IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11-12-2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM W.P.No.17601 of 2007 and MP Nos.1 to 3 of 2007 N.Jothi .. Petitioner vs 1.Election Commission of India Nirvachan Sadhan Ashoka Road New Delhi 110 001. 2.A.Amernath Rao .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of mandamus to direct the first respondent herein to confine the intended enquiry in Reference Case No.43 of 2006 on the allegations contained in the petition of the 2nd respondent dated 24.3.2006 by forbearing the 1st respondent from enquiring into any other allegation which was not referred in terms of Article 103 of the Constitution of India to the 1st respondent. For Petitioner : Party in person For Respondents : Mr.G.Rajagopal Senior Counsel for M/s.G.R.Associates for R1 Mr.R.Viduthalai Senior Counsel for Mr.M.Dhandapani for R2 ORDER Invoking the writ jurisdiction of this Court, the petitioner, a Member of Parliament in the Rajya Sabha, has sought for a writ of mandamus to direct the first respondent herein to confine the intended enquiry in Reference Case No.43 of 2006 on the allegations contained in the petition of the second respondent dated 24.3.2006, by forbearing the first respondent from enquiring into any other allegation which was not referred in terms of Article 103 of the Constitution of India to the first respondent. https://hcservices.ecourts.gov.in/hcservices/ 2.The affidavit in support of the petition, the additional affidavit and the counter affidavits filed by the respondents are perused. The Court heard the deliberations made by the petitioner in person and also the learned Senior Counsel Mr.G.Rajagopal, for the first respondent Election Commission of India and also the learned Senior Counsel Mr.R.Viduthalai, for the second respondent. 3.The facts and circumstances which led the petitioner to file the instant writ petition can be stated thus: (a) The petitioner, a practicing Advocate for more than three decades, was elected as Member of Parliament in the Rajya Sabha from the State of Tamil Nadu on the AIADMK party ticket during April 2002. He is also a Member of number of Committees constituted in the Rajya Sabha. Alleging that the petitioner has incurred disqualification for being a Member of Parliament in terms of Article 102 of the Constitution of India, by reason of his appointment as defence counsel of the then Chief Minister of the State of Tamilnadu, the second respondent and forty others lodged a complaint before His Excellency, the President of India, on 24.3.2006. The prime allegation made in the complaint, was to the effect that the petitioner was holding the post of a Senior Defence Counsel for the then Chief Minister of Tamilnadu in several of her cases instituted by both the Central Government and the Tamil Nadu State Government, and that he was earning moneys and several benefits monetarily as an Official Counsel for the Hon'ble Chief Minister of the State; and that he had not suspended his practice as an Advocate on becoming a Member of Parliament. The said complaint was referred to the first respondent for its opinion from the Secretariat of the President of India under Article 103 of the Constitution of India, on 17.4.2006. Thus, the opinion of the first respondent was sought for by the Office of the President of India under Article 103(2) of the Constitution of India only on the allegations found in the representation of the second respondent dated 24.3.2006. After receiving the said communication, the first respondent called upon the second respondent to furnish the precise information about the date of appointment of the petitioner to the alleged Office and all relevant documents to support his contention by May 15, 2006. But, the second respondent complainant did not furnish the requested details within the prescribed time. While the matter stood thus, the first respondent had written to the Chief Secretary to Government of Tamilnadu by a communication dated 18.8.2006, to furnish the exact date of appointment of the petitioner as Senior Defence Counsel to the former Chief Minister together with the terms and conditions of the appointment and the terms regarding the payment of fees and emoluments. (b) The query was specific to the following effect. "(a) Whether Shri N.Jothi, MP (Rajya Sabha) was appointed by the State Govt. as its counsel/counsel https://hcservices.ecourts.gov.in/hcservices/ for the former Chief Minister as claimed in the petition filed before the Hon'ble President of India by one Shri R.Amernath Rao, at any point of time after 30.4.2002 (the date from which the current term of Shri N.Jothi as Member of the Rajya Sabha commenced. (b) If he was so appointed by the State Government, a copy of the order relating to the said appointment and copies of documents relating to terms and conditions of the appointments including the terms regarding payment of fees and