http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11

PETITIONER:

ELECTION COMMISSION OF INDIA & ANOTHER

Vs.

RESPONDENT:

DR. SUBRAMANIAN SWAMY & ANOTHER

DATE OF JUDGMENT: 23/04/1996

BENCH:

AHMADI A.M. (CJ)

BENCH:

AHMADI A.M. (CJ)

SINGH N.P. (J)

KIRPAL B.N. (J)

CITATION:

1996 AIR 1810 1996 SCC (4) 104

JT 1996 (4) 463 1996 SCALE (3)734

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

AHMADI, CJI.

This is an appeal preferred by the Election Commission

of India and Shri T.N. Seshan, the Chief Election

Commissioner, (when the former was a single-member

commission) against the decision of the Division Bench of

the High Court of Madras dated 15.11.1993 by which,

reversing the view taken by the learned single Judge of the

High Court dated 2.7.1993, it held that in view of the

promulgation of Ordinance (Ordinance No.32 of 1993) the

doctrine of necessity was no more attracted and applicable

in the facts and circumstances of the case. The question

raised in this appeal arises in the backdrop of the

following facts:

Ms. J. Jayalalitha was elected to the Legislative

Assembly of Tamil Nadu on or, the AIADMK ticket in the

General Elections held in June 1991 and on being elected as

the leader of the party she was sworn-in as the Chief

Minister of the State. On 2.10.1992, Dr. Subramanian Swamy

preferred a petition to the State Governor under Article 192

of the Constitution of India alleging that the Chief

Minister had incurred a disqualification of being a member

of the Legislative Assembly of the State, in that, she being

a partner in the partnership firm run in the name and style

of Messrs Jaya Publications had entered into a contract with

the State Government and which contract was subsisting on

the date of the petition, in view of sub-clause (e) of

clause (1) of Article 191 of the Constitution read with

Section 9A of the Representation of the People Act, 1951

(hereinafter called 'the R.P. Act'). It would be

advantageous to reproduce the said two provisions at this

stage:

"191(1) A person Shall be

disqualified for being chosen as,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11

and for being, a member of the

Legislative Assembly or Legislative

Council of 9 State-

(a) ......

(b) ......

(c) ......

(d) ......

(e) if he is so disqualified by or

under any law made by Parliament.

Explanation--- For the purposes of

this clause, a person shall not be

deemed to hold an office of profit

under the government of India of

the Government of any state

specified in the first Schedule by

reason only that he is Minister

either for the Union or for such

State."

"9A. Disqualification of Government

contracts, etc. - A person shall be

disqualified if, and for so long

as, there subsists a contract

entered into by him in the course

of his trade or business with the

appropriate Government for the

supply of goods to, or for the

execution of any works undertaken

by, that Government.

Explanation--For the purposes of

this section, where a contract has

been fully performed by the person

by whom it has been entered into

with 'the appropriate Government,

the contract shall be deemed not to

subsist by reason only of the fact

that the Government has not

performed its part of the contract

either wholly or in part."

Since the Governor did not forward the petition to the

Election Commission, Dr. Swamy moved a Writ Petition No.942

of 1992 against the Governor for a direction that he

forthwith forward the same to the Election Commission as

required by Article 192(2) of the Constitution for its

opinion. While the said writ petition was pending in the

High Court, the Governor forwarded the petition to the

Election Commission on 27.3.1943 for its opinion. Thereupon

M,. J.Jayalalitha moved two Writ Petitions Nos.6094 and 6095

of 1993, the first for a writ of prohibition against Shri

Seshan not to deal with the petition forwarded to him by the

Governor as she had a reasonable apprehension that he was

biased in favour of Dr.Swamy and the second for a

declaration that she had not incurred the disqualification

as alleged by Dr.Swamy.

Both these writ petitions came up for disposal before a

learned Single Judge of the High Court. He allowed the first

writ petition holding that the evidence placed on record

clearly established that Ms. J.Jayalalitha's apprehension

that Shri Seshan may not be able to take an impartial view

because of his strong bias in favour of Dr.Swamy could not

be said to be misplaced or unreasonable and it would be

just, fair and proper to issue a writ of prohibition

directing Shri Seshan to refrain from expressing any opinion

on Dr.Swamy's petition alleging disqualification, since at

the relevant time the Election Commission was a one-member

body. On the plea based on the doctrine of necessity, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11

learned Judge observed that while the principle of natural

justice may have to yield in favour of the doctrine of

necessity, it was not obligatory to invoke the said doctrine

in all cases, in particular in the case on hand, since it

was permissible under Article 324 of the Constitution to

appoint an additional Election Commissioner, who, if

appointed, would constitute an alternative forum for dealing

with the matter. So far as the second writ petition is

concerned, while the learned Single Judge held that the

decision on the issue raised by Dr. Swamy lay within the

exclusives domain of the Governor, he opined that Ms.

