(2.)THE dissolved legislative assembly of the state of Gujarat was constituted in March 1998 and its five-year term was to expire on 18.3.2003. On 19.7.2002 on the advice of the Chief Minister, the governor of Gujarat dissolved the legislative assembly. THE last sitting of the dissolved legislative assembly was held on 3rd April 2002. Immediately after dissolution of the assembly, the Election Commission of India took steps for holding fresh elections for constituting the new legislative assembly. However, the Election Commission by its order dated 16th August, 2002 while acknowledging that Article 174(1) is mandatory and applicable to an assembly which is dissolved and further that the elections for constituting new legislative assembly must be held within six months of the last session of the dissolved assembly, was of the view that it was not in a position to conduct elections before 3rd of October, 2002 which was the last date of expiry of six months from last sitting of the dissolved legislative assembly. It is in this context the President of India in exercise of powers conferred upon him by virtue of clause (1) of Article 143 of the Constitution of India referred three questions for the opinion of the Supreme Court by his order dated 19th August, 2002 which run as under:
"WHEREAS the legislative assembly of the state of Gujarat was 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: 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 should meet at least every six months as contemplated by Article 174, even where it has been dissolved; AND 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, by notification, call upon all assemble constituencies in the state to elect members on such date or date as may be recommended by the Election Commission of India; AND WHEREAS the last sitting of the legislative assembly of the 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 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 decision of the Election Commission of India, 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 Constitution of India;. AND WHEREAS the Election Commission has held that the non-observance of the provisions of Article 174(1) 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 step in; 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 noncompliance with the mandatory requirement envisaged under Article 174(1) of the Constitution 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 are of a such 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 (1) 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 for consideration and report thereon, namely:- 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? (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? (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?"
Much before the matter was taken up for hearing it was made clear by the bench hearing the reference that it would neither answer the reference in the context of the election in Gujarat nor look into the questions of facts arising out of the order of the Election Commission and shall confine its opinion only on questions of law referred to it.
When this reference was taken up objections were taken by learned senior counsel, appearing for the Election Commission, several national political parties and counsel for various states that this reference need not be answered and it requires to be returned unanswered, inter alia, on the grounds : (a) that, the reference raises issues already decided or determined by earlier Supreme Court judgments regarding the plenary and all encompassing powers of the Election Commission to deal with all aspects of an election under Articles 324- 329; (b) that, if the Supreme Court considers the said question again, it would convert advisory Article 143 jurisdiction into an appellate jurisdiction, which is impermissible ; (c) that, if Article 174 were to override Article 324, question no. 3 is unnecessary. Also, if question no. 1 is answered in the affirmative, question no. 3 is automatically answered. In any event, the last part of question no. 3 raises a question to the effect as to whether the Election Commission is obliged to ensure free and fair elections, the answer to which is axiomatic, obvious and completely unnecessary to be answered in a Presidential reference ; (d) that, since question no. 2 cannot stand in the abstract, it also ought not to be gone into and deserves to be sent back unanswered; (e) that, no undertaking has been furnished by the Union of India that they would, be bound by the advice of this Court and, therefore, the reference need not be answered ; (f) that, the reference proceeds on the flawed legal premise that Article 174 applies to the holding of periodic elections and mandates the Election Commission to hold elections within the six-month period from the last session of dissolved legislative assembly and, therefore, this Court should return the reference unanswered ; and (g) that, the reference is a disguised challenge to the order of the Election .Commission dated 16th August, 2002 which is inappropriate in a reference under Article 143.
In support of the aforesaid propositions 402 learned counsel relied upon the following decisions : (1) In re : Cauvery Water Disputes Tribunal; (2) In re : Keshav Singh, special reference no. 1 of1964; (3) In re: The Special Courts Bill, 1978, special reference no. 1 of 1978; (4) In re : Appointment of Judges Case, special reference no. 1 of 1998; (5) The Ahmedabad St. Xavier's College Society and Anr. v. State of Gujarat and Ors.; (6) In re: Presidential Poll, special reference no. 1 of 1974; (7) In re : The Kerala Education Bill, 1957; and (8) Dr. M. Ismail Faruqui and Ors. v. Union of India and Ors.
(3.)IN re: The Kerala Education Bill, 1957 (supra), it was urged that since the bill introduced in the legislative assembly has been referred to under Article 143 and the same having not received legislative sanction the reference need not be answered. Dealing with the said argument this Court held that under Article 143, the Supreme Court is required to advise the President not only as to any question which has arisen but also as to a question which is likely to arise in future.
In re: Special Court Bill, 1978 (supra), it was held that it was not necessary that the question on which the opinion of the Supreme Court is sought must have arisen actually. It is competent for the President to make a reference at an anterior stage, namely, at the stage when the President is satisfied that the question is likely to arise - Chandrachud, CJ at pg. 400, para 20 held that:
"20. Article 143(1) is couched in broad terms which provide that any question of law or fact may be referred by the President for the consideration of the Supreme Court if it appears to him that such a question has arisen or is likely to arise and if the question is of such a nature and of such public importance that it is expedient to obtain the opinion of the Court upon it. Though questions of fact have not been referred to this Court in any of the six references made under Article 143(1), that Article empowers the President to make a reference even on questions of fact provided the other conditions of the Article are satisfied. It is not necessary that the question on which the opinion of the Supreme Court is sought must have arisen actually. It is competent to the President to make a . reference under Article 143(1) at an anterior stage, namely, at the stage when the President is satisfied that the question is likely to arise. The satisfaction whether the question has arisen or is likely to arise and whether it is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, is a matter essentially for the President to decide. The plain duty and function of the Supreme Court under Article 143/1) of the Constitution is to consider the question on which the President has made the reference and report to the President its opinion, provided of course the question is capable of being pronounced upon and falls within the power of the court to decide. If, by reason of the manner in which the question is framed or for any other appropriate reason the court considers it not proper or possible to answer the question it would be entitled to return the reference by pointing out the impediments in answering it. The right of this Court to decline to answer a reference does not flow merely out of the different phraseology used in clauses (1) and (2) of Article 143, in the sense that clause (1) provides that the Court "may" report to the President its opinion on the question referred to it, while clause (2) provides that the Court "shall" report to the President its opinion on the question. Even in matters arising under clause (2), though that question does not arise in this reference, the Court may be justified in returning the reference unanswered if it finds for a valid reason that the question is incapable of being answered. With these preliminary observations we will consider the contentions set forth above."