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On the argument of learned counsel for the parties, the first question that arises for consideration is whether Article 174(1) is applicable to a dissolved Assembly?

A plain reading of Article 174 shows that it stipulates that six months shall not intervene between the last sitting in one session and the date appointed for its first sitting in the next session. It does not provide for any period of limitation for holding fresh election in the event a Legislative Assembly is prematurely dissolved. It is true that after commencement of the Constitution, the practice has been that whenever either Parliament or Legislative Assembly were prematurely dissolved, the election for constituting fresh Assembly or Parliament, as the case may be, were held within six months from the date of the last sitting of the dissolved Parliament or Assembly. It appears that the Election Commission's interpretation of Article 174 that fresh elections for constituting Assembly are required to be held within six months from the date of the last sitting of the last session was very much influenced by the prevailing practice followed by the Election Commission since enforcement of the Constitution. At no point of time any doubt had arisen as to whether the interval of six months between the last sitting of one session and the first sitting of the next session of the Assembly under Article 174(1) provides a period of limitation for holding fresh election to constitute new Assembly by the Election Commission in the event of a premature dissolution of Assembly. Since the question has arisen in this Reference and also in view of the fact that Article 174 on its plain reading does not show that it provides a period of limitation for holding fresh election after the premature dissolution of the Assembly, it is necessary to interpret the said provision by applying accepted rules of interpretations.

We find that the Representation of the People Act, 1951 also has not provided any period of limitation for holding election for constituting fresh Assembly election in the event of premature dissolution of former Assembly. In this context, concerns were expressed by learned counsel for one of the national political parties and one of the States that in the absence of any period provided either in the Constitution or in the Representation of the People Act, the Election Commission may not hold election at all and in that event it would be the end of democracy. It is no doubt true that democracy is a part of the basic structure of the Constitution and periodical, free and fair election is substratum of democracy. If there is no free and fair periodic election, it is end of democracy and the same was recognized in M.S. Gill v. Chief Election Commissioner - (1978) 1 SCC 464 thus:

Therefore, a question may arise that if Article 174 is not applicable to a dissolved Assembly, can the Election Commission postpone election for indefinite period so as to defeat the democratic form of Government? Is there any mandate in the Constitution or in the Representative of People Act, 1951 prescribing time to conduct the election? Obviously, neither the Constitution nor the Representation of People Act, 1951 prescribes any time limit for the conduct of election after the term of the Assembly is over either by premature dissolution or otherwise. Proviso to Section 15(2) of the Representation of People Act, 1951 states that where a general election is held otherwise than on dissolution of the existing House of the People, no notification for election shall be issued at any time earlier than six months prior to the date on which the duration of that House would expire under the provisions of Clause (2) of Article 83. Once there is dissolution of the Assembly, the Election Commission shall take immediate steps to conduct the election an see that the new Assembly is formed at the earliest point of time. A democratic form of Government would survive only if there are elected representatives to rule the country. Any delay on the part of the Election Commission is very crucial and it is the Constitutional duty of the Election Commission to take steps immediately on dissolution of the Assembly. Article 324 of the Constitution gives vast powers to the Election Commission and time and again this Court has pointed out the extent of powers and duty vested with the Election Commission. It was argued by various counsel appearing on behalf of the various political parties as to what would be the position if the Election Commission would indefinitely postpone the election under some pretext or the other. So, the question posed was: 'Quis custodiet ipsos custodes' - who will guard the guards themselves?

The first question essentially relates to the interplay between two Articles i.e. Article 174 and Article 324 of the Constitution. A bare reading of the aforesaid two Articles makes it clear that they operate in different fields. Article 14 appears in Chapter III of Part VI of the Constitution relating to State Legislature. The parallel provision, so far as the Union is concerned, is contained in Article 85 in Chapter II of Part V of the Constitution. Chapter III of Part VI with which we are presently concerned deals with State Legislature. Article 168 provides that for every State there shall be Legislature which shall consist of the Governor and in for States with two Houses and in other States one House of the State. Where there are two Houses of the Legislature of a State, one is known as a Legislative Council and other is Legislative Assembly and when there is only one House, it is known as the Legislative Assembly. Article 172 provides for the duration of State Legislatures. Article 174 deals with sessions of the State Legislatures, prorogation and dissolution. Under Clause (1), the Governor is required to summon the House or each House of the Legislature of the State from time to time to meet at such time and place as he thinks fit. It further provides that six months shall not intervene between its last sitting of one session of the House and the date appointed for its first sitting in the next session of the House. The requirement relating to the meeting within the prescribed time period is the crucial issue in the reference. Clause (2) deals with power of the Governor to (a) prorogue the House or either House or (b) dissolve the Legislative Assembly. Almost in similar language are couched Articles 83 and 85. As has been rightly contended by some of the learned counsel, Article 174 does not deal with elections. ON the contrary, the occasion for holding of elections to the conducted by the Election Commission arise only after dissolution of the House. It is the stand of the Union of India, the Election Commission and some of the parties that the Election Commission is duty bound to ensure meeting of the House within the time indicated in Article 174(1). According to them, the urgency and desirability involved in calling the meeting of the House cannot be frustrated by postponing elections. Thus, according to them, the Election Commission has to ensure that the elections are held in time, so that the State Legislature can meet within the prescribed time period. On the other hand, learned counsel for some of the other parties have submitted that the period of six months does not operate in respect of the dissolved Assemblies. Election Commissioner under the Constitution is required to hold "free and fair election" and election which is not free and fair is, sham or manipulated, and no election at all. Article 174 according to them relates to the live assembly and not assembly which on dissolution has suffered civil death. It has been pointed out by them that no time period is prescribed for holding the elections after dissolution either in the Constitution or Representation of People' Act, 1950 (in short R.P. Act 1950) and R.P. Act 1951'. The stand of the Union of India, the Election Commission and some of the parties is that in the scheme of the Constitution and the laws framed under Article 327, it is impossible to conceive that elections can be deferred indefinitely. According to them, the fact that elections constitute basic structure of the Constitution, the care taker Ministry is not the answer and not even imposition of President's Rule. According to them, President Rule can be imposed only if the enumerated circumstances exist and not otherwise. Imposition of President's Rule has to be ratified by both the Houses of Parliament. It is further submitted that Election Commissioner has to ensure holding of elections and not holding up the elections, and effort should be to take necessary assistance from the Center and the States, if necessary, to hold the elections and that is why the third question has been referred. With reference to the language used in Article 174 that is "between its last sitting in one session and the date appointed for its first sitting in the next session", it is pointed out that the House does not get dissolved, it is only the Legislative Assembly which gets dissolved. Therefore, the Election Commissioner is duty bound to see that Article 324 is exercised in such a manner that prescription under Article 174 is not diluted or rendered ineffective.