Title not extracted — [2002] Supp. 3 S.C.R. 366

(l) The Commission was of the opinion that Article 174(1) of the Constitution was applicable even in respect of dissolved C Assemblies and in the Order it is stated that the Commission has, in the past, been taking the view that the six months mentioned in 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 D to meet within the period of ~:ix months from the last sitting of the last session of the dissolved Assembly; (2) The 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 E 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 a new Legislative Assembly on the dissolution of the previous house; (3) The Commission further observed that Article 174(1) of the p 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 preparation of electoral rolls for, and conduct of, elections to Parliament and State Legislature in the Election Commission. The Commission further observed that free and fair election based on universal adult franchise being the basic feature of the Constitution the same cannot be held in view of the prevailing situation in Gujarat. The H

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A Commission was of the view that there was large scale movement and migration of electors due to communal riots and violence and they had not returned to their homes and they would not be able to go to the polling station to cast their votes and the electoral rolls had to be revised.

B Therefore, the Election Commission came to the conclusion that it was not i~' a position to conduct free and fair election immediately after the dissolution of the Assembly and after the electoral roll is revised, the Commission would be in a position to conduct election to the General Assembly in the month of November/December, 2002.

c The Commission was also of the view that Legislative Assembly should meet ~t least every six months as contemplated by Article 174(1) of the Constitution even when it has been dissolved and in case it was not feasible, that would mean that the Government of the State cannot be carried on in accordance with the provisions of the Constitution within the meaning of D Article 356(1) of the Constitution and the President would step in and declare a state of emergency.

After the receipt of the report of the Election Commission, the Presidential Reference was made under Article 143(1) of the Constitution of India and the Order of Referer.ce proceeded on the assumption that the mandate of the E Constitution under Article 174(1) is that six months shall not intervene between the last sitting of the previous session and the date appointed for the first sitting in the next session and the Election Commission has all along been consistent that, normally, a Legislative Assembly should meet at least every six months as contemplated by Article 174(1) of the Constitution, even where it has been dissolved, and the Order of the Election Commission of India F dated August 16, 2002 had not recommended any date for holding general election for constituting a new Legislative Assembly for the State of Gujarat. The new Legislative Assembly cannot 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. The following observation of the Election G Commission was also noted in the Reference: · "AND WHEREAS the Election Commission has held that the non- observance of the provisions of Article 174( I) 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

SPECIAL REFERENCE NO.I OF 2002 [BALAKRISHNAN, J.] 431

step in; A 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( l) of the Constitution under which not more than six months shall B 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." C The following three questions were referred to the Supreme Court of India for consideration:

(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 1J Assembly?

(ii) Can the Election Commission of India frame a schedule for the elections to an Assembly on the premise that any infraction of the mandate of Article 174 would be remedied by a resort to Article 356 by the President? E (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 requisite resources of the Union and the State to ensure free and fair elections?

After the receipt of the reference, notices were issued to all the States F and all the recognised national political parties. On behalf of the Union of India, Solicitor General Shri Harish N. Salve appeared and raised the following contentions. It was contended on behalf of the Union of India that Article 174 is applicable even to dissolved assemblies and since there is no time limit at all for conducting fresh election, it would hypothetically lead to a situation G of Council of Ministers continuing perennially after the dissolution of Assembly, which, in turn, would lead to a breakdown of the constitutional democracy. It was argued that there is no question of Article 174, or Article 85, or Article 75 or Article 164 coming in conflict with Article 324 and these provisions operate in different fields and the power of superintendence, direction and control of elections vested with the Election Commission should H

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A be exercised in the manner which wou Id be consistent with the constitutional scheme of representative government. It is submitted that the Election Commission must use all the requisite resources of Union and the State to ensure free and fair election. It was further argued that the power under Article 356 is utterly irrelevant for ascertaining the constitutional mandate for B holding elections and this power is highly discretionary and is to be exercised where there is a breakdown of the constitutional machinery. The executive government has no legal authority to compel the holding of elections not even Parliament can, by resolution, legally compel the Election Commission to fix a particular schedule for the elections. By the same token, the Election Commission cannot recommend or even proceed upon the premise of - C imposition of President's Rule, which would require executive action ratified by Parliament.

Shri Arun Jaitley, Sr. Advocate, appearing on behalf of the Bharatiya Janata Party contended that the view of the Election Commission that Article 174 is 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 Articles 327 and 328. It was also argued that even when the Assembly is dissolved, the House continues 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.

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 p the Election Commission to conduct the election immediately and every step shall be taken to see that the new Legislative Assembly met for its first session at the earliest. However, it was submitted that Election Commission is the supreme authority, which should take a decision as to when a free and fair election can be held. Article 324 of the Constitution gives vast power to the Election Commission to decide the question as to when the election shall be held and if the Election Commission fails to carry out the constitutional mandate .for any other extraneous reason, such decision can be challenged under judicial review. According to the counsel, any other interpretation of these constitutional provisions would lead to a situation where the Election Commission would be forced to conduct election when it is not possible to conduct a free and fair election and that would be against the constitutional

SPECIAL REFERENCE NO. I OF 2002 [BALAKRISHNAN, J.] 433

spirit of a democratic government. It was submitted that as the Reference was based on the wrong assumption of the constitutional provisions, it need not be answered by this Court.

Shri Ram Jethmalani, Sr. Advocate appearing on behalf of the State of Bihar submitted that Article 174 applies to an Assembly whose personality/ identity is not interrupted or altered by premature dissolution or expiry of its perit>d ofduratioil. Free and fair elections being a basic feature of a democratic · and Republican Constitution, Article 174 will have to yield to Article 324. It was further submitted that Article 356 does not include the power to suspend the operation of Article 174. It was also submitted that Article 174 imposes a mandate only on the Governor of the State and is not concerned with the C Election Commission.

Shri Rajeev Dhavan, Sr. Advocate appearing on behalf of the Communist Party of India (Marxist) also supported the contention raised by the counsel who appeared for Indian National Congress and contended that Article 174 is not applicable to dissolved Assembly. Similar contentions were raised by counsel for other political parties and counsel who appeared for various States.

Shri K.K. Venugopal, Sr. Advocate appearing on behalf of the Election Commission submitted that Article 174 has no application to dissolved Assemblies. It was submitted that free and fair election is the basic feature of the Constitution and the power of superintendence, direction and control of election vests with the Election Commission. It was further submitted that as the Reference has been made on the wrong premise, 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.

We are greatly beholden to other Senior Lawyers, Mr. K. Parasaran, P.P. Rao, Milon Banerjee, M.C. Bhandare, Ashwani Kumar, P.N. Puri, A. Sharan, G 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.

