RAMDEO BHANDARI AND ORS. ETC. ETC.

v.

ELECTION COMMISSION OF INDIA AND ORS. ETC. ETC.

JANUARY 17, 1995

[AM. AHMADI, CJ, S.P. BHARUCHA AND

K. JAYACHANDRA REDDY, JJ.)

A

B

Constitution of India-Article 32-Powe?of Election Commission to

withhold elections for failure to issue identity cards-Elections to Legislative

Assembly of Bihar and Orissa-States not allowed elections for their failure C

to supply identity cards to 'all' eligible electors-Writ Petitions-State of Bihar

allowed to go to polls-Since State of Orissa had supplied photo identity cards

to 86% of voters-Election Commission not to enforce its instructions-Elec­

tion.

The five year term of the Legislative Assemblies of two States, D

namely, the State of Bihar and Orissa were to expire on March 15, 1995.

To satisfy the mandate of Article 168 of the Constitution, elections in the

two states had to be completed before March 15, 1995. However, a Press

note was issued

by the Election Commission stating

tbat no poll would be

taken in

that State unless 'all' eligible electors were supplied electoral E

identity cards and a certificate to that

effect was furnished by the con·

cerned State Government.

Writ Petitions were filed by the petitioners apprehending that since

the

two States were not in a position to complete the requlrement

of

supplying photo identity cards to 'all' eligible electors before the last date F

fIXed for the same, elections might not take place in the said two States

thereby denying to the elecrtors thereof their constitutional right to elect

a

new assembly for their respective States.

As far as the State of

Orissa was concerned, the Election Commis·

sion stated that since the State of Orissa had virtually, complied with the G

direction, in that, it had supplied photo identity cards to almost 86% of

voters, the Commission will not enforce its instruction contained in the

Press Note. For the state of Bihar,

it was submitted that it was a wilful

defaulter since

it made no serious

effort to comply with the direction of

the Election Commission for the supply of identity cards. However,

it was H

321

322 SUPREME COURT REPORTS [1995) 1 S.C.R.

A alleged on behalf of the State that the Election Commission had no power

or authority to hold up or to threaten to hold up the election process if

the identity cards were not issued.

Dbpa.ing of the matter, this Court

B HELD : I. The State of Bihar had lagged far behind in implementing

the orders of the Election Comission. However, the Election Commission

is mindful

of the consequences that may follow should the two States not

be allowed to go to the polls for their failure to supply identity cards to

'all' eligible electors. The Commission assured that since elections to the

C legislative assembly of Bihar had been notified, the Election Commission

will not withhold the elections for want

of identity cards. The Election

Commission, however, desired

that the

State should undertake to complete

the entire exercise before September 30, 1995. No such undertaking having

been sought from the State of Orissa, the counsel for the State of Bihar

was asked

on receiving instructions in that behalf from his client to report

D within

four weeks. [325-G, 326-F, 327-C]

2. The Election Commission shall not withhold the elections to the

legislative assemblies of Bihar

and Orissa on the ground that the said

Governments had failed to complete the process of issuance of photo

Identity cards

by the deadline prescribed by it. There will be an interim

E stay in the said terms. The Election Commission will, however, be free to

take such other steps as

it considers necessary and are permissible to

ensure a fair

and free poll. [327-B]

ORIGINAL

JURISDICTION : Writ Petition (C) No. 2 of 1995 etc.

F etc.

(Under Article 32 of the Constitution of India.)

M. Chandrasekharan, Additional Solicitor General, Soli J. Sorabjee,

D.D. Thakur, G. Ramaswamy, F.S. Nariman, K.N. Bhatt, Raju

G Ramachandran, Gopal K. Jain, Mukul Mudgal, Rajeev Sharma, S. Murlid­

har, Ms. Shomona Khanna, Niranjan Reddy, Raj Kumar Mehta, R.S.

Lambat, AK. Panda, Ravi P. Wadhwani, Ms. Leela Gupta, Gooptu, H.K.

Puri, AS. Bhasme, Kumar Rajesh Singh, B.B. Singh, A Subba Rao,

P.Parmeswaran and Navin Prakash for the appearing parties.

H In-person, (NP) In T.C. (C) No. 13/94.

1

..

R.D. BHANDARI r. ELECTION COMMN. 323

The following Order of the Court was delivered :

Article ln8 of the Constitution provides that every State shall ha1·e a

Legislature and Article

172(1) provides that every Legislative Assembly of

every

State, unless sooner dissolved, shall continue for five years from the

date appointed f~r its first meeting and no longer and the expiration of the

said period of

five years shall operate as a dissolution of the Assembly . Under this Article the five year term of the Legislative Assemblies of two

States, namely, the States of B1har and Orissa will expire on March 15,

1995. It is obvious that on the expiration of the said term of five years on

March

15, 1995, the assemblies of

the said two States will stand dissolved.

