LexBRUNDABAN NAYAK versus ELECTION COMMISSION OF INDIA AND ANOTHER
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
BRUrijl)ABAN NAYAK V. A ELECTION COMMISSION OF INDIA AND ANOTHER February 12, 1965 IP. B. GAJENDRAGADKAR, C. J., M. HIDAYATULLAH, RAGHUBAll DAYAL, S. M. SIKRI AND V. RAMASWAMI, JJ.J Constitution of India, Art. 192(1) and (2)1-Who can raise question B as to disqu.aLification of sitting member-Whether question has to be raised on floor of the Assembly and referred to the Governor by Speaker-Enquiry to be held by Governor or Election Commission? The appellant was elected •to the Orissa Legislative Assembly in 1961. In 1964 respondent No. 2 made a complaint to the Governor alleging that the appellant had incurred a disqualification subsequent to his election as contemplated in Art. 191(1) (e) of the Constitu- C tion read with s. 7 of the Representation of the People Act (Act 43 of 1951). The Chief Secretary Orissa forwarded the said complaint •to respondent No. 1, the Election Commission of India, under the instructions of the .Governor, requesting it to make enquiry into the complaint and give its opinion. Accordingly res- pondent No. 1 served notice on the appellant and called upon him to submVt his reply. The appellant challenged the jurisdiction of D resporu:l!ent No. 1 to conduct the enquiry and filed a writ petition in the High Court. On its being dismissed he appealed to this Court by special leave. It was contended on behalf of the appellant that no question untler Art. 192(1) had arisen in the case as a question relating to the disqualification of a member under Art. 191(1) (e) could not be raised by an ordinary citizen. It was urged that considering the E context of Art. 192 and the provisions of Art. 199 the question could only be raised on the floor of the House and thereafter referred to the Governor by the Speaker of the Assembly. It was further con tended that only the Governor who had to give the decision could hold the enquiry, and the Election Commission was only to give its opi.n'on on the materials forwarded to it by the Governor. F HEl;D: (i) The argument that no question had arisen under Art. 192(1) could not be accepted. What Art 192(1) requires is that a question should anise; how ft arises, by whom it is raised, in what circumstances it is ra'sed are not relevant for the purpose of the application of this clause. f59 Hl The wortls in Art. 192(1) that "the question shall loe referred for the decision of the Governor" merely emnhasise that any ques- G tion of the type contemplated in the said clause shall be decided by the Governor and Governor alone: no other authority, including the courts, can decide it. If the intention was that the question must be raised first in the legislative Assembly and after a prima facie examination by the Speaker it should be referred by him to the Governor, Art. 192(1) would have been worded in an entirely different manner. f59 B-Cl H The object of Art 192 is that no member wh\> has incurred a disqualification under Art. 191 (1) should be allowed •to con1Jinue as a member. The Constitution itself in /\rt 190(3) provides for the vacation of the seat of such a member. Further it is in the interests of the member's constituency that no loµger being en· titled to the status of a m"mber, he should be removed. In view 54 SUPREME COURT REPORTS (1965] 3 S.C.B. of these considerations a citizen is certainly entitled to make a complaint to the Governor about the <lisqualification incurred by a member under Art. 191(1). f59 E-Gl (ii) The enquiry for the purpose of the decision under Art. 192 has to be held by the Election Commission and not by ·the Gover- nor. When the Governor pronounces his decision under Art. 192(1) he is not require<l to consult his Council of Ministers; he has merely to forward 'the question to the Election Commission for its opinion, and as soon as the opinion is received, "he shall act accord- ing to such opinion". It is the opinion of the Election Commission which is in substance decisive, and it is legitimate that the Com- mission should proceed ·to try the complaint before it gives its opinion. f60 D-Hl [Legislation to vest Election Commlssion with powers of. a Commission under the Commissions of Enquiry Act, 1952, recom- mended. l f62 Bl CIVIL APPELLATE )JuRISDIOTION: Ci;vil Appeal No. 50 of 1965. Appeal by special leave from the order dated January 6. 1965 of the Circuit Bench of the Punjab High Court at Delhi in Civil Writ No. 8-D of 1965. M. C. Setalvad, Ravinder Narai
Excerpt shown. Read the full judgment & AI analysis in Lexace.