Telangana High Court
Pothuganti Sheshank Reddy vs The Election Commission Of India ... on 12 October, 2018
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
* THE HON'BLE THE CHIEF JUSTICE SRI THOTTATHIL B. RADHAKRISHNAN
AND
THE HON'BLE SRI JUSTICE S.V.BHATT
+ WRIT PETITION (PIL) Nos.299 AND 300 OF 2018
% 12.10.2018
# Pothuganti Sheshank Reddy
and others.
...Petitioners
vs.
$ The Election Commission of India,
Through Secretary, Nirvachan Sadan,
Ashoka Road, New Delhi-110001,
and others.
... Respondents
!Counsel for the Petitioners : Sri Ramavaram Chandrashekar
Reddy
^Counsel for the Respondents : Sri Avinash Desai
Sri K.Lakshman (Assistant Solicitor General)
GP for Law & Legislative Affairs (TG)
<Gist :
>Head Note :
? Cases referred
1. (2002) 8 SCC 237
2. (1977) 3 SCC 592
3. (1974) 2 SCC 831
4. 2004 (1) ALT 178 (DB) = 2003 (6) ALD 897 (DB)
2
THE HON'BLE THE CHIEF JUSTICE SRI THOTTATHIL B. RADHAKRISHNAN
AND
THE HON'BLE SRI JUSTICE S.V.BHATT
WRIT PETITION (PIL) Nos.299 AND 300 OF 2018
COMMON ORDER:(Per the Hon'ble the Chief Justice Sri Thottathil B. Radhakrishnan) In exercise of powers conferred by clause 2(b) of Article 174 of the Constitution of India, the Governor of Telangana, on the advice of the Council of Ministers, dissolved the First Legislative Assembly of Telangana State with effect from 06.09.2018, the date on which, such dissolution was notified as per G.O.Ms.No.46. Such dissolution of the Assembly is challenged through these Writ Petitions. The petitioners also impeach the proposal for early elections. A direction is sought to the Governor to summon the House under Article 174 of the Constitution, invoking his independent discretionary power, and to place the recommendation of the Council of Ministers to dissolve the House for the opinion of the House. The Election Commission of India, for short, 'ECI', is sought to be directed to examine the possibilities of imposing President's Rule under Article 324 of the Constitution of India in order to facilitate the conduct of 'free and fair' election by updating the electoral rolls.
2. Heard Sri P.Niroop Reddy, learned counsel appearing for the petitioners, Sri Arem Sundaram, learned Senior Counsel, assisted by Sri J.Ramachander Rao, learned Additional Advocate General, for the State of Telangana, Sri Avinash Desai, learned standing counsel for the Election Commission of India and Sri K.Lakshman, learned Assistant Solicitor General for Union of India.
3
3. W.P. (PIL) No.299 of 2018 is filed by two individuals representing that group of citizens, who would be able to vote if 01.01.2019 is treated as the qualifying date, instead of 01.01.2018, for the preparation or revision for the electoral roll. The plea is, inter alia, that the revision of electoral roll with 01.01.2019 as the qualifying date was the on-going process and the ECI has rolled back that revision of electoral roll with 01.01.2018 as the qualifying date and such roll back of the qualifying date deprives those who would attain 18 years of age after 01.01.2018, of their eligibility - to vote in the ensuing election even if they would attain such age before the notification of election or the last date on which additions, deletions and corrections could be made in the electoral roll; which is 3.00 p.m., of the last date that would be fixed for submission of nominations for election. Such exclusion from the voters' list is deprivation of the statutory eligibility to be a voter, which has been argued before us by the learned counsel for the petitioner as one, which has, with passage of time, through judicial pronouncements, gained the character of being a constitutional right and human right. The situation is one where there is large scale exclusion of young voters, who would have otherwise been able to vote in an election if it would have been held at the expiry of the term of the First Legislative Assembly of Telangana State, without its dissolution. Such entitlement stands deprived by the dissolution of the Assembly more than nine months before its full term, it is argued. 4
4. W.P. (PIL) No.300 of 2018 is filed by a Member of the First Legislative Assembly of the Telangana State, which stands dissolved. She represented the Gadwal Constituency in that Assembly. It is her contention that the dissolution of the Assembly without summoning the House and placing the Council of Ministers recommendation for the opinion of the House amounts to deprivation of her right to represent her constituency in the democratic process, and she and other members of that Assembly were eligible to have an opportunity to be involved in the consideration of the Council of Ministers recommendation to dissolve the House. According to her, the opinion of the Assembly ought to have been taken by the Governor by summoning the House for that purpose.
