Brundaban Nayak Vs. Election
Commission of India & ANR  INSC 34 (12 February 1965)
12/02/1965 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M.
DAYAL, RAGHUBAR SIKRI, S.M.
CITATION: 1965 AIR 1892 1965 SCR (3) 53
RF 1966 SC 356 (7) R 1971 SC1630 (5)
Constitution of India, Art. 192(1) and
(2)--Who can raise question as to disqualification of sitting member- Whether
question has to be raised on floor of the Assembly and referred to the Governor
by Speaker--Enquiry to be held by Governor or Election Commission?
The appellant was elected to the Orissa
Legislative Assembly in 1961. In 1964 respondent No. 2 made a complaint to the
Governor alleging that the appellant had incurred a disqualification subsequent
to his election as contemplated in Art. 191(1)(e) of the Constitution read with
s. 7 of the Representation of the People Act (Act 43 of 1951). The Chief
Secretary Orissa forwarded the said complaint ,to respondent No. 1, the Election
Commission of India, under the instructions of the Governor, requesting it to
make enquiry into the complaint and give its opinion. Accordingly respondent
No. 1 served notice on the appellant and called upon him to submit his reply.
The appellant challenged the jurisdiction of respondent No. 1 to conduct the
enquiry and filed a writ petition in the High Court. On its being dismissed he
appealed to this Court by special leave.
It was contended on behalf of the appellant
that no question under Art. 192(1) had arisen in the case as a question
relating to the disqualification of a member under Art. 191(1)(e) could not be
raised by an ordinary citizen.
It was urged that considering the context of
Art. 192 and the provisions of Art. 199 the question could only be raised on
the floor of the House and thereafter referred to the Governor by the Speaker
of the Assembly. It was further contended that only the Governor who had to
give the decision could hold the enquiry, and the Election Commission was only
to give its opinion on the materials forwarded to it by the Governor.
HELD: (i) The argument t that no question had
arisen under Art. 192(1) could not be accepted. What Art 192(1) requires is
that a question should arise; how it arises, by whom it is raised, in what
circumstances it is raised are not relevant for the purpose of the application
of this clause. [59 H] The words in Art. 192(1) that "the question shall
be referred for the decision of the Governor" merely emphasise that any
question of the type contemplated in the said clause shall be decided by the
Governor and Governor alone;
no other authority, including the courts, can
decide it. Ii the intention was that the question must be raised first in the
legislative Assembly and after a prima facie examination by the Speaker it
should be referred by him to the Governor, Art. 192(1) would have been worded
in an entirely different manner. [59 B-C] The object of Art 192 is that no
member who has incurred a disqualification under Art. 191(1) should be allowed
to continue as a member. The Constitution itself in Art 190(3) provides for the
vacation of the seat of such a member.
Further it is in the interests of the
member's constituency that no longer being entitled to the status of a member.
he should be removed. In view 54 of these considerations a citizen is certainly
entitled to make a complaint to the Governor about the disqualification
incurred by a member under Art. 191(1). [59. E-G] (ii) The enquiry for the
purpose of the decision under Art. 192 has to be held by the Election
Commission and not by the Governor. When the Governor pronounces his decision
under Art. 192(1) he is not required to consult his Council of Ministers; he
has merely to forward 'the question to the Election Commission for its opinion,
and as soon as the opinion is received, "he shall act according to such
opinion". It is the opinion of the Election Commission which is in
substance decisive, and it is legitimate that the Commission should proceed to
try the complaint before it gives its opinion. [60 D-H] [Legislation to vest
Election Commission with powers of a Commission under the Commissions of
Enquiry Act, 1952, recommended.] [62 B]
CIVIL, APPELLATE JURISDICTION: Civil Appeal
No. 50 of 1965.
Appeal by special leave from the order dated January
6, 1965 of the Circuit Bench of the Punjab High Court at Delhi in Civil Writ
No. 8-D of 1965.
M.C. Setalvad, Ravinder Narain, J.B.
Dadachanji and O.C.