J.Jayalalitha had not incurred the alleged disqualification.

Therefore, while dismissing the second writ petition, he

virtually allowed it, in that, the Governor while taking a

decision under Article 192(2) would feel inhibited by the

said decision.

Dr.Swamy filed two Special leave Petitions Nos.10189-90

of 1993 in this Court under 'Article 136 of the Constitution

questioning the correctness of the view taken by the learned

Single Judge in the said two petitions. This Court, however,

did not entertain the said two petitions and by its order

dated 20.8.1993 directed the petitioner to move the Division

Bench in appeal. Consequently Dr.Swamy preferred an appeal,

being Writ Appeal No.956 of 1993, in the High Court of

Madras.

At this stage we may notice one development. The

President of India promulgated an Ordinance (No.32 of 1993)

entitled the Chief Election Commissioner and other Election

Commissioners (Condition of Service) Amendment Ordinance,

1993 which was published in the Gazette of India on

1.10.1993. (This Ordinance was converted into an Act (Act

No.4 of 1994) with the same title on 4.1.1994). Sections 9

and 10 introduced in the Chief Election Commissioner and

other Election Commissioners (Conditions of Service) Act,

1991 (hereinafter called 'the 1999 Act') provided as under:

"9. The business of the Election

Commission shall be transacted in

accordance with the provisions of

this Act."

10.(1) The Election Commission may,

by unanimous decision, regulate the

procedure for transaction of its

business as also allocation of its

business amongst the Chief Election

Commissioner and other Election

Commissioners.

(2) Save as provided in sub-section

(1), all business of the Election

Commission shall, as far as

possible, be transacted

unanimously.

(3) Subject to the provisions of

sub- section (2), if the chief

Election Commissioner and other

Election commissioners differ in

opinion on any matter, such matter

shall be decided according to the

opinion of the majority."

It may be mentioned that the provisions in the Act. were the

same as in the Ordinance.

The Division Bench of the Madras High Court which heard

the appeal raised three points for determination namely, (i)

whether the learned Judge was justified in examining if Ms.

J. Jayalalitha had incurred the disqualification set out in

Article 191(1) of the constitution read with Section 9A,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11

R.P.. Act, (ii) whether the doctrine basis and (iii) whether

the doctrine of necessarily stood attracted after the

enactment of ordinance No.32 of thereof. The Decision bench

by its judgment and order dated 15311.1993 held that the

question whether Ms. J.Jayalalitha had of had not incurred

the disqualification read with Section 9A of the R.P. Act

ought to have been left for decision by the Election

Commission under Article 192(2) of the Constitution and the

learned Single Judge should not have gone into it as it felt

within the exclusive domain of the Election Commission. On

the second question the Division Bench held that on the

facts and in the circumstances of the case Ms.J.Jayalalitha

would be justified in entertaining a reasonable apprehension

of bias or atleast the likelihood of bias on the part of

Shri Seshan in favour of Dr.Swamy and consequently a

reasonable doubt that she would not get a fair hearing from

Shri Seshan. Insofar as the third point is concerned, the

Division Bench held that in view of the appointment of two

Election Commissioner after the promulgation of the

Ordinance and in view of Sections 9 and 10 extracted

earlier, the doctrine of necessity cannot be applied since

the decision could be taken by the Election Commission if

need be by majority. On this line of reasoning, on the

question of relief to be granted, the Division Bench allowed

the Writ Appeal and modified 'he order in writ petition No.

6094 of 1993 by giving the following direction:

"A writ of prohibition is issued to

the first respondent (Mr. T.N.

Seshan) from in any manner dealing

with, hearing, adjudicating upon or

disposing of the memorandum dated

2.10.1992 filed by the second

respondent (Dr. Subramanian Swamy)

and forwarded by the Governor of

Tamil Nadu to the first respondent.