A

B

To satisfy the mandate of Article 168 it is necessary that elections should C

be held in the aforesaid two States in a manner that the election results

are declared before March

15, 1995. The latest

Press Note issued by the

Election Commission on December

8, 1994 states that the elections in the

States of Bihar and

Orissa would be completed before March 10, 1995.

Ordinarily no objection can be raised by either of the States to the schedule D

of elections fixed with a view to completing the same before March 15,

1995.

However, in paragraph 06 of the said Press Note it is ordained :

"A poll in any of these States will not be taken without the supply E

of electoral identity cards to all eligible electors. The State Govern­

ment

will be called upon to furnish a certificate that photo identity

cards have been supplied to all eligible

electors."

On a plain reading of the said paragraph it is clear that unless 'all' eligible

electors are supplied electoral identity cards and a certificate to that effect

is not furnished by the concerned

State Government, no poll will be taken

in that State.

It is, therefore, apprehended by the petitioners of writ

petitions Nos. 2 and 6 of

1995 which concern the States of Bihar and

Ori"a

F

that since the said lwo States are not in a position to complete the

requirement of supplying photo identity cards to 'all' eligible electors

G

before the last date fixed for the same, elections may not be taken in the

said two

States thereby denying to the electors thereof their constitutional

right to elect a new a;sembly for their respective States. The petitioners

contend that that would tantamount to the eligible electors of the Stale

being denied their constitutional and democratic rigbt to elect a new H

324 SUPREME COURT REPORTS [1995) 1 S.C.R.

A assembly. This apprehension arises in the background of the following

events.

On August 2S, 1993, the Election Commission in purported exercise

of powers unJcr Rule

28 of the Registration of Elector Rules, 1960 read

B with Section

130(2) of the Representation of People Act, 1950, issued a

directive for the supply of photo identity cards to electors in the assembly

as well as parliamentary constituencies in each State, with a view to prevent

impersonation of electors and facilitating their identification at the polls.

It was also maJe clear in no uncertain terms that no polling at elections

for which the Election Commission

is responsible shall take place after

C January 1, 1995 unless 'all' eligible electors have been supplied with identity

cards. What features the identity cards shall bear

was also indicated with

a caution that 'there

will be no departure from these features in

any manner

whatsoever'. This

was followed by High Level Meetings at which certain

State Governments, including the representatives of the said two

States of

D Bihar and Orissa, pointed out certain difficultic·, in the impleme11<ation of

the said directive. The Chief Electi% Uflicers of the States \· cc held

responsible for maintaining the schedule for completion of the identity

cards to the electors before deadline fixed hv the Ekction Commis:-:on. On

May 1.1, 1994, the Election Commission wrote to the Chief Secretary and

Chief Election Officer, Bihar that there was virtually no progress made

E towards issuance of identity cards and added 'the commission hereby

forewarns you that the responsibility for any constitutional stalemate that

may arise because of your failure to comply with the instructions of the

Commission .........

will rest squarely with you and the State Government.'

This

was followed by a letter dated November 6, 1994 drawing the attention

F of the State of Bihar that the progress was very unsatisfactory and warned

that should any constitutional crisis arise on account of elections not being

held for want of identity cards, the responsibility

will rest squarely on the

State Government. Then by the letter of December 29, 1994, the Election

Commission stated thal the notification calling the elections would be

issued only after the receipt of the certificate from officers of the State

G Government that all eligible voters had been supplied with photo identity

cards.

By the order of November

30, 1994, the Election Commission stated

that in no case

will any request for extension of deadline be

entertain~d.

This gave rise to the apprehension that the elections to the legislative

assemblies of the States of Bihar and Orissa will not be held before March

H 15, 1995, for their failure to comply with the directive of giant of identity

R.D. BHANDARI v. ELECTION COMMN. 325

cards.

When the M-it petitions filed under Article 32 of the Constitution

came

up for

admission before us yesterday we heard counsel for the

petitioners, Shri Fali

S. Nariman for the State of

Orissa in Writ Petition

.A

Na. 6 of 1995 and Shri Soli J. Sorabjee in Writ Petition No.2 of 1995 and

Shri Bhat for the State of Bihar as well as counsel for the petitioner in Writ B

Petitions Nos. 4 and 37 of 1995 and Shri G. Ramaswamy, counsel for the

Election Commission at some length.

We

also heard them on the question

of grant of interim relief. During the course of the hearing Shri Soli J.

Sorabjee briefly indicated in writing the points arising for consideration.

