Case: Brundaban Nayak Vs. Election Commission Of India And Another

leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor. When the Governor pronounces his decision under Article 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself, he has merely to forward the question to the Election Commission for its opinion, and as soon as the opinion is received, "he shall act according to such opinion". In regard to complaints made against the election of members to the legislative Assembly, the jurisdiction, to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals constituted by the Election Commission. 17. Similarly, all complaints in respect of disqualifications subsequently incurred by members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor. If this scheme of Art. 192(1) and (2) is borne in mind, there would be no difficulty in rejecting Mr. Setalvads contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive; and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission, and the Election Commission should proceed to try the complaint before it gives its opinion. Therefore, we are satisfied that respondent No. 1 acted within its jurisdiction when it served a notice on the appellant calling upon him to file his statement and produce his evidence in support thereof. 18. Mr. Setalvad faintly attempted to argue that the failure of respondent No. 1 to furnish the appellant with a copy of the complaint made by respondent No. 2 before the Governor and of the order of reference passed by the Governor forwarding the said complaint to respondent No. 1, rendered the proceedings before respondent No. 1 illegal. This contention is plainly misconceived. As soon as respondent No. 1 received the complaint and the order of reference which was communicated to it by the Chief Secretary to the Government of Orissa, it was seized of the matter and it was plainly acting within its jurisdiction under Art. 192(2) when it served the notice on the appellant. As we have already indicated, it was through oversight that the two documents were not forwarded to the appellant along with the notice, but that cannot in any sense affect the jurisdiction of respondent No. 1 to hold the enquiry. In fact, as respondent No. 2 has pointed out in his affidavit, the fact that a reference had been made by the Governor to respondent No. 1 was known all over the State, and it is futile for the appellant to suggest that when he received the notice from respondent No. 1, he did not know that a complaint had been made against him to the Governor alleging that subsequent to his election, he had incurred a disqualification as contemplated by Art. 191(1)(e) of the Constitution read with S. 7(d) of the Act. It would have been better if the appellant had not raised such a plea in the present proceedings. 19. In this connection, we ought to point out that so far the practice followed in respect. of such complaints has consistently recognised that the enquiry is to be held by the Election Commission both under Art,192(2) and Art.103(2). In fact, the learned Attorney General for respondent No.1 stated before us that though on several occasions, the Election Commission has held enquiries before communicating its opinion either to the President under Art,103(2) or to the Governor under Art. 192(2), no one ever thought of raising the contention that the enquiry must be held by the President or the Governor respectively under Art.103(1) and Art.192(1). He suggested that the main object of the appellant in taking such a plea was to prolong the proceedings before respondent No. 1. In the first instance, the appellant asked for a long adjournment and when that request was refused by respondent No. 1, he adopted the present proceedings solely with the object of avoiding an early decision by the Governor on the complaint made against the appellant by respondent No. 2. We cannot say that there is no substance in this suggestion. 20. There is one more point to which we may refer before we part with this appeal. Our attention was drawn by the learned Attorney-General to the observations made by the Chief Election Commissioner when he rendered his opinion to the Governor on May. 30, 1964, on a similar question under Art, 192(2) in respect of the alleged disqualification of Mr. Biren Mitra, a member of the Orissa Legislative Assembly. "Where, as in the present cases", observed the Chief Elction Commissioner, the relevant facts are in dispute and can only be ascertained after a proper enquiry, the Commission finds itself in the unsatisfactory position of having to give a decisive opinion on the basis of such affidavits and documents as may be produced before it by interested parties. It is desirable that the Election Commission should be vested with the powers of a commission under the Commissions of Enquiry Act, 1952, such as the power to summon witnesses and examine them on oath, the power to compel the production of documents, and the power to issue commissions for the examination of witnesses". 21. We would like, to invite the attention of Parliament to these observations, because we think that the difficulty experienced by the Election Commission in rendering its opinion under Art,103(2) or Art,192(2) appears to be genuine, and so, Parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be accepted and appropriate legislation adopted in that behalf. 22.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is well settled that the disqualification to which Art. 191(1) refers, must be incurred subsequent to the election of the member. This conclusion follows from the provisions of Art. 190(3)(a). This Article refers to the vacation of seats by members duly elected, Sub-article (3)(a) provides that if a member of a House of the Legislature of a State becomes subject to any of the disqualifications mentioned in clause (1) of Art.191, his seat shall thereupon become vacant12. We are not impressed by these arguments. It is significant that the first clause of Art. 192(1) does not permit of any limitations such as Mr. Setalvad suggests. What the said clause requires is that a question should arise; how it arises, by whom it is raised, in what circumstances it is raised, are not relevant for the purpose of the application of this clause. All that is relevant is that a question of the type mentioned by the clause should arise; and so, the limitation which Mr. Setalvad seeks to introduce in the construction of the first part of Art. 192(1) is plainly inconsistent with the words used in the said clause14. It is true that Art.192(2) requires that whenever a question arises as to the subsequent disqualification of a member of the Legislative Assembly, it has to be forwarded by the Governor to the Election Commission for its opinion. It is conceivable that in some cases, compliants made to the Governor may be frivolous or fantastic; but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway. The object of Art. 192 is plain. No person who has incurred any of the disqualifications specified by Art. 191(1), is entitled to continue to be a member of the Legislative Assembly of a State, and since the obligation to vacate his seat as a result of his subsequent disqualification has been imposed by the Constitution itself by Art. 190 (3) (a), there should be no difficulty in holding that any citizen is entitled to make a complaint to the Governor alleging that any member of the Legislative Assembly has incurred one of the disqualifications mentioned in Art.191(1) and should, therefore, vacate his seat. The whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status, and if any member forfeits that status by reason of a subsequent disqualification, it is in the interests of the constituency which such a member represents that the matter should be brought to the notice of the Governor and decided by him in accordance with the provisions of Art. 192(2). Therefore, we must reject Mr. Setalvads argument that a question has not arisen in the present proceedings as required by Art. 192(1)the scheme of Article 192(1) and (2) is absolutely clear. The decision on the question raised under Art. 192(1) has no doubt to be pronounced by the Governor, but that decision has to be in accordance with the opinion of the Election Commission. The object of this provision clearly is to leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor. When the Governor pronounces his decision under Article 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself, he has merely to forward the question to the Election Commission for its opinion, and as soon as the opinion is received, "he shall act according to such opinion". In regard to complaints made against the election of members to the legislative Assembly, the jurisdiction, to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals constituted by the ElectionCommission.Similarly, all complaints in respect of disqualifications subsequently incurred by members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor. If this scheme of Art. 192(1) and (2) is borne in mind, there would be no difficulty in rejecting Mr. Setalvads contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive; and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission, and the Election Commission should proceed to try the complaint before it gives its opinion. Therefore, we are satisfied that respondent No. 1 acted within its jurisdiction when it served a notice on the appellant calling upon him to file his statement and produce his evidence in support thereofIt is desirable that the Election Commission should be vested with the powers of a commission underthe Commissions of Enquiry Act, 1952, such as the power to summon witnesses and examine them on oath, the power to compel the production of documents, and the power to issue commissions for the examination of witnesses".We would like, to invite the attention of Parliament to these observations, because we think that the difficulty experienced by the Election Commission in rendering its opinion under Art,103(2) or Art,192(2) appears to be genuine, and so, Parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be accepted and appropriate legislation adopted in that behalf.