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TMI Blog1974 (6) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... that every President before entering upon his office shall make and sub-scribe an oath or affirmation as mentioned therein. Article 63(1) states that an election to fill a vacancy caused by the expiration of the term of the office of President shall be completed before the expiration of the term. Article 56(1)(c) states that the President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. 4. The fixed term, of office mentioned in Article 56(1) as will as the mandate in Article 62(1) that the election to fill a vacancy caused by the expiration of the term of office shall be completed before the expiration of the term reflects the dominant Constitutional purpose and intent regarding the time when the election of the President is to be held. Further, the provision in Article 62(2) that an election to fill a vacancy in the office of the President by reason of his death, resignation or removal or otherwise be held as soon as possible after and in no case later than six months from the date of the occurrence of the vacancy shows that the time to hold an election to fill a vacancy is also mandatory in character. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy enters upon his office. Article 56(1) is complementary to Article 62(2). An election to fill a vacancy in the office of the President for the reasons mentioned in Article 62(2) obviously does not attract Article 56(1)(c). This is another reason which establishes that the word otherwise used in relation to vacancy in the office of the President under Article 62(2) cannot cover the case of a vacancy in the office of the President by the expiration of the term. Vacancy under Article 62(2) does not enable the President to continue in office. 9. The interveners suggested that Section 7 of the Presidential and Vice-Presidential Elections Act, 1952 hereinafter referred to as the 1952 Act shows that an election to fill the vacancy in the office of the President may not be completed before the expiration of the term. The interveners, therefore, submitted that it could not be held that the completion of election before the expiration of the term was a mandatory provision. 10. Section 7 of the 1952 Act states that if a candidate whose nomination has been made and is found to be in order on scrutiny, dies after the time fixed for nomination and a report of his death is received by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich commenced but could not be completed because of death. 13. In determining the question whether a provision is mandatory or directory, the subject matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the-Act will decide whether the provision is directory or mandatory. It is the duty of the courts to get at the real intention of the legislature by carefully attending the whole scope of the provision to be construed. The: key to the opening of every law is the reason and spirit of the law, it is the animus impotentia, the intention of the law maker expressed in the law itself, taken as a whole . (See Bratt v. Bratt (1826) 3 Addams 210 at p. 216). 14. If the completion of election before the expiration of the term is not possible because of the death of the prospective candidate it is apparent that the election has commenced before the expiration of the term but completion before the expiration of the term is rendered impossible by an act beyond the control of human agency. The necessity for completing the election before the expiration of the term is enjoined by the Constitution in public and State interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b constituencies where election was yet to be held and he would be prevented from exercising his right to vote for the election of the President. This Court held that Article 62 of the Constitution required that the election of the President must be completed within the time fixed by it and this provision is conceived in the interest of the people in general and is mandatory in character. The interveners submitted that the observation of this Court in the Khare case (supra) about the peremptory requirement to fill the vacancy caused by the expiration of the term of office was obiter. That is not so. Das, C.J. speaking of Article 62 said it. is necessary to bear in mind this clear mandatory provision of the Constitution . That is the true position. 18. There is another important observation in the Khare case ((supra). It was contended there that the electoral college mentioned in Article 54 must be constituted after elections in all States and Union Territories are completed and should consist of all the elected members falling within both the categories because the Presidential election could not be held until the vacancies were filled up. Elections did not take place in Himach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like. 21. Article 55(1) states that as far as practicable, there shall be uniformity in the scale of representation of the different States at the election of the President. Article 55(2) states that for the purpose of securing such uniformity among the States inter se as well as parity between the States as a whole and the Union, the number of votes which each elected member of Parliament and of the Legislative Assembly of each State is entitled to cast at such election shall be determined in a manner set put in the sub-article. 22. The interveners submitted that the units of the electoral college were Houses of Parliament and the Legislative Assemblies of States. The Jan Singh submitted that the democratic character of the Constitution demanded that there should be elected members of Legislative Assemblies of States to be entitled to cast votes at such election. It was said that if States were denied such right, they would be denied representation. It was also said that if States were denied the right to cast votes at the election, the parity between the States and the Union would be disturbed. 