1996 (4) TMI 497 - SC - Indian Laws

Summary

Issues Involved:
1. Whether Ms. J. Jayalalitha had incurred the disqualification set out in Article 191(1) of the Constitution read with Section 9A of the Representation of the People Act, 1951.
2. Whether the doctrine of necessity was applicable.
3. Whether the Chief Election Commissioner, Shri T.N. Seshan, could participate in the decision-making process given the allegations of bias.

Summary:

Issue 1: Disqualification of Ms. J. Jayalalitha
The Division Bench of the Madras High Court held that the question of whether Ms. J. Jayalalitha had incurred disqualification under Article 191(1) of the Constitution read with Section 9A of the R.P. Act should be decided by the Election Commission under Article 192(2) of the Constitution. The learned Single Judge should not have gone into this issue as it fell within the exclusive domain of the Election Commission.

Issue 2: Doctrine of Necessity
The Division Bench upheld the view that Ms. J. Jayalalitha's apprehension of bias by Shri Seshan was reasonable. The doctrine of necessity, which allows a biased person to act when no alternative exists, was not applicable because the Election Commission had been converted into a multi-member body after the promulgation of Ordinance No.32 of 1993. Sections 9 and 10 of the 1991 Act allowed the Election Commission to transact business by majority decision, thus negating the need for the doctrine of necessity.

Issue 3: Allegation of Bias Against Shri T.N. Seshan
The Court found that the apprehension of bias against Shri Seshan was real and not imaginary, given his close association with Dr. Swamy and the professional relationship with Dr. Swamy's wife. The Court concluded that Shri Seshan should recuse himself from the decision-making process. However, if the two other Election Commissioners could not reach a unanimous decision, the doctrine of necessity would compel Shri Seshan to participate to break the deadlock.

Conclusion:
The Supreme Court largely agreed with the Division Bench but modified the order to specify the procedure for the Election Commission. The Chief Election Commissioner should call a meeting and announce his recusal. If the two Election Commissioners reach a unanimous decision, it will be communicated to the Governor. If not, the Chief Election Commissioner must participate under the doctrine of necessity to form a majority opinion. The appeal was disposed of accordingly, with no order as to costs.