Civil Appeal No 1265 of 1969
From the Judgment and order dt
3 1 1969 of the Andhra Pradesh High Court in Writ Petition No 2763 of 1968
section V Gupte Att
General of India K N Bhatt and R N Sachthey for the Appellant
P A Chowdhary and B Kanta Rao for Respondent No 1
The Judgment of the Court was delivered by CHANDRACHUD CJ
Respondent 1 Shri N G Ranga was declared elected to the Lok Sabha on April 28 1967 in a bye election 
From Srikakulam Constituency defeating respondent No 3 Shri B Rajagopalarao
The Election Commission of India the appellant herein called upon respondent 1 by a notice dated July 7 1967 to show cause why he should not be disqualified for failure to lodge the account of his election expenses within the time and in the manner required by law
Accepting the explanation submitted by Respondent 1 the appellant condoned the delay caused in submitting the account of election expenses and sent a communication dated August 167 1967 informing respondent 1 that it was decided not to take any further action in the matter
Respondent 2 who is a voter in the Srikakulam constituency thereafter submitted a petition to the President of India under Articles 84 101102103 and 104 of the Constitution alleging that respondent 17 who was a sitting member of the Lok Sabha had become subject to the disqualification mentioned in Article 1 1021
The President exercising his powers under Article 1032 of the Constitution sought the opinion of the appellant by an order dated May 18 1968
The appellant issued a notice dated June 6 1968 to respondent 1 calling upon him to submit his reply to the allegations contained in respondent 2 s petition to the President
On June 26 1968 respondent l filed writ petition No 2763 of 1968 in the High Court of Andhra Pradesh asking for a writ Prohibition forbidding the appellant from taking further steps pursuant to the June 6 notice and for a declaration that the appellant had no jurisdiction to inquire into the petition submitted by respondent 2 to the President of India
By its Judgment dated January 3 1969 the High Court allowed the writ petition and issued a writ of Prohibition as prayed for
It has granted to the Election Commission certificate of fitness under Article 1331e of the Constitution to appeal to this Court
213 The narrow question for consideration is whether the appellant had jurisdiction to issue the notice to respondent 1 calling upon him to submit his explanation in regard to the allegations contained in the petition presented by respondent 2 to the President of India who in turn had referred the petition for the opinion of the appellant
Article 103 of the Constitution read thus at the relevant time 1031 If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause 1 of Article 102 the question shall be referred for the decision of the President and his decision shall be final
2 Before giving any decision on any such question the President shall obtain the opinion of the Election Com mission and shall act according to such opinion
 Upon the presentation of a petition by respondent 2 to the President of India alleging that respondent 1 had become subject to the disqualifications mentioned in Article 1021 of the Constitution 2 question clearly arose as to whether respondent 1 had truly become subject to any of the disqualifications mentioned in that Article
By clause 2 of Article 103 the President was bound to obtain the opinion of the appellant before giving his decision on the question
Not only that but the President was further bound to act according to the opinion given by the appellant
The President therefore acted both in the exercise of constitutional authority and in the discharge of his constitutional obligation in referring the question raised by respondent 2 s petition for the opinion of the appellant
The next question for consideration is whether on receiving the President s communication asking for its opinion the appellant committed any error of law or acted beyond its jurisdiction in seeking the explanation of respondent 1
The Representation of the People Act 43 of 1951 the Act confers extensive powers on the Election Commission in regard to inquiries pertaining to questions referred by the President for its opinion under Article 103 of the Constitution
Section 1461 of the Act provides in so far as material that where in connection with the tendering of any opinion to the President under Article 103 the Election Commission considers it necessary or proper to make an inquiry and if it is satisfied that on the basis of documents produced by the parties it cannot come to a decisive opinion on the matter which is being inquired into it shall have for the purposes of inquiry the powers which a civil court has while trying a suit in respect inter alia of summoning and enforcing the attendance of 214 any person examining him on oath the discovery and production of any document and receiving evidence on affidavits
Sub section 2 of section 146 which is more to the point provides The Commission shall also have the power to require any person subject to any privilege which may be claimed by that person under any law for the time being in force to furnish information on such points or matters as in the opinion of the Commission may be useful for
Or relevant to the subject matter of the inquiry
 We see no doubt that the Election Commission by reason of these provisions had the power and authority to require respondent 1 to furnish information on matters which were relevant to the subject matter of the inquiry namely the allegations contained in the petition presented by respondent 2 to the President of India
Article 1032 as it stood then required the President to obtain the opinion of the Election Commission before deciding the question referred to in clause 1 of that Article
The President was bound to act according to the opinion given by the Commission
By the Forty second Amendment Article 1032 requires the President to consult the Election Commission
The Amended Article expressly confers power on the Commission to make for that purpose such inquiry as it thinks fit
The implication of the unamended Article was in truth and substance the same namely that since the Commission was charged with the obligation to tender its opinion to the President it had the power to make such inquiry as it thought fit in order to enable it to express its opinion which under the law as it stood then was binding on the President
The Forty second amendment expressed clearly what was necessarily implicit in the old provision