Mathur, for the appellant.
C.K. Daphtary, Attorney-General, S.V. Gupte,
Solicitor General, B.R.L. lyengar and R.H. Dhebar, for the respondent No. 1.
Santosh Chatterjee B. B. Ratho and M.L.
Chhibber, for respondent No. 2.
The Judgment of the Court was .delivered by
Gajendragadkar, C.J. The principal question which this appeal by special leave
raises for our decision relates to the construction of Article 192 of the
Constitution. The said question arises in this way. The appellant Brundaban
Nayak was elected to the Legislative Assembly of Orissa from the Hinjili 23
Constituency in Ganjam district in 1961, and was appointed one of the Ministers
of the Council of Ministers in the said State. On August 18, 1964, respondent
No. 2, P. Biswal, applied to the Governor of Orissa alleging that the appellant
had incurred a disqualification subsequent to his election under Art. 191(1)(e)
of the Constitution read with section 7 of the Representation of the People
Act, 1951 (No. 43 of 1951) (hereinafter called the Act). In his application,
respondent No. 2 made several allegations in support of his contention that the
appellant had become disqualified to be a member of the Orissa Legislative
Assembly. On September 10, 1964, the Chief Secretary to the Government of
Orissa forwarded the ,said complaint to respondent No. 1, the Election
Commission of India, under the instructions of the Governor. In this
communication, the Chief Secretary stated that a question had arisen under
Article 191(1) of the Constitution whether the member in 55 question had been
subject to the disqualification alleged by respondent No. 2 and so, he
requested respondent No. 1 in the name of the Governor to make such enquiries
as it thinks fit and give its opinion for communication to the Governor to
enable him to give a decision on the question raised.
On November 17, 1964, respondent No. 1 served
a notice on the appellant forwarding to him a copy of the letter received by it
from respondent No. 2 dated the 4th November, 1964. The notice intimated to the
appellant that respondent No. 1 proposed to enquire in the matter before giving
its opinion on the Governor's reference, and, therefore, called upon him to
submit on or before the 5th December, 1964, his reply with supporting
affidavits and documents, if any. The appellant was also told that the parties
would be heard in person or through authorised counsel at 10-30 A.M. on the 8th
December, 1964. in the office of respondent No. 1 in New Delhi.
On December 1, 1964, the appellant sent a
telegram to respondent No. 1 requesting it to adjourn the hearing of the
matter. On the same day, he also addressed a registered letter to respondent
No. 1 making the same request.
Respondent No. 2 objected to the request made
by the appellant for adjourning the hearing of the complaint. On December 8,
1964. respondent No. 1 took up this matter for consideration. Respondent No. 2
appeared by his counsel Mr.
Chatterjee, but the appellant was absent.
Respondent No. 1 took the view that an enquiry of the nature contemplated by
Art. 192(2) must be conducted as expeditiously as possible, and so, it was
necessary that whatever his other commitments may be, the appellant should
arrange to submit at least his statement in reply to the allegations made by
respondent No. 2, even if he required some more time for filing affidavits
and/or documents in support of his statement. Even so, respondent No. 1 gave
the appellant time until the 2nd January, 1965, 10-30 A.M. when it ordered that
the matter would be heard.
On January 2, 1965, the appellant appeared by
his counsel Mr. Patnaik and respondent No. 2 by his counsel Mr. Chatterjee. On
this occasion, Mr. Patnaik raised the question about the maintainability of the
proceedings before respondent No. 1 and its competence to hold the enquiry. Mr.
Chatterjee repelled Mr. Patnaik's contention. Respondent No. 1 over-ruled Mr.
Patnaik's contention and recorded its conclusion that it was competent to hold
the enquiry under Art. 192(2). Mr. Patnaik then asked for adjournment and made
it clear that he was making the motion for adjournment without submitting to
the jurisdiction of respondent No. 1.
In view of the attitude adopted by Mr.
