Dr. Subramanian Swamy Vs. J. Jayalalitha and ors. - Court Judgment

K.A. Swami, C.J.

1. This appeal is preferred against the order dated 2.7.1993 passed by the learned single judge in W.P. Nos. 6094 and 6095 of 1993.

2. The appellant is the second respondent in the writ petitions. The first respondent is the petitioner in both the writ petitions. The second respondent herein is the first respondent in the writ petitions. The Election Commission of India has been impleaded in the writ appeal pursuant to the orders dated 7.10.1993 and 20.10.1993, at the instance of the first respondent passed in C.M.P. No. 13873 of 1993.

3. The first respondent herein has also filed another petition, C.M.P. No. 13874 of 1993 for directing the second respondent (Mr. T.N. Seshan, Chief Election Commissioner) to rescue himself when the question of the alleged disqualification of the first respondent is taken up for adjudication by the Election Commission. The Election Commission, through its Secretary, has also filed the counter-affidavit on its behalf. Mr. T.N. Seshan has also filed the counter-affidavit to the C.M.P. No. 13874 of 1993, which is also heard along with the writ appeal.

4. Before filing the writ appeal in question, the appellant had approached the Supreme Court as against the order of the learned single judge in question in S.L.P. (Civil) No. 10189-90 of 1993. The Supreme Court directed the appellant to lodge an appeal before the Division Bench of this Court within two weeks from 20.8.1993 and in that event, that appeal shall not be dismissed on the ground of limitation alone and the same be disposed of as expeditiously as possible, not later than six weeks from the lodgement of the appeal. Accordingly, the appeal came up before us for admission and also for condonation of delay in filing on 1.9.1993. We condoned the delay, admitted the appeal and directed it to be posted for final hearing on 28.9.1993 as both the sides agreed that, that date would be convenient to them. The hearing of the appeal was completed on 30.9.1993 and the judgment was reserved. However, on the very next day, Ordinance No. 32 of 1993 came to be promulgated by the President of India, amending the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Act, 1991. As the Ordinance had a bearing on the question of doctrine of necessity raised in the case, we thought it necessary to hear both the sides as to the effect of Ordinance No. 32 of 1993 on the question of doctrine of necessity. In addition to this, the first respondent also filed, as pointed out above, two petitions, viz., C.M.P. Nos. 13873 and 13874 of 1993. Accordingly, the appeal was posted on 7.10.1993. Notice was issued to the Election Commission. Both sides agreed to address further arguments on 20.10.1993. Before that date, the Election Commission was also served. It put in appearance through a counsel and filed its counter-affidavit. It was impleaded as 3rd respondent on 20.10.1993. Further arguments were addressed by both sides on 20.10.1993.

5. In this judgment, the parties would be referred to with reference to the position they enjoyed in the writ petitions. Accordingly, the appellant herein would be referred to as the second respondent; the first respondent herein would be referred to as the writ petitioner; the second respondent herein as the first respondent and the Election Commission as the third respondent.

6. Necessary facts have been set out in greater detail by the learned single judge in his order dated 2.7.1993 against which the present appeal is preferred. However, we state them in short. The writ petitioner was elected to the Legislative Assembly of Tamil Nadu in the general elections held in June, 1991. Thereafter, she has also been elected as the leader of the A.I.A.D.M.K. party which has secured majority in the Assembly and as such she has been functioning as the Chief Minister of the State. Before she was elected to the Legislative Assembly, she had formed a partnership firm, known as 'Jaya Publications' with one Tmt. V. Sashikala and it was also registered on 5.2.1990 with the Registrar of Firms at S. No. 152/90.

7. The second respondent filed a petition dated 2.10.1992 before the Governor of Tamil Nadu under Article 192 of the Constitution of India to declare that the writ petitioner has become subject to a disqualification mentioned in Clause (e)(1) of Article 191 of the Constitution and as such her seat in the Legislative Assembly has become vacant as the partnership firm 'Jaya Publications' of which she is a partner had entered into a contract with the State Government and that contract subsisted. This petition was not immediately forwarded by the Governor to the Chief Election Commissioner for opinion under Article 192(2) of the Constitution. The second respondent filed W.P. (Civil) No. 942 of 1992 against the Governor of Tamil Nadu and the writ petitioner for issuing a direction to the Governor to forward the petition filed under Article 192 of the Constitution to the Election Commission. During the pendency of that petition, the Governor of Tamil Nadu, on 27.3.1993, forwarded the petition to the Election Commission. The present writ petitions came to be filed on 30.3.1993 seeking a writ of prohibition restraining the first respondent from in any manner dealing with, hearing, adjudicating upon, or disposing of the memorandum dated 2.10.1992 filed by the second respondent under Article 192 of the Constitution and forwarded to him by the Governor of Tamil Nadu. In W.P. No. 6095 of 1993, she prayed for a declaration that she has not incurred the alleged disqualification under Article 191(1) (e) of the Constitution, read with Section 9-A of the Representation of the Peoples Act, 1951 (for short, R.P. Act) as alleged by the second respondent in his petition dated 2.10.1992.