We make it clear that it is open

to the Election Commission, While

regulating the procedure for

transaction of its business or

allocation of its business to allot

it to by one of the other two

members or to both, as it deems

necessary and proper."

However, insofar as Writ Petition No. 4095 of 1993 is

concerned, Division Bench allowed the Writ Appeal and set

aside the order and decision of the learned Single Judge and

dismissed Writ Petition No.4095 of 1993. The Election

Commission of India as well as Shri T.N. Seshan felt

aggrieved by the decision of the Division Bench in the

appeal arising out of Writ Petition No.6094 of 1993

extracted earlier. This Court granted Special Leave to

Appeal and hence we have before us this Civil Appeal No.504

of 1994. So in this appeal this Court is called upon to

decide the limited question regarding the participation of

Shri Seshan in decision-making having regard to the

allegation of bias made against him.

We have extracted the relevant part of Article 191(1)

of the Constitution. That article plainly says that a person

shall be disqualified for being a member of the Legislative

Assembly of the State if he is disqualified by or under any

law made by Parliament. Section 9A of the R.P. Act provides

that a person shall be disqualified if there subsists a

contract entered into by him in the course of his trade or

business with the appropriate government for the supply of

goods to, or for the execution of any work undertaken by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11

that government. The duration of the disqualification is

limited, namely, so long as the contract subsists. The

allegation of Dr.Swami is that Ms. J.Jayalilitha being a

partner of the firm carrying on business in the State of

Tamil Nadu under the name and style of 'Jaya Publications'

had incurred the disqualification since that firm had a

subsisting contract with the State Government which was a

business enterprise to make profit. According to Dr. Swamy

she has incurred the disqualification under Section 9A of

the R.P. Act, which being a law made by Parliament, attracts

the application of Article 191(1)(e) of the Constitution.

Article 192(1) provides that if any question arises as to

whether a member of a House of the Legislature has become

subject to any disqualification mentioned in Article 191(1),

of the Constitution shall be referred for the decision of

the Governor whose decision 'shall be final'. Thus it is the

Governor who has, to take a decision and such decision is

made final. Then we turn to clause (2) of Article 192 which

reads as under :

"192(2) - Before giving any

decision on any such question, the

Governor shall obtain the opinion

of the Election Commission and

shall act according to such

opinion."

It is clear from the use of the wards shall obtain' the

opinion of the Election Commission, that it is obligatory to

obtain the opinion of the Election Commission and the

further stipulation that the Governor "shall act" according

to such opinion leaves no room for doubt that the Governor

is bound to act according to that opinion. The position in

law is well settled by this Court's decision in Brundaban v.

Election Commission (1965) 3SCR 53 where in this court held

that it is the obligation of the Governor to take decision

in accordance with the opinion of the Election Commission.

It is thus clear on conjoint reading of the two clause of

article 192 that once a question of the type mentioned in

the first clause is referred to the governor, meaning

thereby is raised before the Governor, the Governor, meaning

thereby is raised before the Governor, the Governor and the

Gover alone must decide it but this decision must be taken

after obtaining the opinion of the Election Commission and

the decision which is made file is that decision which the

Governor has taken in accordance with the opinion of

Election Commission. In effect and substance the decision of

the Governor must dependent of the opinion of the Election

Commission and none else, not even the council of Ministers.

Thus the opinion of the election Commission is decisive

since the final order would be based solely on that opinion.

The same view came to be expressed in the case of

Election Commission of India v. N.G. Ranga, (1979) 1 SCR

210, while interpreting Article 103 (2), that instead of

the Government in Article 192(2), here the decision has to

be made by the President. So also the language of Articles

192 (1) and 103(1) is identical except for the same change.

The Constitution Bench of this Court reiterated that the

President was hound to seek and obtain the opinion of the

Election Commission and only thereafter decide the issue in

accordance therewith. In other words, it is the Election

Commission's opinion which is decisive.

