SPECIAL REFERENCE NO. I OF 2002 v

Citation: [2002] SUPP. 3 S.C.R. 366

Court: Supreme Court of India

Bench: B.N. KIRPAL, V.N. KHARE, K.G. BALAKRISHNAN, ASHOK BHAN, ARIJIT PASAYAT

Judgment text

SPECIAL REFERENCE NO. I OF 2002 OCTOBER 28, 2002 (B. N. KIRPAL, CJ. , V. N. KHARE, K. G. BALAKRISHNAN, ASHOK BHAN AND ARIJIT PASAYAT, JJ. ] Constitution of India, 1950: Arti~les 174(1) and 324-Applicability of-Held, Art. 174(1) is applicable to an- existing and funCtional Legislative Assembly and not to a dissolved Assembly -It neither relates to elections nor provides any outer limit for holding elections for constituting Legislative Assembly-The superintendence, direction and control of the preparation of electoral roll and conduct of holding elections for constituting Legislative Assembly is in the exclusive domain of the Election Commission under Article 324-Hence, Article 174(/) and Article 324 operate on different fields-Neither Article 174(1) is subject to Article 324 nor Article 324 is subject to Article 174(1).

Articie 324-Whether there are limitations on the powers of Election Commission to frame Schedule for holding elections-Held, plenary powers of the Election Commission cannot be taken away by lawji-amed by Parliament- If Parliament makes any such law, it would be repugnant to Article 324- Ho/ding periodic, free and fair elections by the Election Commission are part ofthe basic structure-However, the power ofsuperintendence, direction and control of election are subject to law made either by Parliament or by the State Legislature, as the case may be provided the same does not encroach upon the plenary powers of the Election Commission-Article 327 rlw Entry 72 ofList I of VII Schedule, Article 328 rlw entry 37 ofList II of VII Schedule and Article 324.

Article I74(1),172(1), 123, 213, 109, I JO and I I JI Representation of People Act, 1951-Sections 14 and 15-Premature dissolution ofLegislative Assembly-:-Conducting fresh election for constitution of new Assembly- Whether any period oflimitation provided for holding election in such case- He/d, no period of limitation has been prescribed-However, in view of the scheme ofthe Constitution and the Act, the elections should be held within six months for constituting Legislative Assembly from ! he date of dissolution of the legislative Assembly. SPECIAL REFERENCE NO. I OF 2002 367 Articles 324 and 356-Fixation of the election schedule-For holding election to Legislative Assembly-Declaration of state of emergency- Applicability of-Held, declaration ofemergency has no relevance for. fixation of election schedule.

Article 143-Reference under-Scope and maintainability of-Held, Court cannot go into disputed questions offact in its advisory jurisdiction- It is within jurisdiction ofSupreme Court to advise the President in a reference, ifthe questions referred are likely to arise infuture or are ofpublic importance or there is no decision of Supreme Court which has already decided the question referred ·c Interpretation ofStatute: To discern the intention behind enacting a provision ofthe Constitution and to interpret the same is to look into the Historical Legislative Development, Constituent Assembly Debates or any document preceding enactment of the Constitutional provision. On premature dissolution of Legislative Assembly of Gujarat, Election Commission took steps for holding fresh elections.

Election Commission in its order acknowledged that though Article 174(1) of the Constitution of India is mandatory and applicable to a dissolved Assembly and hence fresh elections must be held within six months of the last session of the dissolved assembly, but it was not in a position to hold first elections within six months from the last sitting of the Assembly, and so on nonobservance of provisions of Article 174(1 ), Article 356(1) may be resorted to. Since doubts arose with regard to the Constitutional validity of the order of the Election Commission, President of India referred following questions for opinion of Supreme Court in exercise of his power conferred under Article 143(1) of the Constitution :- I. Is Article 174 subject to the decision of the Election Commission of India under Article 324 as to the schedule of elections of Assembly? 2.

Can the Election Commission frame a schedule for the elections to an Assembly on the premise that any infraction of the mandate of Article 174 would be remedied by a resort to Article 356 by the President? 3. Is Election Commission under a duty to carry out the mandate of Article 174, by drawing upon all the requisite resources of the Union and State to ensure free and fair elections? Answering the questions referred to it, the Court HELD: Per V. N. Khare, J. (For himself, B. N. Kirpal, CJ. and Ashok Bhan, J. ), I. I. It is well within the jurisdiction of Supreme Court to answer/ advise the President in a reference made under Article 143(1) of the Constitution oflndia if the questions referred are likely to arise in future or such questions are of public importance or there is no decision of this Court which has already decided the question referred. [393-C] The Kera/a Education Bill 1957, [1959] SCR 995; Re: Special Courts Bill, (1978) Special Reference No.

1 of1978 [1979] l sec 380 and Keshav Singh, Special Reference No. I of 1964 (1965] I SCR 413, relied on. I, All~cation ofLands andBuildings (1943) FCR 20. and Re: Levy ofEstate Duty, 1944 FCR 317, referred to. 1. 2. " The legal premise on which the order of Election Commission was passed raises questions of public importance and these questions are likely to arise in future. It is not disputed that there is no decision of this Court directly on the questions referred and further a doubt has arisen in the mind of the President of India as regards the interpretation of Article 174(1) of the Constitution. Under such circumstances, it is imperative that this reference must be answered. [393-G-H; 394-A, Bl Re: Presidential Poll, (1974] 2 SCC 33, referred-to 2. 1. Question No. I proceeds on the assumption that Article 174(1) is also applicable to a dissolved Legislative Assembly.

The provision of Article 174(1) of the Constitution stipulates that six months shall not intervene between the last sitting in one session and the date appointed for its first sitting in the next session is mandatory in nature and relates to an existing and functional Legislative Assembly and not to a dissolved Assembly whose life has come to an end and ceased to exist. Further, Article 174(1) neither relates to elections nor does it provide any outer SPECIAL REFERENCE NO. I OF 2002 369 limit for holding elections for constituting Legislative Assembly. The superintendence, direction and control of the preparation of electoral,roll and conduct of holding elections for constituting Legislative Assembly is in the exclusive domain of the Election Commission under Article 324 of the Constitution.

In that view of the matter, Article 174(1) and Article 324 operate on different fields and neither Article 174(1) is subject to Article 324 nor Article 324 is subject to Article 174(1) of the Constitution. [427-B-E] 2. 2. Intention of the framers of the Constitution was that the provisfons contained in Article 174 were meant for a living and existing Legislative Asse:nbly and not to a dissolved Legislative Assembly. From the debates of Constituent Assembly on the draft Articles 69 and 153 which correspond to Article 85 and 174 of the Constitution, it is very much manifest that Articles 85 and Article 174 were enacted on the pattern of Sections 19(1) and 62(1) of the Government oflndia Act, 1935 respectively which dealt with the frequency of sessions of the existing Legislative Assembly and were not intended to provide any period of limitation for holding elections for constituting new House of the People or Legislative Assembly in the event of their premature dissolution.

Further, the suggestions to reduce the intervening period between the two sessions to three months from six months so that Parliament could sit for•longer duration to transact the pμsines~ shows that it ~as intended for existing Houses of Parliament and not dissolved ones, as a dissolved House cannot sit and transact iegislative business at all. [404-D; 403-E, F] . 2. 3. The parliamentary debate in the First Amendment Bill with regard to the proposed amendment of Article 85 and Article 174 were concerned only with the current session and working of the existing House of the People. The proceedings of the debate further show that the entire debate revolvec! around prorogation and summoning. There was no discussion as regards dissolution or Constitution of the House at all and the amendment was sought to remove the absurdity which has crept into the original Articles 85 and 174. For these reasons Art. 174(1) is inapplicable to a dissolved Assembly. [407-C-D] 2. 4.