If the Constitution envisages that the Commission should have the power to make such inquiry as it thinks fit even when its opinion is not binding on the President who is merely required to consult the Commission it cannot be that the Commission could tender its binding opinion without the right and nay the duty of making the necessary inquiry
Respondent 1 rushed to the High Court some what hurriedly thinking probably that the appellant having already condoned the delay which had occurred in filing the return of the election expenses he had not incurred or become subject to any disqualification as mentioned in Article 1021 of the Constitution and therefore the appellant had no justification for calling upon him to submit his explanation
That however is a different thing from saying that either the President of India or the appellant exceeded his or its jurisdiction when the 215 former referred the matter for the opinion of the latter and the latter sought an explanation from respondent 1
The appellant could and should have in the first instance verified from its own record whether there was any justification for the grievance made by respondent 2
But in giving to respondent 1 an opportunity to submit his explanation
the appellant far from acting beyond the scope of its statutory and constitutional powers acted in conformity with the principles of natural justice
Article 103 1 gives finality to the President s decision which under the old provision had to be in conformity with the opinion of the Election Commission
Before giving an opinion which thus had finality the Commission acted but fairly in asking respondent 1 to submit his say
As stated above it had the power to ascertain what explanation respondent I had to give an answer to respondent 2 s allegations
The High Court misdirected itself in reaching the conclusion that the appellant acted beyond its jurisdiction in issuing the notice to respondent 1 calling upon him to submit his explanation in regard to the allegations made by respondent 2 in his petition to the President
According to the High Court facts leading to disqualification under section 10A of the Act cannot be the subject matter of inquiry and decision under Article 103 of the Constitution 
It is impossible to accept this statement of law in view of the express provision contained in Article 1031 a that if any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in Article 1021 the question shall be referred for the decision of the President
Article 1021 provides by sub clause e that a person shall be disqualified for being chosen as and for being a member of either House of Parliament if he is so disqualified by or under any law made by Parliament
By section 10A of the Act the Election Commission has the power to declare a person to be disqualified if it is satisfied that he has failed to lodge an account of election expenses within the time and in the manner required by or under the Act and has no good reason or justification for the failure
A declaration of disqualification made in pursuance of power conferred by section 10A is a declaration made by the Election Commission under a law made by Parliament
It therefore attracts Article 1021e and consequently Article 1031 of the Constitution
The High Court thereafter proceeded to hold that the question whether respondent 1 had become subject to any disqualification under section 10A of the Act did not arise on the facts stated in the petition by respondent
We do not see our way to accepting this statement
216 Though respondent 2 was not in a position to make a categorical assertion in his petition that respondent 1 had incurred a specific disqualification he did make allegations generally in regard to disqualifications said to have been incurred by respondent 1
Upon the making of these allegations a question arose or contemplated by Article 1031a of the Constitution and the President had to obtain the opinion of the Election Commission on that question
Respondent 2 s petition could not have been rejected by the President without reference to the Election Commission on the ground that the allegations made by respondent 2 were unfounded or unsubstantial
A similar question arose before this Court in Brundaban Nayak vs Election Commission of India and Anr1 Article 1911 of the Constitution provides that a person shall be disqualified for being chosen as and for being a member of the Legislative Assembly or Legislative Council of a State if inter alia he is so disqualified by or under any law made by Parliament
Article 1921 as it then stood provided that 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 he decision of the Governor and his decision shall be final
By Article 1922 the Governor had to obtain the opinion of the Election Commission before giving his decision and he was also under an obligation to act according to the Commission s opinion
These provisions correspond to Articles 102 and 103 respectively with which we are concerned
While dealing with an argument as to whether it could be said that the question as contemplated by Article 1921 had arisen Gajendragadkar CJ speaking on behalf of the Court observed that the first clause of Article 1921 P did not permit of any limitations and that all that the clause required was that a question should arise
How the question arose by whom it was raised and under what circumstances it was raised were not relevant for the purpose of the application of the clause
The Court took notice of the fact that complaints made to the Governor could be frivolous or fantastic but it held that if they were of such a character the Election Commission would have no difficulty in expressing its opinion that they should be rejected
That however did not mean that a question as contemplated by Article 1921 did not arise
Lastly it was urged in that case that it is the Governor and not the Election Commission who had to hold the enquiry since the Constitution required the Governor to decide the particular question
This contention was rejected on the ground that it was the opinion of the 1  217 Election Commission which in substance was decisive and therefore it was legitimate to assume that when the complaint received by the Governor was forwarded by him to the Election Commission the latter had the power and the jurisdiction to go into the matter which meant that it had the authority to issue notice to the person against whom the complaint was made calling him to file his statement and produce evidence in support of his case
The High Court was in error in seeing nothing in this decision which was contrary to its view
 For these reasons we allow the appeal filed by the Election Commission and direct that the writ petition filed in the High Court by respondent 2 shall stand dismissed
There will be no order as to costs