Having realised that the opinion of the Election

Commission is a sine-qua-non for the Governor or the

President, as the case may be, to give a decision on the

question whether or not the concerned member of the House of

the Legislature of the State or either House of Parliament

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11

has incurred a disqualification, the next question is, can

the Election Commission take a decision if one of its

members is disqualification. from participating in the

decision-making? Article 324(1) of the Constitution invests

in the Election Commission the function of superintendence,

direction and control of elections and clause (2) of that

Article provides that the Election Commission shall consist

of the Chief Election Commissioner and such number of other

Election Commissioners, if any, as the President may from

time to time fix. Thus, Article 324(2) envisages a multi-

member Election Commission with the Chief Election

Commissioner as its Chairman, [see Article 324(3)]. In the

instant case, to begin with the Election Commission was a

single-member body with Shri Seshan as the Chief Election

Commissioner when the learned Single Judge devided the write

petition on 2.7.1993. On the question of Ms. J.Jayalalitha

entertaining a reasonable apprehension of bias, the learned

Judge, on a scrutiny of the facts and circumstances of the

case, came to the conclusion that having regard to the close

association of Dr. Swamy with Shri Seshan, besides the fact

that Dr. Swamy's wife was the lawyer of Shri Seshan in the

suit filed by him at Bombay, the apprehension of bias was

real and not imaginary and if Shri Seshan has to take a

decision on Dr. Swamy's complaint, the decision may not be

impartial and will atleast not be seen to be impartial and

therefore the learned Single Judge restrained him from

deciding the issue and communicating the same to the

Governor. However, on the application of the doctrine of

necessity, the learned Judge held that since Article 324(2)

of the Constitution permitted appointment of one or more

Election commissioners, it was not necessary to invoke the

doctrine of necessity and allow Shri Seshan to make a

decision, the apprehension of bias, notwithstanding. The

Division Bench of the High Court has upheld the view of the

learned Single Judge on the question of existence of

circumstances which go to show that the' apprehension of

bias entertained by Ms. J. Jayalalitha was reasonable and

the possibility of her not getting an impartial hearing and

decision was real and not imaginary merely an excuse trotted

out to avoid a decision on the issue of her

disqualification. Thus, there is a concurrent finding of

fact that having regard to the close and intimate

relationship between Dr. Swamy and Shri T.N. Seshan, apart

from the fact that the former's wife is the latter's lawyer

in the rupees one crore damages suit filed by him in Bombay,

the apprehension of bias in the mind of Ms. J.Jayalalitha

cannot be said to be misplaced and her fear that she may not

get justice if the decision is taken by Shri Seshan cannot

be brushed aside as imaginary. Shri Sanghl, the learned

counsel for Shri Seshan, very frankly stated that his client

is not in the least keen to participate in the decision-

making in view of the findings recorded by the learned

Single Judge as well as the Division Bench of the High Court

but he contested the litigation because in his view he

cannot excuse himself from the process of decision-making.

He contended that when the matter was before the learned

Single Judge, he had invoked the doctrine of necessity as he

honesely believed that he was duty bound to decide the issue

referred to him and if he refused to do so he would be

failing tn discharge his constitutional obligation. This is

not to say, contended Shri Sanghi, that he admitted that

allegation of bias made against his client hut merely to

emphasise that he was under a constitutional obligation to

decide the issue and communicate his opinion to the Governor

to enable him to discharge his function under Article 192(2)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11

of the Constitution. Shri Sanghi further contended that even

after the Election Commission was converted into a multi-

member body with effect from 1.10.1993, on which date the

other two Election Commissioners came to be appointed, the

position in law remained unaltered because the Constitution

does not conceive of an Election Commission without a Chief

Election Commissioner. According to him, the structure of

Articles 324(2) and 324(3) and the use of the word 'and'

after the words 'Chief Election Commissioner' and the word

'other' preceding the words 'Election Commissioners' leaves

no room for doubt that the Constitution-makers visualised

the existence of the Chief Election Commissioner at all

times and safeguarded the said office by providing for the

removal of the incumbent occupying the said office in the

same manner as a Judge of the Supreme Court. Shri Sanghi

reiterated that assuming without admitting that the finding

of bias is correct, Shri Seshan was not at all anxious to

participate in the decision-making process if lt is not

obligatory under the extant constitutional scheme on his

part to participate in the decision-making. Stated in a

nutshell the line of reasoning adopted by Shri Sanghi is

that the decision of the 'Election Commission' is a 'must'

for the Governor to decide the issue; the constitution of

the Election Commission under the scheme of Article 324 of

the Constitution clearly is that it must comprise the Chief-

Election Commissioner as its Chairman if it is a multi-

member body , other words there cannot be a properly

constituted Election Commission without its Chairman and

hence his participation in the decision-making cannot be

excused and must be permitted on the doctrine of necessity.