23. The members of electoral college mentioned in Article 54 are not both Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of representation of the States are important. Article 55(1) shows that the words 'as far as practicable' indicate that in practice the scale of representation may not be uniform because of the actual number of electors entitled at the date of election to cast their votes. The actual number of electors at the date of the election of the President may not be equal to the total number of all the elected members of both Houses of Parliament and all Legislative Assemblies of all States. 28. Article 55 indicates the methods of calculating as to how many votes an elected member of the electoral college can cast at the Presidential election. Article 55 has nothing to do with any vacancy in the electoral college as mentioned in Article 71(4), or a cesser of membership of the electoral college by reason of a member not fulfilling the character of elected member of both Houses of Parliament or of Legislative Assemblies of States. 29. The words 'an electoral college consisting of' in Article 54 mean, that the electoral college shall consist of persons mentioned therein. The words 'consisting of' refer to the strength of the electoral college. The Houses of Parl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons as possess the qualification of being elected members of both Houses of Parliament and of Legislative Assemblies of States at the crucial time of the date of election will be eligible members of the electoral college entitled to cast vote at the election to fill the vacancy caused by the expiration of the term of office of the President. 32. The submissions of the interveners that Article 62 will be construed in the light of Articles 54, 55 and 368 arc unsound. It has always to be remembered that Constitution is the revelation of great purposes which were intended to be achieved by the Constitution as a continuing instrument of Government. In Warburton v. Loveland (1832) 2 D Clause 480 it has been said that 'no rule of construction can require that when the words of one part of a statute convey a clear meaning, it shall be necessary to introduce another part of a statute for the purpose of controlling or diminishing the efficacy of the first part . Article 62 is the Constitutional mandate and other provisions like Articles 54, 55 subserve Article 62. The Legislative Assemblies of the Stales arc not members of the electoral college. None of the Articles 368, 54, 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umerical strength of the electoral college will be the total number of elected members of both Houses of Parliament and the Legislative Assemblies of the States. At any particular time there may not be the full strength of the electoral college. At the relevant date of the Presidential election if a person who was prior to that relevant date an elected member of the Houses of Parliament or of the Legislative Assemblies of the States and ceased to become an elected member of any of the legislative bodies by reason of death or resignation or disqualification or dissolution of the legislative body such a person would not possess the qualification to be an elector. Article 71(4) was really introduced after the Khare case (supra) to shut out any challenge to the election on the ground that there was any vacancy among members of the electoral college. In view of the Constitutional declaration or exposition of Article 71(4) it is manifest that the language is of wide amplitude, viz., existence of any vacancy for any reason whatever among the members of the electoral college. It will take in any case where a person who as an elected member of the Houses of Parliament or the Legislative Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that though the terms of that section do not impose an obligation on the Court, the court should be unwilling to accept a Reference except for good reasons. This Court accepted the Reference for reasons which appeared to be of Constitutional importance as well as in public interest. 40. In Re. Kerala Education Bill case [1959] S.C.R. 995 Das, C.J. referred to the Reference in Re. The Allocation of Lands and Building and the Reference in Rt. Levy of Estate Duly [1944] F.C.R. 317 and the observation in both the cases that the Reference should not be declined excepting for good reasons. This Court accepted the Reference on the Questions of law arising or likely to arise. Das, C.J. in In Re. Kerala Education Bill case said that it is for the President to determine what questions should be referred and if he does not have any serious doubt on the provisions, it is not for any party to say that doubts arise out of them. In short, parties appearing in the Reference cannot go behind the order of Reference and present new questions by raising doubts. 41. On behalf of the intervener Jana Sangh reliance was placed on Section 10(4) of the Delimitation Act, 1972 hereinafter referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red of the constituencies delimited on the basis of the census of 1961. It is evident that under Clause (2) of Article 170 read with the Explanation and Clause (3) of Article 170 elections to the Legislative Assembly after the relevant figures of the population of the last preceding census have been ascertained and published can only be held on that basis of the total number of seals in the Legislative Assembly of each State and the division of each State into territorial constituencies readjusted by the Election Commission under the 1972 Act, Now that the census figures of 1971 have been published elections have to be held under Article 170 only after delimitation of the constituencies has been made in accordance with Clauses (2) and (3) of Article 170. 45. When a notification under Section 8 of the 1972 Act. has been published by assigning 182 seats to the Gujarat Assembly which notification under Section 10(2) of the 1972 Act has the force of law and cannot be questioned in any court, elections to these 182 scats cannot be held on the basis of the old electoral rolls because those electoral rolls applied only to the 168 seats as fixed under the old Delimitation Act. 46. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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