SR Appeal allowed


Summary:
Constitution of India 1950 Arts 84 101 102
1O32 and 1O4 Scope of Powers of the Election Commission under Sections 10A 146 1 2 of the Representation of the People Act read with article 103 2 of the constitution
Respondent No 2 who is a voter in the Srikakulam Constituency submitted a petition to the President of India under Articles 84 101
103 and 104 of the Constitution of India alleging that respondent No 1 a returned candidate to the Lok Sabha on April 28 1967 in a bye election from that constituency had become subject to the disqualifications contained in Article 1021
The President
exercising his powers under Article 1032 of the Constitution
sought the opinion of the appellant by an order dated May 18 1968
The appellant issued a notice dated June 6 1968 to respondent No 1 calling upon him to submit his reply to the allegations contained in respondent s petition lo the President
Earlier to this the appellant condoned the delay in submission of account of election expenses by respondent No 1
On June 26 1968 respondent No 1 therefore filed a Writ Petition in the Andhra Pradesh High Court asking for a writ of prohibition forbidding the appellant from taking further action pursuant to the Notice dated June 6 and for a declaration that the appellant had no jurisdiction to inquire into the petition submitted by respondent No 2 to the President
The High Court allowed the petition and issued a writ of Prohibition
It has granted to the appellant a certificate of fitness under Article 1331c of the Constitution
Allowing the appeal the Court  HELD 1
The President acted both in the exercise of constitutional authority and in the discharge of his constitutional obligation in referring the question raised by respondent No 2 s petition for the opinion of the appellant
Upon the presentation of a petition by respondent 2 to the President of India alleging that respondent 1 had become subject to the disqualifications mentioned in article 1021 of the Constitution a question clearly arose as to whether respondent 1 had truly become subject to any of the disqualifications mentioned in that article
By clause 2 of article 103 the President was bound to obtain the opinion of the appellant before giving his decision on the question
Not only that but the President was further bound to act according to the opinion given by the appellant
213D E 2
The Election Commission by reason of the provisions of Section 1461 and 2 of the Representation of the People Act 1951 had the power and authority to require respondent 1 to furnish information on matters which were relevant to the subject matter of the inquiry namely the allegations contained in the petition presented by respondent 2 to the President of India 214B C a The Representation of the People Act 1951 confers extensive powers on the Election Commission in regard to inquiries pertaining to the questions referred by the President for its opinion under Article 103 of the Constitution
213F G 211 b article 1032 as it stood then required the President to obtain the opinion of the Election Commission before deciding the question referred to in clause 1 of that article
The President was bound to act according to the opinion given by the Commission
By the Forty second Amendment Article 1032 requires the President to consult the Election Commission
The Amendment Article expressly confers power on the Commission to make for that purpose such inquiry as it thinks fit
The implication of the unamended Article was in truth and substance the same namely
that since the Commission was charged with the obligation to tender its opinion to the President it had the power to make such inquiry as it thought fit in order to enable it to express its opinion
which under the law as it stood then was binding on the President
The Forty second amendment expressed clearly what was necessarily implicit in the old provision
If the Constitution envisages that the Commission should have the power to make such inquiry as it thinks fit even when its opinion is not binding on the President who is merely required to consult  the Commission it cannot be that the Commission could tender its binding opinion without the right and pay the duty of making the necessary inquiry
214D G c Article 1031 gives finality to the President s decision which under old provision had to be in conformity with the opinion of the Election Commission
Before giving an opinion which thus had finality the Commission acted but fairly in asking respondent l to submit his say
In giving to respondent I an opportunity to submit his explanation
the appellant far from acting beyond the scope of the statutory and constitutional powers acted in conformity with the principles of natural justice
215B 3
In the instant case though respondent 2 was not in a position to make a categorical assertion in his petition that respondent 1 had incurred a specific disqualification he did make allegations generally in regard to disqualifications said to have been incurred by respondent 1 Upon the making of those allegations a question arose as contemplated by Article 1031a of the Constitution and the President had to obtain the opinion of the Election Commission on that question
Respondent 2 s petition could not have been rejected by the President without reference to the Election Commission on the around that the allegations made by respondent 2 were unfounded or unsubstantial
The High Court was not correct when it held that the question whether respondent 1 had become subject to any disqualification under Section 10A of the Representation of the People Act did not arise on the facts stated in the petition by respondent No 2
215H 216A B Brundeban Nayak vs Election Commission of India and Anr   discussed and applied
b  By Section 10A of the Representation of the People Act
the Election Commission has the power to declare a person to be disqualified if it is satisfied that he has failed to lodge an account of election expenses within the time and in the manner required by or under the Act and has no good reason or justification for the failure
A declaration of disqualification made in pursuance of power conferred by section 10A is a declaration made by the Election Commission under a law made by Parliament
It therefore attracts Article 1021 e and consequently article 1031 of the Constitution
The High Court therefore misdirected itself in reaching the conclusion that the appellant acted beyond 212 its jurisdiction in issuing notice to respondent I in calling upon him to submit his explanations in regard to the allegations made by respondent No 2 in his petition to the President
215C D F H