The first and foremost question that arises for consiqeration is whether Article 174 is applicable in respect of a dissolved Assembly. The next question H

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A that arises for consideration is the interplay of Article 174 and Article 324 of the Constitution. Incidentally, a question also may arise whether the Election 'tommission can postpone the election indefinitely on one pretext or the other and create a situation where there is a breakdown of democratic form Of Goveminent. Article 174 of the Constitution reads thus:

B "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 at such tilne and place as he thinks fit, but six months shall not intervene between its last ~;11i~. ~ in one session and the date appointed for its first sitting in the C n~11t session.

(2) The Governor may from time to time

(a) prorogue the House or either House;

(b) dissolve the Legislative Assembly". D Article 324 of the Constitution reads as under :

"324. Superintendence, direction and control of elections to be vested in an Election Commission - (I) The superintendence, direction and control of the preparation of E the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission). F (2) .......

Section 8 of the Constitution (First Amendment) Act, 1951 amended Article 174 of the Constitution. The amended Article requires the Governor H to summon the House or each house of the Legislature of the State and this

SPECIAL REFERENCE NO. l OF 2002 [BALAKRJSHNAN, J.] 435

Article mandates that six months shall not intervene between the last sitting of one session and the date appointed for the first sitting of the next session. The sole object of Article 174(1) is to ensure accountability of executive to the people through their elected representatives. Article 164(2) states that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. In a democratic form of Government the responsibility of the Government is to the people of the country and the Members of the Legislative Assembly represent the people of the State and the Council of Ministers shall be collectively responsible to the Legislative Assembly. Therefore, frequency of the meeting of the Legislative Assembly is necessary, otherwise, there will not be any check and balance to the actions of the executive government. The Solicitor General contended that Article 174 would apply even to a dissolved assembly because the House as such is not dissolved and it was pointed out that when the British Parliamentis dissolved, notice to summon the next session of the Parliament is simultaneously issued. On that basis, it was contended that Article 174 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 D has no application to a dissolved Assembly. The words "si~ 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.

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 must appreciate the action of the Election Commission in scheduling the election in such a way that the first session of the next Assembly meets within the period of six months of the last sitting of the dissolved Assembly. But that by itself is no reason to interpret that Article 174 would apply to a dissolved Assembly. Frequency of meeting as provided under Article 174 would apply to an Assembly which is in esse at that time.

Therefore, a question may arise that if Article 174 is not applicable to a dissolved Assembly, can the Election Commission postpone election for H

436 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A indefinite period so as to defeat the democratic form of Government? ls there any mandate in the Constitution or in the Representation of People Act, J 951 prescribing time to conduct the election? Obviously, neither the Constitution nor the Representation of People Act, J 95 l prescribes any time limit for the conduct.of election after the term of the Assembly is over either by premature B dissolution or otherwise. Proviso to Section 15(2) of the Representation of People Act, 1951 states that where a general election is held otherwise than on dissolution of the existing· House of the People, no notification for election shall be issued at any time earlier than six months prior to the date on which the duration of that House would expire under the provisions of clause (2) of Article 83. Once there is dissolution of the Assembly, the Election C Commission shall take immediate steps to conduct the election and see that the new Assembly is formed at the earliest point of time. A democratic fonn of Government would survive only if there are elected representatives to rule the country. Any delay on the part of the Election Commission is very crucial and it is the Constitutional duty of the Election Commission to take steps immediately on dissolution of the Assembly. Article 324 of the Constitution D gives vast powers to the Election Commission and time and again this Court has pointed out the extent of powers and duty vested with the Election Commission. It was argued by various counsel appearing on behalf of the various political parties as to what would be ihe position if the Election Commission would indefinitely postpone the election under some pretext or the other. So, the question posed was: 'Quis custodiet ipsos custodes' who will guard the guards themselves?

The Election Commission is 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 with in 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 ~ndeavour 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

SPECIAL REFERENCE NO. I OF 2002 [BALAKRISHNAN, J.] 437

military and para-military forces. When an Assembly is dissolved by the A Governor on the advice of the Chief Minister, naturally, the Chief Minister or his political party seeks fresh mandate, from the electorate. The duty of the Election Commission is to conduct fresh election and see that a democratically elected Government is installed at the earliest and any decision by the Election Commission, which is intended to defeat this very avowed object of forming B an elected Government can certainly be challenged before the Court if the decision taken by the Election Commission is perverse, unreasonable or for extraneous reasons and if the decision of the Election Commission is vitiated by any of these grounds the Court can give appropriate direction for the conduct of the election.

The next point that arises for consi_deradon to form an opinion regarding c the questions referred to this Court is as to the ii'pplication ofj\rti,cle 356 pf the Constitution. Reference to Artie;.: 336 was incidentally made by the Election Commission to point out that if Article 174 cannot be complied with, the possible alternative is to invoke Article 356 an-:! declare a state of emergency. I do not think that the solution suggested by the Election. D Commission is appropriate or justified. A.1ticle 356 has no application under any of these situations. It is an independent power to be exercised _very rarely and this power is hedged in ever by so many Constitution.al limitations. Jn view of the above discussion, the three questions made in the Reference can· be answered in the following manner. E (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?

Article I 74 and Article 324 operate in different fields. Article I 74 does not apply to dissolved Assemblies. The schedule of the election of the F Assembly is to be fixed having regard to the urgency of the situation that a democratically elected Government be installed at the earliest and the process of election shall start immediately on the dissolution of the Assembly. Though the ultimate authority to decide as to when a free and fair election can be conducted is Election Commission, such decisions shall be just and G reasonable and arrived at having regard to all relevant circumstances. Any decision to postpone election on unreasonable grounds is anathema to democratic form of government and it is subject to judicial review on traditionally accepted grounds.

(ii) Can the Election Commission of India frame a schedule for the H

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A elections to an Assembly on the premise that any infraction of the mandate of Article 174 would be remedied by a resort to ··- Article 356 by the President?

The framing of schedule for election for the new Legislative Assembly shall start immediately on dissolution of the Assembly and the Election B Commission shall endeavour to see that the new Legisl~tive 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) ls the Election Commission of India under a duty to carry out the C 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?

The Election Commission is under a constitutional duty to conduct the election at the earliest on completion of the term of the Legislative Assembly D on dissolution or otherwise. If there is any impediment in conducting free and fair election as per the schedule envisaged by the Election Commi:;sion, it can draw upon all the requisite resources of Union and State within its command to,ensure free and fair election, though Article 174 has no application in the discharge of such constitutional obligation by the Election Commission. It is E the duty of the Election Commission to see that the election is done in a free and fair manner to keep the democratic form of Government vibrant and active.

ARIJIT PASAYAT, .J. Free, fair and periodic elections are the part of the basic structure of ti1e Constitution oflndia, I 950 (in short the 'Constitution'). F In a democracy the little man-voter-has overwhelming importance and cannot be hijacked from the course of free and fair elections.