The expression 'date appointed for its first sitting in the next session' in Article 174(1) cannot possibly refer to either an event after the dissolution of the house or an event of a new Legislative assembly meeting for the first time after getting freshly elected. When there is a session of the new Legislative Assembly after elections, the new Assembly will sit in its "first session" and not in the "next session". The expression 'after each general election' has been employed in other parts of the Constitution and one such provision is Article 176. The absence of such phraseology 'after each general election' in Article 174 is a clear indication that the said Article does not apply to a dissolved Assembly or to a freshly elected Assembly. Further, Article 174(1) uses expressions i. e. 'its last sitting in one sessio~', 'first sitting in the next session'. None of these expressions suggest that the sitting and the session would include an altogether different assembly i. e.

a previous assembly which has been dissolved and its successor Assembly that has come into being after elections. Again, Article 174 also employs the word 'summon' and not 'constitute'. Article 174 empowers the Governor to summon an Assembly which can only be an existing Assembly. The constitution of an Assembly can only be under Section 73 of the Representation of the People Act, 1951 and the requirement of Art. 188 of the Constitution suggests that the Assembly comes into existence even before its first sitting commences. [407-F-H; 408-A, Bl 2. 5. Article 174 contemplates a session, i. e. sitting of an existing Assembly and not a new Assembly after dissolution and this can be appreciated from the expression 'its last sitting in one session and its first sitting in the next session'. Further, the marginal note 'sessions' occurring in Articles 85 and 174 is an unambiguous term and refers to an existing Assembly \vhich a Governor can summon.

When the term 'session or sessions' is used, it is employed in the context of a particular assembly or particula~ House of the People and not the legislative body whose life is terminated after dissolution. Dissolution ends the life of legislature and brings an end to all business. The entire chain of sittings and sessions gets broken and there is no next session or the first sitting of the next session after the House itself has ceased to exist. Dissolution of Legislative Assembly ends the representative capacity of legislators and terminates the responsibility of the Cabinet to the members of the Lok Sabha or the Legislative Assembly, as the case may he. [408-C-E[ 2. 6. Conceptually, Article 174 deals with a live legislature. The purpose and object of the said provision is to ensure that an existing legislature meets at least every six months, as it is only an existing legislature that can be prorogued or dissolved.

Thus Article 174 which is complete code in itself deals only with a live legislature. [408-G, H] SPECIAL REFERENCE NO. I OF 2002 371 2. 7. Article 174(1) shows that it does not provide that its stipulation is applicable to a dissolved legislature as well. Further, Article 174 does not specify that interregnum of six months period stipulated between the two sessions would also apply to a new legislature vis-a-vis an outgoing legislature. If such be the case then there was no need to insert the proviso to Article 172(1) and insertion of the said proviso is rendered meaningless and superfluous. 1409-A, Bl 2. 8. Further, if Article 174 is held to be applicable to a dissolved House as well, it would mean that Article 174(2) is controlled by Article 174(1) inasmuch as the power has to be exercised under Article 174(2) in conformity with article 174(1).

Moreover, if the House is dissolved in 5th month of the last session, the election will have to be held within one month so as to comply with the requirement of Article 174(1) which would not have been the intention of the framers of the Constitution. [409-CI 2. 9. Each Legislative Assembly after Constitution is unique and distinct from the previous one and no part of the dissolved House is carried forward to a new Legislative Assembly. Therefore, Article 174(1) does no1 linl ted in the Commission under Article 324(1) naturally are subject to any law made either under Article 327 or under Article 328 of the Constitution. The word 'election' in Article 324 is used in a wide sense so as to include the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the result of the process.

Article 324 of the Constitution operates in areas left unoccupied by legislati The contentions advanced on behalfofthe other national political parties, 11 1 1 15 16 17 '"> political parties as well as other States is that Article 174(1) is neither applicable to the dissolved Assembly nor does it provide any period of limitation of six months for holding fresh election in the event of a premature dissolution of the Legislative Assembly. According to learned counsel appearing for these parties, there is no provision either in the Constitution or in the Representation of the People Act which provides an outer limit for holding election for constituting the new Legislative Assembly or the new House of the People, as the case may be, in the event of their premature dissolution. On the argument of learned counsel for the parties, the first question that arises for consideration is whether Article 174(1) is applicable to dissolved Assembly?

A plain reading of Article 174 shows that it stipulates that six months shall not intervene between the last sitting in one session and the date appointed for its first sitting in the next session. It does not provide for any period of limitation for holding fresh election in the event a Legislative Assembly is prematurely dissolved. It is true that after commencement of the Constitution, the practice has been that whenever either Parliament or Legislative Assembly were prematurely dissolved, the election for constituting fresh Assembly or Parliament, as the case may be, were held within six months from the date of the last sitting of the dissolved Parliament or Assembly.

It appears that the Election Commission's interpretation of Article 174 that fresh elections for constituting Assembly are required to be held within six months from the date of the last sitting of the last session was very much influenced by the prevailing practice followed by the Election Commission since enforcement S/Sh. (5) Kapil Sibbal (6) K. R. Parasaran (7) Ram Jethmalani (8) P. P. Rao (9) Milon Banerji (I0) Rajeev Dhawan (I I) Ashwani Kumar (12) M. C. Bhandre (13) Devendra Dwivedi (14) P. N. Puri (15) A. M. Singhvi (16) Gopal Subra111aniam (17) V. Bahuguna (18) A. Sharan all senior counsel. of the Constitution. At no point of time any doubt had arisen as to whether the interval of six months between the last sitting of one session and the first sitting of the next session of the Assembly under Article 174(1) provides a period of limitation for holding fresh election to constitute new Assembly by the Election Commission in the event of a premature dissolution of Assembly.

Since the question has arisen in this Reference and also in view of the fact that Article 174 on its plain reading does not show that it provides a period of limitation for holding fresh election after the premature dissolution of the Assembly, it is necessary to interpret the said provision by applying accepted rules o·f interpretations. 9ne of the known methods to discern the intention behind enacting a provision of the Constitution and also to interpret the same is to look into the Historical Legislative Development, Constituent Assembly Debates or any document preceding the enactment of the Constitutional provision. ' In His Holiness Kesavananda Bharati Sripadagalvaru etc. v. State of Kera/a and Anr. etc.

, [1973] 4 SCC 225, it was held that Constituent Assembly debates although not conclusive, yei show the intention of the framers of the Constitution in enacting provisions of the Constitution and the Constituent Assembly Debates can throw light in ascertaining the intention behind such provisions. , In R. S. Nayak v. A. R. Antu/ay, [1984] 2 SCR 495, it was held that reports of the Commission which preceded the enactment of a legislation, reports of Joint Parliament Commission, report of a Commission set up for collecting information leading to the enactment are permissible external aid to co~struction of the provisions of the Constitution. If the basic purpose underlying construction of legislation is to ascertain the real intention of the Parliament, why should the aids which Parliament availed of such as report '... of a.

Special Commission preceding the enactment, existing state of Law, the environment necessitating enactment of legislation, and the object sought to be achieved, be denied to the Court whose function is primarily to give effect to the real intention of the Parliament in enacting the legislation. Such denial would deprive the Court of a substantial and illuminating aid to construction of the provisions of the Constitution. The modern approach has to a considerable extent. eroded the exclusionary rule in England. Since it is permissible to look into the pre-existing law, Historical Legislative Developments, and Constituent Assembly Debates, we will look into them for interpreting the provisions of the Constitution. SPECIAL REFERENCE NO. l OF 2002 [V. N. KHARE, J.

] 397 Historical Leg_islative Developments Government of India Act, 1915 & Government of India Act, 1919 Part VI of Government of India Act 1915 dealt with the Indian Legislatures containing provisions dealing with Indian and Governor's provinces legislatures. Section 63D dealt with Indian Legislature while Section 72B dealt with the legislature of Govern. or's provinces. Sections 63D(l) and Sec.