emoluments, may be submitted to the Commission." (c) Pursuant to the query made, the Chief Secretary to the Government of Tamilnadu responded to the said communication by letter dated 20.10.2006, wherein he did not assert that the petitioner was appointed to the post of Senior Defence Counsel to the former Chief Minister by the Government of Tamilnadu. But, the communication inter alia was to the effect that the petitioner had allegedly attended the Cauvery Water Dispute matters and performed air journeys to New Delhi in that regard. The cost of the air tickets in connection with the same were settled by the Public Works Department, Government of Tamilnadu, and the Counsel appeared on behalf of the State of Tamilnadu though eligible for the fees, the petitioner had not claimed any fee, and further, the petitioner was allotted accommodation by the Parliamentary Secretariat; but, the petitioner has also been occupying Room No.209 in Tamilnadu House, New Delhi, and moneys were due from the petitioner towards the room rent, catering charges etc. Thus, the said communication was to the effect that the petitioner also enjoyed the above mentioned privileges without no formal orders at the cost of the State Government. (d) On receipt of a communication which is dated 4.12.2006, from the first respondent calling upon the petitioner to file a written statement on or before 22.12.2006 supported by proper affidavits, in reply to the allegations contained in the complaint made by the second respondent dated 24.3.2006, and also the letter dated 20.10.2006, of the Chief Secretary of the Government of Tamilnadu, the petitioner came to know about all the facts and events narrated above. Then, the petitioner wrote to the first respondent on 20.12.2006, seeking details of the persons mentioned in the representation dated 24.3.2006, inter alia, to ascertain their authenticity, bona fides and credibility and accordingly to enable the petitioner to finalise his response. The petitioner also sought by the same communication that the copies of the records said to be relied upon in the communication dated 20.10.2006, of the Chief Secretary to the State of Tamilnadu, for finalising his detailed response. It was also stated in the same communication that after filing the statement, on receipt of the said documents/details as sought for, if any enquiry was still necessary by the Election Commission, he would participate in the proceedings. It is also made clear that the request for the documents was not to be construed as submission on the merits of the case, which he denied and reserved liberty to raise all the objections to that properly on receipt of the aforesaid https://hcservices.ecourts.gov.in/hcservices/ materials. The first respondent sent a reply on 4.1.2007. The first signatory in the complaint dated 24.3.2006, is the second respondent herein "as the main petitioner". (e) Regarding the supply of authenticated copies and records relied on in the communication dated 20.10.2006, of the Chief Secretary to the Government of Tamilnadu, it was stated that the details of the exchange order and ticket number provided by the State Government for air journeys which were performed by the petitioner to attend Cauvery Water Dispute matter and which were purportedly certified by the petitioner, were already provided in the letter. The petitioner was called upon to file his written statement latest by 19.1.2007 on the basis of the materials already furnished to the Commission's notice dated 4.12.2006. The petitioner was also further informed that no further time would be allowed "under any circumstances". (f) Except the second respondent, the identity of any of the other 40 persons was not known to the petitioner. On receipt of the said communication, the petitioner filed a detailed preliminary submissions/objections on 18.1.2007 as to the scope of the enquiry sought to be undertaken by the first respondent Election Commission by its notice dated 4.12.2006, read with the communication dated 4.1.2007. The petitioner raised objections inter alia to the notice of enquiry dated 4.12.2006, that the first respondent should desist from undertaking any enquiry on the information furnished by the State Government of Tamilnadu in the letter dated 20.10.2006, in addition to the issues raised in the complaint dated 24.3.2006, by the second respondent and others. The petitioner also requested the Election Commission that in the event of the first respondent proceeding with any further enquiry notwithstanding his objections, he might be communicated accordingly so that he might take proper steps in the matter. (g) On receipt of a copy of the preliminary objection, the second respondent filed a rejoinder before the Election Commission to the preliminary objections filed by the petitioner, on 22.3.2007. Fixing the hearing date on 10.5.2007, in the Secretariat of the Election Commission of India, New Delhi, a notice dated 12.4.2007, was served upon the petitioner. On receipt of the said notice for the hearing on 10.5.2007, the petitioner addressed a communication to the Election Commission referring to the preliminary objections already made by him, and requested the Election Commission to intimate its programme on the point whether the hearing fixed on 10.5.2007, was confined to the preliminary objections/submissions or general in nature covering all issues. Under the stated circumstances, the petitioner has filed the writ petition on 8.5.2007 for the aforesaid reliefs. 