'Democracy' and 'free and fair election' are inseparable twins. There is almost ari insevereable umbilical cordj0ining them. The little man's ballot and not the bullet of those who want to capture power (starting with booth G capturing) is the heartbeat of democracy. Path of the little man to the polling booth should be free and unhindered, and his freedom to elect a candidate of his choice is the foundation of a free and fair election.

The message relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words: H

SPECIAL REFERENCE NO. I OF 2002 [ARIJIT PASAYA T, f] 439

"At the bottom of all tributes paid to democracy is the little man, A walking into a little booth, with a little pencil, making a little cross on a little bit of paper-no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point."

If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion B . of discretion by men 'dressed in little, brief authority'. For 'be you ever so high, the law is above you'.

The moral may be stated with telling terseness in the words of William Pitt: 'Where laws end, tyranny begins'. Embracing both these mandates and emphasizing their combined effect is the elemental law and politics of Power c best expressed by Benjamin Disraeli :

"I repeat... .... tint all power is trust-that we are accountable for its exercise-that, from the people and for the people, all springs, and all must exist." D At the threshold: why the Reference was made, and in what background.

The Gujarat Legislative Assembly met on 3rd April, 2002 and thereafter was dissolved on 19th July, 2002. Election Commission passed an order on 16th August, 2002 holding that free and fair elections was not possible in E 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 Article 143( I) of the F 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 ifthe period prescribed under Article 174 cannot be adhered to, the situation can be met by imposition of President's Rule by Article 356 of the Constitution. The Reference (including the preambles) G and relevant portion of Election Commission's order so far as relevant for the Reference read as follows: '/ Presidential Address:

WHEREAS the Legislative Assembly of the State of Gujarat was H

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A dissolved, on July 19, 2002 before the expiration of its normal duration on March 18, 2003;

AND WHEREAS Article 174(1) of the Constitution provides that six months shall not intervene between the last sitting of the Legislative Assembly in· one session and the date appointed for its first sitting in the next Session; B AND WHEREAS the Election Commission has also noted that the mandate of Article 174 would require that the Assembly should meet every . six months even after the dissolution of the House, and that the Election Commission has all along been consistent that normally a Legislative Assembly C should meet at least every six months as contemplated by Article l 74, even where ii has been dissolved;

;\ND WHEREAS under Section 15 of the Representation of the People Act, 1951, for the purpose of holding general elections on the expiry of the duration of the Legislative Assembly or its dissolution, the Governor shall, D by notification, call upon all Assembly Constituencies in the State• to elect members on such date or dates as may be recommended by the Election Commission of India;

AND WHEREAS the last sitting of the Legislative Assembly of the E State of Gujarat was held on 3rd April, 2002, and as such the newly constituted Legislative Assembly should 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 F 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 c.iecision of the Election Commission oflndia, a new Legislative Assembly cannot come into existence so as to ·meet within the stipulated period of six months as provided under Article 174(1) of the Col'lStitution of India;

AND WHEREAS the Election Commission has held that the non- observance of the provisions of Article l 74( I) in the present situation would mean that the Government of the State cannot be carried in accordance with

SPECIAL REFERENCE NO.I OF 2002 [ARIJIT PASA YAT, J.] 441

the provisions of the Constitution within the meaning of Article 356(1) of the A 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 E'lection 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 B 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 C are ()f such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India;

NOW, THEREFORE, in exercise of the powers conferred upon me under clause(!) 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 D for consideration and report thereon, namely:-

(i) Is Article 174 subject to the decision oftlie Election Commiss;on 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 ' / E elections to an Assembly on the premise that any infraction of the mandate of Article 174 would be remedied by a resort to Article 356 by the President? (iii) Is the Election Commission of India under a duty to carry out the mandate of Article 174 of the Constitution, by drawing upon all the requisite resources of the Union and the State to ensure free and fair elections?

Order of the Election Commission (Relevant portions)

L The term of the Legislative Assembly of the State of Gujarat was normally due to expire, in terms of Article 172(1) of the Constitution, on the 18th March, 2003. Keeping that in view, the Commission had been planning to hold the next general election in the State for constituting a new Legislative Assembly in the early part of the year 2003, along with the general elections to the Legislative Assemblies of Himachal Pradesh, Meghalaya, Nagaland and H

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A Tripura whose terms are alsc l'IOnnally due to expire in the month of March, 2003.

2. The Legislative Assembly of the State of Gujarat was, however, dissolved prematurely by the Governor or'Gujarat on the 19th July, 2002 in exercise of his powers under Article I 74(2)(b) of the Constitution. On such B premature dissolution of the State Legislative Assembly, a demand is being made, particularly by the Bhartiya Janta Party and a few other smaller parties and NGOs, that the general election to constitute the new Legislative Assembly be urgently held by the Commission. so as to enable the new Legislative Assembly so constituted to meet for its first session before 6th October, 2002. C In support of such demand, they are citing Article 174(1) of the Constitution which provides that 'the Governor shall, from time to time, summon the House or each House of the Legislature of the State to meet at 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 first sitting in the next session'. The last session of the dissolved Legislative Assembly of Gujarat was prorogued on 6th April, 2002 and it is contended that the first session of the new Legislative Assembly should be held before 6th October, 2002 and, therefore, it is mandatory for the Commission to hold the election well before 6th October, 2002. They also claim that the situation in the State of Gujarat is quite normal and conductive to the holding of free and fair elections, as is evi~ent from the facts that the panchayat elections in large areas were successfully conducted in April 2002, that HSC, SSC examinations were held peacefully and that various religious festivals like the Rath Yatra had passed off without any untoward incident.

x x x x x F

4Copy pinpoint4. 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 G 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 Article t74(2)(b) of H the Constitution (and where the President has not taken over the administration

SPECIAL REFERENCE NO. I OF 2002 [ARIJIT PASA YAT, J.] 443

of the State under Article 356 of the Constitution on the dissolution of the A Assembly), elections to constitute a new Legislative Assembly have alwa}'S been held in such time as have enabled the new Assembly to meet within the period of six months from the last date of the last session of the dissolved Assembly. Similar action has been taken by the Commission wherever the House of the People has been prematurely dissolved by the President under Article 85(2)(b) of the Constitution-for example, the dissolution of the House B of the People in 1999, 1998 and earlier in 1991, 1979 and 1971-so that the new House of the People could meet within the period of six months from the last sitting of the dissolved House.

