TMI Blog2002 (10) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 which was the last date of expiry of six months from last sitting of the dissolved Legislative Assembly. It is in this context the President of India in exercise of powers conferred upon him by virtue of clause (1) of Article 143 of the Constitution of India referred three questions for the opinion of the Supreme Court by his order dated 19th August, 2002 which run as under : WHEREAS the Legislative Assembly of the State of Gujarat was dissolved on July 19, 2002 before the expiration of its normal duration on March 18, 2003; AND WHEREAS Article 174(1) of the Constitution provides that six months shall not intervene between the last sitting of the Legislative Assembly in one session and the date appointed for its first sitting in the next Session: AND WHEREAS the Election Commission has also noted that the mandate of Article 174 would require that the Assembly should meet every six months even after the dissolution of the House, and that the Election Commission has all along been consistent that normally a Legislative Assembly should meet at least every six months as contemplated by Article 174, even where it has been dissolved; AND WHE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 143 of the Constitution, I, A.P.J. Abdul Kalam, President of India, hereby refer the following questions to the Supreme Court of India for consideration and report thereon, namely:- i) Is Article 174 subject to the decision of the Election Commission of India under Article 324 as to the schedule of elections of the Assembly? (ii) Can the Election Commission of India frame a schedule for the elections to an Assembly on the premise that any infraction of the mandate of Article 174 would be remedied by a resort to Article 356 by the President? (iii) Is the Election Commission of India under a duty to carry out the mandate of Article 174 of the Constitution, by drawing upon all the requisite resources of the Union and the State to ensure free and fair elections? Much before the matter was taken up for hearing it was made clear by the Bench hearing the reference that it would neither answer the reference in the context of the election in Gujarat nor look into the questions of facts arising out of the order of the Election Commission and shall confine its opinion only on questions of law referred to it. When this reference was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, Spl Ref. No. 1 of 1978 - (1979) 1 SCC 380; (4) In re : Appointment of Judges Case, Special Reference No. 1 of 1998 - (1998) 7 SCC 739; (5) The Ahmedabad St. Xavier s College Society Anr vs. State of Gujarat Ors (1974) 1 SCC 717; (6) In re: Presidential Poll, Special Reference No. 1 of 1974 - (1974) 2 SCC 33; (7) In re : The Kerala Education Bill, 1957 - (1959) SCR 995; and (8) Dr.M. Ismail Faruqui Ors. vs. Union of India Ors - (1994) 6 SCC 360. In re: The Kerala Education Bill, 1957 (supra), it was urged that since the Bill introduced in the Legislative Assembly has been referred to under Article 143 and the same having not received legislative sanction the reference need not be answered. Dealing with the said argument this Court held that under Article 143, the Supreme Court is required to advise the President not only as to any question which has arisen but also as to a question which is likely to arise in future. In re: Special Court Bill, 1978 (supra), it was held that it was not necessary that the question on which the opinion of the Supreme Court is sought must have arisen actually. It is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers arising under clause (2), though that question does not arise in this reference, the Court may be justified in returning the reference unanswered if it finds for a valid reason that the question is incapable of being answered. With these preliminary observations we will consider the contentions set forth above. In re: Keshav Singh, Special Reference No. 1 of 1964, (supra) 413, Gajendragadkar, CJ speaking for the Court stated that the words of Article 143(1) are wide enough to empower the President to forward to this Court for its advisory opinion any question of law or fact which has arisen or is likely to arise, provided it appears to the President that such a question is of such a nature or of such public importance that it is expedient to obtain the opinion of the Court upon it. In re: Allocation of Lands and Buildings, 1943 FCR 20, Gwyer, CJ stated we felt some doubt whether any useful purpose would be served by giving of an opinion under Section 213 of the Government of India Act. The terms of that section do not impose an obligation on the Court, though we should always be unwilling to decline to accept a reference except for good reason; and two dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. But the legal premise on which order was passed raises questions of public importance and these questions are likely to arise in future. The questions whether Article 174(1) is mandatory and would apply to a dissolved Assembly, that, whether in extraordinary circumstances Article174(1) must yield to Art.324, and, that, the non-observance of Article 174 would mean that the government of a State cannot be carried on in accordance with the provisions of the Constitution and in that event Art.356 would step in, are not only likely to arise in future but are of public importance. It is not disputed that there is no decision of this Court directly on the questions referred and further, a doubt has arisen in the mind of the President of India as regards the interpretation of Art 174(1) of the Constitution. Under such