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TMI Blog1996 (4) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... ister of the State. On 2.10.1992, Dr. Subramanian Swamy preferred a petition to the State Governor under Article 192 of the Constitution of India alleging that the Chief Minister had incurred a disqualification of being a member of the Legislative Assembly of the State, in that, she being a partner in the partnership firm run in the name and style of Messrs Jaya Publications had entered into a contract with the State Government and which contract was subsisting on the date of the petition, in view of sub-clause (e) of clause (1) of Article 191 of the Constitution read with Section 9A of the Representation of the People Act, 1951 (hereinafter called 'the R.P. Act'). It would be advantageous to reproduce the said two provisions at this stage: 191(1) A person Shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of 9 State- (a) ...... (b) ...... (c) ...... (d) ...... (e) if he is so disqualified by or under any law made by Parliament. Explanation--- For the purposes of this clause, a person shall not be deemed to hold an office of profit under the government of India of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have to yield in favour of the doctrine of necessity, it was not obligatory to invoke the said doctrine in all cases, in particular in the case on hand, since it was permissible under Article 324 of the Constitution to appoint an additional Election Commissioner, who, if appointed, would constitute an alternative forum for dealing with the matter. So far as the second writ petition is concerned, while the learned Single Judge held that the decision on the issue raised by Dr. Swamy lay within the exclusives domain of the Governor, he opined that Ms. J.Jayalalitha had not incurred the alleged disqualification. Therefore, while dismissing the second writ petition, he virtually allowed it, in that, the Governor while taking a decision under Article 192(2) would feel inhibited by the said decision. Dr.Swamy filed two Special leave Petitions Nos.10189-90 of 1993 in this Court under 'Article 136 of the Constitution questioning the correctness of the view taken by the learned Single Judge in the said two petitions. This Court, however, did not entertain the said two petitions and by its order dated 20.8.1993 directed the petitioner to move the Division Bench in appeal. Consequentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h held that on the facts and in the circumstances of the case Ms.J.Jayalalitha would be justified in entertaining a reasonable apprehension of bias or atleast the likelihood of bias on the part of Shri Seshan in favour of Dr.Swamy and consequently a reasonable doubt that she would not get a fair hearing from Shri Seshan. Insofar as the third point is concerned, the Division Bench held that in view of the appointment of two Election Commissioner after the promulgation of the Ordinance and in view of Sections 9 and 10 extracted earlier, the doctrine of necessity cannot be applied since the decision could be taken by the Election Commission if need be by majority. On this line of reasoning, on the question of relief to be granted, the Division Bench allowed the Writ Appeal and modified 'he order in writ petition No. 6094 of 1993 by giving the following direction: A writ of prohibition is issued to the first respondent (Mr. T.N. Seshan) from in any manner dealing with, hearing, adjudicating upon or disposing of the memorandum dated 2.10.1992 filed by the second respondent (Dr. Subramanian Swamy) and forwarded by the Governor of Tamil Nadu to the first respondent. We make it cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '. Thus it is the Governor who has, to take a decision and such decision is made final. Then we turn to clause (2) of Article 192 which reads as under : 192(2) - Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion. It is clear from the use of the wards shall obtain' the opinion of the Election Commission, that it is obligatory to obtain the opinion of the Election Commission and the further stipulation that the Governor shall act according to such opinion leaves no room for doubt that the Governor is bound to act according to that opinion. The position in law is well settled by this Court's decision in Brundaban v. Election Commission (1965) 3SCR 53 where in this court held that it is the obligation of the Governor to take decision in accordance with the opinion of the Election Commission. It is thus clear on conjoint reading of the two clause of article 192 that once a question of the type mentioned in the first clause is referred to the governor, meaning thereby is raised before the Governor, the Governor, meaning thereby is raised before the Governor, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble apprehension of bias, the learned Judge, on a scrutiny of the facts and circumstances of the case, came to the conclusion that having regard to the close association of Dr. Swamy with Shri Seshan, besides the fact that Dr. Swamy's wife was the lawyer of Shri Seshan in the suit filed by him at Bombay, the apprehension of bias was real and not imaginary and if Shri Seshan has to take a decision on Dr. Swamy's complaint, the decision may not be impartial and will atleast not be seen to be impartial and therefore the learned Single Judge restrained him from deciding the issue and communicating the same to the Governor. However, on the application of the doctrine of necessity, the learned Judge held that since Article 324(2) of the Constitution permitted appointment of one or more Election commissioners, it was not