5Copy pinpoint5. Thus, the Commission has all along been consistent that, normally, C a Legislative Assembly should meet at least every six months as contemplated by Article 174(1) of the Constitution, even when it has been dissolved (except where President's Rule has been imposed in the State under Article 356 of the Constitution). The Commission sees no convincing/justifiable reason to take a different view in the present case. In fact, any other view on the interpretation of Article 174(1) of the Constitution might lead to extensive gaps between two D 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 is to be held to constitute a new Legislative Assembly on the dissolution of the previous House. This will be contrary to the basic scheme of the Constitution which prescribes that there shall be a State E Legislative Assembly (Article 168) and the Council of Ministers shall be collectively responsible to that Assembly [Article 164(2)] and that ifa minister is not a member of the Assembly for a consecutive six months period, he shall cease to be a minister [Article 164(4)]. A more alarming situation may arise with Parliament where Article 85( I) of the Constitution makes identical provisions relating to the holding of sessions of the House of the People. F Any view that the House of the People need not meet every six months and the elections be indefinitely postponed after one House has been dissolved, would not only be destructive of the whole Parliamentary system so assiduously built in our Constitution but also be abhorrent to every section of the Indian polity and citizenry. G

6Copy pinpoint6. The Commission is also fortified in its above. interpretation by the view taken by the President and 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 H

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A 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 10th February, 1999 issued by th.e President dissolving the Goa Legislative Assembly and imposing President's B 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 x x c 8. There 1s, 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 that normally, the Legislative Assembly of a State should meet every six months even after the dissolution of one House.

9. The next question for consideration of the Commission is whether the Commission is obliged whatever may be the circumstances to hold the general election within the period remainir.g out of six months from the date of the last sitting of the dissolved Assembly. The Commission does not accept this view. 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. Article 324, which is 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 preparation of electoral rolls for, and conduct of, elections to Parliament and State Legislatures in the Election Commission. Elections, in the context of democratic institutions, mean free and faire elections and not merely a ritual to be gone through periodically. In the words of the Constitution Bench of the Supreme Court in T.N. Seshan v. Union of India and Ors., (1995] 4 SCC 61]: ' 'Democracy being the basic feature of our constitutional set up, there can be no two opinions that free and fair elections to our Legislative bodies alone would guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process, it was thought by our Constitution-makers that the responsibility to hold free and fair election in the country should be entrusted to an independent body which would be insulated from

SPECIAL REFERENCE NO.I OF 2002 [ARIJIT PASAYAT, J.] 445

political and/or executive interference.' A Again, the Constitution Bench of the Supreme Court observed in the famous Keshavanand Bharati v. State of Kera/a, AIR (I973) SC I46I that 'Free, fair, fearless and impartial elections are the guarantee of a democratic polity.' _j Likewise, the Supreme Court repeatedly underscored the importance of free and fair elections in the case of Mohinder Singh Gill v. Chief Election B Commissioner and Ors., AIR (1978) SC 851, Kanhiya Lal Omar v. R.K. Trivedi, AIR (I986) SC 111 and a catena of other decisions. In the case of Mohinder Singh Gill (supra), the Supreme Court observed:

'The free and fair election based on universal adult franchise is the basic .... .it needs little argument to hold that the heart of the Parliamentary c system is free and tilir 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 D to the legislative bodies have found echo in every other decision of the Supreme Court on elections.

x x x x x

I I. Thus, the Constitutional mandate given to the Election Commission E under Article 324 of the Constitution is to hold free and fair elections to the legislative bodies. And, in the Commission'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 I 74 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 F interpretation of the pro'>i,isions of Articles I74(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 I 74( 1) in the aforesaid eventuality would mean that the Government of the State cannot be carried on in accordance with the provisions of the G Constitution within the meaning of Article 356(1) of the Constitution and the President would then step in.

x x x x x

61. After completion of this exercise to correct the electoral rolls and H

446 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A bringing them as up-to-date as possible and creation of conditions conducive for free and fair elections in the State, the Commission will consider framing a suitable schedule for the general election to the State Assembly in November- December 2002.

It may be noted here that the Election Commission in the written B submissions filed and the submissions made before us has stated that the observations regarding impos_ition of Presidents' rule were not made in the context of Article 356 of the Constitution, which we shall deal in detail infra. The third question relates to the exercise of power in the context of Article 174. c When the Reference was taken up for hearing we made it clear to the parties that the correctness of factual conclusions arrived at by Election Commiss,ion in its order shall not be considered by us. Only legal issues and the foundations therefor i.e. as recorded in the order were to be analysed. We also pointed out to learned counsel for the parties that while considering a D Reference there is no adversarial lis involved. We record our appreciation that learned counsel appearing for the parties have placed their submissions as amicus curiae, though there was divergence in approach.

It was argued by some of the learned counsel that the Reference need not be answered because the questions do not arise out of the order of the E Election :Commission though the Preamble is based on the same. It is not imperative for the Court to answer the Reference and even if any doubt is entertained, that cannot be on hypothetical premises and answers which are self-evident and/or issues settled by this Court by its decisions need not be answered. It was submitted that the questions which are inherently incapable of being answered should not be answered. The Reference was as described by some of the learned counsel to be inappropriate and defective. It was submitted that the Reference is potentially political and seeking judicial review though disguised as a Reference. Per contra, submissions were made by some of the learned counsel who have submitted that the questions are of great national interest, and there is no political overtone and in order to avoid controversies in future and to have the law settled, the Reference has been made.

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

SPECIAL REFERENCE NO. I OF 2002 [ARJJIT PASA VAT, J.] 447

ground that political issues are involved or that the Court does not act in exercise of appellate jurisdiction while dealing with a Reference. lt 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., [1994] 6 SCC 360 and in the matter of: B Cauve1y Water Disputes Tribunal, [1993] Supp 1 SCC 96(11)]

The Federal Court in Re The Allocation of Lands and Buildings in a Chief Commissioner's Province, AIR (1943) FC 13 a Reference under Section 213(1) of the Government of India Act which is similar to Article 143 said that though the terms of that section do not impose an obligation on the Court, C the Court should be unwilling to accept a Reference except for good reasons. Th is Court accepted the Reference for reasons which appeared to be of constitutional importance as well as in public interest.

In Re Kera/a Education Bill, AIR (1958) SC 956 = [1959] SCR 995 Das, C.J. referred to the Reference in Re The Allocation of Lands and Buildings D (supra) and the Reference in Re Levy of Estate Duty, AIR (I 944) FC 73 and the observations in both the cases that the Reference should not be declined excepting for good reasons. This Court accepted the Reference on the questions of law arising or likely to arise. Das, C.J. in Re Kera/a Education Bill (supra) said that it is for the President to determine what questions should be referred and if he does not have any serious "doubt" on the provisions, it is not for any party to say that doubts arise out of them. In short, parties appearing in the Reference cannot go behind the order of the Reference and present new questions by raising doubts. (See In Re: Presidential Poll [1974] 2 SCC 33).

This Court is bound by the recitals in the order of Reference. Under F Article 145(1) we accept the statements of fact set out in the Reference. The truth or otherwise of the facts cannot be enquired or gone into nor can Court go into the question of bona jides or otherwise of the authority making the Reference. This Court cannot go behind the recital. This Court cannot go into disputed questions of fact in its advisory jurisdiction under Article 143(1). G The correct approach according to us has been laid down by a 7 Judge Bench in Special Reference No. I of 1964 [commonly known as Keshav Singh Contempt Case] [1965] 1 SCR 413. After culling out the core issues (as seen at page 439) from the questions set out at pages 429, 430 at page 440 it was observed as follows: H

448 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A "Though the ultimate solution of the problem posed by the questions before us would thus lie within a very narrow ~ompass, it is necessary to deal with some wider aspects of the problem which incidentally arise and the decision of which will assist us in rendering our answers to the questions framed in the present Reference''.

