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TMI Blog2002 (10) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... hish Tiwari, Irshad Ahmad, Krishna Sharma, Asha Gopalan Nair, Anil Shrivastav, Jyoti Dutt, G. Prabhakar, Kamini Jaiswal, Saket Singh, Kumar Rajesh Singh, B.B. Singh, Prakash Shrivastava, I.C. Pandey, R.M. Sharma and A. Subhashini, Advs., Kamal Trivedi, Addl. Adv. Gen. for Gujarat, Hemantika Wahi, J.P. Dhanda, Raj Rani Dhanda, Sunder Khatri, Naresh K. Sharma, Ashok Mathur, Rajesh Pathak, Anis Suhrawardy, Raj Shekhar Rao, K.R. Sasiprabhu, John Mathew, Sanjay R. Hegde, Satya Mita, Ashok Kumar Pandey, G. Balaji, Dhirendra Pandey, R.K. Mehta, M. Sarada, Suman Kukrety, R.S. Jena, R.S. Suri, Jagjit Singh Chhabra, K.N. Madhusoodhanan, Sunita Hazarika, Joy Basu, Prashant Chandra Sen, S.S. Shinde, V.N. Raghupathy, Kartik Singh, Ranjan Mukherjee, K.H. Nobin Singh, S.K. Agnihotri, K.C. Kaushik, Rohit Kumar Singh, W.A. Nomani, Suren Uppal, Vikram Mehta, Pradip Tiwari, Anil Kumar Pandey, Sanjay K. Shandilya, V.D. Khanna and V.G. Pragasam, S.M. Mehta, Dv. Genl. for Rajasthan, Bharat Upadhyaya, Sushil K. Tekriwal, Javed Mahmud Rao, A. Mariarputham, Gopal Singh, Rahul Singh, Rajiv Mahapatra, P.N. Ramalingam, V. Balaji, R.C. Verma, Mukesh Verma, Vivek Vishnoi, Rachana Srivastava, Kamlendra Mishra, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1951, for the purpose of holding general elections on the expiry of the duration of the Legislative Assembly or its dissolution,the Governor shall, by notification, call upon all Assembly Constituencies in the State to elect members on such date or date as may be recommended by the Election Commission of India; AND WHEREAS the last sitting of the Legislative Assembly of the State of Gujarat was held on 3rd April, 2002, and as such the newly constituted Legislative Assembly sit on or before 3rd October,2002; AND WHEREAS the Election Commission of India by its order No. 464/GJ-LA/2002 dated August 16, 2002 has not recommended any date for holding general election for constituting a new Legislative Assembly for the State of Gujarat and observed that the Commission will consider framing a suitable schedule for the general election to the State Assembly in November-December 2002.Copy of the said order is annexed hereto; AND WHEREAS owing to the aforesaid decision of the Election Commission of India, a new Legislative Assembly can not come into existence so as to meet within the stipulated period of six months as provided under Article 174(1) of the Constitution of India; AND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference need not be answered and it requires to be returned unanswered, inter alia, on the grounds: (a) that, the reference raises issues already decided or determined by earlier Supreme Court judgments regarding the plenary and all encompassing powers of the Election Commission to deal with all aspects of an election under Articles 324 - 329; (b) that, if the Supreme Court considers the said question again, it would convert advisory Article 143 jurisdiction into an appellate jurisdiction, which is impermissible; (c) that, if Article 174 were override Article 324, question No. 3 is unnecessary. Also, if question No. 1 is answered in the affirmative, question No. 3 is automatically answered. In any event, the last part of question No. 3 raises a question to the effect as to whether the Election Commission is obliged to ensure free and fair elections, the answer to which is axiomatic,obvious and completely unnecessary to be answered in a Presidential Reference; (d) that, since question No. 2 can not stand in the abstract, it also ought not to be gone into and deserves to be sent back unanswered; (e) that, no under taking has been furnished by the Union of India that they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en or is likely to arise and if the question is of such a nature and of such public importance that it is expedient to obtain the opinion of the Court upon it. Though questions of fact have not been referred to this Court in any of the six references made under Article 143(1), that Article empowers the President to make a reference even on questions of fact provided the other conditions of the Article are satisfied. It is not necessary that the question on which the opinion of the Supreme Court is sought must have arisen actually. It is competent to the President to make a reference under Article 143(1) at an anterior stage, namely, at the stage when the President is satisfied that the question is likely to arise. The satisfaction whether the question has arisen or is likely to arise and whether it is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, is a matter essentially for the President to decide. The plain duty and function of the Supreme Court under Article 143(1) of the Constitution is to consider the question on which the President has made the reference and report to the President its opinion, provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one government against the other". 8. In re: Levy of Estate Duty, 1944 FCR 317, it was held that Section 213 of the Government of India Act empowers the Government General to make a reference when question of law are "likely to arise". 9. From the aforesaid decisions it is clear that this Court is well within its jurisdiction to answer/advise the President in a reference made under Article 143(1) of the Constitution of India if the questions referred are likely to arise in future or such questions are of public importance or there is no decision of this Court which has already decided the question referred. 10. In the present case what we find is that one of the questions is as to whether Article 174(1) prescribes any period of limitation for holding fresh election for constituting Legislative Assembly in the event of the premature dissolution of earlier Legislative Assembly. The recitals contained in the Presidential reference manifestly demonstrate that the reference arises out of the order of the Election Commission dated 16thAugust, 2002. In the said order the Election Commission has admitted that under Article 174(1) six months should not intervene between on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legislative Assembly; b) that, Article 174(2) empowers the Governor to prorogue or dissolve the Legislative Assembly and Article 174(1) does not make any exception in respect of the interregnum irrespective of whether the Governor has prorogued the House or dissolved the Legislative Assembly under Article 174(2); c) that, on the correct interpretation of Article 174, the mandate of Article 174(1) is applicable to the dissolved Assembly also. Such an interpretation would be in the defence of a democracy and, therefore, as and when an Assembly is prematurely dissolved, the Election Commission has to fix its calendar for holding fresh election within the time mandated under Article 174(1); d) that, alternatively, it was argued that in a situation where mandate under Article 174(1) cannot be complied with, it does not mean that the mandate is directory in nature; and e) that, the holding of election immediately after dissolution of The Assembly is also necessary in view of the sanction which is required to be taken with regard to Money Bills by the Legislative Assembly. 12. The contentions advanced on behalf of the other national political parties,political parties as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary to interpret the said provision by applying accepted rules of interpretations. 15. One of the known methods to discern the intention behind enacting a provision of the Constitution and also to interpret the same is to look into the Historical Legislative Development, Constituent Assembly Debates or any document preceding the enactment of the Constitutional provision. 