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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