B (Underlined for emphasis)

It would be appropriate to take note of certain pivotal provisions in the Constitution; Representation of Peoples' Act, 1951 (in short 'R.P. Act, 1951) and the Government of India Act, 1935 (in short 'Government Act').

C Article I 72: Duration of State Legislature-(!) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five ;rears 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 As~embly:

D Prqvided 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.

E (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 by law.

Article I 74: 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 first sitting in the next session.

(2) The Governor may from time to time - G (a) prorog11e the House or either House;

(b) dissolve the Legislative Assembly

Article 324 : Superintendence, direction and control of elections to be vested in an Election Commission-(1) The superintendence, direction and

SPECIAL REFERENCE NO.I OF 2002 [ARIJIT PASAYAT, J.] 449

control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).

(2) The Election Commission shall consist of the Chief Election B Commissi0ner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and the other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. c (3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.

(4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and D thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (I). E (5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:

Provided that the Chief Election Commissioner shall not be removed F from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:

Provided further that any other Election Commissioner or a Regional G Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.

(6) The President, or the Governor of a State, 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 H

450 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A 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 B 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.

C Article 356 : Provisions in case of failure of constitutional machinery in States-( I) 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 by Proclamation -

D (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State; (b) declare that the powers of the Legislature of the State shall be E exercisable by or under the authority of Parliament; (c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this p Constitution relating to any body or authority in the State:

Provided that nothing in this clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitutiun relating to High Courts. G (2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.

(c) Every Proclamation under this Article shall be laid before each House of Parliament and shall, except where it is a P•oclamation revoking a H previous Proclamation, cease to operate at the expiration of two months

SPEC'!AL REFERENCE NO.I OF 2002 [ARIJIT PASAYAT, J.] 451

unless before the expiration of that period it has been approved by resolutions A r of both Houses of Parliament.

Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that 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 Proclamation has been also passed by the House of the People.

(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation. D Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses 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 E for more than three years;

Provided further that ifthe 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 F 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 contiruance in force of the Proclamation has been also passed G by the House of the People.

Provided also that in the case of the Proclamation issued under clause (I) on the I Ith day of May, 1987 with respect to the State of Punjab, the reference in the first proviso to this clause to "three years" shall be construed as a reference to five years. H

452 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A (5) Notwithstanding anything contained in clause (4), a resolution with respect to the continuance in force of a Proclamation approved under clause (3) for any period beyond the expiration of one year from the date of issue of such proclamation shall not be passed by either House of Parliament unless-

B (a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in the whole or any part of the State, at the time of the passing of such resolution, and (b) the Election Commission certifies that the continuance in force of the Proclamation approved under clause (3) during the period c specified in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned:

Provided that nothing in this clause shall apply to the Proclamation issued under clause (I) on the I Ith day of May, 1987 with respect to the State D of Punjab.

Representation of People Act, 1951

Section 14 : Notification for general election to the House of the People-{1) A general election shall be held for the purpose of cons.tituting . E a new House of the People on the expiration of the duration of the existing House or on its dissolution.

(2) For the said purpose the President shall, by one or more notifications published in the Gazette of India on such date or dates as may be recommended by the Election Commission, call upon all parliamentary constituencies to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:

Provided that where a general election is held otherwise than on the dissolution of the existing House of the People, no such notification shall be issued at any time earlier than six months prior to the date on which the duration of that House would expire under the provisions of clause (2) of Article 83.

Section I 5 : Notification for general election to a State Legislative Assembly- (I) A general election shall be held for the purpose of constituting H a new Legislative Assembly on the expiration of the duration of the existing

SPECIAL REFERENCE NO. I OF 2002 [ARIJIT PASA YAT, J .] 453

Assembly or on its dissolution. A (2) For the said purpose the Governor or the Administrator as the case may be shall, by one or more notifications published in the Official Gazette of the State on such date or dates as may be recommended 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 ihe rules and B orders made thereunder:

Provided that where a general election is held otherwise than on the dissolution of existing Legislative Assembly no 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 (I) of C Article 172 or under the provisions of Section 5 of the Government iof 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 serutiny of nomination, which shall be, the day immediately following the last day for making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday; F (c) The last date for the withdrawal of candidature, which shall be the second day after the date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday; G (d) The date or dates on which a poll shall, if necessary, be taken which or the first of which shall be a date not earlier than the fourteenth day after the last date for the withdrawal of candidature; and

(e) the date before which the election shall be completed. H

454 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A Section 73 : Publication of results of general elections to the House of the People and the State legislative Assemblies and of names of persons nominated thereto-Where a general election is held for the purpose of constituting a new House of the People or a new State Legislative Assembly, there shall be notified by the Election Commission in the Official Gazette, as soon as' may be, after the results of the elections in all the constituencies other than those in which the poll could not be taken for any reason on the date originally fixed under Clause (d) of Section 30 or for which the time for completion of the election has been extended under the provisions of Section 153 have been declared by the returning officer under the provisions of section 53 or, as the case may be, Section 66, the names of the members elected for those constituencies and upon the issue of such notification that House or Assembly shall be deemed to be duly constituted:

Provided that the issue of such notification shall not be deemed-

(a) to preclude - D (i) the taking of the poll arid the completio~ of the election in any Parliamentary or Assembly constituency or constituencies in which the poll could not be taken for any reason on the date originally fixed under clause (d) of Section 30; or E (li) the completion of the election in any Parliamentary or Assembly constituency or constituencies for which time has been extended under the provisions of Section 153; or

(b) to affect the duration of the House of the People or the State F Legislative Assembly, if any functioning immediately before the issue of the said notification. ' Government of India Act, 1935 :

18. Constitution of the Federal Legislature-{!) There shall be a Federal G Legislature which shall consist of His Majesty, represented 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 shail 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

SPECIAL REFERENCE NO. I DF 2002 [ARIJIT PASA YAT, J.] 455

of two hundred and fifty representaives 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 mall be a permanent body not subject to dissolution, but as near as may oe one-third of the members thereof shall retire in every thiro year in acrordance with the provisions in that behalf contained in the said First Schtduie.

(5) Every Federal Assemby, unless sooner dissolved, shall continue for five years from th~ date app<lnted for their first meeting and no longer, and the expiration of the said perbd of five years shall operate as a dissolution of the Assembly.

19. Sessions of the Legisiture, prorogation and dissolution--{ I) The Chambers of the Federal Legislture shall be summoned to meet once at least in every year, and twelve mon1s shall not intervene between their last sitting in one session and the date appinted for their first sitting in the next session.