5. Learned counsel for the petitioners, as already noted above, argued among other things, that the young voters have been deprived of their right to vote, which right has gained the vigour of being part of constitutional rights and human rights. Legal literature and judicial precedents including those rendered by the Hon'ble Supreme Court of India have been referred to by the learned Counsel to buttress the argument that the quality of the right to vote and the power of the citizen to vote and thereby become part of governance are to be treated as pivotal to democracy. There is no controversy raised at the bar during the course of arguments on the principles relating to that realm of jurisprudence.
6. Learned counsel for the petitioners further argued that within the framework of Article 174 of the Constitution of India, 5 the Governor would be within his jurisdiction and power to take an independent decision on the advice tendered by the Council of Ministers, and the Governor ought not to act in a mechanical manner since the dissolution of House has far reaching consequences, which may adversely impact democratic process of governance. He argued that the facts of the case tend to indicate that there is no consideration, by the Governor, as to whether the advice of the Council of Ministers to dissolve the House ought to have been accepted or whether that was to be kept aside and the House to be summoned to put such aid and advice of the Council of Ministers for consideration of the Assembly on the issue as to whether it is to be dissolved. The petitioners' counsel further argued that the sequence of events, as discernible also from the newspaper reports, would show that there was a concerted effort to have the election conducted at such earlier point of time, before the full term of the First Legislative Assembly of the Telangana State would expire, to facilitate the exclusion of first time voters by creating a situation to roll back the qualifying date to 01.01.2018 from 01.01.2019. He pointed out that it could also be a case, where ECI was also acting in a manner which is not conducive to conduct free and fair elections. Referring to the decision of the Apex Court in Gujarat Assembly Election Matter, in Re1, learned counsel argued that following the dissolution of the Telangana State Legislative Assembly, election could be conducted within six months or in given cases, even beyond that, depending upon various factors, which would impress upon the ECI to decide as 1 (2002) 8 SCC 237 6 to whether election has to be conducted then, in a particular State or Constituency, at a given point of time.
7. Learned Senior Counsel appearing for the State of Telangana argued that the Writ Petitions do not disclose any ground warranting interference under Article 226 of the Constitution of India. Referring to, among others, the decision of the Apex Court in State of Rajasthan vs. Union of India2, he argued that the Governor has to act on the aid and advice of the Council of Ministers when dissolution was under Article 174(2)(b) and not under Article 356 of the Constitution of India. He further argued that the question whether any reason for the advice and the sufficiency or otherwise thereof, is not to be enquired into by the Court in view of Article 163(3) of the Constitution, which enjoined that the question whether any, and if so what, advice was tendered by the Ministers to the Governor shall not be inquired into in any Court. Dilating on that aspect and drawing supporting from State of Rajasthan (supra), he pointed out that it may not be within the domain of judicial review to visit the act of dissolution of the House particularly when it is by recourse to Article 174(2)(b) in contra distinction to Article 356 of the Constitution.
8. Learned Standing Counsel for the ECI argued that there is no ground of malice or mala fides having been pleaded or established as required by law and the criticisms levied against ECI are unfounded and unsustainable and are liable to be rejected. He argued that the 'qualifying date' in relation to the 2 (1977) 3 SCC 592 7 preparation or revision of every electoral roll under Part III of the Representation of the People Act, 1950, for short, 'the RP Act', is a term, which has been statutorily defined and controlled and therefore, there cannot be any qualifying date, which could be fixed even through a judicial process for the purpose of Section 21 of the RP Act, which obliges ECI to prepare the electoral roll for each constituency by reference to the qualifying date. He, thus, argued that if 'qualifying date' is not 01.01.2018, the next 'qualifying date' could be only 01.01.2019, going by the definition of the term 'qualifying date' in Section 14(b) of the RP Act.