16. In His Holiness Kesavananda Bharati Sripadagalvaru etc. v. State of Kerala and Anr. etc., it was held that Constituent Assembly debates although not conclusive, yet show the intention of the framers of the Constitution in enacting provisions of the Constitution and the Constituent Assembly Debates can throw light in ascertaining the intention behind such provisions. 17. In R.S. Nayak v. A.R. Antulay, it was held that reports of the Commission which preceded the enactment of a legislation, reports of Joint Parliament Commission, report of a Commission set up for collecting information leading to the enactment are permissible external aid to construction of the provisions of the Constitution. If the basic purpose underlying construction of legislation is to ascertain the real intention of the Parliam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Secretary of the State, not more than nine months from the date of dissolution for the next session of the council. 20. After repeal of Government of India Act 1915, Government of India act1919 came into force. Section 8 of the Government of India Act 1919 provided for sitting of Legislative Council in provinces. Section 8 read as follows: "Section 8(1): Every Governor's legislative council shall continue for three years from its first meeting: Provided that: a) the Council may be sooner dissolved by the Governor, and b) the said period may be extended by the Governor for a period not exceeding one year, by notification in the official gazette of the province, if in special circumstances (to be specified in the notification) he so think fit; and c) after the dissolution of the council the Governor 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 the council" 21. Similarly, Section 21 provided for the sittings of the Indian legislature. Section 21 runs as under: "Section 21(1): Every Council of State shall continue fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sittings of the Federal Legislature. Section 19(1) runs as under: Section 19(1): The Chambers of the Federal Legislature shall be summoned to meet once at least in every year, and twelvemonths shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session." 25. Similarly, Section 62(1) of the Act provided for sittings of Provincial Legislature. Section 62(1) runs thus: "62(1): The Chamber or Chambers of each Provincial Legislature shall be summoned to meet once at least in every year and twelvemonths shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session" 26. We find that under the Government of India Act, 1935, there was a complete departure from the provisions contained in the Government of India Act, 1915 and Government of India Act, 1919 as regards the powers and responsibilities of the Governor General and the Governors of the Provinces to extend the period of the chambers or fix a date for the next session of the new chamber. By the aforesaid provisions, not only were the powers to extend the life of the chamber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to Articles 85 & 174 of the Constitution. 28. Draft Articles 69 and 153 correspond to Article 85 and Article 174 of the Constitution respectively. Article 69 dealt with the Parliament and Article 153dealt with State Legislature Assembly. When the aforesaid two draft Articles were placed before the Constituent Assembly for discussion, there was not much debate on Draft Article 153. But there was a lot of discussion when Draft Article 69 was placed before the Constituent Assembly. Draft Articles 69 and 153 run as under: "69(1) : The Houses of Parliament, shall be summoned to meet twice at least in every year, and six months shall not intervene between their last sitting in one session and the date appointed for their first shifting in the next session (2) Subject to the provisions of this Article, the President may from time to time- (a) summon the Houses or either House of Parliament to meet at such time and place as he thinks fit; (b) prorogue the Houses; (c) dissolve the House of the People. 153(1) : The House or Houses of the Legislature of the State shall be summoned to meet twice at least in every year, and six months shall not intervene between their la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament at anytime after the dissolution of the House of the People, or during the currency of the lifetime of the House of the People for a period of more than 90 days the Speaker of the House of the People or the Chairman of the Council of States may summon each his respective House which shall then be deemed to have been validly summoned and entitled to deal with any business placed or coming before it". 30. Further, Prof KT Shah also moved amendment No. 1483, which provided for insertion of Clause (3) after Article 69(2), and a proviso thereto, which is very relevant. Clause (3) runs as under: "(3): If any time the President is unable or unwilling to summon Parliament for more than three months after the prorogation or dissolution of the House of the People and there is in the opinion of the Prime Minister a National Emergency he shall request the Speaker and the Chairman of the Council of States to summon both Houses of Parliament, and place before it such business as may be necessary to cope with the National Emergency. Any business done in either House of Parliament thus called together shall be deemed to have been validly transacted, and shall be valid and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the People and convening of the Council of States in an emergency session by the President or the Speaker if the circumstances so necessitated. Even these amendments were not accepted. This shows that Draft Article 69 was visualized in the context of a scenario applicable only to a living and functional House and that the stipulation of six months intervening period between the two sessions is inapplicable to a dissolved House. 34. Moreover, it may be noticed that if the suggestion put forth during the course of the debate that the House of Parliament should sit for eight to nine months in a year was accepted, it would not have given sufficient time for holding fresh elections in the event of premature dissolution of either Parliament or Legislative Assembly and it would also have led to a breach of constitutional provisions. This also shows that what is contained in Article 174(1) is meant only for an existing and functional House. In a further scenario, if the suggestions during the debate for reducing the intervening period from six months to three months were accepted, it would mean that after premature dissolution of the Houses of People or the Legislative Assembly, fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the next session. (2) Subject to the provisions of cl. (1), the Governor may from time to time- (2) the Governor may from time to time- (a) Summon the House or either House to meet at such time and place as he thinks fit; (a) prorogue the House or either House; (b) prorogue the House or Houses (b) dissolve Legislative Assembly 36. The aforesaid original Articles show that what was mandated was that the House of Parliament and State Legislature were required to meet at least twice in a year and six months shall not intervene between the last sitting in one session and the date appointed for their first sitting in the next session. This resulted in absurdity. If it was found that the session then had been going on continuously for12 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: ".....on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment was sought to remove the absurdity which has crept into the original Articles 85 and 174. For these reasonswe are of the view that Article 174(1) is inapplicable to a dissolved Assembly. Textually 38. The question at hand may be examined from another angle. As noticed earlier, the language employed in Article 85 and Article 174 is plan and simple and it does not contemplate an interval of six months between the last sitting in one session and the date appointed for its first sitting in the next session of the new Assembly after premature dissolution of Assembly. Yet we will examine Article174 textually also. 39. Article 174 shows that the expression '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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is well understood that a dissolved House is incapable of being summoned or prorogued and in this view of the matter also Article 174(1) has no application to a dissolved Legislative Assembly, as nothing survives after dissolution. Conceptually 42. Yet, Article 174 may be examined conceptually. Conceptually, Article 174deals with a live legislature. The purpose and object of the said provision is to ensure that an existing legislature meets at least every six months, as it is only an existing legislature that can be prorogued or dissolved. Thus Article 174 which is a complete code in itself deals only with a live legislature. 