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CASE ANALYSIS OF ELECTION COMMISSION OF INDIA & ORS V. SUBRAMANIAM SWAMY & ORS.

Author: Yajush Tripathi, III year of B.sw.LL.B. from Gujarat National Law University


1. Case details

1.1.Citation- AIR 1996 SC 1810

1.2.Court- The Supreme Court of India

1.3. Decided on- 23.04.1996

1.4. Petitioner- 1. Election Commission of India, 2. Shri T.N Seshan

1.5. Respondent- 1. Subramaniam Swamy

1.6. Coram- 1. Justice A.M. Ahmadi, 2. Justice N.P. Singh, 3. Justice B.N. Kirpal, 4. Justice N.P. Singh.


2. Material Facts of the case

2.1). Election commission of India and Shri T.N Seshanappealed before this honourable Court to quash and overturn the decisions of the single and division bench of the High court of Madras and give the relief in the favour of the petitioner.


2.2). The basis of this appeal is that, one Ms. J. Jayalalitha’s appointment as the Chief Minister of the state of Madras was challenged by one Dr Subramaniam Swamy, based on the allegation that Ms. J Jayalalitha carried out business activities with the state of Tamil Nadu as a partner in ‘Jaya Publications’.


2.3). Dr Subramaniam Swamy filed a petition before Governor invoking article 191 (1) (e) of the constitution of India and section 9(A) of the Representation of people act, 1951 to disqualify the membership of legislative assembly of Jayalalitha’s.


2.4). This petition to the governor was not forwarded to the Chief minister by the governor in contravention to article 192(2) of the Constitution of India, in regard to that, Swamy filed a writ petition in 1992, During the pendency of the said petition before the High Court of Madras, the Governor did forward swamy’s petition 1993.


2.5). Ms. J Jayalalitha forwarded two petitions in response to the act of governor before the learned single judge of the High court of Madras, the first writ petition was not to allow Shri Seshan to decide the matter in regard to the bias that he will be having when he would be deciding the matter, as he has relations with Subramaniam Swamy. The second petition was for declaration that she is not disqualified for being a member of legislative assembly as alleged by Subramaniam swamy.


2.6). The learned single judge allowed both the writ petition and held that in regard to the first writ petition that there was bias and therefore the matter should not go the hands of the Shri Seshan and in regard to the second petition, he held that the question to determine the said petition is with Governor, but still virtually allowed it.


2.7). Dr swamy appealed to the division bench of the High court of Madras against the decision of the single judge, in the meanwhile an ordinance was passed titled ‘the Chief election commissioner and other election commissioners (Conditions of service) Amendment ordinance, 1991, which was converted into an act later on, wherein Section 9 and 10 of the said act, which essentially state that the business of election commission shall be transacted unanimously, in regard to that and the appeal, the division bench held that learned single bench should not have gone into in determining whether she has disqualified for the membership or not, the power shall remain with and he only shall decide whether or not she is disqualified as a member or not, in accordance to article 192(2) of the Indian Constitution. Further, it was held that the two other election commissioners, created in accordance with the above-mentioned amendment cannot solely decide the matter, but since there is bias, they would decide the matter herein.


2.8). Therefore, aggrieved by the division bench’s decision, Shri T.N. Seshan the election commission of India challenged this decision before the Supreme Court of India through special leave petition.


3). ISSUES

3.1). Whether Ms. J. Jayalalitha incurred a disqualification from membership of legislative assembly in accordance with article 191 (1) of the Constitution of India along with section 9A of representation of people act, 1951?


3.2). Whether the allegation of Bias by Ms. J Jayalalitha against Shri Seshantrue and reasonable?


3.3). Whether doctrine of necessity is attracted attributable to section 9 and 10 of the Chief election commissioner and other election commissioners (Conditions of service) Amendment act, 1991, which remotely state that election commission can take a decision on the basis of majority without the explicit consent of chief election commissioner?


3.4). Whether if doctrine of necessity is allowed herein, then would it be against natural justice?