Patnaik, respondent No. 1 took the view that it would be pointless to adjourn
the proceedings. and so, it heard Mr. Chatterjee in support of the case of
respondent No. 2. After hearing Mr. Chatterjee. respondent No. 1 reserved its
orders on the enquiry and noted that its 56 opinion would be communicated to
the Governor as early as possible.
When matters had reached this stage before
respondent No. 1, the appellant moved the Punjab High Court under Art.
226 of the Constitution praying that the
enquiry which respondent No. 1 was holding, should be quashed on the ground
that it was incompetent and without jurisdiction.
This writ petition was summarily dismissed by
the said High Court on January 6, 1965. Thereafter, the appellant applied to
this Court for special leave on January 8, 1965, and special leave was granted
to him on January 14, 1965. The appellant then moved this Court for stay of
further proceedings before respondent No. 1, and the said prayer was granted.
When special leave was granted to the appellant, this Court had made an order
that the preparation of the record and the filing of statements of the case
should be dispensed with and the appeal should be heard on the paper- book
filed along with the special leave petition and must be placed for hearing
within three weeks. That is how the matter has come before us for final
Since the Punjab High Court had dismissed the
writ petition filed by the appellant in limine, neither of the two respondents
had an opportunity to file their replies to the allegation made by the
appellant in his writ petition.
That is why both respondent No. 1 and
respondent No. 2 have filed counter-affidavits in the present appeal setting
out all the relevant facts on which they wish to rely. The appellant has filed
an affidavit-in-reply. All these documents have been taken on the record at the
time of the hearing of this appeal. It appears from the affidavit filed by Mr.
Prakash Narain. Secretary to respondent No. 1, that when notice issued by
respondent No. 1 on the 17th November, 1964, was served on the appellant,
through oversight the original complaint flied by respondent No. 2 before the
Governor of Orissa and the reference made by the Governor to respondent No. 1
were not forwarded to the appellant. At the hearing before us, it is not
disputed by the appellant that a complaint was in fact made by respondent No. 2
before the Governor of Orissa and that the Governor had then referred the
matter to respondent No. 1 for its opinion.
Let us then refer to Article 192 which fails
to be construed in the present appeal. Before reading this articl, it is
relevant to refer to Art. 191. Article 191(1) provides that a person shall be
disqualified for being chosen as, and for being, a member of the Legislative
Assembly or Legislative Council of a State if, 57 to the Governor. As we have
already indicated, respondent No. 2's case is that the appellant has incurred
the disqualification under Art. 191(1)(e) read with s. 7(d) of the Act, and
this disqualification has been incurred by him subsequent to his election. It
is well-settled that the disqualification to which Art. 191(1) refers, must be
incurred subsequent to the election of the member. This conclusion follows from
the provisions of Art. 190(3)(a).
This Article refers to the vacation of seats
by members duly elected. Sub-Article (3)(a) provides that if a member of a
House of the Legislature of a State becomes subject to any of the
disqualifications mentioned in clause (1) of Art.
191, his seat shall thereupon become vacant.
Incidentally, we may add that corresponding provisions with regard to the
disqualification of members of both Houses of Parliament are prescribed by
Articles 101,102 and 103 of the Constitution.
It has been held by this Court in Election
Commission, India v. Saka Venkata Subba Rao and Union of lndia--Intervener/that
Articles 190(3) and 192(1) are applicable only to disqualifications to which a
member becomes subject after being elected as such. There is no doubt that the
allegations made by respondent No. 2 in his complaint before the Governor,
prima facie, indicate that the disqualification on which respondent No. 2
relies has arisen subsequent to the election of the appellant in 1961.
Reverting then to Art. 192, the question
which we have to decide in the present appeal is whether respondent No. 1 is
entitled to hold an enquiry before giving its opinion to the Governor as
required by Art. 192(2). Let us read Art. 192:-- "(1) If any question
arises as to whether a member of a House of the Legislature of a State has
become subject to any of the disqualifications mentioned in clause (1) of
Article 191, the question shall be referred for the decision of the Governor
and his decision shall be final.