Shri G. Ramaswamy, learned senior counsel for the Election Commission C

stated that since the State of Orissa had virtually complied with the

direction, in that,

it had supplied photo identity cards to almost 86% of

voters, the Election Commission

will not enforce its instruction contained

in paragrph

06 extracted earlier. In other words Shri Ramaswamy con­

tended that in the State of Orissa elections will not be held up for want of

supply of identity cards to 'all' electors eligible to vote and for want of an

D

undertaking/certificate in that behalf from the

State Government. That

should settle the matter insofar

as

Orissa is concerned. As far as the State

of Bihar is concerned, Shri Rarnaswwny submitted that it was a willful

defaulter since

it made no serious effort to comply with its direction for

the supply of identity cards.

On the other hand Shri Bhat contended that E

the Chief Election Commissioner had failed to appreciate the economic as

well as the social conditions in Bihar and without taking into account the

ground realities had tried to press, nay, coerce the State into submission.

At that stage Shri Guptoo, the learned Advocate General for West Bengal,

who was in court, stated that as far as his State Government is concerned,

the Chief Election Commissioner had gone to the length of saying that

failure to implement his order would tantamount to a break down of the

constitutional machinery

in the state and threatened to inform the

Presi­

dent of India accordingly. While there may be force in the submission that

F

the language used in the correspondence by the Election Commission is

unduly harsh and abrasive, ordinarily not U>ed in correspondence between G

high-level functionaries, the fact remains that the State of Bihar had lagged

far behind in implementing the orders of the Election Commission. Coun-

sel for the State of Bihar stated that his government was firmly of the

opinion that the Election Commission had no power or authority to hold

up or to threaten to hold up the election process if the identity cards were

H

326 SUPREME COURT REPORTS [1995] 1 S.C.R.

A not issued. This would be a larger question to be answered at the final

hearing.

Shri Ramaswamy

in the light of discussion made a statement at the

Bar and followed it up

by placing it in writing, which runs thus :

B

"The Commission has no intention of creating any constitutional

crisi~. Since 18 months' time has been given for completion of the

exercise, the deadline of

1.1.1995 fixed 18 months ago was insisted

upon.

c

D

E

Since elections to the legislative assembly of the

State of Bihar

have been notified, the Election Commission will not withhold the

elections on the ground that identity cards have not been supplied

to

all voters

provided the Government of Bihar gives an undertak­

ing to this court that it will complete the exercise of issuing identity

cards before 30.9.1995.

The is without prejndice to the contentions of the parties to the

writ petitions.

Sd/-

(S.K. Mendiratta)

Secretary Election Commission

of India"

From the above statement it becomes clear that whatever the Elec­

tion Coll'.mission may have said in the earlier correspondence and no

matter how forcefully it may have insisted, the Election Commission is

F mindful of the consequences that may follow should the two

States not be

allowed to go the polls for their failure to supply identity cards to 'all'

eligible electors.

It has also assured us that since elections to the legislative

assembly of Bihar have been notified, the Election Commission

will not

withhold the elections for want of identity cards. The Election Commission

G has, however, desired that the

State of Bihar should undertake to complete

the entire exercise before September 30, 1995. Such an undertaking would

ofconrse be without prejudice to the contentions of the parties. Shri Bhat

on the other hand contended that it

is the contention of the State Govern­

ment that the Election Cotr.mission has no power or authority to withhold

elections for failure to issue identity cards and it cannot refuse to permit

H

an elector to cast his vote for want of such a card and, therefore, there is

R.D. BHANDARI v. ELECTION COMMN. 327

no question of the State of Bihar giving any such undertaking and in any A

case he cannot do so without the express authority of his client. We

appreciate his difficulty.

Taking

all the above facts and circumstances into consideration we

direct rule nisi to issue in all the four writ petitions and direct counsel to

complete the paper

books within four weeks. Printing dispensed with. B

We further direct that the Election Commission shall not withhold

the elections to the legislative assemblies of Bihar and Orissa on the ground

that the said Government had failed to complete the process of issuance

of photo identity cards by the deadline prescribed by it There will be an

interim

stay in the said terms. The Election Commission will, however, be C

free to take such other steps as it considers necessary and are permissible

to ensure a fair and free poll.

As regards the grant of undertaking, no such undertaking having

been sought from the State of Orissa, the learned counsel for the State of D

Bihar may obtain instructions in that behalf from his clients and report

wihin four weeks.

Let the

writ petitions come up with Transferred Cases Nos. 13, 14,

16 and 18 of 1994 and Civil Appeal No. 6106 of 1994 (Shri T.N. Seshan v.

State of West Bengal). E

Liberty to mention for early hearing.

Since the averments in the Writ Petitions filed subsequent to Writ

Petition No. 2 of 1995 are more or less identical we have mainly referred

to the averments in the first petition.

A.G. Matters disposed of.