4) Arguments

Arguments of the Petitioner- The learned counsel of petitioner i.e., Shri Sanghi raised the following arguments before the Supreme Court of India, -

4.1). He stated that his client i.e., Shri Seshan does not have even an iota of keenness to participate in this decision, but he cannot to do that, as he is under a constitutional obligation to decide over this matter i.e., Article 192(2) of the Indian constitution mandates him to do so. Thus, he concludes by contending that even if he being a part of selection process would cause a bias, he cannot recuse himself from the committee as he is under a constitutional obligation to decide over the matter and thereby has to be decide over this matter.


4.2). He further Contended that even though election commission was converted into a multi member body though the ordinance dated 1.10.1993, still his participation in the selection process could not be done way with, as the position of chief election commissioner was still paramount, as in the articles 324(2) and 324(3) of the Indian constitution, the word ‘And’ after ‘Chief election commissioners’ and the word ‘Other’ before the word ‘Election commissioners’ purport the intention of the legislature that they intended to keep the role of chief election commissioner paramount in any decision-making process.


4.3). He also humbly contended that under doctrine of necessity,Shri Seshan shall be allowed, as it is a ‘Must’ for him to be a part of election process validity of J. Jayalalitha to maintain the constitutionality of the matter, as according to the constitution, chief election commissioner is the chairman of the election commission, and no decision could be taken without the permission of the chairman. So even though bias is there, his participation is still necessary.


4.4). Thus, Shri Sanghi concluded by contending that the constitution of multi-member election commission and the section 9 and 10 of the 1991 act, cannot excuse the participation of chief election commissioner, even his participation would give rise to bias, as the former provisions merely sketches out the procedure which is to be followed when there is difference of opinion.

Arguments of the respondent- The learned counsel of petitioner raised the following arguments before the Supreme Court of India,


4.5). The foremost argument by the learned counsel was that there was a strong case of bias herein and if Seshan is allowed to decide over the matter, then it would be against natural justice. The bias is prima facie i.e., it cannot be contended that it is not there, as Dr swamy, his wife and Shri Seshan had personal relationship, which was developed on the basis of professional relationshipi.e.Swamy’s wife representing Seshan in the Bombay high court, which has not remained merely professional now, and if Shri Seshan would decide over the petition which has been filed by Dr swamy, then there would be a serious question of bias involved in the case, therefore, due to bias, Shri Seshan shall not decide this matter.


4.6). He further contended that doctrine of necessity would not be applicable herein attributable to section 9 and 10 of the 1991 act and also owing to the fact that there is a multi-member body of election commission now due to the said act. Therefore, chief election commissioner does not need to take the decision himself, it can be done by the other two election commissioners, especially when there is a n apprehension of prejudice and bias, if he would be in the panel. So, doctrine of necessity shall be applied because prejudice and bias would be the norm if Seshan would be in the panel, and applicability of it can be smoothly done, as there is presence of other two election commissioners, who can take the decision of the matter.


4.7). He concludes by contending that the learned single judge and division bench of high court’s judgement shall be reiterated by this Court, as the bias or prejudice was given due weightage and doctrine of necessity was not made applicable as there is presence of other two election commissioners which can take the decision. Thus, duly examination of facts and correct approach of law adhered by the High court shall be reiterated, because it was based on correct interpretation.


5.) Sections/ArticlesInvolved

The sections of various statutes that are relevant in this case are-

5.1) The Constitution of India

A. Article 191- This article enshrines the grounds under which a person can be disqualified of his membership of legislative assembly or legislative council. The sub-clause € of clause 1 specifically states that any person if gets disqualified under any law passed by the parliament, then the reason to this is that a person shall not hold any office of profit in or with the state or union government other than the membership. This article is relevant herein, as the membership of J. Jayalalitha in legislative assembly is in contention herein, as she does business with the state government through her publications, so the interpretation of this section shall be done meticulously in order to determine whether she did hold other office or not and that whether that amounts to disqualification or not.


