Supreme Court Guidelines

Answers Given by the Supreme Court in Presidential

 Reference 1 of 2002, Special Reference No. 1 of 2002: AIR 2003 SC 87: (2002) 8 SCC 237

(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 of public 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) of the 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 expressions “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 limitation has been prescribed for holding election for constituting legislative assembly after premature dissolution of the existing one. However, in view of the 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 or state legislature.

(g) In view of the affidavit filed by the Election Commission during hearing of the reference, the question regarding the application of article 356 is not required to be gone into.

In accordance with the foregoing opinion, we report on the questions referred as follows:

(i) Is article 174 subject to the decision of the Election Commission of India under article 324 as to the schedule of elections of the assembly?
(ii) Can the Election Commission of India 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?
(iii) Is the Election Commission of India under a duty to carry out the mandate of article 174 of the Constitution, by drawing upon all the requisite resources of the union and the state to ensure free and fair elections?

1. The provisions of article 174 are mandatory in character so far as the time period between two sessions is concerned in respect of live assemblies and not dissolved assemblies. Article 174 and article 324 operate in different fields.
Article 174 does not deal with elections which is the primary function of the Election Commission under article 324. Therefore, the question of one yielding to the other does not arise. There is scope of harmonizing both in a manner indicated supra.
2. Article 174 is not relatable to a dissolved assembly. Similar is the position under article 85 vis-a-vis house of people. Merely because the time schedule fixed under article 174 cannot be adhered to, that per se cannot be the ground for bringing into operation article 356.
3. As article 174 does not deal with election, the question of election commissioner taking the aid, assistance or cooperation of the centre or the state Governments or to draw upon their resources to hold the election does not arise. On the contrary for effective operation of article 324 the Election Commission can do so to ensure holding of free and fair election. The question whether free and fair election is possible to be held or not has to be objectively assessed by the Election Commission by taking into consideration all relevant aspects. Efforts should be to hold the election and not to defer holding of election.

Source: M A Rashid, Supreme Court Guidelines and Precedents

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