SPECIAL REFERENCE NO. I OF 2002 versus .

Citation: [2002] SUPP. 3 S.C.R. 366 · Decided: 28-10-2002 · Supreme Court of India · Bench: B.N. KIRPAL · Disposal: Reference answered

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Judgment (excerpt)

A 
B 
SPECIAL REFERENCE NO. I OF 2002 
OCTOBER 28, 2002 
(B.N. KIRPAL, CJ., V.N. KHARE, K.G. BALAKRISHNAN, 
ASHOK BHAN AND ARIJIT PASAYAT, JJ.] 
Constitution of India, 1950: 
Arti~les 174(1) and 324-Applicability of-Held, Art. 174(1) is applicable 
to an- existing and funCtional Legislative Assembly and not to a dissolved 
C Assembly -It neither relates to elections nor provides any outer limit for 
holding elections for constituting Legislative Assembly-The superintendence, 
direction and control of the preparation of electoral roll and conduct of 
holding elections for constituting Legislative Assembly is in the exclusive domain 
of the Election Commission under Article 324-Hence, Article 174(/) and 
D Article 324 operate on different fields-Neither Article 174(1) is subject to 
Article 324 nor Article 324 is subject to Article 174(1). 
Articie 324-Whether there are limitations on the powers of Election 
Commission to frame Schedule for holding elections-Held, plenary powers of 
the Election Commission cannot be taken away by law ji-amed by Parliament-
E If Parliament makes any such law, it would be repugnant to Article 324-
Ho/ding periodic, free and fair elections by the Election Commission are part 
of the basic structure-However, the power of superintendence, direction and 
control of election are subject to law made either by Parliament or by the 
State Legislature, as the case may be provided the same does not encroach 
F upon the plenary powers of the Election Commission-Article 327 rlw Entry 
72 of List I of VII Schedule, Article 328 rlw entry 37 of List II of VII Schedule 
and Article 324. 
Article I74(1),172(1), 123, 213, 109, I JO and I I JI Representation of 
People Act, 1951-Sections 14 and 15-Premature dissolution of Legislative 
G Assembly-:-Conducting fresh election for constitution of new Assembly-
Whether any period of limitation provided for holding election in such case-
He/d, no period of limitation has been prescribed-However, in view of the 
scheme of the Constitution and the Act, the elections should be held within six 
months for constituting Legislative Assembly from !he date of dissolution of 
the legislative Assembly. 
H 
366 
SPECIAL REFERENCE NO. I OF 2002 
367 
Articles 324 and 356-Fixation of the election schedule-For holding A 
election to Legislative Assembly-Declaration of state of emergency-
Applicability of-Held, declaration of emergency has no relevance for.fixation 
of election schedule. 
Article 143-Reference under-Scope and maintainability of-Held, 
Court cannot go into disputed questions of fact in its advisory jurisdiction- B 
It is within jurisdiction of Supreme Court to advise the President in a reference, 
if the questions referred are likely to arise in future or are of public importance 
or there is no decision of Supreme Court which has already decided the 
question referred 
Interpretation of Statute: 
To discern the intention behind enacting a provision of the Constitution 
and to interpret the same is to look into the Historical Legislative Development, 
Constituent Assembly Debates or any document preceding enactment of the 
Constitutional provision. 
On premature dissolution of Legislative Assembly of Gujarat, 
Election Commission took steps for holding fresh elections. Election 
Commission in its order acknowledged that though Article 174(1) of the 
Constitution of India is mandatory and applicable to a dissolved Assembly 
·c 
D 
and hence fresh elections must be held within six months of the last session E 
of the dissolved assembly, but it was not in a position to hold first elections 
within six months from the last sitting of the Assembly, and so on non-
observance of provisions of Article 17 4(1 ), Article 356(1) may be resorted 
to. 
Since doubts arose with regard to the Constitutional validity of the 
order of the Election Commission, President of India referred following 
questions for opinion of Supreme Court in exercise of his power conferred 
under Article 143(1) of the Constitution :-
F 
I. 
Is Article 174 subject to the decision of the Election G 
Commission of India under Article 324 as to the schedule of 
elections of Assembly? 
2. 
Can the Election Commission 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 H 
368 
SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R. 
A 
to Article 356 by the President? 
B 
3. 
Is Election Commission under a duty to carry ou

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