(2) Before giving any decision on any such
question. the Governor shall obtain the opinion of the Election Commission and
shall act according to such opinion".
Mr. Setalvad for the appellant contends that
in the present case. no question can be said to have arisen as to whether the
appellant has become subject to any of the disqualifications mentioned in
clause (1) of Art. 191, because his case is that such a question can be raised
only on the floor of the Legislative Assembly and can be raised by members of
the Assembly and not by an ordinary citizen or voter in the form of a complaint
to the Governor. Mr.
Setalvad did not dispute the fact that this
contention has not been taken by the appellant either in his writ petition
before the High Court or even in his application for special leave before this
Court. In fact, the case sought to be made out by the appellant in the present
proceedings appears to be that though a question may have arisen about
58 his disqualification, it is the Governor alone
who can hold the enquiry and not respondent No. 1. Even so, we have allowed Mr.
Setalvad to raise this point, because it is purely a question of law depending
upon the construction of Art. 192(1).
In support of his argument, Mr. Setalvad
refers to the fact that Art. 192 occurs in Chapter III of Part VI which deals
with the State Legislature, and he invited our attention to the fact that under
Art. 199(3) which deals with a question as to whether a Bill introduced in the
Legislature of a State which has a Legislative Council is a Money Bill or not,
the decision of the Speaker of the Legislative Assembly of such State thereon
shall be final. He urges that just as the question contemplated by Art. 199(3)
can be raised only on the floor of the House, so can the question about a
subsequent disqualification of a member of a Legislative Assembly be raised on
the floor of the House and nowhere else. He concedes that whereas the question
contemplated by Art. 199(3) has to be decided by the Speaker and his decision
is final, the authority to decide the question under Art. 192(1) is not vested
in the Speaker. but is vested in the Governor. In other words, the context in
which Art. 192(1) occurs is pressed into service by Mr. Setalvad in support of
Mr. Setalvad also relies on the fact that
Art. 192(1) provides that if any question arises, it shall be referred for the,
decision of the Governor and this clause, says Mr. Setalvad, suggests that
there should be some referring authority which makes a reference of the
question to the Governor for his decision. According to him, this referring
authority, by necessary implication, is the Speaker of the Legislative
Assembly. There is another argument which he has advanced before us in support
of this construction. Article 192(2) requires that whenever a question is
referred to the Governor, he shall obtain the opinion of the Election
Commission and Mr. Setalvad suggests that it could not have been the intention
of the Constitution to require the Governor to refer to the Election Commission
every question which is raised about an alleged disqualification of a member of
a Legislative Assembly even though such a question may be patently frivolous or
We are not impressed by these arguments. It
is significant that the first clause of Art. 192(1) does not permit of any
limitations such as Mr. Setalvad suggests.
What the said clause requires is that a
question should arise; how it arises, by whom it is raised, in what
circumstances it is raised, are not relevant for the purpose of the application
of this clause. All that is relevant is that a question of the type mentioned
by the clause should arise; and so, the limitation which Mr. Setalvad seeks to
introduce in the construction of the' first part of Art.
192(I) is plainly inconsistent with the words
used in the said clause.
59 Then as to the argument based on the words
"the question shall be referred for the decision of the Governor",
these words do not import the assumption that any other authority has to
receive the complaint and after a prima facie and initial investigation about
the complaint, send it on or refer it to the Governor for his decision. These
words merely emphasise that any question of the type contemplated by clause (1)
of Art. 192 shall be decided by the Governor and Governor alone; no other
authority can decide it, nor can the decision of the said question as such fall
within the jurisdiction of the Courts. That is the significance of the words
"shall be referred for the decision of the Governor". If the
intention was that the question must be raised first in the Legislative
Assembly and after a prima facie examination by the Speaker it should be
referred by him to the Governor, Art. 192(1) would have been worded in an
entirely different manner. We do not think there is any justification for
reading such serious limitations in Art.
192(1) merely by implication.