43. Article 174(1) shows that it does not provide that its stipulation is applicable to a 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-a-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. 44. Further, if Article 174 is held to be applicable to a dissolved House as well it would me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel relied upon certain passages from several books in support of his contention which run as under: Erskine May's Treatise on the Law, Privileges,Proceedings and Usage of Parliament 21st Edn.: "A Parliament' in the sense of a Parliamentary period, is a period not exceeding five years which may be regarded as a cycle beginning and ending with a proclamation. Such a proclamation on the one hand dissolves an existing Parliament, and on the other, orders the issue of writs for the election of a new Parliament and appoints the day and place for its meeting. This period, of course,contains an interregnum between the dissolution of a Parliament and the meeting 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: &quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the business which is to be transacted comes to an end and the House of People cannot be revived. Is there any difference between the British Parliamentary practice and Parliamentary practice under the Indian Constitution as regards Prorogation, Adjournment and Dissolution? 51. In this context, learned counsel appearing for Union of India also relied upon the following passages -- from (SIC) May, Parliamentary Practice, 20thEdn. as regards Prorogation, Adjournment and Dissolution under British conventions and argued that the session is the period of time between the meeting of a Parliament whether after prorogation or dissolution. According 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, Article 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 sitting of the Parliament at an end. but all proceedings pending at the time are quashed except impeachments by the Commons, and appeals before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functional Lok Sabha or Legislative Assembly which is capable of being dissolved. A dissolution brings an end to the life of the House of the People or State Legislative Assembly and the same cannot be revived by the President. When dissolution of House of the People or State Legislative Assembly takes places all pending proceedings stand terminated and pending Bill lapses and such proceedings and Bills are not carried over to the new House of the people or State Legislative Assembly when they are constituted after fresh elections. 53. From the afore-mentioned passages relied upon it 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbiguous precise and there is no repetition of words or usage of superfluous language. The skill of a draftsman in the context of drafting a Statute or the Constitution lies in brevity and employment of appropriate phraseology where in superfluous word's r repetitive words as avoided. It appears that the aforesaid principle was kept in mind while drafting the Government of India Act 1935, the Government of India Act, 1919, and the Government of India Act 1935. The draftsman of the Constitution of India has taken care to maintain brevity and the phraseology used is such that there is no ambiguity while making provisions for the Constitutional institutions in the provisions of the Constitution. 58. 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 Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary of the State not more than nine months after the date of dissolution, the next session. This provision is in pari materia with Section 63D of Government of India Act, 1915. In this case also, we find that since both the Chambers viz.,Council of State and Legislative Assembly were subjected to dissolution, therefore,in Section 21(1)(c) the Council of State or Legislative Assembly both were referred to as 'either Chamber' and not as Council of State or Legislative Assembly. 60. Section 18 of Government of India Act, 1935 provided that the Federal Legislature was to consist of His Majesty represented by Governor General and two Chambers to be known respectively as 'Council of State' 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 1/3rdmembers 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd dissolve the House of People. Here again, since Council of States is a permanent body and not liable to dissolution, therefore, instead of using the expression 'either House', the expression 'House of People' has been employed, the same being liable to dissolution. The same thing holds for the State Legislature under Article 168, Article 172and Article 174 of the Constitution. 63. From the aforesaid provisions, it is clear that the expressions "Houses","both Houses" and "either House" and "the House" are used synonymously with the institutions known as Council of States and House of the People and are interchangeable expressions. 64. The matter may also be examined from another angle. Under Article 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date appointed for its first sitting in the next session. Under Clause (2) of Article 174the Governor has power to pirogue the House or either House and dissolve the Legislative Assembly. Here again, we find that since Legislative Council is a permanent body, it cannot be dissolved and therefore, the expression 'House' does not find place in Clause (2)(b) of Article 174. 66. Similarly, in the case of State Legislature, there are provisions where the Constitution makers have used the expression 'either House' 'both Houses' and 'House of Legislature' wherever they intended to apply similar provisions to both the Legislative Council as well as Legislative Assembly. 67. Article 175 empowers the Governor to address 'both the Houses assembled together' and his power to send messages to 'Houses of Legislature' of the State. Article 176 provides for a special address by the Governor to both the 'House' assembled together. Article 177 speaks of the rights of ministers and Advocate General to speak in the take part in the proceedings of 'both Houses'. Article 187dealing with Secretariat of the State Legislature uses the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the aforesaid provisions, it is manifest that there is no distinction between the 'House' and 'Legislative Assembly'. Wherever the Constitution makers wanted to make similar provisions for Legislative Council as well as Legislative Assembly, both together have been referred to as Houses and wherever the Constitution makers wanted to make a provisions exclusively for the Legislative Assembly, it has been referred to as Legislative Assembly. For the aforesaid reasons out conclusion is that the expressions "The House" or "either House" in Clause (2) of Article 174 of the Constitution and Legislative Assembly are synonymous and are interchangeable expressions. The use of expression "the House" denotes the skill of Draftsman using appropriate phraseology in the text of the Constitution of India. Further the employment of expressions "the House or"either House" do not refer to different bodies other than the Legislative Assembly or the legislative Council, as the case may be, and have no further significance. 