72B(l) run as under: "Sec 63D(l) : Every Council of State shall continue for five years and every Legislative Assembly for three years from its first meeting: Provided that: (a) either Chamber of the Legislature may be sooner dissolved by the Governor General; and (b) any such period may be extended by the Governor General, if in special circumstances he so think fit; and (c) after the dissolution of either Chamber the Governor Gtneral shall appoint a date not more than six months or, with the sanction of the Secretary of the State, not more than nine months from the date of dissolution for the next session of that Chamber" Sec 728(1) : Every Governor's legislative council shall continue for three years from its first meeting : Provided that : (a) the Council may be sooner dissolved by the Governor ; and (b) the said period may be extended by the Governor for a period not exceeding one year, by notification in the official gazette of the province, if in special circumstances (to be specified in the notification) he so think fit; and (c) after the dissolution of the council the Governor shall appoint a date not more than six months or, with the sanction of the Secretary of the State, not more than nine months from the date of dissolution for the next session of the council.

After repeal of Government of India Act 1915, Government of India Act 1919 came into force. Section 8 of the Government of India Act 1919 provided for sittings of Legislative Council in provinces. Section 8 read as t J follows : "Sec 8(1) : Every Governor's legislative council shall continue for three years from its first meeting : Provided that: (a) the Council may be sooner dissolved by the Governor; and (b) the said period may be extended by the Governor for a period not exceeding one year, by notification in the official gazette of the province, if in special circumstances (to be specified in the notification) he so think fit; and (c) after the dissolution of the council the Governor shall appoint a date not more than six months or, with the sanction of the Secretary of the State, not more than nine months from the date of dissolution for the next session of the council" Similarly, Section 2 l provided for the sittings of the Indian legislature.

Section 21 runs as under: "Sec 21 (I) : Every Council of State shall continue for five years and every Legislative Assembly for three years from its first meeting : Provided that: (a) either Chamber of the Legislature may be sooner dissolved by the Governor General; and (b) any such period may be extended by the Governor General, if in special circumstances he so think fit; and (c) after the dissolution of either Chamber the Governor General shall appoint a date no't more than six months or, with the sanction of the Secretary of the State, not more than nine months from the date of dissolution for the next session of that Chamber. A combined reading of Sections 630(1) & 728(1) of Government of India Act 1915 and Sections 8(1) and 21(1) of Government of India Act 1919 shows that the Governor General could also either dissolve the Council of State or the Legislative Assembly sooner than its stipulated period or extend the period of their functioning.

Further, it was mandated that after the dissolution of either Chamber, the Governor General shall appoint a date not more than six months or with the sanction of the Secretary of the State, not more than nine months from the date of dissolution, for the next session of SPECIAL REFERENCE NO. I OF 2002 [V. N. KHARE, J. ] 399 that Chamber. Similarly, the Governor of the province could also either dissolve the Legislative Council sooner than its stipulated period or extend the period of its functioning. Further, the Governor was duty bound after the dissolution of the legislative council to appoint a date not more than six months, or with the sanction of the Secretary of the State, not more than nine months from the date of dissolution for the next session of legislative council. It is noteworthy that these powers of the Governor General and the Governor of the province were similar to the powers exercised by the British monarch historically under British conventions.

The mandate to the Governor General and the Governor to fix the date for the next session of the new chamber or the legislative council respectively was based on the British conventions whereunder the monarch fixes a date for next session of the House of Commons after its dissolution. Further the power of Governor General to extend the period of Legislative Council or to prematurely dissolve it was also based on British conventions. Government of India Act 1935 The Government of India Act, I919 was repealed by the Government of India Act, 1935. Section 19( I) provided for the sittings of the Federal Legislature. Section 19(1) runs as under: "Sec 19(1) : The Chambers of the Federal Legislature shall be summoneo to meet once at least in every year, and twelve months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session. " Similarly, Section 62(1) of the Act provided for sittings of Provincial Legislature.

Section 62(1) runs thus: "62(1): The Chamber or Chambers of each Provincial Legislature shall be summoned to meet once at least in every year, and twelve months shall not intervene between their last sitting in one session and the date appointed for their first sitting in. the next session" We find that under the Government of India Act, 1935, there was a complete departure from the provisions contained in the Government of India Act, 1915 and Government of India Act, 1919 as regards the powers and responsibilities of the Governor General and the Governors of the Provinces to extend the period of the chambers or fix a date for the next session of the new chamber. By the aforesaid provisions, not only were the powers to extend the life of the chambers of the Federal Legislature and the Provincial Legislatures done away with, but the British Convention to fix a date for the next session of the new chamber was also given up. These were the departures from the previous Acts.

It may also be noted that under the Government of India Act, I935, statutory provisions were made in respect of the conduct of elections. Under Schedule V Para 20 of the Government of India Act, 1935, the Governor General was empowered to make rules for carrying out the provisions of the Vth and V! th Schedule. Para 20 as a whole related to matters concerning elections, and Clause (iii) particularly pertained to conduct of elections. Similarly, Schedule VI of the Government of India Act, 1935 contained provisions with respect to electoral rolls and franchise. Such provisions are not found in either the Government of India Act, 1915 or the Government of India Act, 1919. Thus, we see that statutory provisions have come in for the first t'ime and conduct of elections has been entrusted in the hands of the executive.

Since the power to fix the calendar for holding elections was given in the hand of executive, therefore, the provisions for fixing adate of next session of new legislature in The Government of India Act of 1915 and 1919 was given up in the J935 Act. This shows that elections in India were no longer based on the British conventions. , Under the Constitution of India, 1950, even these provisions have been departed from. While under the Government of India Act, 1935, the conduct of elections was vested in an executive authority, under the Constitution of India, a Constitutional authority was created under Art 324 for the superintendence, direction and conduct of elections. This body, called the Election Commission, is totally independent and impartial, and is free from any interference ofthe executive.

This is a very noticeable difference between the Constitution of India and the Government of India Act, J935 in respect of matters concerning elections for constituting the House of the People or the Legislative Assembly. It may be noted that Arts. 85(1) and 174(1) which were physically borrowed from Govt. of India Act, 1935 were only for the purposes of providing the frequencies of sessions of existing Houses of Parliament and State Legislature, and they do not relate to dissolved Houses. Constituent Assembly Debates with regard to Articfes 85 & I 74 ofthe Constitution Draft Articles 69 and 153 correspond to Article 85 and Article 174 of the Constitution respectively. Article 69 dealt with the Parliament and Article SPECIAL REFERENCE N0. 1 OF 2002 [V. N. KHARE, J. ] 401 153 dealt with State Legislative Assembly. When the aforesaid two. draft Articles were placed before the Constituent Assembly for discussion, there was not much debate on Draft Article 153.

But there was a lot of discussion when Draft Article 69 was placed before the Constituent Assembly. Draft Articles 69 and 153 run as under: "69 (I) : The Houses of Parliament, shall be summoned to meet twice at least in every year, and six months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session. (2) Subject to the provisions of this Article, the President may from time to time - (a) summon the Houses or either House of Parliament to meet at such time and place as he thinks fit; (b) prorogue the Houses; (c) dissolve the House of the People. 153 (I) : The House or Houses of the Legislature of the State shall be summoned to meet twice at least in every year, and six months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session.

(2) Subject to the provisions of this Article, the Governor may from time to time - (a) summon the Houses or either House to meet at such time and place as he thinks fit; (b) prorogue the House or Houses; (c) dissolve the Legislative Assembly. (3) The functions of the Governor under sub-clauses (a) and (c) of clause (2) of this Article shall be exercised by him in his discretion". On 18. 5. 1949, when Draft Article 69 came up for discussion, there was a proposal to change the intervening period between the t\vo sessions of the Houses of Parliament from six months to three months so as to ensure that the Parliament has more time to look into the problems faced by the people of the country. Prof. K. T. Shah one of the members of the Constituent Assembly, while moving an amendment to the Draft Article 69, as it then stood, said that the Draft Article was based on other considerations prevailing ,.

during the British times, when the legislative work was not much and the House used to be summoned only for obtaining financial sanction. Shri H. V. Karnath while intervening in the debate emphasized on the need to have frequent sessions of the Houses of Parliament. He suggested that the Houses should meet at least thrice in each year. He pointed out that in the United States of America and the United Kingdom, the Legislatures s. at for eight to nine months in a year as a result of which they were able to effectively discharged their parliamentary duties and responsibilities. He also emphasized that the period of business of transactions provided in the Federal or State Legislatures under the Government of India Act, 1935 were very short as there was not much business to be transacted then by those Legislatures.