circumstances, it is imperative that this reference must be answered. We, therefore, overrule the objections raised and proceed to answer the Reference. Question No. 1 Is Article 174 subject to decision of the Election Commission of India under Article 324 as to the schedule of election of the Assembly? In an effort that aforesaid question be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legislative Assembly. According to learned counsel appearing for these parties, there is no provision either in the Constitution or in the Representation of the People Act which provides an outer limit for holding election for constituting the new Legislative Assembly or the new House of the People, as the case may be, in the event of their premature dissolution. On the argument of learned counsel for the parties, the first question that arises for consideration is whether Article 174(1) is applicable to a dissolved Assembly? A plain reading of Article 174 shows that it stipulates that six months shall not intervene between the last sitting in one session and the date appointed for its first sitting in the next session. It does not provide for any period of limitation for holding fresh election in the event a Legislative Assembly is prematurely dissolved. It is true that after commencement of the Constitution, the practice has been that whenever either Parliament or Legislative Assembly were prematurely dissolved, the election for constituting fresh Assembly or Parliament, as the case may be, were held within six months from the date of the last sitting of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sitating enactment of legislation, and the object sought to be achieved, be denied to the Court whose function is primarily to give effect to the real intention of the Parliament in enacting the legislation. Such denial would deprive the Court of a substantial and illuminating aid to construction of the provisions of the Constitution. The modern approach has to a considerable extent eroded the exclusionary rule in England. Since it is permissible to look into the pre-existing law, Historical Legislative Developments, and Constituent Assembly Debates, we will look into them for interpreting the provisions of the Constitution. Historical Legislative Developments Government of India Act, 1915 Government of India Act, 1919 Part VI of Government of India Act 1915 dealt with the Indian Legislatures containing provisions dealing with Indian and governor s provinces legislatures. Section 63D dealt with Indian Legislature while Section 72B dealt with the legislature of Governor s provinces. Sections 63D(1) and Sec. 72B(1) run as under: Sec 63D(1) : Every Council of State shall continue for five years and every Legislative Assembly for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from its first meeting : Provided that: a) either Chamber of the Legislature may be sooner dissolved by the Governor General; and b) any such period may be extended by the Governor General, if in special circumstances he so think fit; and c) after the dissolution of either Chamber the Governor General shall appoint a date not more than six months or, with the sanction of the Secretary of the State, not more than nine months from the date of dissolution for the next session of that Chamber. A combined reading of Sections 63D(1) 72B(1) of Government of India Act 1915 and Sections 8(1) and 21(1) of Government of India Act 1919 shows that the Governor General could also either dissolve the Council of State or the Legislative Assembly sooner than its stipulated period or extend the period of their functioning. Further, it was mandated that after the dissolution of either Chamber, the Governor General shall appoint a date not more than six months or with the sanction of the Secretary of the State, not more than nine months from the date of dissolution, for the next session of that Chamber. Similarly, the Governor of the province could also either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the Federal Legislature and the Provincial Legislatures done away with, but the British Convention to fix a date for the next session of the new chamber was also given up. These were the departures from the previous Acts. It may also be noted that under the Government of India Act, 1935, statutory provisions were made in respect of the conduct of elections. Under Schedule V Para 20 of the Government of India Act, 1935, the Governor General was empowered to make rules for carrying out the provisions of the Vth and VIth Schedule. Para 20 as a whole related to matters concerning elections, and Clause (iii) particularly pertained to conduct of elections. Similarly, Schedule VI of the Government of India Act, 1935 contained provisions with respect to electoral rolls and franchise. Such provisions are not found in either the Government of India Act, 1915 or the Government of India Act, 1919. Thus, we see that statutory provisions have come in for the first time and conduct of elections has been entrusted in the hands of the executive. Since the power to fix the calendar for holding elections was given in the hand of executive, therefore, the provisions for fixing a date of next ses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and six months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session. (2) Subject to the provisions of this Article, the Governor may from time to time -- (a) summon the Houses or either House to meet at such time and place as he thinks fit; (b) prorogue the House or Houses; (c) dissolve the Legislative Assembly. (3) The functions of the Governor under sub-clauses (a) and (c) of clause (2) of this Article