2.(a) Is there any period of limitation provided under the Constitution of India or Representation of the People Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced, Sections 63D and 72B(1) of the Government of India Act, 1915 and Sections 8(1) and 21(1) of the Government of India Act, 1919empowered the Governor General in case of Indian Legislature and the Governor in case of Provincial Legislature to dissolve either chambers sooner than their stipulated period and appoint a date, nor 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. Thus the statutes themselves provided a period of limitation within which elections were to be held for constituting the new Chamber. The power of the Governor General to fix a date for the next chamber was similar to the powers exercised by the British Monarch historically under the British conventions. 74. However, in Government of India Act, 1935, the period of limitation fixed for holding election for constituting Legislative Council and Legislative Assembly were dispensed with the under Schedule V Para 20 to 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 thereof as a whole, related t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny period of limitation for holding fresh election for constituting new Legislative Assembly in the event of premature dissolution. This was deliberate and conscious decision. However, care was taken not to leave the entire matter in the hands of the Election Commission and, therefore, under Article 327 read with Entry 72 of List I of VIIth Schedule of the Constitution, Parliament was given power subject to the provisions of the Constitution to make provisions with respect to matters relating to or in connection with the election of either House of Parliament or State Legislature, as the case may be, including preparation of electoral roll. For the States also, under Article328 read with Entry 37 of List II, the Legislature was empowered to make provisions subject to the provisions of the Constitution with respect to matters relating to or in connection with election of either House of Parliament or State Legislature, including preparation of electoral roll. Thus, the Parliament was empowered to make law 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siding officers in the polling stations and the electoral engineering is in conformity with the elaborate legislative provision." 78. Similar concern was raised in the case of A.C. Jose v. Sivan Pillai and Ors.. In that case, it was argued that if the Commission is armed with unlimited arbitrary powers and if it happens that the persons manning the Commission shares or is wedded to a particular ideology, he could be giving odd directions cause a political havoc or bring about a Constitutional crisis, setting at naught the integrity and independence of the electoral process, so important and indispensable to the democratic system. Similar apprehension was also voiced in M.S. Gill v. Chief Election Commissioner (supra). The aforesaid concern was met by this Court by observing that in case such a situation ever arises, the Judiciary which is a watchdog to see that Constitutional provisions are upheld would step in and that is enough safeguard for preserving democracy in the country. 79. 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 Electio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Raj Narain which run as under: "198. This Court in the case of Kesavananda Bharati (supra) held by majority that the power of amendment of the Constitution contained in Article 368 does not permit altering the basic structure of the Constitution. All the seven Judges who constituted the majority were also agreed that democratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of defence to mass opinion....." 81. The same is also evident from Sections 14 and 15 of the Representation of People Act, 1951 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ext session is mandatory and relates to the frequencies of the sessions of a live and existing Legislative Assembly and does not provide for any period of limitation for holding fresh elections for constituting Legislative Assembly on premature dissolution of the Assembly. d) The expressions "the House", "either House" is synonymous with Legislative Assembly or Legislative Council and they do not refer to different bodies other than the Legislative Assembly or the Legislative Council, as the case may be. e) Neither under the Constitution nor under the Representation of the People Act, any period of limitation has been prescribed for holding election for constituting Legislative Assembly after premature dissolution of the existing one. However, in view of the scheme of the Constitution and the Representation of the People Act, the elections should be held within six months for constituting Legislative Assembly from the date of dissolution of the Legislative Assembly. f) Under the Constitution the power to frame the calender or schedule for elections for constituting Legislative Assembly is within the exclusive domain of the Election Commission and such a po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Article 174 loses much of its substance and, therefore, application of Article 356 is not required to be gone into. Question No. (iii): 87. Again, this question proceeds on the assumption that the provision of Article 174(1) also apply to a dissolved Assembly. In view of our answer to question No. (i), we have already reported that Article 174(1) neither applies to a prematurely dissolved Legislative Assembly nor does it deal with elections and, therefore, the question that the Election Commission is required to carry out the mandate of Article 174(1) of the Constitution does not arise. Under Article 324, it is the duty and responsibility of the Election Commission to hold free and fair elections at the earliest. No efforts should be spared by the Election Commission to hold timely elections. Ordinarily,law and order or public disorder should not be occasion for postponing the elections and it would be the duty and responsibility of all concern to render all assistance, cooperation and aid to the Election Commission for holding free and fair elections. 88. The Reference is answered accordingly. K.G. Balakrishnan, J. 89. I had the advantage of reading the Opinion in draf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 174(1) of the Constitution applies not only to a Legislative Assembly in existence but also to dissolved assembly and elections to constitute a new Legislative Assembly have always been held within such time so as to enable the new Assembly to meet within the period of six months from the last sitting of the last session of the dissolved Assembly; (2) Commission was of the opinion that any other view on the interpretation of Article 174(1) of the Constitution may lead to extensive gaps between two Houses of a Legislative Assembly and the abuse of democracy, there being no provision in the Constitution or in any law in force prescribing a period during which an election to be held to constitute anew Legislative Assembly on the dissolution of the previous house; (3) The Commission further observed that Article 174(1) of the Constitution cannot be read in isolation and it has to be read along with other relevant provisions of the Constitution,particularly Article 324 of the Constitution and this Article being not subject to the provisions of any other Article of the Constitution including Article 174(1), vests the superintendence, direction and control, inter alia, of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 174(1) of the Constitution of India. The following observation of the Election Commission was also noted in the Reference: "AND WHEREAS the Election Commission has held that the non-observation of the provisions of Article 174(1) in the present situation would mean that the Government of the State cannot be carried in accordance with the provisions of the Constitution within the meaning of Article 356(1) of the Constitution and the President would then step in; AND WHEREAS doubts have arisen with regard to the constitutional validity of the said order of the Election Commission of India as the order of the Election Commission which would result in a non-compliance with the mandatory requirement envisaged under Article 174(1) of the Constitution under which not more than six months shall intervene between two sittings of the State Legislature; AND WHEREAS in view of what has been hereinbefore stated, it appears to me that the questions of law hereinafter set out have arisen which are of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India." 