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PETITIONER: RAM DEO BHANDARI & OTHERS

       Vs.

RESPONDENT: ELECTION COMMISSION OF INDIA & OTHERS

DATE OF JUDGMENT17/01/1995

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

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

ACT:

HEADNOTE:

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

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petitioners  of  writ petitions Nos. 2 and 6 of  1995  which concern  the States of Bihar and Orissa that since the  said two States are not in a position to complete the requirement of supplying photo identity cards to ’all’ eligible electors before  the last date fixed for the same, elections may  not be  taken  in  the said two States thereby  denying  to  the electors  thereof their constitutional right to elect a  new assembly  for  their  respective  States.   The  petitioners contend that 674 that would tantamount to the eligible electors of the  State being  denied their constitutional and democratic  right  to elect  a  new  assembly.  This apprehension  arises  in  the background of the following events. 3.   On   August  28,  1993,  the  Election  Commission   in purported   exercise   of   powers   under   Rule   28    of the.Registration of Electoral Rules, 1960 read with  Section 130(2) of the Representation of Peoples Act 1950, read  with Section  130  (2)  of the Representation  of  People’s  Act, issued a directive for the supply of photo identity cards to electors   in   the  assembly  as  well   as   parliamentary constituencies  in  each  State,  with  a  view  to  prevent impersonation  of  electors  and  facilitating  their  iden- tification  at  the  polls.  It was also made  clear  in  no uncertain  terms that no polling at elections for which  the Election  Commission is responsible shall take  place  after January  1,  1995 unless ’all’ eligible electors  have  been supplied  with identity cards.  What features  the  identity cards  shall  bear was also indicated with  a  caution  that ’there  will  be  no departure from these  features  in  any manner whatsoever.’ This was followed by High Level Meetings at   which   certain  State   Governments,   including   the representatives  of  be said two Sum: of Bihar  and  Orissa, pointed  out certain difficulties in the  implementation  of the  said  directive.  The Chief Election  Officers  of  the States  were held responsible for maintaining  the  schedule for completion of the identity cards to the electors  before deadline fixed by the Election Commission.  On May 11, 1994, the  Election  Commission wrote to the Chief  Secretary  and Chief  Election Officer, Bihar that there was  virtually  no progress  made towards issuance of identity cards and  added ’the commission hereby forewarns you that the responsibility for  any constitutional stalemate that may arise because  of your  failure  to  comply  with  the  instructions  of   the commission......  will rest squarely with you and the  State Government.’ This was followed by a letter dated November 6, 1994  drawing the attention of the State of Bihar  that  the progress was very unsatisfactory and warned that should  any constitutional crisis arise on account of elections not  be- ing held for want of identity cards, the responsibility will rest  squarely on the State Government.  Then by the  letter of  December 29, 1994, the Election Commission  stated  that the notification calling the elections would be issued  only after  the receipt of the certificate from officers  of  the State Government that all eligible voters had been  supplied with  photo  identity cards.  By die order of  November  30, 1994,  the Election Commission stated that in no  case  will any request for extension of deadline be entertained.   This gave rise to the apprehension that the elections to the leg- islative  assemblies of the States of Bihar and Orissa  will not  be  held before March 15, 1995, for  their  failure  to comply with the directive of grant of identity cards. 4.When  the  writ petitions filed under Article  32  of  the Constitution  came up for admission before us  yesterday  we heard counsel for the petitioners, Shri Fali S. Nariman  for