4.Advancing his arguments, the petitioner in person would submit that the second respondent has placed a complaint with all false and unfounded allegations before the President of India that the petitioner has incurred a disqualification for being a Member of Parliament by reason of being allegedly https://hcservices.ecourts.gov.in/hcservices/ appointed as defence counsel of the then Chief Minister of State of Tamilnadu; that such claim was ex-facie baseless since there could be no such appointment, and as such, there was no appointment at all; that the complaint is said to have been made by the second respondent along with 40 other persons since it could be seen from the copy of the petition that the signatures of 40 names are found; but, absolutely no details of those persons are given; that since the allegation found in the petition that he was appointed as a defence counsel, was not true, there was no question of earning moneys and several monetary benefits as an Official counsel; that the other allegation was that the petitioner has not suspended his practice as an Advocate after becoming a Member of Parliament; that a practicing advocate even after becoming a Member of Parliament, cannot suspend his practice, and thus, this was a representation which was referred to by the President of India to the first respondent for its opinion since the said petition was referred to the first respondent under Article 103 of the Constitution of India and the reference specifically has also stated that the question has been raised before the President of India on the petition filed by the second respondent alleging that the petitioner has "become subject to disqualification" as contended in the petition of the second respondent, and thus, it would be clear that the first respondent was called upon to give its opinion on the specific issue whether the petitioner had incurred disqualification under Article 102(1) by being appointed as a defence counsel by the State Government on behalf of the then Chief Minister of the State, and hence, the opinion of the first respondent which was sought for by the President of India under Article 103(2), was only on and in respect of the allegations made in the complaint of the second respondent; and that in such circumstances, a necessity arose for the petitioner to file this petition before this Court since the first respondent is proceeding to hold the enquiry beyond the scope of the issue referred to it under Article 103(2) of the Constitution thereby resulting in a situation where the scope of enquiry was being expanded and improvised. 5.Added further, the petitioner that there was no clarity as to the exact case which the petitioner should meet; but, the first respondent was proceeding to conduct a full-fledged enquiry without acceding to the request for deciding the maintainability of the complaint of the second respondent as a preliminary issue; that the first respondent was neither acting in terms of the mandate given to i,t and the duty cast on it under law; that a reading of Article 102(1) of the Constitution would clearly reveal that a person shall be disqualified for being chosen as and for being a Member of either of the Houses of Parliament if he holds any office of profit under the Government of India or any State Government other than an office declared by the Parliament by law not to disqualify its holder; that while Article 103 of the Constitution provides that if any question arose as to whether a Member of either of the Houses of Parliament has become subject to any of the disqualifications https://hcservices.ecourts.gov.in/hcservices/ mentioned in Article 102(1), the question shall be referred to the decision of the President of India and his decision shall be final; that Clause 2 of Article 103 mandates that the President of India before giving any decision on any such question shall obtain the opinion of the first respondent Election Commission and shall act according to such opinion, and thus, the very reading of Articles 102(1) and 103(2) of the Constitution would clearly show that when a question arose as to whether a Member of Parliament has incurred any disqualification under Article 102, such question should be referred to the first respondent for its opinion; that from the very reading of either Articles, it would be very clear that the President of India before giving any decision on any such question, should obtain the opinion of the first respondent and has also to act according to such opinion; that it is pertinent to point out that insofar as the opinion made and placed by the first respondent before the President of India, no remedy either by way of appeal or revision is available; and that under the circumstances, the first respondent must exercise care and act in accordance with law before rendering such opinion. 