ELECTION COMMISSION OF INDIA versus DR. SUBRAMANIAN SWAMY AND ANR.

Citation: [1996] SUPP. 1 S.C.R. 637 · Decided: 23-04-1996 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Disposed off

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Judgment (excerpt)

ELECTION COMMISSION OF INDIA 
v. 
DR. SUBRAMANIAN SWAMY AND ANR. 
APRIL 23, 1996 
[A yl. AHMADI, CJ, N.P. SINGH AND B.N. KIRPAL, J.1.j 
Constitution of India-A1ticles 191(l)(e) & 191(2)-Representation of 
the People Act, 1951-Section 146-Disqulification-Govemor alone must 
decide the issue raised-T71is decision nzust be taken after obtaining opinion 
of Election Conunission-When Election Conunission is a niulti 111e1nber 
body-Allegations of bias against Chief Election ConunissionC1--Procedure 
to be follo1ved by the Election Conunission in reaching a decision. 
Doctrines-Doctline of necessity-Explained, 
Respondent filed a petition to the State Governor under Article 192 
of the Constitution alleging that the Chief Minister of the State of Tamil 
Nadu elected to the Legislative Assembly of Tamil Nadu in the General 
Elections held in June 1991 had incurred a disqualification of being a 
member of the Legislative Assembly of the State, in that, she being a 
partner in a partnership fi'rm had entered into a contract with lhe State 
Government which contract was subsisting on the date of the petition, in 
view of sub-clause (e) of clause (1) of Article 191 of the Constitution read 
with Section 9A of the Representation of the People Act, 1951. Thereupon 
the Chief Minister tiled two Writ Petitions, the first for a writ of prohibi-
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tion against the then Chief Election Commissioner not to deal with the F 
petition forwarded to him by the Governor as she had a reasonable 
apprehension that he ~'as biased in favour of the respondent ai:td the 
second for a declaration that she had not incurred the disqualification as 
alleged by the respondent. Single Judge of the High Court allowed the first 
•>r.it petition holding that the evidence placed on record established that 
the petitioner's apprehension that the Chief Election Commissioner might G 
not be able to take an impartial view because of his strong bias in favour 
of the respondent could not be said to be misplaced or unreasonable, 
respondent's wife being the lawyer of the Chief Election Commissioner in 
the suit filed by him in Bombay Court. It was held that it would be just, 
fair and proper to issue a writ of prohibition to refrain from expressing H 
637 
638 
SUPREME COURT REPORTS [1996J SUPP. l S.C.R. 
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any opinion on the petition alleging disc1ualification, since at the relevant 
time the Election Commission was a one member body; that while the 
principles of natural justice may have to yield in favour of the doctrine of 
necessity, it was not obligatory to invoke that doctrine in the case on hand, 
since it was permissible under Article 324 of the Constitution to appoint 
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an additional Election Commissioner, who, if appointed would constitute 
an alternative forum for dealing with the matter. Dismissing the second 
writ petition, it was held that though the decision on the issue of dis-
c1ualification lay within the exclusive domain of the Governor, the then 
Chief Minister had not incurred the alleged diSCJUalification. 
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In appeal, the Division Bench of the High Court held that the 
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question of disqualification was within the exclusive domain of the Election 
Commission; that on the facts and circumstances of the case the then Chief 
Minister would he justified in entertaining a reasonable appreshension of 
bias or at least the likelihood of bias on the part of the Chief Election 
Commissioner in favour of the respondent and consequently a reasonable 
doubt the she would not get a fair hearing from the Election Commission; 
that in view of the appointment of two Election Commissioners after the 
promulgation of the Ordinance No. 32 of 1993 which was converted into 
the Act and in view of Sections 9 and 10 introduced in the Chief Election 
Commissioner and other Election Commissioners (Conditions of Service) 
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Act, 1991, the doctrine of necessity could not be applied since the decision 
could be taken by the Election Commission if need be by majority. 
This appe"I had been filed by the Election Commission of India and 
the Chief Election Commissioner against the decision of the Division 
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Bench of the High Court. The limited question raised for consideration 
was regarding the participation of the Chief Election Commissioner in 
decision-making having regard to the alleg-Jtion of bias made against him. 
The appellant stated that he was not in the least keen to participate 
in the decision making in view of the findings recorded by

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