B. Article 192- This article contains two clauses which enumerate the steps to follow when a question arises as to disqualification of a member from legislative assembly or legislative council. The first clause states that the question of disqualification on any of the grounds mentioned in article 191(1) of the Indian Constitution shall be referred to the Governor and he shall take the decision. The second clause states that before the governor determines the answer to the disqualification question, he shall mandatorily take the opinion of the election commission and accordingly give its decision. This article is attracted in this case because initially the governor did not take the opinion of the election commission and later on when he did, then also the question arise as to whether he has to take the opinion of election commission if that would result bias into the decision.


C. Article 324- This article contains two clauses. The first clause states that the elections in the country of parliament and legislature of every state would be conducted and managed by a commission known as ‘Election Commission’. The second clause states that such election commission consists of a chief election commissioner and such election commissioners as determined by the parliament from time to time. This article is attracted in this case, as it was to be determined by the apex court as to can a decision be taken by the election commission without chief election commissioner having his say due to bias factor i.e., can two election commissioners only take the decision. So, the interpretation of the second clause of this article had to be done in order to determine the same.


D. Article 136- This article enshrines the special leave petition directly to the Supreme Court of India, this article was invoked by Ms. J Jayalalitha to directly appeal to the Supreme Court of India against the judgement of the learned single judge of the High court Judgement, but was not allowed had to go to the Divisionbench via appeal only.


5.2). Representation of People Act, 1951

A. Section 9A- This section states that a person shall be disqualified of his membership of legislative assembly if there is a subsisting contract between him and the appropriate government in pursuance of conduct of trade or business. This section directly is in conformity with the facts in the case that Ms. J Jayalalitha was in a subsisting contract with the state government of TamilNādu for supply of goods from her ‘Jayalalitha prints’ and therefore there was a petition by Dr swamy to disqualify her from membership of legislative assembly by invoking this section.


5.3). The chief election commissioner and other election commissioners (Conditions of service) act, 1991

A. Section 9- This section states that the business of the transaction of the election commission is to be done in accordance with the provisions of this act. It is attracted herein as the determinative question herein is that whether a decision can be taken without the say of election commissioner, so as to how the business of the election commission is done is important to be gauged in order to determine the question


B. Section 10- This section states that the business of the transaction of the election commission shall be unanimous, but the clause (3) states that if the opinion of the election commission is not unanimous, then the majority opinion is taken. This section is also attracted because the clause (3) of it states that owing to majority decision can be taken, so now it has to be determined if the majority is formed of the two election commissioners, then would the exclusion of CEC would make no difference. Therefore, these are the sections that are relevant herein in this case.


6). Holding

6.1). Learned Single judge of the High Court

A. He held that there would be bias against Ms. J Jayalalitha, if Shri Seshan is allowed to give opinion to the governor for him to determine whether she is disqualified from the legislative assembly or not i.e., the opinion of Seshan shall not be asked since it would bein violation of natural justice.


B. He also held that doctrine of necessity would be invoked in this case, as in accordance with article 324 of the constitution of India, an additional election commissioner could be formed, which could be treated as an alternative forum to take the opinion from.


C. He also held that essentially the alleged disqualification of membership has to be determined by the governor, but still he held that she has not been disqualified.


6.2). Division Bench of the High Court

A. The divisionbench reiterated what was held by the learned single judge as far as whether bias would be there or not is concerned i.e., there would be bias if Shri Seshan would give his opinion on the matter


B. The division bench also reiterated the learned single judge on the aspect whether doctrine of necessity can be applied or not, by stating that election commission through majority could take a decision in accordance with article 324, in other words, even without the opinion of the chief election commissioner, it could be determined, so there was no need of doctrine of necessity.


C. The division bench differed from the approach of learned single judge in this aspect i.e., they did not determine whether the alleged disqualification was there or not, because they stated that according to article 192(2) of the constitution, it has to be determined by the election commission and not the court, so they stated that the learned single bench erred by holding on the aspect of disqualification i.e., it usurped its jurisdiction,


6.3). Supreme Court of India

A. The Supreme Court reiterated the decision of the division bench regarding the aspect whether bias is there or not i.e. It also held that if Shri Seshan gives his opinion regarding the alleged disqualification, then that would be against natural justice and prejudicial against Ms. Jayalalitha.