6.It is further contended by the petitioner that the issue referred to the first respondent for its opinion, can and ought to be only with reference to the specific allegation which is raised, as the reason to contend that a Member of Parliament has incurred a disqualification; that the very reading of the complaint given by the second respondent would indicate that it was only on the basis of the alleged appointment of the petitioner as defence counsel and that was the only issue referred for the opinion of the first respondent, and hence, the first respondent cannot travel beyond and enquire except the specific allegation, which, according to the second respondent, is that the petitioner suffered disqualification; and that the first respondent Election Commission should confine only to the said issue alone since the first respondent is not conferred with any suo moto powers of enquiry into any question as to whether a Member of Parliament has incurred any disqualification under Article 102 of the Constitution. 7.Placing reliance on Sec.146(1) of the Representation of People Act, 1951 (hereinafter referred to as R.P. Act), the petitioner would add that the first respondent Election Commission is empowered to conduct an enquiry in terms of the said provision; that under Sec.146(1) of the R.P. Act, the first respondent should first consider whether an enquiry is necessary or proper; that when the Election Commission thinks it necessary or proper to make an enquiry, the next stage is that the Commission should satisfy whether the affidavits filed and documents produced in such enquiry by the parties concerned, of their own accord, would be sufficient to form an opinion; that if the Election Commission is of the opinion that it cannot come to a decisive opinion on those materials, then the Commission would have the powers of Civil Court to summon any person, examine them, etc.; that had the Election Commission considered https://hcservices.ecourts.gov.in/hcservices/ the allegations made in the complaint of the second respondent, in view of the preliminary objections raised, it should have come to the conclusion that the enquiry was neither necessary nor proper, and it should have dropped the same, but not done so; that even in the second stage, the Election Commission should have considered the affidavits filed and the documents produced by the parties; that it is pertinent to point out that the second respondent though given opportunity to file affidavit and produce documents on or before 15.5.2006, he has not done so; that he has not even shown any interest in the prosecution of the complaint, and thus, it would be quite clear that he himself has dropped the complaint; that while the matter stood thus, the first respondent has written to the Chief Secretary of the State of Tamilnadu on 18.8.2006, to furnish the exact dates of the appointment of the petitioner to the post of Senior Defence Counsel to the former Chief Minister along with the terms and conditions of appointment and terms regarding fees and emoluments; that the Government of Tamilnadu did not reply for a few months and subsequently, there was a reminder also; that thereafter, the Chief Secretary to the Government of Tamilnadu addressed a communication dated 20.10.2006, wherein he did not assert whether the petitioner was appointed as Senior Defence Counsel to the former Chief Minister since there was no appointment at all; that the Chief Secretary should have stopped with such a reply, but has furnished wholly irrelevant, unjustified and incorrect facts that the petitioner attended cauvery water dispute matters and has performed air journeys to New Delhi in that regard, and the cost of the air tickets were settled by the Public Works Department, and while he got accommodation in the Parliamentary Secretariat, he had been occupying Room No.209 in Tamilnadu House, New Delhi, and the moneys were due from him as room rent, catering charge, etc.; that from the very reading of the communication of the Chief Secretary, it would be quite clear that there was no order of appointment issued to the petitioner; that he had also neither claimed nor been paid any professional fee in that regard; that the claims made by the Chief Secretary in the said communication, were thoroughly irrelevant to the specific query raised by the first respondent to the State Government; and that since the clear and emphatic answer to the query was in the negative, which was borne from the reply, the first respondent should have dropped the matter; but, it has proceeded on the irrelevant facts which were stated by the Chief Secretary in his letter. 