  the date appointed for its first meeting and not longer and  the expiration of the said period of five years shall operate as a dissolution of the Assembly.  Under this article the five- year  term  of  the Legislative Assemblies  of  two  States, namely, the States of Bihar and Orissa will expire on  15-3- 1995.  It is obvious that on the expiration or the said term of  five years on 15-3-1995, the Assemblies of the said  two States will stand dissolved.  To satisfy the + Under Article 32 of the Constitution of India 156 mandate of Article 168 it is necessary that elections should be  held  in the aforesaid two States in a manner  that  the election results are declared before 15-3-1995.  The  latest Press  Note issued by the Election Commission  on  8-12-1994 states that the elections in the States of Bihar and  Orissa would   be  completed  before  10-3-1995.    Ordinarily   no objection  can  be  raised by either of the  States  to  the schedule  of elections fixed with a view to  completing  the same before 15-3-1995.               2.    However,  in para 06 of the  said  Press               Note it is ordained:               "A  poll  in any of these States will  not  be               taken without the supply of electoral identity               cards  to  all eligible electors.   The  State               Government  will be called upon to  furnish  a               certificate  that  photo identity  cards  have               been supplied to all eligible electors." On  a plain reading of the said paragraph it is  clear  that unless  ’all’  eligible  electors  are  supplied   electoral

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identity  cards  and  a certificate to that  effect  is  not furnished by the State Government concerned, no poll will be taken  in that State.  It is, therefore, apprehended by  the petitioners  of  Writ Petitions Nos. 2 and 6 of  1995  which concern  the States of Bihar and Orissa that since the  said two States are not in a position to complete the requirement of supplying photo identity cards to ’all’ eligible electors before  the last date fixed for the same, elections may  not be  taken  in  the said two States thereby  denying  to  the electors  thereof their constitutional right to elect a  new assembly  for  their  respective  States.   The  petitioners contend that that would tantamount to the eligible  electors of   the  State  being  denied  their   constitutional   and democratic right to elect a new assembly.  This apprehension arises in the background of the following events. 3.   On  28-8-1993,  the Election  Commission  in  purported exercise  of  powers under Rule 28 of  the  Registration  of Electors  Rules, 1960 read with Section 130(2)(sic)  of  the Representation  of the People Act, 1950, issued a  directive for  the supply of photo identity cards to electors  in  the assembly  as  well as parliamentary constituencies  in  each State, with a view to prevent impersonation of electors  and facilitating their identification at the polls.  It was also made  clear  in  no  uncertain  terms  that  no  polling  at elections  for which the Election Commission is  responsible shall  take  place  after  1-1-1995  unless  ’all’  eligible electors  have  been  supplied with  identity  cards.   What features  the identity cards shall bear was  also  indicated with  a caution that "there will be no departure from  these features  in any manner whatsoever".  This was  followed  by high-level  meetings  at which  certain  State  Governments, including  the  representatives of the said  two  States  of Bihar  and Orissa, pointed out certain difficulties  in  the implementation  of the said directive.  The  Chief  Election Officers of the States were held responsible for maintaining the  schedule  for completion of the identity cards  to  the electors  before deadline fixed by the Election  Commission. On  11-5-1994,  the Election Commission wrote to  the  Chief Secretary  and Chief Election Officer, Bihar that there  was virtually  no  progress made towards  issuance  of  identity cards  and added "the Commission hereby forewarns  you  that the 157 responsibility  for  any constitutional stalemate  that  may arise   because   of  your  failure  to  comply   with   the instructions  of the Commission ... will rest squarely  with you  and  the State Government"’.  This was  followed  by  a letter dated 6-11-1994 drawing the attention of the State of Bihar  that the progress was very unsatisfactory and  warned that  should any constitutional crisis arise on  account  of elections  not  being held for want of identity  cards,  the responsibility  will rest squarely on the State  Government. Then  by the letter of 29-12-1994, the  Election  Commission stated that the notification calling the elections would  be issued  only  after  the receipt  of  the  certificate  from officers  of the State Government that all  eligible  voters had  been supplied with photo identity cards.  By the  order of  30-11-1994,  the Election Commission stated that  in  no case   will  any  request  for  extension  of  deadline   be entertained.   This gave rise to the apprehension  that  the elections  to  the Legislative Assemblies of the  States  of Bihar  and  Orissa will not be held  before  15-3-1995,  for their  failure  to  comply with the directive  of  grant  of identity cards. 4.When  the writ petitions filed under Article 32 of  the