Thus, according to Shri Sanghi, the constitution of a multi-

member Election Commission and the insertion of Section 9

and 10 in the 1991 Act would make no difference because they

do not speak of exclusion of the Chief Election Commissioner

from the decision-making process. These provisions merely

set out the procedure to be followed in the event of a

difference of opinion.

On the other hand, the learned Counsel for Ms. J.

Jayalalitha reiterated the contention of bias on the ground

that the facts on record revealed that there was unity and

identity of interest between Dr. Swamy, his wife and Shri

Seshan since it was established beyond any manner of doubt

that they had developed family friendship which went beyond

mere professional relationship and it would be embarrassing

both for Shri Seshan and Ms. J. Jayalalitha if the former

sat in judgment over the complaint of disqualification made

by Dr. Swamy. It was further pointed out that after the

learned Single Judge repelled the contention based on the

doctrine of necessity, Shri Seshan did not prefer any appeal

against the said decision but has now preferred, the

pleasant appeal on that the realizing that the Election

Commission has been converted into a multi-member body and

the view taken by the learned Single Judge would be

translated into a reality if the two Election Commissioners

decide the issue of disqualification arising before the

Election Commission. There can be no doubt, contended

counsel, that the function which the Election Commission is

expected to perform under Article 192(2) of the Constitution

can be said to be quasi-judicial in character and once it is

shown that the apprehension of bias is reasonable and

genuine, the participation of the Chief Election

Commissioner in the decision-making process would be in

breach of the principles of natural justice and unless it is

shown that there is no alternative but for him to sit in

judgment, the rule of natural justice must prevail because

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11

justice must not only be done but must also appear to be

done. It was, therefore, submitted by counsel that the

doctrine of necessity can have no play because in the case

of a multi-member body, the person, be he the Chief Election

Commissioner or an Election Commissioner, against whom the

charge of bias is established ought to excuse himself from

the proceedings so that the decision taken is not rendered

vulnerable and the apprehension of prejudice is totally

removed. In short, Ms. J. Jayalalitha supports the decision

of both the learned Single Judge and the Division Bench on

the question of bias and applicability of the doctrine of

necessity.

We must at once state that we have carefully examined

the facts and circumstances laid on record in support of the

finding of bias recorded by the learned Single Judge as well

as the Division Bench and in our view the said finding is

unassailable. Conscious of the fact that Shri Seshan is

occupying a high constitutional office we have given our

anxious consideration to this aspect of the matter. While we

are inclined to think that Shri Seshan as a high

constitutional functionary may not carry any grudge or

malice against Ms. J.Jayalalitha, there can be no doubt that

his close association with Dr. Swamy's family and the

professional relationship with his wife who is representing

him in the suit at Bombay and the other circumstances, all

of which have been summarized in paragraph 39 of the

Division Bench judgment, are sufficient to raise a

reasonable apprehension in the mind of Ms. J.Jayalalitha

that he may be biased in favour of Dr. Suamy even if he does

not entertain any ill-will towards her. Realizing this, Shri

Sanghi submitted that his client is not at all anxious to

participate in deciding the issue referred to the Election

Commission unless it is in the constitutional scheme

imperative for him to do so. He further stated that if this

court comes to the conclusion that without his participation

the other two election. Commissioners can decide the issue,

his client will recuse himself. That takes us to, the

question whether Shri Seshan is bound to participate in

expressing his view on the issue referred for the opinion of

the Election Commission?

It is true that Article 192(2) of the Constitution

expects that the Governor 'shall obtain' the opinion of 'the

Election Commission' and 'shall act' according to such

opinion in giving his decision on the question of

disqualification raised before him. Obtaining the opinion of

the Election Commission is, therefore, imperative. It is

equally imperative for the Governor to act according to such

opinion. Thus, the opinion of the Election Commission is

decisive of the decision to be taken by the Governor.

obviously, the Election. Commission referred to in Article

192(2) of the Constitution would he the one appointed under

Article 324(2) of the Constitution. This Article in terms

provides that the Election Commission shall consist of the

Chief Election Commissioner and such number of other

Election Commissioners as the President may fix from time to

time. Therefore, the Chief Election Commissioner is a must

whether it is a single-member- or multi-member body. In the

case of a multi-member body, Article 324(3) expects him to

act as the Chairman of that body. Section 146 of the R.P.