(2) Subject to the prcisions of this section, the Governor-General may in his discretion from tiie to time -

(a) summon the Chawers or either Chamber to meet at such time and place as he thinks ti

(b) prorogue the Cl:mbers; and

(c) dissolve the Fecral Assembly. F (3) The Chambers slll be summoned to meet for their first session on a day not later than suctday as may be specified in that behalf in His Majesty's Proclamation e~blishing the Federation.

In the aforesaid bacground it would be expedient to render answers to the questions framed in e Reference. G I The judicial aspecof these triple questions alone can attract judicial jurisdiction. However, fen if we confine ourselves to legal problematics, eschewing the politicd 11ertones, the words of Justice Holmes will haunt the Court: "We are quitehee, but it is the quite of a storm center''. The judicature must, however, be ilGmned in its approach by a legal-sociological guideline H

456 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A and a principled-pragmatic insight in resolving with jural tools and techniques, 'the various crises of human affairs' as they reach the forensic stage and seek dispute-resolution in terms of the rule of law. Justice Cardozo felicitously set the perspective:

The great generalities of 'the Constitution have a content and B significance that vary from :age to age.

Chief Justice Hidayatullah perceptively articulated the insight:

One must, of course, take note of the synthesized authoritative content or the moral meaning of th1~ underlying principle of the prescriptions C o,f law, but not ignore the historic evolution of the law itself or how it was connected in its changing moods with social requirements of a particular age.

The old Articles of the suprema lex meet new challenges of life, the old legal pillars suffer new stresses. So we ha ve to adopt the law and develop D its latent capabilities if novel situations, as h ere, are encountered. That is why in the reasoning we have adopted and the pt ~rspective we have projected, not literal nor lexical but liberal and visional is our interpretation of the Articles of the Constitution and the provisions of the Act. Lord Denning's words are instructive:

E "Law does not stand still. It moves con tinually. Once this is recognized, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law s< 1 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 , Jverall design. He must be an architect-thinking of the structure as < 1 whole building for society a system of law which is str_ong, durable < ind just. It is on his work that civilized society itself depends.

The constitutional scheme with regard to the holding of the elections to I Parliament and the State Legislatures is quite clea 1 r. First, the Constitution has provided for the establishment of a high power 1:J()dy to be in charge of the elections to Parliament and the State Legislatur\es and of elections to the office; of President and Vice-President. That body·, b the Commission. Article 324 of the Constitution contains detailed provision', rt'garding the constitution of the Commission and its general power. The supe1 ·in tendence, direction and control of the conduct of elections referred to i:1n , <\rticle 324(1) of the H Constitution are entrusted to the Commission. The •words 'superintendence',

SPECIAL REFERENCE NQ. I OF 2002 (ARIJIT PASA YAT, J.] 457

'direction' and 'control' are wide enough to include all powers necessary for the smooth "conduct of elections. It is, however, seen that Parliament has been vested with the power to make law under Article 327 of the Constitution read with Entry 72 of List I of the Seventh Schedule to the Constitution with respect to all matters relating to the elect ions to either House of Parliament or to the House or either House of the L1~gislature of a State subject to the provisions of the Constitution. Subject to the provisions of the Constitution and any law made in that behalf by Parliament, the Legislature of a State may under Article 328 read with Entry 37 of List II of the Seventh Schedule to the Constitution make law relating to the elections to the House or Houses of Legislature of that State, The general powers of superintendence, direction and control of the el~ctions vested in the Commission under Article 324( I) C naturally are subject to any law made either under Article 327 or under Article 328 of the Constitution. The word 'election' in Article 324 is used in a wide sense so as to include the entire process of election which consists of several stages and it embraces many steps., some of which may have an important bearing on the result of the process. Article 324 of the Constitution operates in areas left unoccupied by legislation and the words 'superintendence', D 'direction' and 'control' as well as 'conduct of all elections' are the broadest terms which would include the power to make all such provisions. [See Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, (1978] I SCC 405, A.C. Jose v. Sivan Pillai, (1984] 2 SCC 656 and Kanhiya Lal Omar v. R.K. Trivedi and Ors., (1985] 4 sec 628. E Before the scheme of thie Constitution is examined in some detail it is necessary to give the pattern which was followed in framing it. The Constituent Assembly was unfettered by any previous commitment in evolving a constitutional pattern "suitable to the genius and requirements of the Indian people as a whole". The Assembly had before it the experience of the working of the Government Act several features of which could be accepted for the new Constitution. Our Constitution borrowed a great deal from the Constitutions of other countries, 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. None 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 governmental policy by "transmitting it into law" whenevei H

458 SUPREME C:OURT REPORTS [2002] SUPP. 3 S.C.R.

A necessary. "The executive functim comprises both the determination of the policy as well as carrying it ino execution. This evidently includes the initiation of legislation, the mainte1ance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general admini>tration of the State". With regard to the B civ'' services and the position of the judiciary the British model has been a<fripted inasmuch as the appointment of Judges both of the Supreme Court of !1\dia and the High Courts of the States is kept free from political controversies. Their independence has been assured. But the doctrine of parliamentary sovereignty as it obtains in England does not prevail here except to the extent provided by the Constitution. The entire scheme of the C Constitution is such that it ensures the sovereignty and integrity of the country as a Republic and the democratic way of life by parliamentary institutions based on free and fair elections. These aspects have been highlighted in Kesavananda Bharati 's case (supra).

Democracy is a basic feature of the Constitution. Whether any particular brand or system of government by itself, has this attribute of a basic feature, as long as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted at regular, prescribed intervals is essential to the democr~tic system envisr.ged in the. Constitution. So is the need to protect and sustain the purity of the electoral process. That may take within it the -· quality, efficacy and adequacy of the machinery for resolution of electoral disputes.

The first question essentially relates to the interplay between two Articles. i.e. Article 174 and Article 324 of the Constitution. A bare reading of the aforesaid two Articles makes it clear that they operate in different fields. Article 174 appears in Chapter llJ of Part VI of the Constitution relating to State Legislature. The parallel provision, so far as the Union is concerned, is contained in Article 85 in Chapter II of Part V of the Constitution. Chapter Ill of Part VI with which we are presently concerned deals with State Legislature. Article 168 provides that for every State there shall be a Legislature G which shall consist of the Governor and in four States with two Houses and in other States one House of the State. Where there are two Houses of the Legislatures of a State, one is known as a Legislative Council and other is Legislative Assembly and when there is only one House, it is known as the Legislative Assembly. Article 172 provides for the duration of State H Legislatures. Article 174 deals with sessions of the State Legislatures,