He also reiterated that the Houses of Parliament should sit more frequently so that the interests of the country are thoroughly debated upon and business is not rushed through. Prof K. T. Shah was very much concerned about the regular sitting of the Parliament and, therefore he moved an amendment 1478 which read as follows : "at the end of Art 69(2) (c), the following proviso is to be added: Provided that if any time the President does not summon as provided for in this Constitution for more than three months the House of the People or either House of Parliament at any time after ·the dissolution of the House of the People, or during the currency of the lifetime of the House of the People for a period of more than 90 days, the Speaker of the House of the People or the Chairman of the Council of States may summon each his respective House which shall then be deemed to have been validly summoned and entitled to deal with any business placed or corning before it".

Further, Prof KT Shah also moved amendment No. 1483, which provided for insertion of Cl. (3) after Art 69(2), and a proviso thereto, which is very relevant. Clause (3) runs as under: "(3): If any time the President is unable or unwilling to summon Parliament for more than three months after the prorogation or dissolution of the House of the People and there is in the opinion of the Prime Minister a National Emergency he shall request the Speaker and the Chairman of the Council of States to summon both Houses of Parliament, and place before it such business as may be necessary SPECIAL REFERENCE NO. I OF 2002 [V. N. KHARE, J. ] 403 to cope with the National Emergency.

Any business done in either House of Parliament thus called together shali be deemed to have been validly transacted, and shall be valid and binding as any Act, Resolution or Order of Parliament passed in the normal course: Provided further that if at any time the President is unable or unwilling to summon Parliament for a period of more than three months or 90 days after prorogation or dissolution of the House of the People, and the Prime Minister is also unable or unwilling to make the request aforesaid, the Chairman of either Houses of Parliament thus called together shall be deemed to be validly convened and entitled to deal with any businesG places before it". Shri B. R. Ambedkar, while replying to the aforesaid proposed amendment, highlighted that after the Constitution comes into force, no executive could afford to show a callous attitude towards the legislature, which was not the situation before as the legislature was summoned only to pass revenue demands.

Since there was no possibility of the executive showing a callous attitude towards the legislature, this would take care of the fear voiced by some members that no efforts to go beyond the minimum mandatory sittings of the Houses of Parliament would be made. He further dwelled on the fact that the clause provided for minimum mandatory sittings in a year so that if the need arose, the Parliament could sit more often and if more frequent sessions·were made mandatory, the sessions could be so frequent and lengthy that members would grow tired.

From the aforesaid debates, it is very much manifest that Article 85 and Article 174 were enacted on the pattern of Sections 19(1) and 62(1) of the Government of India Act, 1935 respectively which dealt with the frequency of sessions of the existing Legislative Assembly and were not intended to provide any period of limitation for holding elections for constituting new House of the People or Legislative Assembly in the event of their premature dissolution. Further, the suggestions to reduce the intervening period between the two sessions to three months from six months so that Parliament could sit for longer duration to transact the business shows that it was intended for existing Houses of Parliament and not dissolved ones, as a dissolved House cannot sit and transact legislative business at all. It is interesting to note that during the debate ProfK. T. Shah suggested amendment Nos.

1478 and 1483, quoted above, which specifically contemplated the possibility ofa dissolved House of the People and convening of the Council of States in an emergency session by the President or the Speaker if the circumstances so necessitated. Even these amendments were not accepted. This shows that Draft Article 69 was visualized in the context of a scenario applicable only to a living and functional House and that the stipulation of six months intervening period between the two sessions is inapplicable to a dissolved House. Moreover, it may be noticed that if the suggestion put forth during the course of the debate that the Houses of Parliament should sit for eight to nine months . in a year was accepted, it would not have giwn sufficient time for holding fresh elections in the event of premature dissolution of either Parliament or Legislative Assembly and it would also have led to a breach of Constitutional provisions.

This also shows that what is contained in Article 174(1) is meant only for an existing and functional House. In a further scenario, if the suggestion during the debate for reducing the intervening period from six months to three months were accepted, it would mean that after premature dissolution of the Houses of People or the Legislative Assembly, fresh elections have to be held so that House of People or Legislative Assembly could hold their first sitting within three months from the date of last sitting of the dissolved Parliament or Legislative Assembly, as the case may be. This would also have not allowed sufficient time for holding election for constituting either House of People or a Legislative Assembly. This shows that the intention of the framers of the Constitution was that the provisions contained in Article 174 were meant for a living and existing Legislative Assembly and not to a dissolved Legislative Assembly.

Debates during the Constitution First Amendment Bill regarding amendment of Article 85 and Article 174 The original Articles 85 and 174 as they stood prior to first Constitution Amendment and after the Amendment read as follows : Article Original Articles in the Constitution As amended by Constitution (Amendment) Act 1951 Article 85 (I ) the Houses of (l) The President shall from Sessions of Parliament shall be time to time summon each Parliament, summoned to meet twice at House of Parliament to meet Prorogation least in every year, and six at such time and place as he & months shall not intervene thinks fit, but six months shall Dissolution between their last sitting in . not intervene between its last SPECIAL REFERENCE NO. I OF iooi (V. N. KHARE, J. J 405 one session and the date sitting in one session and the appointed for its first sitting date appointed for its first in the next session.

sitting in the next session, (2) Subject to the provisions (2) The President may from • of cl. (I), the President time to may from time to time • (a) Summon the Houses gr ( are wholly inapplicable in the context of Indian Constitution. Under Art. 85(2) when the President on the advice of the Prime Minister prorogues the House, there is tenninatii;m of a session of the House and this is called prorogation. When the House is prorogued all the pending proceedings of the House are not quashed and pending Bills do not lapse. The prorogation of the House may take place at any time either after the adjournment of the House or even while the House is sitting. An adjournment of the House contemplates postponement of the sitting or proceedings of either House to reassemble on another specified SPECIAL REFERENCE NO. I OF 2002 [V. N. KHARE, J. ] 413 date. During currency of a session the House may be adjourned for a day or more than a day. Adjournment of the House is also sine die.

When a house is adjourned, pending proceedings or Bills do not lapse. So far as, the dissolution of either House of the People or State Legislative Assembly is ·concerned, the same takes place on expiration of the period of five years from the date appointed for its first meeting or under Art. 85(2) or Art. 174(2). It is only an existing or functional Lok Sabha or Legislative Assembly which is capable of being dissolved. A dissolution brings an end to the life of the House of the People or State Legislative Assembly and the same cannot be revived by the President. When dissolution of House of the People or State Legislative Assembly takes place all pending proceedings stand terminated and pending Bill lapses and such proceedings and Bills are not carried over to the new House of the People or State Legislative Assembly when they are constituted after fresh elections.

From the afore-mentioned passages relied upon, it is apparent that there is a difference in the British parliamentary practice and the Indian practice under the Indian Constitution as regards dissolution and prorogation. Under Indian Constitution dissolution brings a legislative body to an end and terminates its life. Prorogation, on the other hand, only terminates a session and does not preclude another session, unless it is coincident with the end of a legislative term. In other words, prorogation, unlike dissolution, does not affect the life of the legislative body which may continue from the last session until brought to an end by dissolution. This is the difference in the meaning of prorogation and dissolution. In so far as the effects following from prorogation and dissolution on pending legislative business are concerned, in England, prorogation puts an end to all pending business in the Parliament, whereas in India, this is not the case.