9. Article 174(2)(b) of the Constitution of India provides that the Governor may dissolve the Legislative Assembly. That provision does not require the Governor to summon the House to take the view of the House for the purpose of dissolving the Legislative Assembly. Under Article 163(1) of the Constitution of India, there shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except insofar he is, by or under the Constitution, required to exercise his functions or any of them in his discretion. The clear words of Article 174(2)(b) do not admit any situation, where the Governor would have the discretion, whereby he is not required to act on the aid and advice of the Council of Ministers. This is so because Article 174(2)(b) does not require the Governor to exercise the authority under that provision in his discretion. Nor is there any other provision in the Constitution which requires the Governor to do 8 so. In State of Rajasthan (supra), their Lordships elaborately discussed the contrasting situations which would fall under Article 174(2)(b) and Article 256(1) of the Constitution. It was laid down that Article 174(2)(b) expressly vests power of dissolving the Legislative Assembly in the Governor and that had to be on the advice of Council of Ministers. That specific principle on the interpretation of Article 174(2)(b) was stated by their Lordships in that Judgment to distinguish the course to be followed in cases which fall under Article 356(1) of the Constitution of India. The State of Rajasthan (supra) and Shamsher Singh vs. State of Punjab3 are authorities for the position that except in the narrow minimal area covered by Articles 163(2), 371 A(1)(b) and (d), 371A (2)(b) and (f) and Sixth Schedule, Para 9(2), the Governor is bound to act according to advice of the Council of Ministers. In the absence of any constitutional provision compelling the Governor to summon the House on receipt of aid and advice of the Council of Ministers to dissolve the House and in view of the constitutional compulsion on the Governor in terms of Article 163(1) of the Constitution of India to act on the aid and advice of the Council of Ministers, except insofar as he is required to exercise any of his functions in his discretion, the petitioners' plea that the Governor ought to have summoned the House to discuss the advice given by the Council of Ministers is unsustainable. The impugned Notification evidences that the Governor has dissolved the First Legislative Assembly of the Telangana State with effect from the date of that Notification. It also evidences 3 (1974) 2 SCC 831 9 that the Governor acted on the advice of the Council of Ministers. Article 163(3) of the Constitution of India provides that the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any Court. Obviously, therefore, the conditions in terms of Article 174(2)(b) are fulfilled. Such dissolution is, therefore, not liable to be interfered with in judicial review.
10. In R.Krishnaiah vs. Union of India4, a Division Bench of this Court held that where the Governor has dissolved the State Assembly on the advice of the Council of Ministers, his decision cannot be challenged except on the grounds of mala fides or as one based on extraneous and irrelevant considerations and that when the decision of the Governor is based on the advice of Council of Ministers, the Court cannot go into the sufficiency of the advice. We are in respectful agreement with such propositions of law stated in the said Judgment and we follow them.
11. Section 21 of the RP Act deals with preparation and revision of electoral rolls. It enjoins that electoral roll shall be prepared in the prescribed manner by reference to the qualifying date. 'Qualifying date', in relation to the preparation or revision of every electoral roll under Part III of the RP Act, is defined in Section 14(b) of that Act, to mean the 1st day of January of the year in which it is so prepared or revised. Such date, which has fixed through that legislative device, cannot be changed depending upon any particular election. Though the 4 2004 (1) ALT 178 (DB) = 2003 (6) ALD 897 (DB) 10 process of correction, deletion or inclusion may go on, that has to be only with reference to qualifying date so defined and prescribed. The statutory command in Section 21 read with Section 14(b) of the RP Act does not give room to fix any other qualifying date in the absence of any such power with the ECI. The ECI does not have the power to do it. The modification to the meaning of 'qualifying date' cannot also be made through a judicial order under Article 226 of the Constitution of India.
12. The plea of the petitioners that the election could be held even in early 2019 and that would enable the inclusion of those, who would become voters if 01.01.2019 is taken as 'qualifying date' does not appeal to us on the basis of constitutional and other legal principles. The 'qualifying date' is a statutory matter and is not made dependent upon any particular election or elections. As held above, while additions, deletions and corrections to the electoral roll could be carried on, the eligibility to get included in the voters' list shall be only with reference to the 'qualifying date'. It was held by the Division Bench in Komireddy Krishna Vijay Azad vs. the Election Commission of India (W.P. (PIL) No.271 of 2018) inter alia, as follows:-
"8. The mere fact that, according to the petitioner, the sizable group of new voters may fall within the basket if 01.01.2018 is taken as a cut off date, does not make any distinction on the facts of the case because the constitutional mandate out of the scheme of governance as enshrined in the Constitution of India does not embolden us to say that a caretaker Government should be permitted to continue to enable the finalization of voters' list as on 01.01.2019 and thereby further push the elections. This is all the more so because conducting of elections and having a democratic process roll forward is itself a constitutional mandate.11
9. The exclusion of those voters who would have come into the list of voters is not something on which this Court could draw an inference. How they would vote or how the free and fair elections would be affected by their absence is not a matter which could be concluded through a mechanism of inferences or presumptions by this Court. The plea of the petitioner that free and fair elections would be jeopardized if the relevant date for finalization of electoral roll is retained as 01.01.2018 cannot be accepted."
We do not find any reason to deviate from the said judicial precedent. We, therefore, follow it.
13. For the aforesaid reasons, these Writ Petitions fail and they are resultantly dismissed.
The miscellaneous petitions pending in these Writ Petitions, if any, shall stand closed. There shall be no order as to costs.
_______________________________________ THOTTATHIL B. RADHAKRISHNAN, CJ __________________________ S.V.BHATT, J 12.10.2018 Note: LR copy be marked.
(By order) pln