shall be exercised by him in his discretion . On 18.5.1949, when Draft Article 69 came up for discussion, there was a proposal to change the intervening period between the two sessions of the Houses of Parliament from six months to three months so as to ensure that the Parliament has more time to look into the problems faced by the people of the country. Prof. K.T. Shah one of the members of the Constituent Assembly, while moving an amendment to the Draft Article 69, as it then stood, said that the Draft Article was based on other considerations prevailing during the British times, when the legislative work was not much and the House used to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament thus called together shall be deemed to have been validly transacted, and shall be valid and binding as any Act, Resolution or Order of Parliament passed in the normal course: Provided further that if at any time the President is unable or unwilling to summon Parliament for a period of more than three months or 90 days after prorogation or dissolution of the House of the People, and the Prime Minister is also unable or unwilling to make the request aforesaid, the Chairman of either Houses of Parliament thus called together shall be deemed to be validly convened and entitled to deal with any business places before it . Shri B.R.Ambedkar, while replying to the aforesaid proposed amendment, highlighted that after the Constitution comes into force, no executive could afford to show a callous attitude towards the legislature, which was not the situation before as the legislature was summoned only to pass revenue demands. Since there was no possibility of the executive showing a callous attitude towards the legislature, this would take care of the fear voiced by some members that no efforts to go beyond the minimum mandatory sittings of the Houses of Parlia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months were accepted, it would mean that after premature dissolution of the Houses of People or the Legislative Assembly, fresh elections have to be held so that House of People or Legislative Assembly could hold their first sitting within three months from the date of last sitting of the dissolved Parliament or Legislative Assembly, as the case may be. This would also have not allowed sufficient time for holding election for constituting either House of People or a Legislative Assembly. This shows that the intention of the framers of the Constitution was that the provisions contained in Article 174 were meant for a living and existing Legislative Assembly and not to a dissolved Legislative Assembly. Debates during the Constitution First Amendment Bill regarding amendment of Article 85 and Article 174 The original Articles 85 and 174 as they stood prior to first Constitution Amendment and after the Amendment read as follows : Article Original Articles in the Constitution As amended by Constitution (Amendment) Act 1951 Article 85 (1) the Hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en had been going on continuously for 12 months, technically it could have been contended that the Parliament had not met twice in that year at all as there must be prorogation in order that there may be new session and, therefore, the original Article 174(1) resulted in contradictions. In order to remove the said absurdity, the First Amendment Bill for amendment of Articles 85 and 174 was moved. While introducing the First Amendment Bill, Pt Jawahar Lal Nehru stated thus: .one of the Articles mentions that the House shall meet at least twice every year and the President shall address it. Now a possible interpretation of that is that this House has not met at all this year. It is an extraordinary position considering that this time this House has laboured more than probably at any time in the previous history of this or the preceding Parliament in this country. We have been practically sitting with an interval round about Xmas since November and we are likely to carry on and yet it may be held by some acute interpreters that we have not met at all this year strictly in terms of the Constitution because we started meeting November and we have not met again it has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date appointed for its first sitting in the next session in Article 174 (1) cannot possibly refer to either an event after the dissolution of the House or an event of a new Legislative Assembly meeting for the first time after getting freshly elected. When there is a session of the new Legislative Assembly after elections, the new Assembly will sit in its first session and not in the next session . The expression after each general election has been employed in other parts of the Constitution and one such provision is Article 176. The absence of such phraseology after each general election in Article 174 is a clear indication that the said Article does not apply to a dissolved Assembly or to a freshly elected Assembly. Further, Article 174(1) uses expressions i.e. its last sitting in one session , first sitting in the next session . None of these expressions suggest that the sitting and the session would include an altogether different Assembly i.e. a previous Assembly which has been dissolved and its successor Assembly that has come into being after elections. Again, Article 174 also employs the word summon and not constitute . Article 174 empowers the Governor to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dissolved legislature as well. Further, Article 174 does not specify that interregnum of six months period stipulated between the two sessions would also apply to a new legislature