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the  State of Orissa in Writ Petition No 6 of 1995 and  Shri Soli J. Sorabjee in Writ Petition No 2 of 1995 and Shri Bhat for the State of Bihar as well as counsel for the petitioner in  Writ  Petitions  Nos.4  and  37  of  1995  and  Shri  G. Ramaswamy,  counsel  for  the Election  Commission  at  some length.   We  also heard them on the question  of  grant  of interim  relief During the course of the hearing  Shri  Soli Sorabjee briefly indicated in writ- 675 ing the points arising for consideration.  Shri  G.Ramasamy, learned senior counsel for the     Election       Commission stated that since the    State   of  Orissa  had   virtually complied with the direction, in that, it had supplied  photo identity  cards  to  almost  86%  of  voters,  the  Election Commission  will  not enforce its instruction  contained  in paragraph  06  extracted  earlier.   In  other  words   Shri Ramaswamy  contended that in the State of  Orissa  elections will not be held up for want of supply of identity cards  to ’all’  electors  eligible  to  vote  and  for  want  of   an undertaking/certificate  in  that  behalf  from  the   State Governmental.   That  should settle the  matter  insofar  as Orissa  is  concerned.   As far as the  State  of  Bihar  is concerned,  Shri Ramaswamy submitted that it was  a  willful defaulter since it made no serious effort to comply with its direction  for the supply of identity cards.  On  the  other hand   Shri   Bhat  contended  that   the   Chief   Election Commissioner  had failed to appreciate the economic as  well as  the social conditions in Bihar and without  taking  into account the ground realities had tried to press, may, coerce the  State into submission.  At that stage Shri Guptoo,  the learned Advocate General for West Bengal, who was in  court, stated that as far as his State Government is concerned, the Chief Election Commissioner had gone to the length of saying that  failure to implement his order would tantamount  to  a break  down of he constitutional machinery in the State  and threatened  to  inform the President of  India  accordingly. While there may be force in the submission that the language used  in  the correspondence by the Election  commission  is unduly   harsh   and  abrasive,  ordinarily  not   used   in correspondence  between high-level functionaries,  the  fact remains  that. the State of Bihar had lagged far  behind  in implementing the orders of the Election Commission.  Counsel for the State of Bihar stated that his Government was firmly of the opinion that the Election Commission had no power  or authority to hold up or to threaten to hold up the  election process  if the identity cards were not issued.  This  would be a larger question to be answered at the final hearing. 5.Shri Ramaswamy in the light of discussion made a statement at  the  Bar and followed it up by placing  it  in  writing, which runs thus:               "The  Commission has no intention of  creating               any  constitutional crisis.  Since  18  months               time  has  been given for  completion  of  the               exercise, the deadline of 1. 1. 1995 fixed  18               months ago was insisted upon.               Since elections to the legislative assembly of               the  State  of Bihar have been  notified,  the               Election  Commission  will  not  withhold  the               elections  on the ground that  identity  cards               have not been supplied to all voters  provided               the  Government of Bihar gives an  undertaking               to  this  court  that  it  will  complete  the               exercise  of  issuing  identity  cards  before               30.9.1995.               This  is without prejudice to the  contentions

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             of the parties to the writ petitions.                                    sd/.                              (S.K. Mendiratta)                          Secretary Election Commission                                  of India" 6.   From above statement it becomes clear that whatever the Election  Commission  may have said in  the  earlier  corre- spondence and no matter how forcefully it may have insisted, the  Election Commission is mindful of the consequence  that may follow should the two States not be 676 allowed  to  go  to the polls for their  failure  to  supply identity  cards  to ’all’ eligible electors.   It  has  also assured us that since elections to the legislative  assembly of  Bihar have been notified, the Election  Commission  will not withhold the elections for want of identity cards.   The Election Commission has, however, desired that the State  of Bihar  should  undertake  to complete  the  entire  exercise before  September  30,  1995.   Such  an  undertaking  would ofcourse  be  without prejudice to the  contentions  of  the parties.   Shri  Bhat on the other hand contended  that  the Election  Commission has no power or authority  to  withhold elections for failure to issue identify cards and it  cannot refuse  to  permit an elector to cast his vote for  want  of such  a  card, and therefore, there is no  question  of  the State  of Bihar giving any such undertaking and in any  case he cannot do so without the express authority of his client. We appreciate his difficulty. 7.   Taking  all  the  above facts  and  circumstances  into consideration  we direct rule nisi to issue in all the  four writ  petitions  and direct counsel to  complete  the  paper books within four weeks.  Printing dispensed with. 8.   We  further direct that the Election  Commission  shall not withhold the elections to the legislative assemblies  of Bihar and Orissa on the ground that the said Governments had failed  to  complete  the  process  of  insurance  of  photo identity cards by the deadline prescribed by it.  There will be  an  interim  stay  in  the  said  terms.   The  Election Commission  will, however, be free to take Such other  steps as  it considers necessary and arc permissible to  ensure  a fair free poll. 9.   As   regards   the  grant  of  undertaking,   no   Such undertaking having been sought from the State of Orissa, the learned   counsel  for  the  State  of  Bihar   may   obtain instruction,  in  that behalf from his  clients  and  report within four weeks. 10.  Let  the writ petitions come up with Transferred  Cases Nos.  13,14,16  and 18 of 1994 and Civil Appeal  No.6106  of 1994 (Shri T.N. Seshan V. State of West Bengal) 11.  Liberty to mention for early hearing. 12.  Since the averments in the Writ Petitions    filed subsequent  to  writ  petition No.2 of 1995  are  more  less identical  we have mainly referred to the averments  in  the first petition. 2