Bhandari & Ors Vs. Election Commission of India & Ors  INSC 54 (17 January 1995)
A.M. (Cj) Ahmadi A.M. (Cj) Bharucha S.P. (J) Reddy, K. Jayachandra (J)
1995 AIR 852 1995 SCC (2) 153 JT 1995 (1) 671 1995 SCALE (1)178
Article 168 of the Constitution provides that every State shall have a
Legislature and Article 172(1) provides that every Legislative Assembly of
every State, unless sooner dissolved, shall continue for five years from the
date appointed for its first meeting and no longer and expiration of the said
period of five years shall operate as a dissolution of the Assembly. Under this
Article the five year term of the Legislative Assemblies of two States, namely,
the States of Bihar and Orissa will expire on March 15, 1995. It is obvious that on expiration of the said term the
assemblies of the said two States will stand dissolved.
satisfy the mandate of Article 168 it is necessary that elections should be
held in the aforesaid two States in a manner that the election results are
declared for March 15,
1995. The latest Press
Note issued by the Election Com- mission on December 8, 1994 states that the elections in the
States of Bihar and Orissa would be completed before March 10, 1995. Ordinarily no objection can be
raised by either of the States to the schedule of elections fixed with a view
to completing the same before March 15, 1995.
However, in paragraph 06 of the said Press Note it is ordained :
poll in any of these States will not be taken without the supply of electoral
identity cards to all eligible electors. The State Government will be called
upon to furnish a certificate that photo identity cards have been supplied to
all eligible electors. " On a plan reading of the said paragraph it is
clear that unless 'all' eligible electors are supplied electoral identity cards
and a certificate to that effect is rot furnished by the concerned State
Government no poll will be taken in that State. It is, therefore, apprehended
by the petitioners of writ petitions Nos. 2 and 6 of 1995 which concern the
States of Bihar and Orissa that since the said two States are not in a position
to complete the requirement of supplying photo identity cards to 'all' eligible
electors before the last date fixed for the same, elections may not be taken in
the said two States thereby denying to the electors thereof their
constitutional right to elect a new assembly for their respective States. The
petitioners contend that 674 that would tantamount to the eligible electors of
the State being denied their constitutional and democratic right to elect a new
assembly. This apprehension arises in the background of the following events.
August 28, 1993, the Election Commission in purported exercise of powers under
Rule 28 of the.Registration of Electoral Rules, 1960 read with Section 130(2)
of the Representation of Peoples Act 1950, read with Section 130 (2) of the
Representation of People's Act, issued a directive for the supply of photo
identity cards to electors in the assembly as well as parliamentary
constituencies in each State, with a view to prevent impersonation of electors
and facilitating their iden- tification at the polls. It was also made clear in
no uncertain terms that no polling at elections for which the Election
Commission is responsible shall take place after January 1, 1995 unless 'all'
eligible electors have been supplied with identity cards. What features the
identity cards shall bear was also indicated with a caution that 'there will be
no departure from these features in any manner whatsoever.' This was followed
by High Level Meetings at which certain State Governments, including the
representatives of be said two Sum: of Bihar and Orissa, pointed out certain
difficulties in the implementation of the said directive. The Chief Election
Officers of the States were held responsible for maintaining the schedule for
completion of the identity cards to the electors before deadline fixed by the
Election Commission. On May 11, 1994, the Election Commission wrote to the
Chief Secretary and Chief Election Officer, Bihar that there was virtually no
progress made towards issuance of identity cards and added 'the commission
hereby forewarns you that the responsibility for any constitutional stalemate that
may arise because of your failure to comply with the instructions of the
commission...... will rest squarely with you and the State Government.' This
was followed by a letter dated November 6, 1994 drawing the attention of the
State of Bihar that the progress was very unsatisfactory and warned that should
any constitutional crisis arise on account of elections not be- ing held for
want of identity cards, the responsibility will rest squarely on the State
Government. Then by the letter of December 29, 1994, the Election Commission
stated that the notification calling the elections would be issued only after
the receipt of the certificate from officers of the State Government that all
eligible voters had been supplied with photo identity cards. By die order of
November 30, 1994, the Election Commission stated that in no case will any
request for extension of deadline be entertained. This gave rise to the
apprehension that the elections to the leg- islative assemblies of the States
of Bihar and Orissa will not be held before March 15, 1995, for their failure
to comply with the directive of grant of identity cards.
