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

Reference was made to Article 164(4) of the Constitution to contend that six months' period for holding election is in built in Article 174. It has to be noted that as observed by this Court in S.R. Chaudhuri v. State of Punjab a_nd Ors., [200 I] 7 SCC 126 the provisions is not really concerned with G holding of elections and primarily relates to a requirement to get elected within the time prescribed. The said provision contemplates a situation where a Minister in a Legislature in existence has to be elected, it does not deal with a non-existing House and in this background, there is nothing to do with Article 174.

H The second question has really lost its sting because of the submissions

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made before this Court on behalf of the Election Commission. A So far as applicability of Article 356 is concerned, though in the order the Election Commission has specifically dealt with the possibility of applying that situation, in the written submissions and the arguments made before this Court the view was given a go by; and in our view rightly. Mere non- compliance of Article 174 so far as the time period is concerned, does not B automatically bring in Article 356. It is made clear that the order of the Election Commissioner is the foundation and not what is stated subsequently by way of an affidavit or submissions to cl?rify. But in view of the concession, which according to us is well founded, we need not go into the question in detail. It was submitted by some of the learned counsel that the Election Commission's C order otherwise makes out a case for applying Article 356. We are not concerned with those as the Reference only related to application of Article 356 when the requirement of Article 174 is not met. In K.N. Rajgopal v. Thiru M Karunanidhi, [1972] 4 SCC 733, a Constitution Bench of this Court inter alia, observed as follows: D " ......... Article 356 of the Constitution makes provisions in case of failure of constitutional machinery in the State. But when an Assembly is dissolved there is no failure of constitutional machinery within Article 356".

A similar observation was made by one of us (Hon'ble V.N. Khare, J. E as His Lordship was then) in Arun Kumar Rai Choudhury v. Union of India, AIR (1992) Allahabad 1. His Lordship succinctly stated the position as follows:

"This question came up for consideration before Supreme Court in the case of U.N.R. Rao v. Indira Gandhi, ( 1971] 2 SCC 63 and Thiru KN. Rai Gopal V. M Karima Nidhi, [1972] 4 sec 733. The Supreme F Court while interpreting Arts. 74 and 75 as well as Arts. 163 and 164 of the Constitution held that even if the House is dissolved, the Council of Ministers continues. These decisions squarely cover the case before us. Following these decisions we hold that after the Governor of the State ofU.P. dissolved the Legislative Assembly and G directions were issued for holding fresh poll for constituting the Legislative Assembly, the Council of Ministers continues. Further there being no failure of constitutional machinery within the meaning of Article 356 of the Constitution, the contention that the President of India ought to have promulgated President Rule in the State for carrying on the function of the Government must be rejected." H

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

A Situations when Article 356 can be resorted to have been illuminatingly highlighted in S.R. Bommai v. Union of India, [1994) 3 SCC I. The following obsel'Vations very aptly summarized the position:

" ........... Article 356 is an emergency provision though, it is true, it is qualitatively different from the emergency contemplated by Article B 352, or for that matter, from the financial emergency contemplated by Article 360. Undoubtedly, breakdown of the constitutional machinery in a State does give rise to a situation of emergency. Emergency means a situation which is not normal, a situation which calls for urgent remedial action. Article 356 confers a power to be exercised by the President in exceptional circumstances to discharge the obligation c cast upon him by Article 355. It is a measure to protect and preserve the Constitution, consistent with his oath. He is as much bound to exercise this power in a situation contemplated by Article 356 as he is bound not to use it where such a situation has not really arisen."

D It has been further observed:

" ............... He has to exercise his powers with the aid and advice . of the Council of Ministers with the Chief Minister at its head (A11icle - i63). He takes the oath, prescribed by Article 159, to preserve, protect and defend the Constitution and the laws to the best of his ability. E It is this obligation which requires him to report to the President the commissions and omissions of the Government of his State which according to him are creating or have created a situation where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. In fact, it would be a case of his reporting against his own Government but this may be a case of his F wearing two h~ts, one as the head of the State Government and the other as the holder of an independent constitutional office whose duty it is to preserve, protect and defend the Constitution (See Shamsher Singh v. State of Punjab, [1974] 2 SCC 831 at p. 849). Since he cannot himself take any action of the nature contemplated by G Article 356(1), he reports the mattrr to the President and it is for the President to be satisfied-whether on the basis of the said report or on the basis of any other information which he may receive otherwise- that situation of the nature contemplated by Article 356(1) has arisen ....... "

H The third question is to be considered in the background of what has

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been observed supra about scope and ambit of Article 174. It does not relate A to holding of elections. Therefore, the question of seeking control or State assistance does not arise. However, the Election Commission and the Governments (Central and/or State) have well-defined roles to play to ensure free and fair election. The parameters have been laid down by this Court in several cases e.g. Election Commission of India v. State of Haryana, [1984] 3 SCR 554, Election Commission of India v. Union of India and Ors., [ 1995] B Supp. 3 SCC 643, Election Commission of India v. State of T.N. and Ors., [1995] Supp. 3 SCC 379. Some of the relevant observations need to be noticed.

In Tamil Nadu 's case (supra) it was observed: c ''The ~lection Commission of India is a high constitutional authority charged with the function and the duty of ensuring free and fair elections and of the purity of the electoral process. It has all the incidental and ancillary powers to effectuate the constitutional objective and purpose. The plenitude of the Commission's powers corresponds to the high constitutional functions it has to discharge. In an exercise of the magnitude involved in ensuring free and fair elections in the vastness of our country, there are bound to be differences of perception as to the law and order situation in any particular constituency at any given time and as to the remedial requirements. Then again, there may be intrinsic limitations on the resources of the Central Government to meet in full the demands of the Election Commission. There may again be honest differences of opinion in the assessment of the magnitude of the security machinery. There must, in the very nature of the complexities and imponderables inherent in such situations, be a harmonious functioning of the Election Commission and the Governments, both State and Central. If there are mutually irreconcilable viewpoints, there must be a mechanism to resolve them. The assessment of the Election Commission as to the state of law and order and the nature and adequacy of the machinery to deal with situations so as to ensure free and fair elections must, prima facie, prevail. But, there may be limitations of resources. Situation of this kind should be resolved by mutual discussion and should not be blown up into public confrontations. This is not good for a healthy democracy. The Election Commission of India and the Union Government should find a mutually acceptable coordinating machinery for resolution of these differences." H

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

A To sum up, answers to the questions set out in the Reference are as follows:

I. The provisions of Article 174 are mandatory in character so far as the time period between two sessions is concerned in respect of live Assemblies and not dissolved Assemblies. Article 174 and Article 324 operate in different fields. Article 174 does not deal with elections which is the primary function of the Election Commission under Article 324. Therefore, the question of one yielding to the other does not arise. There is scope of harmonizing both in a manner indicated supra.

2. Article 174 is not relatable to a dissolved Assembly. Similar is the position under Article 85 vis-a-vis House of People. Merely because the time schedule fixed under Article 174 cannot be adhered to, that per se cannot be the ground for bringing into operation Article 356.

3. As Article 174 does not deal with election, the question of Election D Commissioner taking the aid, assistance or co-operation of the Center or the State Governments or to draw upon their resources to hold the election does not arise. On the contrary for effective operation of Article 324 the Election Commission can do so to ensure holding of free and fair election. The question; whether free and fair election is possible to be held or not has to be objectively assessed by the Election Commission by taking into E consideration all relevant aspects. Efforts should be to hold the election and not to defer holding of election.

K.K.T. Questions Answered.