vis--vis an outgoing legislature. If such be the case, then there was no need to insert the proviso to Article 172(1) and insertion of the said proviso is rendered meaningless and superfluous. Further, if Article 174 is held to be applicable to a dissolved House as well, it would mean that Article 174(2) is controlled by Article 174(1) inasmuch as the power has to be exercised under Article 174(2) in conformity with Article 174(1). Moreover, if the House is dissolved in 5th month of the last session, the election will have to be held within one month so as to comply with the requirement of Article 174(1) which would not have been the intention of the framers of the Constitution. Yet, there is another aspect which shows that Article 174(1) is inapplicable to a dissolved Legislative Assembly. It cannot be disputed that each Legislative Assembly after Constitution is unique and distinct from the previous one and no part of the dissolved House is carried forward to a new Legislative Assem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its successor during which there is no Parliament in existence; but the principle of unbroken continuity of Parliament is for all practical purposes secured by the fact that the same proclamation which dissolves a Parliament provides for the election and meeting of a new Parliament. A session is the period of time between the meeting of a Parliament, whether after a prorogation or a dissolution, and its prorogation. JAG Griffith and Michael Ryle, Parliament: Functions, Practice and Procedures, 1989: A Parliament is summoned by the Sovereign to meet after each general election and the duration of a Parliament is from that first meeting until Parliament is dissolved by the Sovereign, prior to the next general election. The continuity of Parliament is today secured by including in the same proclamation the dissolution of one Parliament, the order for the issuing of writs for the election of a new Parliament and the summoning of that Parliament on a specified date at Westminster. Under Sec 21(3) of the Representation of People Act, 1918, the interval between the date of the proclamation and the meeting of Parliament must be not less than 20 days, alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to learned counsel there is continuity in the Parliament and it forms an unbroken chain. In substance the argument is that consequences of prorogation or dissolution of a House is the same and therefore, Art.174(1) is applicable to new Legislative Assembly after dissolution. Prorogation The effect of a prorogation is once to terminate all the current business of Parliament. Not only are the sittings of the parliament at an end, but all proceedings pending at the time are quashed, except impeachments by the Commons, and appeals before the House of Lords. Every bill must therefore be renewed after a prorogation, as if it had never been introduced. Adjournment Adjournment is solely in the power of each House respectively: though the pleasure of the Crown has occasionally been signified in person, by message, commission or proclamation, that both Houses should adjourn; and in some cases such adjournments have scarcely differed from prorogations. But although no instance has occurred where the House has refused to adjourn, the communication may be disregarded. Dissolution The Queen may also close the existence of Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is apparent that there is a difference in the British parliamentary practice and the Indian practice under the Indian Constitution as regards dissolution and prorogation. Under Indian Constitution dissolution brings a legislative body to an end and terminates its life. Prorogation, on the other hand, only terminates a session and does not preclude another session, unless it is coincident with the end of a legislative term. In other words, prorogation, unlike dissolution, does not affect the life of the legislative body which may continue from the last session until brought to an end by dissolution. This is the difference in the meaning of prorogation and dissolution. In so far as the effects following from prorogation and dissolution on pending legislative business are concerned, in England, prorogation puts an end to all pending business in the Parliament, whereas in India, this is not the case. Under Articles 107 and 196, there is a specific provision that mere prorogation will not lead to lapsing of Bills pending at that point of time. It is only on dissolution that the pending Bills lapse under Articles 107(5) and 196(5) of the Constitution. Thus, we see that there is practic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is no ambiguity while making provisions for the Constitutional institutions in the provisions of the Constitution. In this background, wherever the Constitution makers wanted to confer power, duties or functions or wanted to make similar provisions both for Council of States as well as House of the People or to the State, Legislative Council and the Legislative Assembly, they have referred both the institutions under Part V Chapter II and Part VI Chapter III of the Constitution as two Houses , each House , either House both Houses . On the other hand, the Constitution makers, when they wanted to confer powers, functions and duties or to make provisions exclusively either for House of the People or Council of States, they have referred the said institutions either as Council of States or House of the People. Similarly, in States when the Constitution makers wanted to confer power, functions, duties or wanted to make similar provisions both for the Legislative Council and the