Under Articles I07 and 196, there is a specific provision that mere prorogation will not lead to lapsing of Bills pending at that point of time. It is only on dissolution that the pending Bills lapse under Articles 107(5) and 196(5) of the Constitution. Thus, we see that there is practically no difference in the effects following prorogation and dissolution in England, which difference is specifically contemplated under the Indian Constitution. In England, dissolution does not bring with it any special or additional consequences apart from those that attend upon prorogation. Therefore, the British convention with respect to summoning, proroguing and dissolution of the House of Commons is also of not much relevance in the Indian context. From the above the irresistible conclusion is that Article 174(1) is neither applicable to a dissolved House nor does it provide for any period for holding election for constituting fresh Legislative Assembly.

Whether the expression "the House" is a permanent body and is different than. the House of People or the Legislative Assembly under Articles 85 and 174 of the Constitution. It was then urged on behalf of the Union' that under Article 174 what is dissolved is an Assembly while what is prorogued is a House. Even when an Assembly is dissolved, the House continues to be in existence. The Speaker continues under Art 94 in the case of the House of the People or under Art 179 in the case of the State Legislative Assembly till the new House of the· . People or the Assembly is consthuted. On that premise, it was further urged that the fresh elections for constituting new Legislative Assembly has to be held within six months from the last session of the dissolved Assembly. At first glance, the argument appeared to be very attractive, but after going deeper into the matter we do not find any substance for the reasons stated hereinafter.

Drafting the text of a Statute or a Constitution is not just an art but is a skill. It is not disputed that a good legislation is that the text of which is plain, simple, unambiguous, precise and there is no repetition of words or usage of superfluous language. The skill of a draftsman in the context of drafting a Statute or the Constitution lies in brevity and employment of appropriate phraseology wherein superfluous words or repetitive words are avoided. It appears tJ:iat the aforesaid principle was kept in mind while drafting the Government oflndia Act, 1915, the Government of India Act, 1919, and the Government of India Act 1935. The draftsman of the Constitution of India has taken care to maintain brevity and the phraseology used is such that there is no ambiguity while making provisions for the Constitutional institutions in the provisions of the Constitution.

In thi~ background, wherever the Constitution makers wanted to confer power, duties or functions O\ wanted to make similar provisions both for· Council of States as well as I-louse of the People or to the State, Legislative Council and the Legislative Assembly, they have referred both the institutions under Part V Chapter II and Part VI Chapter III of the Constitution as 'two Houses', 'each House', 'either House' & 'both Houses'. On the other hand, the Constitution makers, when they wanted to confer powers, functions and duties or to make provisions exclusively either for House of the People_ or _ SPECIAL REFERENCE NO. I OF 2002 [V. N. KHARE, J. ] 415 Council of States, they have referred the said institutions either as Council of States or House of the People.

Similarly, in States when the Constitution makers wanted to confer power, functions, duties or wanted to make similar provisions both for the Legislative Council and the Legislative Assembly, they referred both the institutions as 'Houses', 'either House',' both Houses', 'each House' and where there was no Legislative Council, and power was to give exclusively to Legislative Assembly, it is referred as Legislative Assembly. The aforesaid pattern of drafting has been borrowed from Government of India Acts, 1915, 1919 and 1935 which we shall notice hereinafter. Section 63 of Government of India Act, 1915 provided that Indian Legislature shall consist of the Governor General and two Chambers viz. , Council of State and Legislative Assembly. Section 63D(l)(a) provided that either Chamber of the Legislature may be summoned/dissolved by the Governor General. The expression 'Chamber' here is analogous to the expression 'House'.

Under Section 63D(l)(c) of the Act, after the dissolution of either Chamber, the Governor General was required to appoint ·a date not more than six months or with the sanction of the Secretary of the State not more than nine months after the date of dissolution for the next session of the • Chamber. Since both the "Chambers" were subject to dissolution, therefore, under Section 63D(l)(c) both the Council of States and Legislative Assembly have been referred as 'either Chamber', and not as 'Council of States or Legislative Assembly'. This shows that the expressions "either Chamber" are referable to Council of States as well as Legislative Assembly. Under Government of India Act, 19I9 again, the Indian Legislature consisted of the Governor General and two Chambers viz. , Council of States and the Legislative Assembly.

Under Section 2l(l)(a) of the Act, "either Chamber" of the Legislature could be dissolved by the Governor General and under Section 2 l(l)(c) it was provided that after dissolution ofeither Chamber, the Governor General shall appoint a date not more than six months or with the sanction of the Secretary of the State not more than nine months after the date of dissolution, the next session. This provision is in pari materia with Section 630 of Government of India Act, 1915. In this case also, we find that since both the Chambers viz. , Council of State and Legislative Assembly were subjected to dissolution, therefore, in Section 21(l)(c)°the Council of State or Legislative Assembly both were referred to as 'either Chamber' and not as Council of State or Legislative Assembly.

Section 18 of Government of India Act, 1935 provided that the Federal Legislature was to consist of His Majesty represented by Governor General and two Chambers to be known respectively as 'Council of State' and 'Federal Assembly'. Under sub-section (4) of Section 18 of the 1935 Act, the Council of State was made a permanent body not subject to dissolution, but as many as I/3rd members thereof shall retire in every third year, in accordance with the provisions in that behalf contained in the First Schedule. Sub-section (2) of Section 19 of the Government of India Act, 1935 which is similar to Article 85 of the Constitution of India, provided that the Governor General · . may in his discretion summon the Chambers or either Chamber to meet at such time as he deems fit, prorogue the Chamber and dissolve the Federal Assembly.

In this case, the dissolution is not of Chambers, but of the Federal Assembly for the simple reason that Council of State was made a permanent body not 'subject to dissolution and, therefore, the Federal Assembly which was subjected to dissolution has been specifically referred in the Section. In Government of India Act, 1935, there was a provincial legislature. t and under Section 60 of the Act, it was provided that there shall be provincial legislature which shall consist of His Majesty represented by the Governor and in the provinces of Madras, Bombay and Bengal and United Provinces Bihar and Assam there shall be two Chambers and in other provinces one Chamber. Jn Sub-section (2) thereof, it was further provided that where there are two Cliambers of the Provincial Legislature,· they shall be known as Legislative Council and Legislative Assembly and where there is one Chamber the same will be known as Legisla. tive Assembly.

Sub-section (3) of Section 61 provided that every Legislative Council shall be a permanent body not subject to dissolution. Sub-section (2) of Section 62 of the Act provided that Governor may in his discretion from time to time summon the Chambers or either Chamber, prorogue the Chamber or Chambers and dissolve the Legislative Assembly. This provision is pari materia with Art 174 of the Constitution of India. In this case also, it is very much clear that since Legislative:. council has been made a permanent body and the Legislative Assembly was sub:jected to dissolution, therefore, the expression 'Chamber' . has not been employed for the Legislative Assembly, but expressly Legislative Assembly has been mentioned. Coming to the Constitution of India, Article 85 is in pari materia with Section 19 of the Government of India Act, 1935. Similarly Article 174 is in pari materia with Section 62 of Government of India Act, 1935.

Article 79 of Constitution of India provides that there shall be a Parliament for the Union which shall consist of President and two Houses respectively to be known as Council of States and House of People. Article 83 provides that the · SPECIAL REFERENCE NO. I OF 2002 [V. N. KHARE, J. ] 417 Council of States shall not be subject to dissolution. Article 85 provides that the President may, from time to time, prorogue the Houses or either House and dissolve the House of People. Here again, since Council of States is permanent body and not liable to dissolution, therefore, instead of using the expression 'either House', the expression 'House of People' has beenemployed, the same being liable to dissolution. The same thing holds for the State Legislature under Art 168, Art 172 and Art 174 of the Constitution.

