Supreme Court Directs Election Commission to Proceed with Bihar and Orissa Assembly Elections Despite Incomplete Photo Identity Card Distribution. Interim Order Holds That Constitutional Mandate Under Articles 168 and 172(1) to Hold Elections Before 15-3-1995 Prevails Over Election Commission's Rule 28 Directive Requiring All Eligible Electors to Possess Photo Identity Cards.

Writ petitions under Article 32 of Constitution challenging Election Commission's directive that polls would not be taken without supply of photo identity cards to all eligible electors, apprehending denial of constitutional right to elect new assemblies in Bihar and Orissa before expiry of term on 15-3-1995.

Petitioners sought direction that Election Commission not withhold elections to Bihar and Orissa Legislative Assemblies for failure to issue photo identity cards to all eligible electors, and to ensure elections held before 15-3-1995.

Apprehension that Election Commission's insistence on photo identity cards for all electors would prevent polls in Bihar and Orissa, leading to constitutional crisis and denial of democratic right to elect new assembly upon dissolution of existing assemblies on 15-3-1995.

Whether the Election Commission could withhold elections to State Legislative Assemblies for failure to supply photo identity cards to all eligible electors under its directive dated 28-8-1993. Whether the constitutional mandate under Articles 168 and 172(1) requiring elections before expiration of five-year term on 15-3-1995 must prevail over the Election Commission's administrative requirement of photo identity cards. Whether the State of Bihar was obliged to furnish an undertaking to complete issuance of identity cards by 30-9-1995.

Petitioners contended that the Election Commission's requirement would deny eligible electors their constitutional and democratic right to elect new assembly and would create constitutional crisis. State of Orissa through counsel contended that it had virtually complied by supplying cards to almost 86% of voters and elections should not be withheld. State of Bihar through counsel contended that Election Commission had no power or authority to hold up election process if identity cards not issued, and that Chief Election Commissioner failed to appreciate economic and social conditions in Bihar. Election Commission through counsel initially insisted on deadline but later stated for Orissa it would not enforce para 6 due to 86% compliance; for Bihar called it wilful defaulter; later made statement that Commission would not withhold Bihar elections if State gave undertaking to complete issuance by 30-9-1995, without prejudice to contentions.

The constitutional mandate under Articles 168 and 172(1) requires that elections to State Legislative Assemblies be held before expiry of five-year term to avoid constitutional crisis; Election Commission's administrative directive requiring photo identity cards for all electors cannot be used to withhold elections, particularly where such requirement is not statutorily mandated; interim stay granted directing Commission not to withhold elections while leaving larger question of Commission's power for final hearing.

On a plain reading of the said paragraph it is clear that unless 'all' eligible electors are supplied electoral identity cards and a certificate to that effect is not furnished by the State Government concerned, no poll will be taken in that State. From the above statement it becomes clear that whatever the Election Commission may have said in the earlier correspondence and no matter how forcefully it may have insisted, the Election Commission is mindful of the consequences that may follow should the two States not be allowed to go to the polls for their failure to supply identity cards to 'all' eligible electors. We further direct that the Election Commission shall not withhold the elections to the Legislative Assemblies of Bihar and Orissa on the ground that the said Governments had failed to complete the process of issuance of photo identity cards by the deadline prescribed by it. There will be an interim stay in the said terms. The Election Commission will, however, be free to take such other steps as it considers necessary and are permissible to ensure a fair and free poll.

On 28-8-1993, the Election Commission issued a directive for supply of photo identity cards to all electors, mandating no polling after 1-1-1995 unless all eligible electors had been supplied with identity cards. High-level meetings were held where State Governments, including Bihar and Orissa, pointed out difficulties. The Election Commission wrote letters to Bihar on 11-5-1994 and 6-11-1994 forewarning of constitutional stalemate and responsibility. By order of 30-11-1994, no extension of deadline would be entertained. On 8-12-1994, a Press Note stated elections in Bihar and Orissa would be completed before 10-3-1995 but included para 6 requiring photo identity cards for all electors. Writ petitions were filed under Article 32 of the Constitution. The matter was heard on 16-1-1995. During hearing, the Election Commission made a statement that it had no intention of creating constitutional crisis and would not withhold Bihar elections if the State gave an undertaking to complete issuance by 30-9-1995. The Court issued rule nisi in all four writ petitions and granted interim stay directing the Election Commission not to withhold elections.

• Constitution of India: Articles 168, 172(1), 32
• Representation of the People Act, 1950: Section 130(2)
• Registration of Electors Rules, 1960: Rule 28