Brundaban Nayak V. Election Commission of India and Another

The Election Commission should be vested with the powers of a commission under the Commissions of Enquiry Act, 1952, such as the power to summon witnesses and examine them on oath, the power to compel the production of documents, and the power to issue commissions for the examination of witnesses.

Case Name: Brundaban Nayak V. Election Commission of India and Another

Case number: 1965 AIR 1892

Court: Supreme Court of India

Bench:    Chief Justice of India P.B. Gajendra                 

Hon’ble Justice M.Hidayatullah

Hon’ble Justice Raghubar Dayal

Hon’ble Justice S.M. Raghubar

Hon’ble Justice V. Ramaswami

Decided on: 12/02/1965

Relevant Statutes: Constitution of India 1949, Representation of People’s Act, Commission of Enquiry Act 1952.

  • The appellant Brundaban Nayak was elected to the Legislative Assembly of Orissa from the Hinjili Constituency in Ganjam district in 1961, and was appointed one of the Ministers of the Council of Ministers in the said State.
  • On August 18, 1964, respondent No. 2, P. Biswal, applied to the Governor of Orissa alleging that the appellant had incurred a disqualification subsequent to his election under Art. 191(1)(e) of the Constitution read with section 7 of the Representation of the People Act, 1951 (No. 43 of 1951) (hereinafter called the Act).
  • On September 10, 1964, the Chief Secretary to the Government of Orissa forwarded the said complaint to respondent No. 1, the Election Commission of India, under the instructions of the Governor.
  • On November 17, 1964, respondent No. 1 served a notice on the appellant forwarding to him a copy of the letter received by it from respondent No. 2. The notice intimated to the appellant that respondent No. 1 proposed to enquire in the matter before giving its opinion on the Governor’s reference, and, therefore, called upon him to submit on or before the 5th December, 1964, his reply with supporting affidavits and documents, if any.
  • The appellant, on 1st December requested both, Respondents No.1 and Respondent No.2 to adjourn the hearing of the matter.
  • When the respondent No. 1 reserved its orders on the enquiry and noted that its opinion would be communicated to the Governor as early as possible. The appellant moved the Punjab High Court under Art. 226 of the Constitution praying that the enquiry which respondent No. 1 was holding, should be quashed on the ground that it was incompetent and without jurisdiction.
  • This writ petition was summarily dismissed by the said High Court on January 6, 1965. Thereafter, the appellant applied to this Court for special leave on January 8, 1965, and special leave was granted to him on January 14, 1965.
  • Whether respondent No. is entitled to hold an enquiry before giving its opinion to the Governor as required by Art. 192(2)
  • Who can raise question as to disqualification of sitting member. Whether question has to be raised on floor of the Assembly and referred to the Governor by Speaker–Enquiry to be held by Governor or Election Commission?
  • The Court referred the case of Election Commission, India v. Saka Venkata Subba Rao and Union of lndia—Intervener and explained that Articles 190(3) and 192(1) are applicable only to disqualifications to which a member becomes subject after being elected as such.
  • The Court observed that as to the argument based on the words “the question shall be referred for the decision of the Governor”, these words do not import the assumption that any other authority has to receive the complaint and after a prima facie and initial investigation about the complaint, send it on or refer it to the Governor for his decision. These words merely emphasise that any question of the type contemplated by clause (1) of Art. 192 shall be decided by the Governor and Governor alone; no other authority can decide it, nor can the decision of the said question as such fall within the jurisdiction of the Courts. That is the significance of the words “shall be referred for the decision of the Governor”.
  • Further the court opined that it did not think there is any justification for reading such serious limitations in Art. 192(1) merely by implication. It stated that the object of Art. 192 is plain. No person who has incurred any of the disqualifications specified by Art. 191(1), is entitled to continue to be a member of the Legislative Assembly of a State, and since the obligation to vacate his seat as a result of his subsequent disqualification has been imposed by the Constitution itself by Art. 190(3)(a), there should be no difficulty in holding that any citizen is entitled to make a complaint to the Governor alleging that any member of the Legislative Assembly has incurred one of the disqualifications mentioned in Art. l 91 (1) and should, therefore, vacate his seat.
  • It was further observed by the Court that the whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status, and if any member forfeits that status by reason of a subsequent disqualification, it is in the interests of the constituency which such a member represents that the matter should be brought to the notice of the Governor and decided by him in accordance with the provisions of Art. 192(2). Therefore, the argument that a question has not arisen in the present proceedings as required by Art. 192(1) was rejected.
  • The court observed respondent No. 1 acted within its jurisdiction when it served a notice on the appellant calling upon him to file his statement and produce his evidence in support thereof
  • Lastly, the Court concluded by observing that so far, the practice followed in respect of such complaints has consistently recognised that the enquiry is to be held by the Election Commission both under Art. 192(2) and Art. 103(2).
  • The appeal was dismissed by the court with costs.
  • In view of the fact that the present proceedings have unnecessarily protracted the enquiry before respondent No. 1, the Court suggested respondent No. 1 should proceed to consider the matter and forward its opinion to the Governor as early as possible.

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