- (1.) This is an appeal from an order of a single Judge of the High Court of Judicature at Madras issuing a writ of prohibition restraining the Election Commission, a statutory authority constituted by the President and having its offices permanently located at New Delhi, from enquiring into the alleged disqualification of the respondent for membership of the Madras Legislative Assembly.
(2.) The respondent was convicted by the Sessions Judge of East Godavari and sentenced to a term of seven year's rigorous imprisonment in 1942 and he was released on the occasion of the celebration of the Independence Day on 15-8-1947. In June 1952 there was to be a by election to a reserved seat in the Kakinada constituency of the Madras Legislative Assembly, and the respondent, desiring to offer himself as a candidate but finding himself disqualified under S. 7 (b), Representation of the People Act, 1951, as five years had not elapsed from his release applied to the Commission on 2-4-1952 for exemption so as to enable him to contest the election. No reply to the application having been received till 5-5-1952, the last day for filing nominations, the respondent filed his nomination on that day, but no exception was taken to it either by the Returning Officer or any other candidate, at the scrutiny of the nomination papers. The election was held on 14-6-1952 and the respondent, who secured the largest number of votes, was declared elected on 16-6-1952. The result of the election was published in the Fort St. George Gazette (Extra-ordinary) on 19-6-1952 and the respondent took his seat as a member of the Assembly on 27-8-1952. Meanwhile, the Commission rejected the respondent's application for exemption and communicated such rejection to the respondent by its letter dated 13-5-1952, which however, was not received by him. On 3-7-1952 the Speaker of the Assembly read out to the House a communication received from the Commission bringing to his notice, "for such action as he may think fit to take", the fact that the respondent's application for exemption had been rejected. A question as to the respondent's disqualification having thus been raised, the Speaker referred the question to the Governor of Madras who forwarded the case to the Commission for its ''opinion" as required by Art. 192 of the Constitution. The respondent having thereupon challenged the competency of the reference and the action taken thereon by the Governor, the Commission notified the respondent that his case would be heard on 21-8-1952. Accordingly, the Chief Election Commissioner (who was the sole Member of the Commission for the time being) went down to Madras and beard the respondents counsel and the Advocate-General of Madras on 21-8-1958, when it was agreed that, in case the petitioner's counsel desired to put forward any further representations or arguments, the same should be sent in writing so as to reach the Commission in Delhi by 28-8-1052 and the Commission should take them into consideration before giving its opinion to the Governor.
(3.) On the same day (21-8-1952) the respondent applied to the High Court under Art. 228 of the Constitution contending that Art. 192 of the Constitution was applicable only where a member became subject to a disqualification after he was elected but not where, as here, the disqualification arose long before the election, in which case the only remedy was to challenge the validity of the election before an Election Tribunal. He accordingly prayed for the issue of a ''writ of mandamus or of prohibition directing the Commission to forbear from proceeding with the reference made by the Governor of Madras who was not, however, made a party to the proceeding. On receipt of the rule nisi issued by the High Court, the Commission demurred to the jurisdiction of the Court to issue the writs asked for, on the ground that the Commission was not ''within the territory in relation to which the High Court exercised jurisdiction."' A further objection to the maintainability of the application was also raised to the effect that the action of the Governor in seeking the opinion of the Commission could not be challenged in view of the immunity provided under Art. 361(1), and that the Commission itself, which had not to "decide" the question of disqualification, but had merely to give its "opinion", could not be proceeded against under Art. 228. On the merits, the Commission contended that Art. 192 was, on its true construction, applicable to cases of disqualification arising both before and after the election and that both the reference of the question as to the respondent's disqualification to the Governor of Madras and the latter's reference of the same to the Commission for its opinion were competent and valid.;