Act cutlines the procedure to be followed in deciding the

question arising under Article 192. That procedure is the

one a civil court follows in deciding matters brought before

it. Section 9A was introduced in the R.P. Act to empower the

Election Commission to delegate some of its functions to the

Secretary or Deputy Election Commissioner, subject to such

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11

direction as the Election Commission may choose to give. But

it was pointed out that only routine matters can be

delegated under this provision.

At this stage it may be advantageous to refer to

certain other provisions which have a bearing on the point

under consideration. Article 124(1) of the Constitution

provides that there shall be a Supreme Court of India

consisting of the Chief Justice of India and such number of

other judges as may from time to time be prescribed. Article

214 provides that every State shall have a High Court and as

provided by Article 216 every High Court shall consist of a

Chief Justice and such other Judges as may be considered

necessary to appoint. Similarly, Article 324(2) and (3)

provide that the Election Commissioner shall consist of the

Chief Election Commissioner and such number of other

Election Commissioners, if any, as the President may from

time to time fix. When the Election Commission is a multi-

member body, the Chief Election Commissioner will act as its

Chairman. These provisions, therefore, provide for the

constitution of the Supreme Court, High courts and the

Election Commission. In the case of the first two, it is

well-settled that they need not sit en banc and can transact

business in benches. Is there any distinguishing feature in

the case of the Election Commission to take the view that it

must sit en banc or not at all? In other words, can it be

said that the provisions of the Constitution make it

imperative for the Chief Election Commissioner to

participate in each and every decision that the Election

Commission is required to make under the Constitution?

True it is that under Article 192 if any question

arises in regard to disqualification referred to in Article

191(1), the question has to be referred to the Election

Commission for its opinion and the Governor has to give his

decision in accordance with that opinion. Article 324(2)

provides for the constitution of Election Commission; if it

is a single-member body it will comprise of the Chief

Election Commissioner only, if it is a multi-member body he

will be joined by the other Election Commissioner(s). In the

case of a single-member body, if the Governor seeks his

opinion, he perhaps can invoke the doctrine of necessity but

that question which arose before the learned Single Judge is

no more germane because during the pendency of the appeal

two more Election Commissioners were appointed making it a

multi-member body. Shri Sanghi's reading of the aforesaid

constitutional provisions is that since the opinion has to

he of 'the Election Commission', it must be of all those who

constitute that body or not at all. This in our view is a

narrow reading of the said provisions. If Shri Sanghi is

right it must necessarily follow that ail decisions taken by

the Election Commission must be unanimous and majority

decisions would be of no avail. More or less the same line

of reasoning was canvassed before this Court in T.N. Seshan

v. The Union of India (1995) 4 SCC 611, but without suecess.

In that case this Court held that the scheme of Article 324

is that there shall be a permanent body to be called the

Election Commission, which shall discharge public functions,

essentially administrative in character but at times even

adjudicative and legislative. It was further pointed out

that the Constitution-makers preferred to remain silent as

to the manner in which the Election Commission will

'cransact its business presumably because they thought it

unnecessary and perhaps even improper to provide for the

same having regard to the level of personnel it had in mind

to man the Commission. Naturally they depended on the

sagacity and the wisdom of the Chief Election Commissioner

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11

and his colleagues. That, however, does not mean that the

Parliament could not enact Sections 9 and 10 introduced by

the amending Ordinance/Act. The submission that the said two

provisions were inconsistent with the scheme of Article 324

was rejected. Implied in this contention was the submission

that in the case of multi-member Election Commission

decisions have to be taken by one voice or not at all and

any provision which introduces the concept of decision by

majority must be held to be inconsistent with the scheme of

Article 394. Rejecting this contention this Court held that

Parliament was competent to enact Sections 9 and 10

introduced by the amending Ordinance/Act and there was

nothing in the scheme of Article 324 to conclude that

decision by majority would be an illegality. In that case

this Court quoted with approval, the following principle

found in footnote 6 at page 657 of Halsbury's Law of

England, 4th Edition (Re-issue), Volume 7(1):

"The principle has long beer,

established that the will of a

Corporation or body can only be

expressed by the whole or a

majority of its members, and the

act of a majority is regarded as

the act of the whole."

The same principle was reiterated in Grindley . Baker 126 ER

875, 879 and 882. It is, therefore, obvious that after the

decision of the Constitution Bench reiteration of the same

argument, albeit in a different shade, can be of no avail to

the appellant.