From the aforesaid provisions, it is clear that the expressions "Houses", "both Houses" and "either House" and "the House" are used synonymously with the institutions known as Council of States and House of the People and are interchangeable expressions. The matter may also be examined from another angle. Under Article 86, the President is empowered to specially address either House of Parliament or both Houses assembled together. Similarly, under Article 87, the President is empowered to address both Houses of Parliament assembled together. Under Article 88, every Minister and Attom~y General has a right to speak or take part in the proceedings of either House. Article 98 provides that each House of Parliament shall have a Secretariat Staff and under clause (2) thereof, the Parliament is empowered to make law for regulating the appointment and conditions of services of persons appointed to the Secretariat staff of either House of Parliament.

Article 99 provides that every member of either House of Parliament shall, before taking his seat, make and subscribe before the President, or some person appointed in that behalf by him an oath or affirmation according to the form set out for the purpose in the Third Schedule. Artide I00 provides that all questions at any sitting of either House or joint sitting of the Houses shall be determined by a majority of votes of the members present and voting,. other than the Speaker or person acting as Chairman or Speaker. Article I0 I provides that no person shall be a member of both Houses of Parliament. Similarly, Article I02 uses the expression 'either House of Parliament'. Article 103 again uses the expression 'either House of Parliament'. Articles I04, I06 and J07 also use the expression 'either House of Parliament'.

This shows that the Constitution framers, wherever they wanted to make similar provisions for both Council of States and House of the People, have used the expressions "House", "either House" , "both Houses", "Houses" only for the purpose of maintaining brevity and to avoid using Council of States and House of the People again and again. Analogous provisions are found in the provisions dealing with the State Legislature under Part VJ Chapter lll of the Constitution. Article 168 provides that for every State, there shall be a Legislature which shall consist of the Governor and in the States of Bihar, Maharashtra, Karnataka and Uttar Pradesh two Houses and in other States one. House. Sub-clause (2) thereof further provides that where there are two Houses, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House it shall be known as Legislative Assembly.

Sub-clause (2) of Article 1Tl provides that the Legislative Council of a State is a permanent body which is not subject to dissolution. Under Article 174(1), the Governor is empowered to summon the House or each House of Legislature of the State to meet at such time and place as he deems fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. Under clause (2) of Article 174 the Governor has power to prorogue the House or either House and dissolve the Legislative c Assembly. Here again, we find that since Legislative Council is a permanent body, it cannot be dissolved and therefore, the expression 'Houses' does not find place in Clause (2)(b) of Art. 174. Similarly, in the ca!

:e of State Legislature, there are provisions where the Constitution makers have used the expression 'either House' 'both j-fouses' and 'Houses of Legislature' wherever they intended to apply similar provisions to both the Legislative Coundl as well as Legislative Assembly. Article 175 empowers the Governor to address 'both the Houses assembled together' and his power to send messages to 'Houses of Legislature' of the State. Article 176 provides for a special address by the Governor to both the 'Houses' assembled together. Article 177 speaks of the rights of ministers and Advocate General to speak in and take part in the proceedings of 'both Houses'. Article 187 dealing with Secretariat of the State Legislature uses the expressions, 'the House', 'each House, 'common to both Houses' and 'Houses'. The head note of Article 189 reads: "voting in Houses, power of Houses''. Article 190 also refers to 'both Houses'.

Article 196, uses the expressions 'either House', 'both Houses', and 'Houses' while referring to both the Legislative Assembly and Legislative Council. Similarly, Article 197(2) also provides for passage of a Bill ty the 'Houses of the Legislature' of the State. Article 202 and Article 209 also use the expression 'Houses' while referring to both the Legislative Assembly and Legislative Council. These provisions may be contrasted with Articles 169, 170, 171, 178, 179, 180, 181, 182, 183, 184, 185 and Article 186 which deal exclusively either with the Legislative Council or the Legislative Assembly. Similarly, SPECIAL REFERENCE NO. I OF 2002 [V. N. KHARE, J. ] 419 Articles 197 and 198 also mention Legislative Assembly and Legislative Council separately. Thus, the Constitution makers have specifically referred to Legislative Assembly and the Legislative Council wherever there was a need to do so. Moreover, Articles 188, 191 and 193 while dealing.

with the respective matters specified therein mention both Legislative Assembly or Legislative council separately. Since the Constitution was being drafted for the entire country and not for a particular State, the Constitution framers thought it fit to specify the Legislative Assembly or Legislative Council separately to avoid confusion in States having just the Legislative Assembly and not the Legislative Council. It may be noted here that there is a difference in phraseology used in Arts. 99 and 188, which deal with oath or affirmation of members, Arts. 103 and 191, which deal with disqualification of members and Arts. 104 and 193 which deal with penalty for sitting and voting before making oath or affirmation or when not qualified or disqualified. Articles 99, 103 and 104 employ the expression 'either House' while Arts. 188, 191and193 mention "Legislative Assembly or Legislative Council".

This difference in phraseology can be explained on the basis of the fact that there are many states where there is no Legislative Council, and therefore, in this context, use of the expression "either House" in Arts. 188, 191 and 193 could have been misleading. From the aforesaid provisions, it is manifest that there is no distinction between the 'House' and 'Legislative Assembly'. Wherever the Constitution makers wanted to make similar provisions for Legislative Council as well as Legislative Assembly, both together have been referred to as Houses and wherever the Constitution makers wanted to make a provisions exclusively for the Legislative Assembly, it has been referred to as Legislative Assembly. For the aforesaid reasons our conclusion is that the expressions "The House" or "either House" in clause (2) of Art. 174 of the Constitution and Legislative Assembly are synonymous and are interchangeable expressions.

The use of expression "the House" denotes the skill of Draftsman using appropriate phraseology in the text of the Constitution of India. Further the employment of expressions "the House or "either House" do not refer to different bodies other than the Legislative Assembly or the legislative Council, as the case may be, and have no further significance. 2,(a) Js there any period oflimitation provided under the Constitution oflndill or Representation of the People Act for holding fresh election for constituting new Legislative Assembly in the event of premature dissolution of a Legislative Assembly ? In this context, we have looked into the provisions of the Constitution of India, but we do not find any provision expressly providing for any period of limitation for constituting a fresh Legislative Assembly on the premature dissolution, of the previous Legislative Assembly.

On our interpretation of Article 174 (I), we have already held that it does not provide for any period of limitation for holding elections within six months from the date of last sitting of the session of the dissolved Assembly. Section 15 of the Representation of the People Act, 1951 provides that general election is required to be held for the purpose of constituting a new Legislative Assembly on the expiration of duration of the existing Assembly or on its dissolution. Sub-section (2) thereof provides that for constituting new Legislative Assembly, the Governor. shall by notification, on such date or dates, as may be recommended by the Election Commission, call upon all Assembly constituencies in the State to elect members in accordance with the provisions of the Act, rules and orders made thereunder.

The proviso to sub-section (2) of Section 15 of the Act provides that where an election is held otherwise than on the dissolution of the existing Legislative Assembly, no such notification shall be issued at any time earlier than six months prior to the dates on which the duration ofthat Assembly would expire under the provision of clause (I) of Article 172. The aforesaid provisions also do not provide for any period oflimitation for holding elections for constituting new Legislative Assembly in the event of premature dissolution of an existing Legislative Assembly, excepting that election process can be set in motion by issuing a notification six months prior to the date on which the normal duration ofthe Assembly expires. Thus, the question arises as to whether the Constitution framers have omitted by oversight to provide any such period for holding election for constituting new Assembly in an event of premature dissolution or it was purposely not provided for in the Constitution.

