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

The appellant Brundaban Nayak was elected to the Legislative Assembly of. Orissa from the Hinjili constituency in Ganjam district in 1961, and was appointed one of the Ministers of the Council of Ministers in the said State. On August 18, 1964, respondent No. 2, P. Biswal, applies to the Governor of Orissa alleging that the appellant had incurred a disqualification subsequent to his election under Article 191(1)(e) of the Constitution read with Section of the Representation of the People Act, 1951(No.43 of 1951) (hereinafter called the Act. In his application, respondent No. 2 made several allegations in support of his contention that the appellant had become disqualified to be a member of the Orissa Legislative Assembly. On September 10, 1964, the Chief Secretary to the Government of Orissa forwarded the said complaint to respondent No. 1, the Election Commission of India, under the instructions of the Governor. In this communication the Chief Secretary stated that a question had arisen under Article 19(1) of the Constitution whether the member in question had been subject to the disqualification alleged by respondent No. 2, and so, he requested respondent No. 1 in the name of the Governor to make such enquiries as it thinks fit and give its opinion for communication to the Governor to enable him to give a decision on the question raised2. On November 17, 1964, respondent No. 1 served a notice on the appellant forwarding to him a copy of the letter received by it from respondent No. 2 dated the 4th November, 1964. The notice intimated to the appellant that respondent No, I proposed to enquire in the matter before giving its opinion on the Governors reference, and, therefore, called upon him to submit on or before the 5th December, 1964, his reply with supporting affidavits and documents, if any. The appellant was also told that the parties would be heard in person or through authorised counsel at 10-30 a.m. on the 8th December, 1964, in the office of respondent No. 1 in New Delhi3. On December 1, 1964, the appellant sent a telegram to respondent No. 1 requesting it to adjourn the hearing of the matter. On the same day, he also addressed a registered letter to respondent No. 1 making the same request. Respondent No. 2 objected to the request made by the appellant for adjourning the hearing of the complaint. On December 8, 1964, respondent No. 1 took up this matter for consideration, Respondent No. 2 appeared by his counsel Mr. Chatterjee, but the appellant was absent. Respondent No. 1 took the view that an enquiry of the nature contemplated by Art. 192(2) must be conducted as expeditiously as possible, and so, it was necessary that whatever his other commitments may be, the appellant should arrange to submit at least his statement in reply to the allegations made by respondent No. 2, even if he required some more time for filing affidavits and/or documents in support of his statement. Even so, respondent No. 1 gave the appellant time until the 2nd January, 1965, 1030 am, when it ordered that the matter would be heard4. On January 2, 1965, the appellant appeared by his counsel Mr. Patnaik and respondent No. 2 by his counsel Mr. Chatterjee. On this occasion. Mr. Patnaik raised the question about the maintainability of the proceedings before respondent No. 1 and its competence to hold the enquiry. Mr. Chatterjee repelled Mr. Patnaiks contention. Respondent No. 1 overruled Mr. Patnaiks contention and recorded its conclusion that it was competent to hold the enquiry under Art. 192 (2). Mr. Patnaik then asked for adjournment and made it clear that he was making the motion for adjuournment without submitting to the jurisdiction of respondent No. I. In view of the attitude adopted by Mr. Patnaik, respondent No. 1 took the view that it would be pointless to adjourn the proceedings, and so, it heard Mr. Chatterjee in support of the case of respondent No. 2. After hearing Mr. Chatterjee, respondent No. 1 reserved its orders on the enquiry and noted that its opinion would be communicated to the Governor as early as possible5. When matters had reached this stage before respondent No. 1, the appellant moved the Punjab High Court under Art. 226 of the Constitution praying that the enquiry which respondent No. 1 was holding, should be quashed on the ground that it was incompetent and without jurisdiction. This writ petition was summarily dismissed by the said High Court on January 6, 1965; Thereafter, the appellant applied to this Court for special leave on January 8, 1965, and special leave was granted to him on January 14, 1965. The appellant then moved this Court for stay of further proceedings before respondent No. 1 and the said prayer was granted. When special leave was granted to the appellant, this Court had made an order that the preparation of the record and the filing of statements of the case should be dispensed with and the appeal should be heard on the paperbook filed along with the special leave petition and must be placed for hearing within three weeks. That is how the matter has come before us for final disposal.

Reasoning: 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.