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Constitution  came up for admission before us  yesterday  we heard counsel for the petitioners, Shri Fali S. Nariman  for the State of Orissa in Writ Petition No. 6 of 1995 and  Shri Soli  J.  Sorabjee in Writ Petition No. 2 of 1995  and  Shri Bhat  for  the  State of Bihar as well as  counsel  for  the petitioner in Writ Petitions Nos. 4 and 37 of 1995 and  Shri G.  Ramaswamy, counsel for the Election Commission  at  some length.   We  also heard them on the question  of  grant  of interim relief.  During the course of the hearing Shri  Soli J. Sorabjee briefly indicated in writing the points  arising for  consideration.   Shri  G.  Ramaswamy,  learned   Senior Counsel  for the Election Commission stated that  since  the State  of Orissa had virtually complied with the  direction, in that, it had supplied photo identity cards to almost  86% of  voters,  the Election Commission will  not  enforce  its instruction contained in para 6 extracted earlier.  In other words Shri Ramaswamy contended that in the  State of  Orissa elections will not be held up for want of supply of identity cards to ’all’ electors eligible to vote and for want of  an undertaking/certificate  in  that  behalf  from  the   State Government.  That should settle the matter insofar as Orissa is  concerned.  As far as the State of Bihar  is  concerned, Shri  Ramaswamy  submitted that it was  a  wilful  defaulter since it made no serious effort to comply with its direction for  the supply of identity cards.  On the other  hand  Shri Bhat  contended  that the Chief  Election  Commissioner  had failed  to  appreciate the economic as well  as  the  social conditions in Bihar and without taking intoaccount     the ground  realities had tried to press, nay, coerce the  State intosubmission.   At  that stage Shri Guptoo,  the  learned Advocate  General for West Bengal, who was in Court,  stated that as far as his State Government is concerned, the  Chief Election Commissioner had gone to the length of saying  that failure  to  implement  his order  would   tantamount  to  a breakdown  of the constitutional machinery in the State  and threatened  to  inform the President of  India  accordingly. While there may be 158 force  in  the  submission that the  language  used  in  the correspondence  by the Election Commission is  unduly  harsh and abrasive, ordinarily not used in correspondence  between high-level functionaries, the fact remains that the State of Bihar  had lagged far behind in implementing the  orders  of the  Election  Commission.  Counsel for the State  of  Bihar stated  that his Government was firmly of the  opinion  that the Election Commission had no power or authority to hold up or  to  threaten  to hold up the  election  process  if  the identity  cards  were not issued.  This would  be  a  larger question to be answered at the final hearing. 5.  Shri  Ramaswamy  in  the  light  of  discussion  made  a statement  at  the Bar and followed it up by placing  it  in writing, which runs thus:               "The  Commission has no intention of  creating               any  constitutional crisis.  Since 18  months’               time  has  been given for  completion  of  the               exercise,  the deadline of 1-1-1995  fixed  18               months ago was insisted upon.               Since elections to the Legislative Assembly of               the  State  of Bihar have been  notified,  the               Election  Commission  will  not  withhold  the               elections  on the ground that  identity  cards               have not been supplied to all voters  provided               the  Government of Bihar gives an  undertaking               to  this  Court  that  it  will  complete  the               exercise  of  issuing  identity  cards  before

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             30-9-1995.               This  is without prejudice to the  contentions               of the parties to the writ petitions.                                            Sd/-                                    (S.K. Mendiratta)                                Secretary Election Commission                                        of India" 6.   From the above statement it becomes clear that whatever the  Election  Commission  may  have  said  in  the  earlier correspondence  and  no matter how forcefully  it  may  have insisted,   the  Election  Commission  is  mindful  of   the consequences  that may follow should the two States  not  be allowed  to  go  to the polls for their  failure  to  supply identity  cards  to ’all’ eligible electors.   It  has  also assured us that since elections to the Legislative  Assembly of  Bihar have been notified, the Election  Commission  will not withhold the elections for want of identity cards.   The Election Commission has, however, desired that the State  of Bihar  should  undertake  to complete  the  entire  exercise before  30-9-1995.  Such an undertaking would of  course  be without  prejudice to the contentions of the parties.   Shri Bhat  on the other hand contended that it is the  contention of the State Government that the Election Commission has  no power  or  authority to withhold elections  for  failure  to issue  identity  cards  and it cannot refuse  to  permit  an elector  to  cast  his vote for want of  such  a  card  and, therefore, there is no question of the State of Bihar giving 159 any such undertaking and in any case he cannot do so without the  express  authority of his client.   We  appreciate  his difficulty. 7.   Taking  all  the  above facts  and  circumstances  into consideration  we direct rule nisi to issue in all the  four writ  petitions  and direct counsel to complete  the  paper- books within four weeks.  Printing dispensed with. 8.   We  further direct that the Election  Commission  shall not withhold the elections to the Legislative Assemblies  of Bihar and Orissa on the ground that the said Governments had failed to complete the process of issuance of photo identity cards  by the deadline prescribed by it.  There will  be  an interim  stay  in the said terms.  The  Election  Commission will,  however,  be  free to take such  other  steps  as  it considers necessary and are permissible to ensure a fair and free poll. 9.   As   regards   the  grant  of  undertaking,   no   such undertaking having been sought from the State of Orissa, the learned   counsel  for  the  State  of  Bihar   may   obtain instructions  in  that behalf from his  clients  and  report within four weeks. 10.  Let  the writ petitions come up with Transferred  Cases Nos. 13, 14, 16 and 18 of 1994 and Civil Appeal No. 6106  of 1994 (TN.  Seshan v. State of W. B.). 11.  Liberty to mention for early hearing. 12.  Since the averments in the writ petitions filed subsequent  to Writ Petition No. 2 of 1995 are more or  less identical  we have mainly referred to the averments  in  the first petition. 160