Case Note & Summary
The dispute arose from a petition filed by Dr. Subramanian Swamy before the Governor of Tamil Nadu alleging that the then Chief Minister, Ms. J. Jayalalitha, had incurred disqualification under Article 191(1)(e) of the Constitution read with Section 9A of the Representation of the People Act, 1951, because she was a partner in a firm that had a subsisting contract with the State Government. The Governor forwarded the petition to the Election Commission for its opinion under Article 192(2). Ms. Jayalalitha filed two writ petitions: one seeking a writ of prohibition against the Chief Election Commissioner, T.N. Seshan, on grounds of reasonable apprehension of bias in favour of Dr. Swamy, and the other seeking a declaration that she had not incurred disqualification. A learned Single Judge allowed the first petition, issuing a writ of prohibition against Seshan, and effectively allowed the second by finding that Ms. Jayalalitha had not incurred disqualification. Dr. Swamy's special leave petitions were not entertained, and he was directed to file an appeal before the Division Bench. Meanwhile, the President promulgated Ordinance No. 32 of 1993, later replaced by Act No. 4 of 1994, which amended the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Act, 1991 by inserting Sections 9 and 10, providing for transaction of business by the Election Commission and decision by majority in case of difference of opinion. The Division Bench of the Madras High Court held that the question of disqualification was within the exclusive domain of the Election Commission, that there was a reasonable apprehension of bias against Seshan, and that after the appointment of additional Election Commissioners, the doctrine of necessity could not be invoked to compel his participation. It accordingly issued a writ of prohibition against Seshan from dealing with the matter, but permitted the Election Commission to allocate the matter to other members. The Election Commission and Seshan appealed to the Supreme Court by special leave. The Supreme Court considered the limited question of Seshan's participation given the bias allegation. It examined Article 192, noting that the Governor is bound to obtain the opinion of the Election Commission and act according to it, making the Commission's opinion decisive. The judgment excerpt ends before the final operative decision is stated.
Headnote
A) Constitutional Law - Disqualification of Legislators - Government Contracts - Constitution of India, Article 191(1)(e), Article 192; Representation of the People Act, 1951, Section 9A - The Governor is obligated to obtain the opinion of the Election Commission and act according to it; the opinion of the Election Commission is decisive because the final order is based solely on that opinion - The Court explained that Article 192(2) uses the words 'shall obtain' and 'shall act', leaving no room for doubt that the Governor is bound by the Commission's opinion, and that the decision of the Governor in substance depends on the Commission's opinion and not on the Council of Ministers. (Paras not mentioned) B) Constitutional Law - Doctrine of Necessity - Bias of Chief Election Commissioner - Chief Election Commissioner and other Election Commissioners (Conditions of Service) Act, 1991, Sections 9 and 10 - After the establishment of a multi-member Election Commission with provision for majority decision, the doctrine of necessity is not attracted to compel participation of a member against whom a reasonable apprehension of bias exists - The High Court held that since the Commission could transact business by majority under Section 10, the matter could be allocated to the other Election Commissioners, and the doctrine of necessity need not be invoked. The Supreme Court was considering this limited question on appeal. (Paras not mentioned) C) Administrative Law - Natural Justice - Bias - Writ of Prohibition - Constitution of India, Article 226 - A writ of prohibition may be issued to prevent a quasi-judicial authority from acting if there is a reasonable apprehension of bias, but if an alternative forum exists within the same body, that body may allocate the matter to unbiased members - The Division Bench directed that T.N. Seshan be prohibited from dealing with the disqualification petition, while allowing the Election Commission to allot the matter to other members. This order was challenged before the Supreme Court. (Paras not mentioned)
Issue of Consideration
Whether the Chief Election Commissioner could be prohibited from participating in the decision on a disqualification petition under Article 192 given allegations of bias, and whether the doctrine of necessity applied after the appointment of additional Election Commissioners and enactment of the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Amendment Act, 1993.
Law Points
- Article 192 mandates Governor to obtain and act according to Election Commission's opinion
- opinion of Election Commission is decisive
- doctrine of necessity not applicable when multi-member Commission can decide by majority under Sections 9 and 10 of Chief Election Commissioner and other Election Commissioners (Conditions of Service) Act
- 1991
- writ of prohibition can issue to prevent biased adjudication but alternative forum within same body may allocate matter to unbiased members.