For that purpose, we must look into the legislative developments and the Constitutional debates preceding the enactment of Constitution of India. As earlier noticed, Sections 63D and 72B(I) of the Government oflndia Act, 1915 and Sections 8(1) and 21(1) of the Government of India Act, 1919 empowered the Governor General in case ofIndian Legislature and the Governor in case of Provincial Legislature to dissolve either chambers sooner than their stipulated period and appoint a date, nor more than six months or, with the SPECIAL REFERENCE NO. I OF 2002 [V. N. KHARE, J. ] 421 sanction of the Secretary of the State, not more than nine months from the date of dissolution for the next session of that Chamber. Thus the statutes themselves provided a period of limitation within which elections were to be held for constituting the new Chamber.

The power of the Governor General to fix a date for the next chamber was similar to the powers exercised by the British Monarch historically under the British conventions. However, in Government of India Act, 1935, the period of limitation fixed for holding election for constituting Legislative Council and Legislative Assembly were dispensed with and under Schedule V, Para 20 to the Government oflndia Act, 1935, the Govi::rnor General was empowered to make rules for carrying out the provisions of thil Vth and Vlth Schedule. Para 20 thereof as a whole, related to matters consisting of elections and clause (3) particularly pertains to conduct of elections. Similarly, Schedule VI of Government of India ,\_ct, 1935 contained provisions with respect to electoral roll and franchise. Thus, the conduct ofelection was entrusted to the Executive and the Executive was empowered to fix the date or dates for holding elections for constituting Federal Legislature as well as Provincial Legislature.

· When the question, who would conduct the elections under Indian Constitution was debated upon before the Constituent Assembly, concerns were expressed by the members of the Constituent Assembly in entrusting the same in the hands of the Executive and, in fact, there was unanimity among the members that an independent Constitutional Authority be set up for superintendence, direction, control and the conduct of elections to Parliament and Legislature ofevery State. In this connection, Dr. B. R. Ambedkar stated before the Constituent Assembly thus: "But the House affirmed without any kind of dissent that in the interest of purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should be freed from any kind of interference from the executive of the day.

In pursuance ofthe decision of the House, the Drafting Committee removed this question from the category of Fundamental Rights and put it in a separate part containing Articles 289, 290 and so on. Therefore, so far as the fundamental question is concerned that the election machinery should be outside the control of the executive Government, there has been no dispute. What Article 289 does is to carry out that part of the decision ofthe Constituent Assembly. It transfers the superintendence, direction and control of the preparation of the electoral rolls and of all elections to Parliament and the Legislatures of States to a body outside the executive to be called the Election Commission. " It is in light of the aforesaid discussion, Article 324 was enacted and the superi. ntendence, direction, control and conduct of election was no more left· in the hands of the Executive but was entrusted to an autonomous Constitutional Authority i. e. the Election Commission.

It appears that since the entire matter relating to the elections was entrusted to the Election Commission, it was found to be a matter of no consequence to provide any period of limitation for holding fresh election for constituting new Legislative Assembly in the event of premature dissolution. This was deliberate and . C conscious decision. However, care was taken not to leave the entire matter in the hands of the Election Commission and, therefore, under Article 327 read with Entry 72 of List 1of VI! th Schedule of the Constitution, Parliament was given power subject to the provisions of the Constitution to make provisions with 'respect to matters relating to or in connection with the election of either House of Parliament or State Legislature, as the case may be, including preparation of electoral roll.

For the States also, under Article 328 read with Entry 37 of List II, the Legislature was empowered to make provisions :mbject to the provisions of the Constitution with respect to matters relating to or in connection with election of either House of Parliament or State Legislature, including 'preparation of electoral roll. Thus, the Parliament was empowered to make law as regards matters relating to conduct of election of either Parliament or State Legislature, without affecting the plenary powers of the Election Commission. In this view of the matter, the general power of superintendence, direction, control and conduct of election although vested in the Election Commission under Article 324(1), yet it is subject to any law either made by the Parliament or State Legislature, as the case may be which is also subject to the provisions of the Constitution. The word 'election' has been interpreted to include all the steps necessary for holding election. In MS. Gill v.

Chief Election Commissioner (supra), A. C. Jose v. Sivan Pillai and Ors. , [1984] 2 SCC 656 and Kanhiya Lal Omar v. R. K. Trivedi and Ors. , [I 98~] 4 S€C 628, it has been consisteutiy held that Article 324 operates in the area left unoccupied by legislation and the words 'superintendence, 'control' 'direction' as well as 'conduct of all elections' are the broadest of the terms. Therefore, it is no more in doubt that the power of superintendence, direction and control are subject to law made by either Parliament or by the State Legislature, as the case may provided the same does not encroach upon the plenary powers of the Election Commission under Article 324. SPECIAL REFERENCE NO. I OF 2002 [V. N. KHARE, J. ] 423 We find that the Representation of the People Act, 1951 also has not A· provided any period of limitation for holding election for constituting fresh Assembly election in the event of premature dissolution of former Assembly.

In this context, concerns were expressed by learned counsel for one of the national political parties and one of the States that in the absence ·of any period provided either in the Constitution or in the Representation of the People Act, the Election Commission may not hold election at all and in that event it would be the end of democracy. It is no doubt true that democracy is a part of the basic structure of the Constitution and periodical, free and fair election is substratum of democracy. If there is no free and fair periodic election, it is end of democracy and the same was recognized in MS. Gill v. ChiefElection Commissioner, [1978] 1 SCC 404 thus: "A free and fair election based on universal adult franchise is the basic, the regulator:: procedures vis-a-vis the repositories of functions and the . distribution of legislative, executive and judicative roles in the total scheme, directed towards the holding of free elections, are the specifics.

The super authority is the Election Commission, the kingpin .... is the returning offic•er, the minions are the presiding officers in the polling stations and the electoral engineering is in conformity with the elaborate legislative provision. " Similar concern was raised in the case of A. C. Jose v. Sivan Pillai and Ors. , [1984] 2 sec 656. In that case, it was argued that ifthe Commission is armed with unlimited arbitrary powers and if it happens that the persons manning the Commission shares or is wedded to a particular ideology, he could by giving odd directions cause a political havoc or bring about a Constitutional crisis, setting at naught the integrity and independence of the electoral process, so important and indispensable to the democratic system. Similar apprehension was also voiced in M. S. Gill v. Chief Election Commissioner (supra).

The aforesaid concern was met by this Court by observing that in case such a situation ever arises, the Judiciary which is a watchdog to see that Constitutional provisions are upheld would step in and that is enough safeguard for preserving democracy in the country. However, we are of the view that the employment of words "on an expiration" occurring in Sections 14 and 15 of the Representation of the People Act, 1951 ·respectively show that Election Commission is required to take steps for holding election immediately on expiration of the term of the· Assembly or its dissolution, although no period has been provided for. Yet, there is another indication in Sections 14 and 15 of the Representation of the People Act that the election process can be set in motion by iss1. 1ing of notification prior to the expiry of six months of the normal term of the House of People or Legislative Assembly.

Clause (I) of Article I7:2 provides that while promulgation of emergency is in operation, the Parliament by law can extend the duration of the Legislative Assembly not exceeding one year at time and this period shall not, in any case, extend beyond a period of six months after promulgation has ceased to operate. Further, under Articles 123 and 213; the life of an ordinance promulgated either by the President or by the Governor, as the case may be, is six months and repeated promulgation of ordinance after six months has not been welcomed by this Court. Again, under Articles 109, 110, and 111 and analogous Articles for State Assembly, Money Bill has to be passed by the House of People or by the Legislative Assembly.

The aforesaid provisions do indicate that on the premature dissolution of Legislative Assembly, the Election Commission is required to initiate immediate steps for holding election for constituting Legislative Assembly on the first occasion and in any case within six months from the date of premature dissolution of the Legislative Assembly. 2 (b) Is there any limitation on the powers of the Election Commission to. frame schedule for the purpose of holding election for constituting Legislative Assembly? So far as the framing of the schedule or calendar for election of the Legislative Assembly is concerned, the same is in the exclusive domain ofthe Election Commission, which is not subject to any law framed by the Parliament. The Parliament is empowered to frame law as regards conduct of elections but conducting elections is the sole responsibility ofthe Election Commission.