It is true that Art. 192(2) requires that
whenever a question arises as to the subsequent disqualification of a member of
the Legislative Assembly, it has to be forwarded by the Governor to the
Election Commission for its opinion. It is conceivable that in some cases,
complaints made to the Governor may be frivolous or fantastic; but if they are
of such a character, the Election Commission will find no difficulty in
expressing its opinion that they should be rejected straightaway. The object of
Art. 192 is plain. No person who has incurred any of the disqualifications
specified by Art. 191(1), is entitled to continue to be a member of the
Legislative Assembly of a State, and since the obligation to vacate his seat as
a result of his subsequent disqualification has been imposed by the
Constitution itself by Art. 190(3)(a), there should be no difficulty in holding
that any citizen is entitled to make a complaint to the Governor alleging that
any member of the Legislative Assembly has incurred one of the
disqualifications mentioned in Art. l 91 (1) and should, therefore, vacate his
seat. The whole object of democratic elections is to constitute legislative
chambers composed of members who are entitled to that status, and if any member
forfeits that status by reason of a subsequent disqualification, it is in the
interests of the constituency which such a member represents that the matter
should be brought to the notice of the Governor and decided by him in
accordance with the provisions of Art. 192(2). Therefore, we must reject Mr.
Setalvad's argument that a question has not arisen in the present proceedings
as required by Art.
The next point which Mr. Setalvad has raised
is that even if a question is held to have arisen under Art. 192(1), it is for
the Governor to hold the enquiry and not for the Election Commission. He
contends that Art. 192(1) requires the question to be referred to the Governor
for his decision and provides that his decision shall be final. It is a normal
requirement of the rule of law that a person 60 who decides should be empowered
to hold the enquiry which would enable him to reach his decision, and since the
Governor decides the question, he must hold the enquiry and not the Election
Commission. That, in substance, is Mr. Setalvad's case. He concedes that Art.
192(2) requires that the Governor has to pronounce his decision in accordance
with the .opinion given by the Election Commission; that is a Constitutional
obligation imposed on the Governor. He, however, argues that the Election
Commission which has to give an opinion, is not competent to hold the enquiry,
but it is the Governor who should hold the enquiry and then forward to the
Election Commission all the material collected in such an enquiry to enable it
to form its opinion and communicate the same to the Governor.
We are satisfied that this contention also is
not well- founded. The scheme of Article 192(1) and (2) is absolutely clear.
The decision on the question raised under Art. 192(1) has no doubt to be
pronounced by the Governor, but that decision has to be in accordance with the
opinion of the Election Commission. The object of this provision clearly is to
leave it to the Election Commission to decide the matter, though the decision
as such would formally be pronounced in the name of the Governor. When the
Governor pronounces his decision under Art. 192(1), he is not required to
consult his Council of Ministers; he is not even required to consider and
decide the matter himself; he has merely to forward the question to the
Election Commission for its opinion, and as soon as the opinion is received,
"he shall act according to such opinion". In regard to complaints
made against the election of members to the Legislative Assembly.
the jurisdiction to decide such complaints is
left with the Election Tribunal under the relevant provisions of the Act.
That means that all allegations made
challenging the validity of the election of any member, have to be tried by the
Election Tribunals constituted by the Election Commission. Similarly, all
complaints in respect of disqualifications subsequently incurred by members who
have been validly elected, have, in substance, to be tried by the Election
Commission, though the decision in form has to be pronounced by the Governor.
If this scheme of Art. 192(1) and (2) is borne in mind, there would be no
difficulty in rejecting Mr. Setalvad's contention that the enquiry must be held
by the Governor. It is the opinion of the Election Commission which is in
substance decisive and it is legitimate to assume that when the complaint is
received by the Governor, and he forwards it to the Election Commission.