necessary to invoke the doctrine of necessity and allow Shri Seshan to make a decision, the apprehension of bias, notwithstanding. The Division Bench of the High Court has upheld the view of the learned Single Judge on the question of existence of circumstances which go to show that the' apprehension of bias entertained by Ms. J. Jayalalitha was reasonable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice by providing for the removal of the incumbent occupying the said office in the same manner as a Judge of the Supreme Court. Shri Sanghi reiterated that assuming without admitting that the finding of bias is correct, Shri Seshan was not at all anxious to participate in the decision-making process if lt is not obligatory under the extant constitutional scheme on his part to participate in the decision-making. Stated in a nutshell the line of reasoning adopted by Shri Sanghi is that the decision of the 'Election Commission' is a 'must' for the Governor to decide the issue; the constitution of the Election Commission under the scheme of Article 324 of the Constitution clearly is that it must comprise the Chief- Election Commissioner as its Chairman if it is a multi- member body , other words there cannot be a properly constituted Election Commission without its Chairman and hence his participation in the decision-making cannot be excused and must be permitted on the doctrine of necessity. Thus, according to Shri Sanghi, the constitution of a multi- member Election Commission and the insertion of Section 9 and 10 in the 1991 Act would make no difference because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of bias and applicability of the doctrine of necessity. We must at once state that we have carefully examined the facts and circumstances laid on record in support of the finding of bias recorded by the learned Single Judge as well as the Division Bench and in our view the said finding is unassailable. Conscious of the fact that Shri Seshan is occupying a high constitutional office we have given our anxious consideration to this aspect of the matter. While we are inclined to think that Shri Seshan as a high constitutional functionary may not carry any grudge or malice against Ms. J.Jayalalitha, there can be no doubt that his close association with Dr. Swamy's family and the professional relationship with his wife who is representing him in the suit at Bombay and the other circumstances, all of which have been summarized in paragraph 39 of the Division Bench judgment, are sufficient to raise a reasonable apprehension in the mind of Ms. J.Jayalalitha that he may be biased in favour of Dr. Suamy even if he does not entertain any ill-will towards her. Realizing this, Shri Sanghi submitted that his client is not at all anxious to participate in deciding the issue referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Article 214 provides that every State shall have a High Court and as provided by Article 216 every High Court shall consist of a Chief Justice and such other Judges as may be considered necessary to appoint. Similarly, Article 324(2) and (3) provide that the Election Commissioner shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix. When the Election Commission is a multi- member body, the Chief Election Commissioner will act as its Chairman. These provisions, therefore, provide for the constitution of the Supreme Court, High courts and the Election Commission. In the case of the first two, it is well-settled that they need not sit en banc and can transact business in benches. Is there any distinguishing feature in the case of the Election Commission to take the view that it must sit en banc or not at all? In other words, can it be said that the provisions of the Constitution make it imperative for the Chief Election Commissioner to participate in each and every decision that the Election Commission is required to make under the Constitution? True it is that under Article 192 if any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Election Commission decisions have to be taken by one voice or not at all and any provision which introduces the concept of decision by majority must be held to be inconsistent with the scheme of Article 394. Rejecting this contention this Court held that Parliament was competent to enact Sections 9 and 10 introduced by the amending Ordinance/Act and there was nothing in the scheme of Article 324 to conclude that decision by majority would be an illegality. In that case this Court quoted with approval, the following principle found in footnote 6 at page 657 of Halsbury's Law of England, 4th Edition (Re-issue), Volume 7(1): The principle has long beer, established that the will of a Corporation or body can only be expressed by the whole or a majority of its members, and the act of a majority is regarded as the act of the whole. The same principle was reiterated in Grindley . Baker 126 ER 875, 879 and 882. It is, therefore, obvious that after the decision of the Constitution Bench reiteration of the same argument, albeit in a different shade, can be of no avail to the appellant. The next question then is if the Chief Election Commissioner, for reason of possible bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief. Election Commissioner to participate, if not the doctrine of necessity may have to be he invoked. We think that is the only alternative in such a situation. We are, therefore. of the opinion that the proper course to follow is that the Chief Election Commissioner should call a meeting of the selection Commission to adju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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