8.The petitioner would further submit that on receipt of the notice, the petitioner wrote to the first respondent on 20.12.2006, requesting the Election Commission to give him the authenticated copies of the records said to be relied upon in the communication dated 20.10.2006, of the Chief Secretary in order to send his detailed response; but, in his reply, he has given the details of the exchange order and ticket particulars provided by the State Government for air journeys and informed the petitioner that he should file the written statement on or https://hcservices.ecourts.gov.in/hcservices/ before 19.1.2007; that the petitioner gave a detailed preliminary objection stating that the first respondent was to tender its opinion on the issue referred to by the President of India, and in respect of the other matters if the Election Commission is allowed to proceed with the enquiry, it would be beyond the scope of the reference; that the jurisdiction being exercised by the first respondent, is only advisory, and hence, the scope of the enquiry to be undertaken, should be confined as to the specific issues raised before the President of India on which alone the opinion was sought for, and thus, the issues raised in the communication from the Chief Secretary, were clearly outside the purview of and beyond the scope of the allegations made by the second respondent; and that the information placed by the Chief Secretary to the State and the issues that arose out of those facts, cannot be the subject matter of any consideration of the first respondent for having an opinion in the matter. 9.Added further, the petitioner that while the second respondent had made two specific allegations as they are the grounds of disqualification incurred by the petitioner, that could be the subject matter before the first respondent referred to for its opinion which is also evident from the very wording of the communication that emanated from the Office of the President of India to the first respondent; but, the first respondent had chosen to hold a full-fledged enquiry even without framing the preliminary issue as to the very maintainability of the complaint at the instance of the second respondent which action would not only cause unnecessary expenditure, time and effort, but also he would be subjected to hardship and prejudice by undergoing an ordeal of a full-fledged enquiry. 10.The petitioner would further contend that the first respondent which is a quasi judicial authority, is duty bound to exercise its powers given by law; but, the approach of the first respondent is contrary to the sanctified duty and the character which it should exercise. 11.Commenting on the non-production of the letter dated 25.4.2006, issued by the first respondent to the second respondent calling upon him to file an affidavit and also produce the documentary evidence on or before 15.5.2006, the petitioner would contend that the second respondent has neither filed the affidavit nor produced the documents nor cared to do it till this date; but, on the service of the communication, the petitioner sought for the reply as to the scope of the proposed enquiry; that having waited till 7.5.2007, and since he could not receive the reply, he moved this Court on 8.5.2007 since the Election Commission had fixed the date of enquiry on 10.5.2007; and that under the circumstances, the respondents cannot be permitted to say that the petitioner has approached the Court even before receiving the reply. https://hcservices.ecourts.gov.in/hcservices/ 12.Placing reliance on the decision of the Privy Council reported in AIR 1936 PRIVY COUNCIL 253 (2) (NAZIR AHMAD V. KING- EMPEROR), the petitioner would submit that the first respondent should exercise the powers in the manner in which it is contemplated and not otherwise. 13.Placing reliance on the decision of the Apex Court reported in AIR 1988 SUPREME COURT 1531 (A.R.ANTULAY V. R.S.NAYAK AND ANOTHER), the petitioner would urge that the first respondent cannot enlarge its advisory jurisdiction into one of original jurisdiction which is not vested. 14.Added further, the petitioner that the case of the first respondent that the practice followed by the first respondent in such cases, is to canvass the necessary particulars from the concerned State Government, and accordingly, it has been done in the instant case, and when the reply was given by the Chief Secretary to the State of Tamilnadu, all other particulars have been given, and those particulars can also form part of the subject matter of enquiry since they are incidental has got to be rejected; that it would be quite clear that the plea of the first respondent was that it has powers to travel beyond the