- Decision on questions as to disqualifications of members.—(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.
The object of article 192 clearly is to leave it to the Election Commission to decide whether a member has become subject to disqualification, though the decision as such would formally be pronounced in the name of the Governor. When the Governor pronounces his decision under article 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’. 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.
A sitting member gets the opportunity to put forward his objection to alleged disqualification at an enquiry which is to be held by the Election Commission before the latter forwards its opinion under article 192(2) to the Governor. When such an opportunity has been afforded by the Election Commission and the Election Commission has come to a decision on the disqualification and forwarded its opinion about it to the Governor and the Governor has acted upon that opinion and disqualified the member, there can be no more occasion for the court to question the decision, either on account of its merits or on account of the member not having been given proper opportunity to show cause if in fact the Election Commission has given the necessary opportunity.
What the first clause of article 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. Such a question can be raised not only on the floor of the Legislative Assembly by members of the Assembly but also by an ordinary citizen or voters in the form of a complaint to the Governor. There is no assumption implied in the words “the question shall be referred for the decision of the Governor”, that some other authority has first to receive the complaint and after a prima facie and initial investigation about it send it on or refer it to the Governor for his decision. The words only emphasise that any question of the type contemplated by clause (1) shall be decided by the Governor and Governor alone and by no other authority. The decision of the said question as such cannot fall within the jurisdiction of the Courts.
When the complaint received by the Governor is forwarded by him to the Election Commission, the latter has the power and the jurisdiction to go into the matter which means that it has the authority to issue notice to the person against whom the complaint is made, calling upon him to file his statement and produce evidence in support of his case.
It cannot be held that merely because a decision had been arrived at under article 192(1), no writ petition could be filed. But to what extent in such proceeding, on being initiated, a petitioner could secure relief, would depend upon establishing the existence of the vitiating factors namely if it appears that order was passed by the Governor (i) on collateral considerations, or (ii) the rules of natural justice were not observed, or (iii) that the Governor’s judgment was coloured by the advice or representation made by the Executive, or (iv) it was founded on no evidence. Further, if a constitutional functionary, on whom power has been conferred to take a decision which has the seal of finality, wrongly interprets the constitutional provisions, then the decision so arrived at will have to be set aside by issue of a writ of certiorari, because it would not be a valid order in the eye of law. Hence there can be a judicial review of an order passed under article 192(1) on this ground also.
Where in the case of a Chief Minister incurring disqualification, reasonable apprehension of the Chief Election Commission being biased is expressed, apart from the legal aspect, even prudence demands that the Chief Election Commissioner should recluse himself from expressing any opinion in the matter. Therefore, the proper course to follow would be that the Chief Election Commissioner should call a meeting of the Election Commission to adjudicate on the issue of disqualification of Chief Minister on the grounds alleged by complainant. After calling the meeting he should act as the Chairman but then he may recluse himself by announcing that he would not participate in the formation of opinion. If the two Election Commissioners reach a unanimous opinion, the CEC will have the opinion communicated to the Governor. If the two Election Commissioners do not reach a unanimous decision in the matter of expressing their opinion on the issue referred to the Election Commission, it would be necessary for the Chief Election Commissioner to express his opinion on the doctrine of necessity. In the special circumstances of the case, this course of action would be the most appropriate one to follow because if the two Election Commissioners do not agree the doctrine of necessity would compel the CEC to express his views so that the majority opinion could be communicated to the Governor to enable him to take a decision in accordance therewith as required by article 192(1) of the Constitution.
Article 192 corresponds to article 103 of the Constitution in respect of disqualifications of Members of the Union Parliament.