The next question then is if the Chief Election

Commissioner, for reason of possible bias, is disqualified

from expressing an opinion, how should the Election

Commission conduct itself? As pointed out earlier Shri

Sanghi, the learned counsel for the appellant, has very

frankly and with his usual fairness stated that the Chief

Election Commissioner preferred this appeal only because he

genuinely believed that the scheme of Article 324 did not

conceive of a decision by majority, but if the Court comes

to the conclusion that a decision can be reached without the

Chief Election Commissioner participating in decision-making

in the special circumstances of the case, the latter is not

at all keen or anxious to hear and adjudicate upon the

matter at issue before the Election Commission. We are quite

conscious of the high office the Chief Election Commissioner

occupies. Ordinarily we would be loath to uphold the

submission of bias but having regard to the wide

ramification the opinion of the Election Commissioner would

have on the future of Ms. J.Jayalalitha, we think that the

opinion, whatever it be, should not be vulnerable. The

participation of the Chief Election Commissioner in the

backdrop of the findings recorded by the learned Single

Judge as well as the Division Bench of the High Court would

certainly permit an argument of prejudice, should the

opinion be adverse to Ms. J.Jayalalitha. Therefore, apart

from the legal aspect, even prudence demands that the Chief

Election Commissioner should recuse himself from expressing

any opinion in the matter. However, the situation is not so

simple, it is indeed complex, in that, what would happen if

the two Election Commissioners do not agree and there is a

conflict of opinion between them? That would lead to a

stalemate situation and the Governor would find it difficult

to take a decision based on any such opinion. In such a

situation, can the doctrine of necessity be invoked in

favour of the Chief Election Commissioner?

We must have a clear conception of the doctrine. It is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11

well settled that the law permits certain things to be done

as a matter of necessity which it would otherwise not

countenance on the touchstone of judicial propriety. Stated

differently, the doctrine of necessity makes it imperative

for the authority to decide and considerations of judicial

propriety must yield. It is often invoked in cases of bias

where there is no other authority or Judge to decide the

issue. If the doctrine of necessity is not allowed full play

in certain unavoidable situations, it would impede the

course of justice itself and the defaulting party would

benefit therefrom. Take the case of a certain taxing statute

which taxes certain perquisites allowed to Judges. If the

validity of such a provision is challenged who but the

members of the judiciary must decide it. If all the Judges

are disqualified on the plea that striking down of such a

legislation would benefit them, a stalemate situation may

develop. In such cases the doctrine of necessity comes into

play. If the choice is between allowing biased person to

act or to stifle the action altogether, the choice must fall

in favour of the former as it is the only way to promote

decision-making. In the present case also if the two

Election Commissioners are able to reach a unanimous

decision, there is no need for the Chief. Election

Commissioner to participate, if not the doctrine of

necessity may have to be he invoked.

We think that is the only alternative in such a

situation. We are, therefore. of the opinion that the proper

course to follow is that the Chief Election Commissioner

should call a meeting of the selection Commission to

adjudicate on the issue of disqualification of Ms.

J.Jayalalitha on the groands alleged by Dr.Swamy. After

callinq the meeting he should act as the Chairman but then

he may recuse himself by announcing that he would not

participate in the formation of opinion. If the two Election

Commissioners reach a unanimous opinion, the Chief Election

Commissioner will have the opinion communicited to the

Governor. If the two Election Commissioners do not reach a

unanimous decision in the Matter of expressing their opinion

on the issue referred to the Election Commission, it would

be necessary for the Chief Election Commissioner to express

his opinion on the doctrine of necessity. We think that in

the special circumstanees of this case this course of action

would he the most dppropriate one to follow beause if the

two Election Commissioners do not agree, we have no doubt

that the doctrine of necessity would compel the Chief

Election Commissioner to express his views so that the

majority opinion could be communicated to the Governor to

enable him to take a decision in accordance therewith as

required by Article 192(1) of the Constitution.

In the result, while we largely agree with the view

expressed by the Division Bench, we modify the order of the

Division Bench of the High Court to the aforementioned

limited extent regarding the procedure to be followed by the

Election Commission in reaching a decision and communicating

its opinion to the Governor to enable the latter to decide

the issue in accordanee with the opinion. The appeal will

stand disposed of accordingly. In the facts and

circumstances of the case we make no order as to costs.