95. The following three questions were referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of President's Rule, which would require executive action ratified by Parliament. 97. Shri Arun Jaitley, Sr. Advocate, appearing on behalf of the Bharatiya Janata Party contended that the view of the Election Commission that Article 174is subject to Article 324 of the Constitution is wholly erroneous and contrary to the constitutional mandate. It was further submitted that Article 324 does not enable Election Commission to exercise untrammeled powers and the Commission must exercise power either of the Constitution or the law under Article 327 and 328. It was also argued that even when the Assembly is dissolved, the House continue to exist and, therefore, Article 174 is applicable even to dissolved assemblies. A reference was made to the Parliamentary practice in various other countries including Britain. 98. Shri Kapil Sibal, Sr. Advocate appearing on behalf of the Indian National Congress contended that Article 174 has no application to dissolved Assembly. However, he submitted that on dissolution of an Assembly, it is the duty of the Election Commission is conduct the election immediately and every step shall betaken to see that the new Legislative Assembly met for its f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mise, this Court need not answer the same. it was also submitted that the Election Commission has been trying its best to conduct election at the earliest even under very adverse circumstances and for the past 50 years Election Commission earned a good reputation as a free and independent body, which has conducted elections to various State Legislatures and the House of the People. 102. We are greatly beholden to other Senior Lawyers, M/s. K. Parasaran, P.P.Rao, Milon Banerjee, M.C. Bhandare, Ashwani Kumar, P.N. Puri, A. Sharan, Devendra N. Dwivedi, A.M. Singhvi, Gopal Subramaniam, and Vijay Bahuguna,who had made very enlightening arguments on various vexed legal questions involved in this case. 103. The first and foremost question that arises for consideration is whether Article 174 is applicable in respect of a dissolved Assembly. The next question that arises for consideration is the interplay of Article 147 and Article 324 of the Constitution. Incidentally, a question also may arise whether the Election Commission can postpone the election indefinitely on one pretext or the other and create a situation where there is a breakdown of democratic form of Government. Article 174 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved, notice to summon the next session of the Parliament is simultaneously issued. On that basis, it was contended that Article174 is even applicable to a dissolved Assembly. We do not find much force in this contention. The plain meaning of the words used in Article 174 itself would show that Article 174 has no application to a dissolved Assembly. The words "six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session" occurring in Article 174 clearly indicate that the interregnum between the two sessions shall not be six months and that is applicable only in respect of a live Assembly. Once the Assembly is dissolved, Article 174 has no application. 105. Of course, in the Report of the Election Commission it is stated that that Commission has all along been taking the view that once the Assembly is dissolved it would take all possible steps to see that the first sitting of the next Assembly would be made possible within a period of six months of the last sitting of the dissolved Assembly. This is a very healthy convention which is being followed since the adoption of our Constitution and we mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vested with the power to decide the election schedule. It can act only in accordance with the Constitutional provisions. the Election process for electing the new Legislative Assembly should start immediately on the dissolution of the Assembly. There may be cases where the electoral roll may not be up-to-date and in such case the Election Commission is well within its power to update the electoral roll and the time taken for such updating of the electoral roll shall be reasonable time. Ordinarily, the Election Commission would also require time for notification, calling of nomination and such other procedure that are required for the proper conduct of election. There may be situation where the Election Commission may not be in a position to conduct free and fair election because of certain natural calamities. Even under such situation the Election Commission shall endeavour to conduct election at the earliest making use of all the resources within its command. Ample powers are given to the Election Commission to coordinate all actions with the help of various departments of the Government including military and para-military forces. When an Assembly is dissolved by the Governor on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y accepted grounds. (ii) Can the Election Commission of India frame a schedule for the elections to an Assembly on the premises that any infraction of the mandate of Article 174 would be remedied by a resort to Article 356 by the President? 110. The framing of schedule for election for the new Legislative Assembly shall start immediately on dissolution of the Assembly and the Election Commission shall endeavour to see that the New Legislative Assembly meets at least within a period of six months of the dissolution. Article 356 regarding declaration of state of emergency in the State has no relevance to the fixation of the election schedule. (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? 