- (1.) This is an appeal preferred by the Election Commission of India and Shri T.N. Seshan, the Chief Election Commissioner, (when the former was a single-member Commission) against the decision of the Division Bench of the High Court of Madras dated 15-11-1993 by which, reversing the view taken by the learned single Judge of the High court dated 2-7-1993, it held that in view of the promulgation of Ordinance (Ordinance No. 32 of 1993) the doctrine of necessity was no more attracted and applicable in the facts and circumstances of the case. The question raised in this appeal arises in the backdrop of the following facts : Ms. J. Jayalalitha was elected to the Legislative Assembly of Tamil Nadu on the AIDMK ticket in the General Election held in June, 1991 and on being elected as the leader of the party she was sworn-in as the chief Minister of the State. On 2-10-1922, Dr. Subramanian Swamy preferred a petition to the State Governor under Article 192 of the Constitution of India alleging that the Chief Minister had incurred a disqualification of being a member of the Legislative Assembly of the State, in that, she being a partner in the partnership firm run in the name and style of Messrs Jaya Publications had entered into a contract with the State Government and 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 9-A of the Representation of the People Act, 1951 (hereinafter called 'the R.P. Act'). It would be advantageous to reproduce the said two provision at this stage : "191 (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State- (a)............... (b).............. (c).............. (d).............. (e) if he is so disqualified by or under any law made by parliament. Explanation- For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State." "9-A Disqualification of Government contracts, etc. - A person shall be disqualified if, and for so long as, ether subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government. Explanation- For the purposes of this Section where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part". Since the Governor did not forward the petition to the Election Commission, Dr. Swamy moved a Writ Petition No. 942 of 1992 against the Governor for a direction that he forthwith forward the same to the Election Commission as required by Article 192 (2) of the Constitution for its opinion. While the said writ petition was pending in the High Court, the Governor forwarded the petition to the Election. Commission on 27-3-1993 for its opinion. there upon Ms. J. Jayalalitha moved two Writ Petitions Nos. 6094 and 6095 of 1993, the first for a writ of prohibition against Shri Seshan not to deal with the petition forward to him by the Governor as she had a reasonable apprehension that he was biased in favour of Dr. Swamy and the second for a declaration that she had not incurred the disqualification as alleged by Dr. Swamy.
(2.) Both these writ petitions came up for disposal before a learned single Judge of the High Court. He allowed the first writ petition holding that the evidence placed on record clearly established that Ms. J. Jayalalitha's apprehension that Shri Seshan may not be able to take an impartial view because of his strong bias in favour of Dr. Swamy could not be said to be misplaced or unreasonable and it would be just, fair and proper to issue a writ of prohibition directing Shri Seshan to refrain from expressing any opinion on Dr. Swamy's petition alleging disqualification, since at the relevant time the Election Commission was a one-member body. On the plea based on the doctrine of necessity, the learned Judge observed that while the principle of natural justice may have to yield in favour of the doctrine of necessity, it was not obligatory to invoke the said doctrine in all cases, in particular in the case on hand, since it was not obligatory to invoke the said doctrine in all cases, in particular in the case on hand, since it was permissible under Article 324 of the Constitution to appoint an additional Election Commissioner, who if appointed, would constitute an alternative forum for dealing with the matter. So far as the second writ petition is concerned, while the learned single Judge held that the decision on the issue raised by Dr. Swamy law within the exclusive domain of the Governor, he opined that Ms J. Jayalalitha had not incurred the alleged disqualification. Therefore, while dismissing the second writ petition, he virtually allowed it, in that, the Governor while taking a decision under Article 192 (2) would feel inhibited by the said decision.
(3.) Dr. Swami filed two Special Leave Petitions Nos. 1089-90 of 1993 in this Court under Article 136 of the Constitution questioning the correctness of the view taken by the learned single Judge in the said two petitions. This Court, however, did not entertain the said two petitions and by its order dated 20-8-1993 directed the petitioner to move the Division Benches in appeal. Consequently Dr. Swami preferred an appeal, being Writ Appeal No. 956 of 1993, in the High Court of Madras.;