the writ petitions filed under Article 32 of the Constitution came up for
admission before us yesterday we heard counsel for the petitioners, Shri Fali
S. Nariman for the State of Orissa in Writ Petition No 6 of 1995 and Shri Soli
J. Sorabjee in Writ Petition No 2 of 1995 and Shri Bhat for the State of Bihar
as well as counsel for the petitioner in Writ Petitions Nos.4 and 37 of 1995
and Shri G. Ramaswamy, counsel for the Election Commission at some length. We
also heard them on the question of grant of interim relief During the course of
the hearing Shri Soli Sorabjee briefly indicated in writ- 675 ing the points
arising for consideration. Shri G.Ramasamy, learned senior counsel for the
Election Commission stated that since the State of Orissa had virtually
complied with the direction, in that, it had supplied photo identity cards to
almost 86% of voters, the Election Commission will not enforce its instruction
contained in paragraph 06 extracted earlier. In other words Shri Ramaswamy
contended that in the State of Orissa elections will not be held up for want of
supply of identity cards to 'all' electors eligible to vote and for want of an
undertaking/certificate in that behalf from the State Governmental. That should
settle the matter insofar as Orissa is concerned. As far as the State of Bihar is concerned, Shri Ramaswamy
submitted that it was a willful defaulter since it made no serious effort to
comply with its direction for the supply of identity cards. On the other hand Shri
Bhat contended that the Chief Election Commissioner had failed to appreciate
the economic as well as the social conditions in Bihar and without taking into account the ground realities had
tried to press, may, coerce the State into submission. At that stage Shri Guptoo,
the learned Advocate General for West Bengal, who was in court, stated that as
far as his State Government is concerned, the Chief Election Commissioner had
gone to the length of saying that failure to implement his order would
tantamount to a break down of he constitutional machinery in the State and
threatened to inform the President of India accordingly.
there may be force in the submission that the language used in the
correspondence by the Election commission is unduly harsh and abrasive,
ordinarily not used in correspondence between high-level functionaries, the
fact remains that. the State of Bihar had lagged far behind in implementing the orders of the Election
Commission. Counsel for the State of Bihar stated that his Government was firmly of the opinion that the Election
Commission had no power or authority to hold up or to threaten to hold up the
election process if the identity cards were not issued. This would be a larger
question to be answered at the final hearing.
Ramaswamy in the light of discussion made a statement at the Bar and followed
it up by placing it in writing, which runs thus:
Commission has no intention of creating any constitutional crisis. Since 18
months time has been given for completion of the exercise, the deadline of 1.
1. 1995 fixed 18 months ago was insisted upon.
elections to the legislative assembly of the State of Bihar have been notified, the Election
Commission will not withhold the elections on the ground that identity cards
have not been supplied to all voters provided the Government of Bihar gives an
undertaking to this court that it will complete the exercise of issuing
identity cards before 30.9.1995.
is without prejudice to the contentions of the parties to the writ petitions.
(S.K. Mendiratta) Secretary Election Commission of India"
From above statement it becomes clear that whatever the Election Commission may
have said in the earlier corre- spondence and no matter how forcefully it may
have insisted, the Election Commission is mindful of the consequence that may
follow should the two States not be 676 allowed to go to the polls for their
failure to supply identity cards to 'all' eligible electors. It has also
assured us that since elections to the legislative assembly of Bihar have been notified, the Election Commission will not
withhold the elections for want of identity cards. The Election Commission has,
however, desired that the State of Bihar should undertake to complete the entire exercise before September 30, 1995. Such an undertaking would ofcourse
be without prejudice to the contentions of the parties. Shri Bhat on the other
hand contended that the Election Commission has no power or authority to
withhold elections for failure to issue identify cards and it cannot refuse to
permit an elector to cast his vote for want of such a card, and therefore,
there is no question of the State of Bihar giving any such undertaking and in
any case he cannot do so without the express authority of his client.
appreciate his difficulty.
Taking all the above facts and circumstances into consideration we direct rule
nisi to issue in all the four writ petitions and direct counsel to complete the
paper books within four weeks. Printing dispensed with.
further direct that the Election Commission shall not withhold the elections to
the legislative assemblies of Bihar and Orissa
on the ground that the said Governments had failed to complete the process of
insurance of photo identity cards by the deadline prescribed by it. There will
be an interim stay in the said terms. The Election Commission will, however, be
free to take Such other steps as it considers necessary and arc permissible to
ensure a fair free poll.
regards the grant of undertaking, no Such undertaking having been sought from
the State of Orissa, the learned counsel for the State
of Bihar may obtain instruction, in that
behalf from his clients and report within four weeks.
Let the writ petitions come up with Transferred Cases Nos. 13,14,16 and 18 of
1994 and Civil Appeal No.6106 of 1994 (Shri T.N. Seshan V. State of West
Bengal) 11. Liberty to mention for early hearing.
Since the averments in the Writ Petitions filed subsequent to writ petition
No.2 of 1995 are more less identical we have mainly referred to the averments
in the first petition.