111. The Election Commission is under a constitutional duty to conduct the Election at the earliest on completion of the term of the Legislative Assembly on dissolution or otherwise. If there is any impediment in conducting free and fair election as per the schedule envisaged by the Election Commission, it can draw upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbly met on 3rd April, 2002 and thereafter was dissolved on 19thJuly, 2002. Election Commission passed an order on 16thAugust, 2002 holding that free and fair elections was not possible in Gujarat, even though Article 174 of the Constitution mandatorily provides that the time gap between two sittings of the House should not exceed six months. In that context, the Election Commission held that Article 324 postulates "free and fair election" and when it is not possible to hold it, the provisions contained in Article 174 have to yield. That gave rise to doubts and the President of India has made reference to this Court under Article143(1) of the Constitution, basically on that core issue and three questions have been referred. First question specifically refers to Article 174 and Article 324. The Election Commission observed that even if the period prescribed under Article 174 cannot be adhered to the situation can be met by imposition of President's Rule by Article356 of the Constitution. The Reference (including the preambles) and relevant portion of Election Commission's order so far as relevant for the Reference read as follows: President Address: 119. WHEREAS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in; 127. AND WHEREAS doubts have arisen with regard to the Constitutional validity of the said order of the Election Commission of India as the order of the Election Commission which would result in anon-compliance with the mandatory requirement envisaged under Article 174(1) of the Constitution under which not more than six months shall intervene between two sittings of the State Legislature; 128. AND WHEREAS in view of what has been hereinbefore stated,it appears to me that the questions of law hereinafter set out have arisen which are of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India; 129. NOW, THEREFORE, in exercise of the powers conferred upon me under Clause (1) of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that the panchayat elections in large areas were successfully conducted in April 2002, that HSC, SSC examination were held peacefully and that various religious festivals like the Rath Yatra had passed off without any untoward incident. x x x 4. The Commission has carefully examined the provisions of Article 174(1) of the Constitution. It has also considered other relevant provisions in the Constitution having a bearing on functioning of the Legislative Assemblies and the conduct of elections to constitute them. The Commission has, in the past, been taking the view that the six months in Article 174(1) of the Constitution applies not only to a Legislative Assembly in existence but also to elections to constitute the new Assembly on the dissolution of the previous Assembly and in all past cases, like the recent dissolution of the Goa Legislative Assembly on 27th February, 2002, wherever any Assembly has been dissolved prematurely by the Governor under Article174(2)(b) of the Constitution (and where the President has not taken over the administration of the State under Article 356 of the Constitution on the dissolution of the Assembly), elections to constitute a new Legislativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Parliament on the provisions of Article 174(1) whenever there was an imposition of President's Rule in a State under Article 356 of the Constitution. Whenever the Legislative Assembly of any State has been dissolved in the past by the President under Article 356 of the Constitution, the provisions of Article 174(1) have invariably been expressly suspended in the Proclamation issued by the President under that Article and approved by Parliament during the operation of that Proclamation (See for example, the latest Proclamation dated 10thFebruary, 1999 issued by the President dissolving the Goa Legislative Assembly an imposing President's Rule in that State). If Article 174(1) has no application after an Assembly has been dissolved, as is being contended by one set of representations, there is no question of the suspension of that provision after the dissolution of the Assembly by the said Proclamation. x x x 8. There is, to the Commission's knowledge, no authoritative pronouncement of the Supreme Court or of any High Court on this aspect of the issue. But the most plausible view that appears to the Commission in that Article 174(1) of the Constitution envisages tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... election periodically held, based on adult franchise and that social and economic democracy may demand much more.' Similar sentiments of the Supreme Court laying stress on free and fair elections to the legislative bodies have found echo in every other decision of the Supreme Court on elections x x x 11. Thus, the Constitutional mandate given to the Election Commission under Article 324 of the Constitution is to hold free and fair elections to the legislative bodies. And, in the Commissioner's considered view, if a free and fair election cannot be held to a legislative body at a given point of time because of the extraordinary circumstances then prevailing, Article 174 of the Constitution must yield to Article 324 in the interest of genuine democracy and purity of elections. Further, in the Commission's considered view, such interpretation of the provisions of Articles 174(1) and 324 would not create a situation which is not contemplated or envisaged under the Constitution and which cannot be met thereunder. The non-observance of the provisions of Article 174(1) in the aforesaid eventuality would mean that the Government of the State cannot be carried on in accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and in order to avoid controversies in future and to have the law settled, the Reference has been made. 133. The questions referred are intrinsically linked with the conclusions of the Election Commissioner and are clearly relatable to it. The scope and ambit of reference under Article 143(1) has been examined by this Court in several cases. In some cases, this Court had declined to answer References on the ground that political issues are involved or that the Court does not act in exercise of appellate jurisdiction while dealing with a Reference. It will be proper to take note of few decisions on this aspect where References were not answered on the ground that they are potentially political or that the Advisory Jurisdiction is not appellate in character [See Dr. M. Ismail Faruqui and Ors. v. Union of India and Ors. and in the matter of Cauvery Water Disputes Tribunal (1993) Supp 1 SCC 96 (II). 134. The Federal Court in Re The Allocation of Lands and Buildings in a Chief Commissioner's Province a Reference under Section 213(1) of the Government of India Act which is similar to Article 143 said that though the terms of the at section do not impose an obligation on the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 172: Duration of State Legislature-(1) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the Assembly: 139. Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. (2) The Legislative Council of a State shall not be subject to dissolution, but a nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament bylaw. Article 174: Sessions of the State Legislature, prorogation and dissolution-(1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet as such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by Clause (1). Article 327: Power of Parliament to make provision with respect to elections to Legislatures. - Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with,elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. Article 356: Provisions in case of failure of constitutional machinery in States - (1) If the President, on receipt of report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may be Proclamation- (a) assume to himself all or any of the functions of the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which under this clause it would otherwise have ceased to operate, but no such Proclamation shall in any case remain in force for more than three years; 145. Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States, but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People. 