Legislative Assembly, they referred both the institutions as Houses , either House , both Houses , each House and where there was no Legislative Council, and power was to give exclusively t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate and Federal Assembly . Under sub-section (4) of Section 18 of the 1935 Act, the Council of State was made a permanent body not subject to dissolution, but as many as 1/3rd members thereof shall retire in every third year, in accordance with the provisions in that behalf contained in the First Schedule. Sub-section (2) of Section 19 of the Government of India Act, 1935 which is similar to Article 85 of the Constitution of India, provided that the Governor General may in his discretion summon the Chambers or either Chamber to meet at such time as he deems fit, prorogue the Chamber and dissolve the Federal Assembly. In this case, the dissolution is not of Chambers, but of the Federal Assembly for the simple reason that Council of State was made a permanent body not subject to dissolution and, therefore, the Federal Assembly which was subjected to dissolution has been specifically referred in the Section. In Government of India Act, 1935, there was a provincial legislature and under Section 60 of the Act, it was provided that there shall provincial legislature which shall consist of His Majesty represented by the Governor and in the provinces of Madras, Bombay and Bengal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86, the President is empowered to specially address either House of Parliament or both Houses assembled together. Similarly, under Article 87, the President is empowered to address both Houses of Parliament assembled together. Under Article 88, every Minister and Attorney General has a right to speak or take part in the proceedings of either House. Article 98 provides that each House of Parliament shall have a Secretariat Staff and under clause (2) thereof, the Parliament is empowered to make law for regulating the appointment and conditions of services of persons appointed to the Secretariat staff of either House of Parliament. Article 99 provides that every member of either House of Parliament shall, before taking his seat, make and subscribe before the President, or some person appointed in that behalf by him an oath or affirmation according to the form set out for the purpose in the Third Schedule. Article 100 provides that all questions at any sitting of either House or joint sitting of the Houses shall be determined by a majority of votes of the members present and voting, other than the Speaker or person acting as Chairman or Speaker. Article 101 provides that no person shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature of the State. Article 176 provides for a special address by the Governor to both the Houses assembled together. Article 177 speaks of the rights of ministers and Advocate General to speak in and take part in the proceedings of both Houses . Article 187 dealing with Secretariat of the State Legislature uses the expressions, the House , each House, common to both Houses and Houses . The head note of Article 189 reads: voting in Houses, power of Houses . Article 190 also refers to both Houses . Article 196, uses the expressions either House , both Houses , and Houses while referring to both the Legislative Assembly and Legislative Council. Similarly, Article 197(2) also provides for passage of a Bill by the Houses of the Legislature of the State. Article 202 and Article 209 also use the expression Houses while referring to both the Legislative Assembly and Legislative Council. These provisions may be contrasted with Articles 169, 170, 171, 178, 179, 180, 181, 182, 183, 184, 185 and Article 186 which deal exclusively either with the Legislative Council or the Legislative Assembly. Similarly, Articles 197 and 198 also mention Legislative Assembly and Legislativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o further significance. 2.(a) Is there any period of limitation provided under the Constitution of India or Representation of the People Act for holding fresh election for constituting new Legislative Assembly in the event of premature dissolution of a Legislative Assembly ? In this context, we have looked into the provisions of the Constitution of India, but we do not find any provision expressly providing for any period of limitation for constituting a fresh Legislative Assembly on the premature dissolution of the previous Legislative Assembly. On our interpretation of Article 174 (1), we have already held that it does not provide for any period of limitation for holding elections within six months from the date of last sitting of the session of the dissolved Assembly. Section 15 of the Representation of the People Act, 1951 provides that general election is required to be held for the purpose of constituting a new Legislative Assembly on the expiration of duration of the existing Assembly or on its dissolution. Sub-section (2) thereof provides that for constituting new Legislative Assembly, the Governor shall by notification, on such date or dates, as may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment of India Act, 1935, the Governor General was empowered to make rules for carrying out the provisions of the Vth and VIth Schedule. Para 20 thereof as a whole, related to matters consisting of elections and clause (3) particularly pertains to conduct of elections. Similarly, Schedule VI of Government of India Act, 1935 contained provisions with respect to electoral roll and franchise. Thus, the conduct of election was entrusted to the Executive and the Executive was empowered to fix the