As a matter of law, the plenary powers of the Election Commission can not be taken away by law framed by Parliament. If Parliament makes any such law, it would repugnant to Article 324. Holding periodic, free and fair elections by the Election Commission are part of the basic structure and the same was reiterated in Indira Nehru Gandhi v. Raj Narain, [1975] Suppl. I SCC 1which run as under: "198. This Court in the case of Kesavananda Bharati (supra) held by majority that the power of amendment o~ the Constitution contained in Article 368 does not permit altering'the basic structure of the Constitution. All the seven Judges who constituted the majority were also agreed that democratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be perio\lical elections, so that people may be in a position either to re-elect the oid SPECIAL REFERENCE NO. I OF 2002 [V. N. KHARE, J.

] 425 representatives or, if they so choose, to change the representatives and elect in their place tither representatives. Democracy further contemplates that the elections should be free and fair so that the voti::rs lt\ay be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form a9d are not mere rituals calculated to generate illusion of defence to mass opinion.. " The same is also evident froifi Sections 14 and 15 ofthe Representation of People Act, 195l which provide that the President or the Governor shall fix the date or dates for holding elections on the recommendation of the Election Commission. It is, therefore, manifest that fixing schedule for elections either for the House of People or Legislative Assembly is in the exclusive domain of the Election Commission.

(3) Application of Article 356 It appears that th~ Interpretation ofArt. 174(1) ofthe Constitution by the Election Commission in its order was mainly influenced by the past practice adopted by the Election Commission holding elections for constituting fresh Legislative Assembly within six months of the last sitting· of the dissolved House. It also appears that the gratuitous advice of application of Art. 356 by the Election Commission in its order was. in all its sincerity, although now on . our interpretation of Artide 174(1), we find that it was misplaced. However, the Election Commission in its written submission has stated thus: "The decision, contained in the Elei:tion Commission's order dated 16. 8. 2002, was taken without referenci! to Article 356. i-lowever, it was merely pointed out that- the~ heed be no apprehension that there would be a constitut\()nal impasse as Article 356 could provide a solution in such a situation".

In that view of the matter and the view We have taken in regard to the interpretation of Art. 174(1 ), there is no need to go further into the question of application ofArt. 356 in the context ofthe order ofthe Election Commission out 6f which the Reference arise~. As a result of the aforesaid discussion, our conclusions are as follows: (a) The Reference made by the President of India under Article 143(1) arises out of the order of the Election Commission dated 19. 8. 2002 and the questions raised therein are ofpublic importance and are likely to arise in future. Further, there being no decision by this Court on the questions raised and a doubt having arisen ' in the mind of the President in regard to the interpretation of Article 174(1) ofthe Constitution, the Reference is required to be . answered. (b) Article 174(1) of the Constitution relates to an ·existing, live and functional Legislative Assembly and not to a dissolved Assembly.

(c) The provision in Article 174(1) that six months shall not intervene between its last sitting in one session and the date appointed for its sitting in the next session is mandatory and relates to the frequencies of the sessions of a live and existing Legislative Assembly and does not provide for any period of limitation for holding fresh elections for constituting Legislative Assembly on premature dissolution of the Assembly. (d) The expre. ssions "the House", "either House" is synonymous with Legislative Assembly or Legislative Council and they do not refer to different bodies other than the Legislative Assembly or the Legislative Council, as the case may be. (e) Neither under the Constitution nor under the Representation of the People Act, any period of liR\itation has been prescribed for ·· holding election for constituting Legislative Assembly after premature dissolution of the existing one.

However, in view ofthe scheme of the Constitution and the Representation of the People ,Act, the elections should be held within six months for constituting . · Legislative Assembly from the date of dissolution of the Legislative Assembly. (f) Under the Constitution, the power to frame the calendar or . schedule for elections for constituting Legislative Assembly 'is within the exclusive domain of the Election Commission and such a power'is not subject to any law either made by Parliament qr State Legislature. (g) In view of the affidavit filed by the Election Commission during hearing of the Reference, the question regarding the application of Artie. le 356 is not required to be gone into. SPECIAL REFERENCE NO. I OF 2002 (V. N. KHARE, J. ] 427 In accordance with the foregoing opinion, we report on the questions referred as follows: Question No. (i) : This question proceeds on the assumption that Article 174 (1) is also applicable to a dissolved Legislative Assembly.

We have found that the provision ofArticle 174(1) ofthe Constitution which stipulates that six months shall not intervene between the last sitting in one session and the date appointed for its first sitting in the next session is mandatory in nature aiJ. d relates to an existing and functional. Legislative Assembly and not to a dissolved Assembly whose life has come to an end and ceased to exist. Further, Article 174(1) neither relates to elections nor does it provide any outer limit for holding elections for constituting. Legislative Assembly. The superintendence, direction and control of the preparation of electoral roll and wnduct of holding elections for constituting Legislative Assembly is in the exclusive domain of the Election Commission under Article 324 of the Constitution. In that view ofthe matter, Article 174(1) and Article 324 operate on different fields and neither Article 174(1) is subject to Article 324 nor Article 324 is subject to . Article 174(1) of the Constitution.

Question No. (ii): This question also proceeds on the assumption that Article 174(1) is also applicable to a dissolved House. On our interpretation of Article 174(1): . we have earlier reported that the said Article is inapplicable to a dissolved Legislative Assembly. Consequently, there is no infraction of the mandate of Article 174 (I) in preparing a schedule for elections to an Assembly by the Election Commission. The Election Commission in its written submissions stated thus: "The decision, contained in the Election Commission's order dated 16. 8. 2002, was taken without reference to Article 356. However, it was merely pointed out that there need be no apprehension that there would be a constitutional impasse as Article 356 could provide a solution in such a situation". In that view of the matter, the question of applicability.

of Article 356 on the infraction of the provisions of Article 174 loses much of its substance and, therefore, application of Article 356 is not required to be gone into. Question No. (iii): l Again, this question proceeds on the assumption that the provisions of Article 174(1) also apply to a dissolved Assembly. In view of our answer to question No. (i), we have already reported that Article 174(1) neither applies to a prematurely dissolved Legislative Assembly nor does it deal with elections and, therefore, the question that the Election Commission is required to carry out the mandate of Article 174(1) of the Constitution does not arise. Under Article 324, it is the duty and responsibility ofthe Election Commission to hold free and fair elections at the earliest. No efforts should be spared by the Election Commission to hold timely elections.

Ordinarily, law and order or public disorder should not be occasion for postponing the elections and it would be the duty and responsibility of all concern to render all assistance, cooperation and aid to the Election Commission for holding free and fair elections. The Reference is answered accordingly. BALAKRISHNAN, J. I had the advantage of reading the Opinion in draft of my learned brothers V. N. Khare and Arijit Pasaya! , JJ. and I fully concur with the opinion expressed by them regarding interpretation ofArticle 174 and the consequential answers to the reference made by the President of India, and I would like to add the following. The Legislative Assembly of Gujarat was dissolved by the Governor of Gujarat on 19th July, 2002 in exercise of the powers conferred on him under Article 174(2)(b) ofthe Constitution. The full term ofthe Legislative Assembly would be expiring on 18th March, 2003.

After the dissolution ofthe Assembly, the ruling party in the State of Gujarat requested the Election Commission for conducting fresh General Election urgently so that the new Legislative Assembly would be able to have its first session before 6th October, 2002. The ruling party of the State of Gujarat made this demand on the basis of the premise that under Article 174(1) ofthe Constitution, there shall not be more than six months' period in between the last session of the dissolved assembly and the first meeting of the next session of the Assembly to be newly constituted. Certain other political parties, public-spirited citizens and organisations urged the Election Commission not to bold the general election to the Gujarat State Legislative Assembly but to wait for some more time until r the people who were affected by