146. Provided also that in the case of the Proclamation issued under Clause (1) on the 11thday of May, 1987 with respect to the State of Punjab, the reference in the first proviso to this clause to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mended by the Election Commission, call upon all Assembly constituencies in the State to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder: 149. Provided that where a general election is held otherwise that on the dissolution of existing Legislative Assembly on such notification shall be issued at any time earlier than six months prior to the date on which the duration of that Assembly would expire under the provisions of Clause (1) of Article 172 or under the provisions of Section 5 of the Government of Union Territories Act, 1963, as the case may be. Section 30: Appointment of dates for nomination etc. - As soon as the notification calling upon a constituency to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint- (a) the date of publication of the first mentioned notification or, if that day is a public holiday the last date for making nominations, which shall be the seventh day after holiday, the next succeeding day which is not a public holiday. (b) The date for the scrutiny of nomination, which shall be,the day immediately following the last day for mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ented by the Governor General, and two Chambers, to be known respectively as the Council of State and the House of Assembly (in this Act referred to as "the Federal Assembly"). (2) The Council of State shall consist of one hundred and fifty-six representatives of British India and not more than one hundred and four representatives of the Indian States, and the Federal Assembly shall consist of two hundred and fifty representatives of British India and not more than one hundred and twenty-five representatives of the Indian States. (3) The said representatives shall be chosen in accordance with the provisions in that behalf contained in the First Schedule to this Act. (4) The Council of State shall be a permanent body not subject to dissolution, but as near as may be one-third of the members thereof shall retire in every third year in accordance with the provisions in that behalf contained in the said First Schedule. (5) Every Federal Assembly, unless sooner dissolved, shall continue for five years from the date appointed for their first meeting and no longer, and the expiration of the said period of five years shall operate as a dissolution of the Assembly. 19. Sessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Articles of the Constitution and the provisions of the Act. Lord Denning's words are instructive: "Law does not stand still. It moves continually. Once this is recognized, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere mechanic a mere working mason, laying brick on brick, without thought to the overall design. He must be an architect - thinking of the structure as a whole building for society a system of law which is strong, durable and just. It is on his work that civilized society itself depends. The constitutional scheme with regard to the holding of the elections to parliament and the State Legislatures is quite clear. First, the Constitution has provided for the establishment of a high power body to be in charge of the elections to Parliament and the State Legislature and of elections to the offices of President and Vice-President. That body is the Commission. Article 324 of the Constitution contains detailed provision regarding the constitution of the Commission and its general power. The superintendence, direction and control of the conduct of elections r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntries, e.g. United Kingdom, Canada,Australia, Ireland, United States of America and Switzerland. the Constitution being supreme all the organs and bodies owe their existence to it. Neon can claim superiority over the other and each of them has to function within the four-corners of the constitutional provisions. The preamble embodies the great purposes, objectives and the policy underlying its provisions apart from the basic character of the State which was to come into existence, i.e. a Sovereign Democratic Republic. It is the executive that has the main responsibility for formulating the government policy by"transmitting it into law" whenever necessary. "The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State". With regard to the civil services and the position of the judiciary the British model has been adopted inasmuch as the appointment of Judges both of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to time to meet at such time and place as he thinks fit. It further provides that six months shall not intervene between its last sitting of one session of the House and the date appointed for its first sitting in the next session of the House. The requirement relating to the meeting within the prescribed time period is the crucial issue in the reference. Clause (2) deals with power of the Governor to (a) prorogue the House or either House or(b) dissolve the Legislative Assembly. Almost in similar language are couched Articles 83 and 85. As has been rightly contended by some of the learned counsel, Article 174 does not deal with elections. On the contrary, the occasion for holding of elections to the conducted by the Election Commission arise only after dissolution of the House. It is the stand of the Union of India, the Election Commission and some of the parties that the Election Commission is duty bound to ensure meeting of the House within the time indicated in Article 174(1).According to them, the urgency and desirability involved in calling the meeting of the House cannot be frustrated by postponing elections. Thus, according to them, the Election Commission has to ensure t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 79says that there shall be a Parliament for the Union which shall consist of the President and the two Houses to be known respectively as the Council of States and the House of the People. As indicated above, in almost identical language is couched Article 168, Clause (1) of which provides that for every State there shall be a Legislature which shall consist of the Governor etc. It was submitted by some of the learned counsel that the House is known as Legislative Assembly so far as the States are concerned and so far as the Parliament is concerned, two Houses are known as Legislative Council and the Legislative Assembly. According to them, it is only the nomenclature and that on the dissolution of the Legislative Assembly or the House of the People, as the case may be, there is no House in existence. This plea though attractive is not tenable. The question of holding elections by the Election Commissioner to meet the dead line fixed under Article 174, some times becomes impossible of being performed. In a hypothetical case if the House of People or the Legislative Assembly is dissolved a month before the expiry of the six months period, it becomes a practical impossibility to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase may be, amongst others factors affects it as a body as well as its individual members likewise its work is also abruptly ended, subject to prescribed exclusions, if any. Any further meeting of the ex-members has to be considered an ordinary meeting of citizens, and not an official session of the Legislative Assembly or House of People in the legislative capacity. 161. When the House meets after the results of election are notified and notification has been issued under the relevant law, it becomes alive body after it is duly constituted. The constituents of the body may have been changed but the constitutional body which is permanent one becomes alive again. Therefore, the submission that under Article 174(1) time period fixed does not apply to dissolved Legislative Assembly has substance. 