B. It also echoed the approach of division bench in regard to as to who shall determine whether there was alleged disqualification or not i.e., it held that it should be the opinion of the election commission which shall determine the same.


C. The Supreme Court differed with the division bench of the High court to a limited extent regarding the doctrine of necessity i.e., it held that doctrine of necessity would not apply, but that does not mean constitutional obligation would be done away with completely, so the apex court held that the two election commissioners would give its opinion, but if there is conflict, then the opinion of chief election commissioner would be factored in.


Therefore, the Supreme Court modified the division bench of the High court to a limited extent, other than that it reiterated what was held by the division bench of the High Court.


7. Point of Law/Ratio propounded

The point of law that was established in this case is that the interpretation of article 192(2) of the Indian Constitution shall not be ‘Narrow’. This means that the phrase ‘the opinion of the election commission’ should not be construed as all the election commissioners or none at all, because if that would be the situation, then majority opinion would not have been a concept. It also laid down that doctrine of necessity would be applicable in every case where if it is not applied, there course of justice would suffer by benefitting the defaulting party. This means if the course of justice is seen i.e., if natural justice is maintained, then doctrine of necessity shall not be invoked. Therefore, holistic interpretation or purposive interpretation of articles shall be done to get the intention of the legislature and narrow interpretation of articles wherein the whole commission’s name is enshrined shall not be done.


8. Reasoning

The Reasoning of this court for this decision is that Article 192(2) of the constitution purports that election commission shall not be treated as the whole commission, but the majority opinion. This is signified by the court by stating the ratio of ‘T.N. Seshan v. Union of India’[i], wherein the court remained silent as to the manner in which the election commission is to transact its business. This means if there would have been ascertained manner in which It would have gone about its business, then the constitution makers would have done it, but since it is not mentioned, that means that chief election commissioner position is to be given importance, but not absolute importance. The court also reasoned out the principle of law i.e., parliament was competent to enact section 9 and 10 by the ordinance and that would not be in contravention of article 324 of the Indian constitution, by stating that at page 657 of Halsbury’s law of England, 4th edition, 7th volume, it is said “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”. So,creating a multi-member body through the sections and allowing majority opinion to play a part is not illegal, according to court’s reasoning. It was further reasoned out by this court by citing the principle of law laid down in ‘Grindley v. Barker’[ii], which reiterated the opinion that majority opinion is important and shall be treated as a whole.


The court further reasons out its decision of not per se allowing chief election commissioner to give its opinion by stating that even on a Prudent basis he should not give its opinion, as if it is given, it would bring about prejudice against Ms. J Jayalalitha. It further reasoned out its judgement of taking the opinion of chief election commissioner, when both the election commissioners give contradicting opinion, by stating that it can be done under doctrine of necessity. He further states in that regard that it shall be attracted when there is a stalemate situation, which can be in this case, if the two election commissioners have contradicting opinions regarding the matter. Therefore, this is the reasoning that has been given by the apex court for the decision that it has given in this case.


9.Conclusion and analysis

The judgement of the apex court is on the basis of a pragmatic approach. This approach is such which is of laudable nature as it in the best possible manner mitigates the bias that existed and also at the same time in the best possible way maintains the constitutional obligation bestowed upon the election commission. It balances the conflict between article 324 of the Indian constitution and section 9 & 10 of representation of people act,1951 appropriately. It also is appropriate because it does adopt an extreme approach which can be signified by stating that it did not rule out the possibility of invoking doctrine of necessity so that bias could be avoided, but also did not invoke doctrine of necessity initially to include the chief election commissioner, merely to maintain the constitutional obligation bestowed upon him. Therefore, the apex court by holding that the meaning of ‘election commission’ in the phrase ‘The opinion of the election commission’ is not the whole election commission, rather it is the majority of the election commission, carves a pragmatic approach, which shall be adhered to whilst deciding matters.


[i]T.N Seshan v. The Union of India, 1994(1)SCALE7. [ii]Grindley v. Barker, 126 ER 875.