the Election Commission should proceed to try
the complaint before it gives its opinion. Therefore, we are satisfied that
respondent No. 1 acted within its jurisdiction when it served a notice on the
appellant calling upon him to file his statement and produce his evidence in
Mr. Setalvad faintly attempted to argue that
the failure of respondent No. 1 to furnish the appellant with a copy of the
complaint made by respondent No. 2 before the Governor and of the 61 order of
reference passed by the Governor ,forwarding the said complaint to respondent
No. 1, rendered the proceedings before respondent No. 1 illegal. This
contention is plainly misconceived. As soon as respondent No. 1 received the
complaint and the order of reference which was communicated to it by the Chief
Secretary to the Government of Orissa, it was seized of the matter and it was
plainly acting within its jurisdiction under Art. 192(2) when it served the
notice on the appellant. As we have already indicated, it was through oversight
that the two documents were not forwarded to the appellant along with the
notice, but that cannot in any sense affect the jurisdiction of respondent No.
1 to hold the enquiry. In fact, as respondent No. 2 has pointed out in his
affidavit, the fact that a reference had been made by the Governor to
respondent No. 1 was known all over the State, and it is futile for the
appellant to suggest that when he received the notice from respondent No. 1, he
did not know that a complaint had been made against him to the Governor
alleging that subsequent to his election, he had incurred a disqualification as
contemplated by Art.
191(1)(e) of the Constitution read with s.
7(d) of the Act.
It would have been better if the appellant
had not raised such a plea in the present proceedings.
In this connection, we ought to point out
that so far the practice followed in respect of such complaints has
consistently recognised that the enquiry is to be held by the Election
Commission both under Art. 192(2) and Art.
103(2). In fact, the learned Attorney General
for respondent No. 1 stated before us that though on several occasions, the
Election Commission has held enquiries before communicating its opinion either
to the President under Art. 103(2) or to the Governor under Art. 192(2), no one
ever thought of raising the contention that the enquiry must be held by the
President or the Governor respectively under Art. 103(1) and Art. 192(1). He
suggested that the main object of the appellant in taking such a plea was to
prolong the proceedings before respondent No. 1. In the first instance, the
appellant asked for a long adjournment and when that request was refused by
respondent No. 1, he adopted the present proceedings solely with the object of
avoiding an early decision by the Governor on the complaint made against the
appellant by respondent No. 2. We cannot say that there is no substance in this
There is one more point to which we may refer
before we part with this appeal. Our attention was drawn by the learned
Attorney-General to the observations made by the Chief Election Commissioner
when he rendered his opinion to the Governor on May 30, 1964, on a similar
question under Art. 192(2) in respect of the alleged disqualification of Mr.
Biren Mitra, a member of the Orissa Legislative Assembly, "Where, as in
the present case", observed the Chief Election Commissioner, "the
relevant facts are in dispute and can only be ascertained after a proper
enquiry, the Commission finds itself in the unsatisfactory position of having
to give a decisive L/B(D)2SCI- 6 62 opinion an the basis of such affidavits and
documents as may be produced before it by interested parties. It is desirable
that the Election Commission should be vested with the powers of a commission
under the Commissions of Enquiry Act, 1952, such as the power to summon
witnesses and examine them on oath, the power to compel the production of
documents, and the power to issue commissions for the examination of
witnesses". We would like to invite the attention of Parliament to these
observations, because we think that the difficulty experienced by the Election
Commission in rendering its opinion under Art. 103(2) or Art. 192(2) appears to
be genuine, and so Parliament may well consider whether the suggestion made by
the Chief Election Commissioner should not be accepted and appropriate
legislation adopted in that behalf.
The result is, the appeal fails and is
dismissed with costs. In view of the fact that the present proceedings have
unnecessarily protracted the enquiry before respondent No. 1, we suggest that
respondent No. 1 should proceed to consider the matter and forward its opinion
to the Governor as early as possible. It is hardly necessary to point out that
in case the allegations made against the appellant are found to be valid, and
the opinion of respondent No.1 is in favour of the case set out by respondent
No. 2, complications may arise by reason of the Constitutional provision
prescribed by Art. 190(3). In view of the said provision, it is of utmost
importance that complaints made under Art. 192(1) must be disposed of as
expeditiously as possible.