'' SPECIAL REFERENCE NO.I OF 2002 [ARIJlT PASAYAT, J.] 459

prorogation and dissolution. Under clause (I), the Governor is required to summon the House or each House of the Legislature of the State from time 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 be. 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 that the elections are held in time, so that the State Legislature can meet within the prescribed time period. On the other hand, learned counsel for some of the other parties have submitted that the period of six months does not operate in respect of the dissolved Assemblies. Election Commissioner under the Constitution is required to hold "free and fair election" and election which is not free and fair is, sham or manipulated, and no election at all. Article 174 according to them relates to the live assembly and not assembly which on dissolution has suffered civil death. It has been pointed out by them that no time period is prescribed for holding the elections after dissolution either in the Constitution or Representation of Peoples' Act, 1950 (in short R.P. Act 1950) and R.P. Act 1951 '. The stand of the Union of India, the Election Commission and some of the parties is that in the scheme of the Constitution and the laws framed under Article 327, it is impossible to conceive that elections can be deferred indefinitely. According to them, the fact that elections constitute basic structure of the Constitution, the care taker Ministry is not the answer and not even imposition of President's Rule. According to them, President Rule G can be imposed only if the enumerated circumstances exist and not otherwise. Imposition of President's Rule has to be ratified by both the Houses of Parliament. It is further submitted that Election Commissioner has to ensure holding of elections and not holding up the elections, and effort should be to take necessary assistance from the Center and the States, if necessary, to hold the elections and that is why the third question has been referred. With H

460 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R. r ' A reference to the language used in Article 174 that is "between its last sitting in one session and the date appointed for its first sitting in the next session", '-·· it is pointed out that the House does not get dissolved, it is only the Legislative Assembly which gets dissolved. Therefore, the Election Commissioner is duty bound to see that Article 324 is exercised in such a manner that prescription under Article 174 is not diluted or rendered ineffective. B So far as Chapter lII of Part VI is concerned, like Chapter lII of Part V, difference is made between the Legislature, the Legislative Assembly and the House of the People, as the case may be. Article 79 says that there shall be a Parliament for the Union which shall consist of the President and the two C 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 (I) 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 perfonned. 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 hold the election to meet the dead line. There may be several cases where acts of God intervene, rendering holding of election impossible even though a time schedule has been fixed. In such cases, even if the elections are held after six months period they do not become invalid. The Election Commission in such cases cannot be asked to perform the impossible. There lies the answer to the question whether Article 174 has mandatory attributes.

The House of the People or the Legislature is a permanent body. On G dissolution of the House of the People or the Legislative Assembly, the House does not cease to be in existence. Dissolution in its broadest sense means decomposition, disintegration, undoing a bond. In a broad sense-the Constitutional-it implies the dismissal of an Assembly or the House of the People. Dissolution is an act of the Executive which dismisses the legislative body and starts the process through exercise of franchise by the little men

SPECIAL REFERENCE NO. I OF 2002 (ARIJIT PASA YAT, J.] 461

who are the supreme arbitrators of the State to put the new legislative body in place. The natural dissolution is on expiry of period fixed under the Constitution, and other mode of dissolution is by an act of the Executive. It is the lawful act of the Executive that prematurely dissolution ends the life of the Legislature. We are not concerned whether such an act of the Executive can be subject to judicial review which is another matter. B The exercise of the right of the Executive to dissolve the House of the People or the Legislative Assembly pre-supposes certain conditions i.e. (i) the existence of a representative body which is the object of dissolution and (ii) the act of the Executive which implies a separate and distinct state organ vested with the power to dissolve (iii) the consequential summoning of a new C House of People or Legislative Assembly after the election is held by the Election Commission and the result notified after its conclusion.

The State organ vested with the right to dissolve Parliament must express its will to do so in a manner which accords with the Constitution, and the relevant laws. The primary consequence of dissolution is that House of D People or the Legislative Assembly, as the case may be, legally ceases to exist and cannot perform its legislative functions. Such pre-mature interruption of the life of the House of the People or the Legislative Assembly as the case 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.

When the House meets after the results of election are notified and notification has been issued under the relevant law, it becomes a live 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.

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 that prorogation unlike dissolution does not affect a legislative body's life which may continue from session to session, until brought to an H

462 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A end of dissolution. Dissolution draws the final curtain upon the House. Once the House is dissolved it becomes irrevocable. There is no power to recall the order of dissolution and/or revive the previous House. Consequently effect of dissolution is absolute and irrevocable. It has been described by some learned authors that dissolution "passes a sponge over the parliamentary slate''. The effect of dissolution is in essence termination of current business of the legislative body, its sittings and sessions. There is a cessation of chain of sessions, sittings and for a dissolved legislative body and there cannot be any next session or its first sitting. With the election of legislative body a new Chapter comes into operation. Till that is done, the sine qua non of responsible govern.men! i.e. accountability is non-existent. Consequentially, the time stipulation is non-existent. Any other interpretation would render use of the word "its" in relation to "last sitting in one session" and "first sitting in the next session" without significance.

In. providing key to the meaning of any word or expression the context m which it is said has significance. Colour and content emanating from context may permit sense being preferred to mere meaning depending on what is sought to be achieved and what is sought to be prevented by the legislative scheme surrounding the expression. It is a settled principle that iP interpreting the statute the words used therein cannot be read in isolation. Their colour and content are derived from their conte)(t and, therefore, every word in a E statute must be examined in its context. By the word 'context', it means in its widest sense as including not only other enacting provisions of the same statute but its preamble, the existing state of the law, other statutes in pari materia and the mischief which the statute intended to remedy. While making such interpretation the roots of the past the foliage of the Present and the seeds of the future cannot be lost sight of. Judicial interpretation should not be imprisoned in verbalism and words lose their thrust when read in vacuo. Context would quite often provide the key to the meaning of the word and the sen,~e 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 Holmes, J in Towne v. Eisner, (1917)245 US 418m 425.

The following passage from Statutory Interpretation by Justice G.P. Singh (Eighth Edition, 200 I atpp.81-82) is an appropriate guide to the case at hand:

SPECIAL REFERENCE NO. I OF 2002 (ARJJIT PASA Y AT, J.] 463

"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? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the Legislature, that it is proper to look for some other possible meaning of the word or phrase". The context, as already seen, in the construction of statutes, means the statute as a whole, the previous state of the law, other statutes in pari materia the general scope of the statute and the mischief that was intended to remedy".

The judicial function of the Court in interpreting the Constitution thus becomes anti n01ni. It calls for a plea upon a continuity of members found in the instrument and for meeting the domain, needs and aspirations of the present. A constitutional court like this Court is a nice balance of jurisdiction and it declares the law as contained in the Constitution but in doing so it rightly reflects that the Constitution is a living and organic thing which of all instruments has the greatest claim to be construed broadly and liberally. [See Mis. Goodyear India Ltd. v. State of Haryana and Anr., AIR (1990) SC 781 and Synthetics and Chemicals Ltd. v. State of U.P. and Ors., AIR (1990) SC 1927].