date or dates for holding elections for constituting Federal Legislature as well as Provincial Legislature. When the question, who would conduct the elections under Indian Constitution was debated upon before the Constituent Assembly, concerns were expressed by the members of the Constituent Assembly in entrusting the same in the hands of the Executive and, in fact, there was unanimity among the members that an independent Constitutional Authority be set up for superintendence, direction, control and the conduct of elections to Parliament and Legislature of every State. In this connection, Dr. B.R. Ambedkar stated before the Constituent Assembly thus: But the House affirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w as regards matters relating to conduct of election of either Parliament or State Legislature, without affecting the plenary powers of the Election Commission. In this view of the matter, the general power of superintendence, direction, control and conduct of election although vested in the Election Commission under Article 324(1), yet it is subject to any law either made by the Parliament or State Legislature, as the case may be which is also subject to the provisions of the Constitution. The word election has been interpreted to include all the steps necessary for holding election. In M.S. Gill vs. Chief Election Commissioner (supra), A.C. Jose vs. Sivan Pillai and others (1984) 2 SCC 656 and Kanhiya Lal Omar vs. R.K. Trivedi and others (1985) 4 SCC 628, it has been consistently held that Article 324 operates in the area left unoccupied by legislation and the words superintendence, control direction as well as conduct of all elections are the broadest of the terms. Therefore, it is no more in doubt that the power of superintendence, direction and control are subject to law made by either Parliament or by the State Legislature, as the case may provided the same does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the country. However, we are of the view that the employment of words on an expiration occurring in Sections 14 and 15 of the Representation of the People Act, 1951 respectively show that Election Commission is required to take steps for holding election immediately on expiration of the term of the Assembly or its dissolution, although no period has been provided for. Yet, there is another indication in Sections 14 and 15 of the Representation of the People Act that the election process can be set in motion by issuing of notification prior to the expiry of six months of the normal term of the House of People or Legislative Assembly. Clause (1) of Article 172 provides that while promulgation of emergency is in operation, the Parliament by law can extend the duration of the Legislative Assembly not exceeding one year at a time and this period shall not, in any case, extend beyond a period of six months after promulgation has ceased to operate. Further, under Articles 123 and 213, the life of an ordinance promulgated either by the President or by the Governor, as the case may be, is six months and repeated promulgation of ordinance after six months has not been welcomed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of ascertaining popular will both in realty and form and are not mere rituals calculated to generate illusion of defence to mass opinion.. The same is also evident from Sections 14 and 15 of the Representation of People Act, 1951 which provide that the President or the Governor shall fix the date or dates for holding elections on the recommendation of the Election Commission. It is, therefore, manifest that fixing schedule for elections either for the House of People or Legislative Assembly is in the exclusive domain of the Election Commission. (3) Application of Article 356 It appears that the interpretation of Art.174(1) of the Constitution by the Election Commission in its order was mainly influenced by the past practice adopted by the Election Commission holding elections for constituting fresh Legislative Assembly within six months of the last sitting of the dissolved House. It also appears that the gratuitous advice of application of Art.356 by the Election Commission in its order was in all its sincerity, although now on our interpretation of Article 174(1), we find that it was misplaced. However, the Election Commission in its written submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Legislative Assembly from the date of dissolution of the Legislative Assembly. f) Under the Constitution, the power to frame the calendar or schedule for elections for constituting Legislative Assembly is within the exclusive domain of the Election Commission and such a power is not subject to any law either made by Parliament or State Legislature. g) In view of the affidavit filed by the Election Commission during hearing of the Reference, the question regarding the application of Article 356 is not required to be gone into. In accordance with the foregoing opinion, we report on the questions referred as follows: Question No. (i) : This question proceeds on the assumption that Article 174 (1) is also applicable to a dissolved Legislative Assembly. We have found that the provision of Article 174(1) of the Constitution which stipulates that six months shall not intervene between the last sitting in one session and the date appointed for its first sitting in the next session is mandatory in nature and relates to an existing and functional Legislative Assembly and not to a dissolved Assembly whose life has come to an end and ceased to exist. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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