162. Dissolution brings a legislative body to an end. It essentially terminates the life of such body and is followed by a constitution of new body (a Legislative Assembly or a House of People, as the case may be). Prorogation on the other hand relates to termination of a session and thus preclude another session, unless it coincides with end of the legislative term. The basic difference is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sense it should carry. Its setting would give colour to it and provide a cue to the intention of the Legislature in using it. A word is not a crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which the same is used as was observed by Homes, J. in Towne v. Eisner (1917) 245 US 418 164. The following passage from Statutory Interpretation by Justice G.P. Singh (Eighth Edition, 2001 at pp. 81-82) is an appropriate guide to the case at hand: "No word", says Professor H.A. Smith "has an absolute meaning, for no words can be defined in vacuo, or without reference to some context".According to Sutherland there is a "basic fallacy"in saying "that words have meaning in and of themselves", and "reference to the abstract meaning of words", states Craies, "if there be any such thing, is of little value in interpreting statutes" ....in determining the meaning of any word or phrase in a statute the first question to be asked is---"what is the natural or ordinary meaning of that word or phrase in its context in the statute? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following paragraph reinforces the view: "A session is the period of time between the meeting of a Parliament, whether after the prorogation or dissolution, and its prorogation...During the course of a session either House may adjourn itself of its own motion to such as it pleases. The period between the prorogation of Parliament and its reassembly in anew session is termed as 'recess'; while the period between the adjournment of either House and the resumption of its sitting is generally called an 'adjournment'. A prorogation terminates a session; an adjournment is an interruption in the course of one and the same session." 170. There is a direct decision of the Kerala High Court in K.K.Aboo v. Union of India on the point. It was inter alia observed as follows: "A Legislature can be summoned to meet only if it is in esse at the time. A dissolved Legislature is incapable of being summoned to meet under Article 174 of the Constitution. The question therefore is not whether the Legislature should or could have been summoned to meet, but whether its dissolution ordered by the President, is constitutionally valid." The view is well founded. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government. Our Constitution establishes a democratic republic as is indicated in the Preamble to the Constitution itself and Cabinet system of Government is generally known as the responsible government. We may notice here that in a democracy the sovereign powers vest collectively to the three limbs i.e. the executive, legislature and the judiciary. Section 14 of the R.P. Act, 1951 mandates that general elections shall be held for the purpose of constituting the new House of People on the expiry of the duration of the existing House or on its dissolution. Similar is in the case of Legislative Assembly in the background of Section 15. When the election is to be held on the expiry of the fixed term, the Election Commissioner knows the date in advance and can accordingly fix up schedule of the election. The problem arises when there is a pre-mature dissolution. In that case, the Election Commissioner becomes aware only after the dissolution takes place. He cannot, therefore, fix up any schedule in advance in such a case. The consequential fall out of not holding election for a long time is the functioning of a care-taker government which is contrary to the principles of responsible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxims 10th Edition at pp. 1962-63 and Craies on Statute Law 6th Ed. P. 268). These aspects were highlighted by this Court in Special Reference 1 of 1974. Situations may be created by interested persons to see that elections do not take place and the caretaker government continue in office. This certainly would be against the scheme of the Constitution and the basic structure to that extent shall be corroded. 179. A responsible Government provides for a healthy functioning. The democracy has to be contrasted with a caretaker government which is ad hoc in all its context and which is not required to take any policy decision. A piquant situation may arise when a Cabinet of Ministers being sure that it will lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be subject to such rare exceptional cases occasioned on account of facts situation (like acts of God) which make holding of elections impossible. But man made situation intended to defer holding of elections should be sternly dealt with and should not normally be a ground for deferring elections beyond six months period, starting point of which would be the date of dissolution. As was observed in Digvijay Mote v. Union of India and Ors., timely election which is not free and fair subverts democracy and frustrates the ultimate responsibility to assess objectively whether free and fair election is possible. Any man made attempt to obstruct free and fair election is antithesis to democratic norms and should be overcome by garnering resources from the intended sources and by holding the elections within the six months 'period." 181. Reference was made to Article 164(4) of the Constitution to contend that six months' period for holding election is in built in Article 174. It has to be noted that as observed by this Court in S.R.Chaudhuri v. State of Punjab and Ors. the provisions is not really concerned with holding of elections and primarily relates to a requirement to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Legislative Assembly and directions were issued for holding fresh poll for constituting the Legislative Assembly, the Council of Ministers continues. Further there being no failure of constitutional machinery within the meaning of Article 356 of the Constitution, the contention that the President of India ought to have promulgated President Rule in the State for carrying on the function of the Government must be rejected." 185. Situations when Article 356 can be resorted to have been illuminatingly highlighted in S.R. Bommai v. Union of India,. The following observations very aptly summarized the position: ".....Article 356 is an emergency provision though, it is true, it is qualitatively different from the emergency contemplated by Article 352, or for that matter, from the financial emergency contemplated by Article 360. Undoubtedly, breakdown of the constitutional machinery in a State does give rise to a situation of emergency. Emergency means a situation which is not normal, a situation which calls for urgent remedial action. Article 356 confers a power to be exercised by the President in exceptional circumstances to discharge the obligation cast upon him by Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the function and the duty of ensuring free and fair elections and of the purity of the electoral process. It has all the incidental and ancillary powers to effectuate the constitutional objective and purpose. The plenitude of the Commission's powers corresponds to the high constitutional functions it has to discharge. In an exercise of the magnitude involved in ensuring free and fair elections in the vastness of our country, there are bound to be differences of perception as to the law and order situation in any particular constituency at any given time and as to the remedial requirements. Then again, there maybe intrinsic limitations on the resources of the Central government to meet in full the demands of the Election Commission. There may again be honest differences of opinion in the assessment of the magnitude of the security machinery. There must, in the very nature of the complexities and imponderables inherent in such situations, be a harmonious functioning of the Election Commission and the Governments, both State and Central. If there are mutually irreconcilable view points, there must be a mechanism to resolve them. The assessment of the Election Commission as to ..... 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