In the interpretation of a constitutional document words are but the framework of concepts and concepts may change more than words themselves. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of words without an acceptance of the line of their growth. It is aptly said that the intention of the Constitution is rather to outline principles than to engrave details. (See R.C. Poudyal v. Union of India and Ors., AIR (1993) SC 1804). G In Purushothaman Nambudiri v. The State of Kera/a, (1962] Supp. SCR 753, a Constitution Bench of this Court observed as follows:

"Dissolution of Parliament is sometimes described as 'a civil death of Parliament'. llbert, in his work on 'Parliament', has observed that H

464 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A 'prorogation means the end of a session (not of a Parliament)';"

"in any case, there is no continuity in the personality of the Assembly where the life of one Assembly comes to an end and another Assembly is in due course elected."

B It will be also clear from the Constituent Assembly Debates (vis-a-vis Article 153-presently Article 174) that the stress was on frequent meetings of long durations of live Legislative Assembly.

In May's Parliamentary Practice, the following paragraph reinforces the view: c ''A session is the period of time between the meeting of a P~rliament, 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 a new session 'is D termed as 'recess'; while the period between the adjournment of either House and the resumption of its sitting is generally called an ~adjournment'.

A prorogat;on terminates a session; an adjournment is an interruption in the course of one and the same session." E There is a direct decision of the Kerala High Court in K.K. Aboo v. Union ofIndia, AIR (1965) Kerala 229 on the point. It was inter alia observed as follows:

"A Legislature can be summoned to meet only if it is in esse at F 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 m'eet, but whether its dissolution ordered by the President, is constitutionally valid.''

G The view is well founded.

The position gets further clear that one looks at the original Article 174 which was amended in 195 l. The un-amended Article 174 reads as follows:

'' 174( 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

SPECIAL REFERENCE NO. I OF 2002 [ARIJIT PASA YAT, J.] 465

not intervene between their last sitting in one session and the date appointed for their first sitting in the next session.

(2) Subject to the provisions of clause ( l ), 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;

(b) prorogue the House or Houses."

Having reached the conclusion that Article 174 in terms does not apply to dissolved Assembly (similar in the case of Article 85 in case of House of People), the other question that survives consideration is that can there be C a time limit fixed for holding the elections in such cases? It has been emphatically submitted by some of the learned counsel that the Constitution does not provide for any time of limitation, nor does the R.P. Act.

Can it be said that the framers of the Constitution intended that in case of life of the elected body comes to an end on expiry of the fixed duration, D a time limit for holding elections is imperative, while in the case of a pre- mature dissolution it does not so?

Sections 14 and 15 of the R.P. Act, 1951 deal with notification for general election to the House of the People and the State Legislative E Assemblies respectively. It is clearly stipulated that notification for holding the election cannot be issued at any time earlier than 6 months prior to the date on which the duration of the House will expire under provisions of clause (2) of Article 83 or under clause (I) of Article 172 respectively. The obvious purpose is that the President or the Governor, as the case may be, to call i,pon the electorate to elect members in accordance with the provisions of the F Rules, Act and the orders made thereunder on such dates as may be recommended by the Election Commission. The dates are to be so fixed that they are not much prior to the expiry of the duration. Here also, the underlying object is that the elected members are to continue for the full term. It has been fairly accepted by learned counsel for the parties who submitted that there G is rio time limit fixed that there should always be a responsible 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, legislatures and the judiciary. Section 14 of the R.P. Act, 1951 H

466 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A 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 Government. The caretaker government is not the solution to deferring elections for unduly long periods.

As noted above, due to unforeseen contingencies it may become impossible to constitute new House of People or the Legislative Assembly. Deferring an election is an exception to the requirement that elections should be held as early as practicable. The requirement of summoning the House has inbuilt in it; the existence of a House capable of being summoned. Therefore even in the case of pre-mature dissolution, effort of the Election Commission should be to hold elections in time so that a responsible government is in office. At the cost of repetition it may be indicated that where free and fair election is not possible to be held, there may be inevitable delay. But reasons for deferring elections should be relatable to acts of God and normally not acts of man. Myriad reasons may be there for not holding elections.

In determining the question whether a provision is mandatory or directory, the subject matter, the importance of the provision, the relation of the provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the courts to get the real intention of the legislature by carefully attending the whole scope of the provision ;to be construed. The key to the opening of every law is the reason and spirit of the law, it is the animus impotentia, the intention of the law maker expressed in the law itself, taken as a whole". (See Bratt v. Bratt {1826) 3 Addams 210 at p. 216). G The necessity for completing the election expeditiously is enjoined by the Constitution in public and State interest to see that the governance of the country is not paralysed.

The impossibility of holding the election is not a factor against the H Election Commission. The maxim of law impotentia exusat legem is intimately

SPECIAL REFERENCE NO. I OF 2002 [ARIJIT PASA YAT, J.] 467

connected with another maxim of law lex non cogit and impossibilia. A Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. "Where the law creates a duty .or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him." 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 I of 1974, [1975] I SCR 504. 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.

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 whiih is not required to take any policy decision. A E piquant situation may arise when a Cabinet of Ministers being sure that it will loose the vote of confidence, calls for a dissolution a few days before the expiry of the six months' period in terms of Article 174 knowing fully well that the elections cannot be held immediately continues as the care taker government. Let us take another hypothetical case, where free and fair elections are not possible and caretaker government continues in office because of man made situations. Here the Election Commissioner has a duty to lift the veil, see the design and make all possible efforts to hold the elections so that a responsible government takes place in office. Question then arises as to how a impasse can be avoided when an Assembly or the House of People is .J dissolved and election can be held immediately so that six months' period is not given a go by, between the last sitting of the dissolved one and the first sitting of the duly constituted subsequent one. One of the solutions can be that an emergent session which is usually described as 'lame duck' session can be convened, and immediately thereafter the dissolution can be notified. In such a situation, the Election Commissioner gets sufficient time to hold the election subject of course to the paramount consideration that it is free and H

468 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A fair one; thereby enabling functioning of the next session of the duly constituted elected body to meet within six months from the date of dissolution. For practical purposes the six months' period then would begin from the date of dissolution.

Free and fair election is the sine qua non of democracy. The scheme B of the Constitution makes it clear that two distinct Constitutional authorities. deal with election and calling of session. It has heen pointed out to us that as a matter of practice the elections are completed within a period of six months from the date of dissolution, on completing the prescribed tenure or on pre-mature dissolution except when for inevitable reasons there is a delay. C The Election Commissioner is a high constitutional authority charged with the duty of ensuring free and fair elections and the purity of electoral process. To effectuate the constitutional objective and purpose it is to draw upon all incidental and ancillary powers. Six months' period applicable to elections held on expiry of the prescribed term would be imperatively applicable to elections held after pre-mature dissolution. This of course would be subject D 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 intend~d 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 E was observed in Digvijay Mote v. Union ofIndia and Ors., (1993] 4 SCC 175, 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' F period.