8. A writ of prohibition in W.P. No. 6094 of 1993 is sought on the ground that the writ petitioner entertains a reasonable apprehension that the first respondent (Mr. T.N. Seshan) is biased in favour of respondent No. 2 and as such, there is every likelihood of the decision of the first respondent being affected by bias. The facts and circumstances stated for entertaining reasonable apprehension that the first respondent is biased and she would not get a fair and unbiased decision from him would be referred to while dealing with the question of bias pleaded by her.

9. In W.P. No. 6095 of 1993, a declaration that she has not incurred the disqualification as alleged by the second respondent, is sought on the ground that there existed no contract and also that the provisions were not attracted inasmuch as it could not be said that there was a contract between the firm, 'Jaya Publications' and the State Government.

10. Learned single judge has, on consideration of the evidence on record and also the principles laid down in the various precedents cited before him, held that in the facts and circumstances of the case, the apprehension of bias of the first respondent is reasonable and as such, the learned single judge has further held that the first respondent may not be in a position to hear and decide the case impartially. Accordingly, the learned single judge has accepted the case of the writ petitioner that she will not get a fair and impartial decision from the first respondent.

11. On the application of doctrine of necessity, the learned single judge has held that though the principles of natural justice have to give way if the doctrine of necessity warrants, but it is not necessary to apply the doctrine of necessity in all circumstances, that it is possible to appoint Additional Election Commissioner under Article 324 of the Constitution, therefore, alternate forum is available, hence, the doctrine of necessity need not be applied.

12. Thereafter, the learned single judge has gone into the merits of the case as to whether the writ petitioner can be held to have become subject to a disqualification mentioned in Article 191(1) of the Constitution and has decided the same in favour of the writ petitioner. Here itself we may point out that this question squarely lies within the jurisdiction of the Governor who has to refer the question for opinion to the Election Commission and the Governor has to act according to the opinion of the Election Commission. This aspect of the case will be considered at the relevant stage. Consequently, the learned single fudge has allowed W.P. No. 6094 of 1993. Though W.P. No. 6095 of 1993 has been dismissed, but a finding has been recorded that the writ petitioner has not become subject to the disqualification mentioned in Article 191(1) of the Constitution. Thus, in effect, the declaration sought in W.P. No. 6095 of 1993 that the writ petitioner has not incurred disqualification has been granted. Consequently, the effect of the order is that W.P. No. 6095 of 1993 also stands allowed, however it has been dismissed.

13. In the light of the contentions urged on both sides, the following points arise for consideration:

1. Whether the learned single judge is justified in going into the question as to whether the writ petitioner has become subject to the disqualification in terms of Article 191(1) of the Constitution, read with Section 9-A of the R.P. Act.

2. Whether, in the facts and circumstances of the case, it can be held that the apprehension of bias entertained by the writ petitioner that she is not likely to get a fair and unbiased decision at the hands of the Chief Election Commissioner, Mr. T.N. Seshan, on the petition dated 2.10.1992 filed by the second respondent, is reasonable.

3. Whether the doctrine of necessity is attracted in the light of the insertion of Chapter III containing Sections 9 and 10 in the Chief Election Commissioner and other Election Commissioners (Conditions of Service and Transaction of Business) Act, 1991.

4. What order?

14. Point No. 1: After arriving at a conclusion that the apprehension of bias entertained by the writ petitioner that she is not likely to get a fair and just decision at the hands of the Chief Election Commissioner, Mr. T.N. Seshan is reasonable and as such, a writ in the nature of prohibition shall issue to him to refrain from deciding the case, the learned single judge has gone into the merits of the petition presented by the second respondent before the Governor under Article 192 of the Constitution, alleging that the writ petitioner has become subject to disqualification, as such it be declared that her seat has become vacant, and has decided that the contract did not subsist on the date the petition was filed, that the society with which 'Jaya Publications' had entered into a contract was registered under the Societies Registration Act, as such the contract with such society was not a contract with the Government and hence, the provisions of Article 191(1)(e) of the Constitution and the provisions contained in Section 9-A of the R.P. Act were not attracted. Learned single judge has proceeded to decide this question on the basis of the averments made in the petition dated 2.10.1992 filed by the second respondent before the Governor and also on the undisputed facts as to the period of contract. Learned single judge has ultimately held thus:.A conjoint reading of Articles 191 and 192 of the Constitution of India along with Section 9-A of the Act 43 of 1951, strengthens my view that the first respondent Election Commission has no jurisdiction to go into the question. Factually, there is no question at all to be gone into. If any notice is issued to the petitioner under Article 192 of the Constitution of India to the petitioner, it will be ab initio void. It will be an empty formality if the Election Commission is allowed to enquire into the memorandum submitted by the second respondent herein dated 2.10.1992. As I have already stated, the memorandum submitted by the second respondent is very vague and also bereft of particulars. Though the second respondent has set in motion the law to disqualify the petitioner, he has not come forward before this Court by filing a counter-affidavit denying the allegations made categorically by the petitioner in the affidavit filed in support of the writ petitions. Insofar as the second respondent has not chosen to file a counter-affidavit before this Court on the factual position, though sufficient opportunity has been given, in my view, the allegations made by the petitioner shall stand uncontroverted. It has been held so in C.S. Rowjee v. State of Andhra Pradesh : [1964]6SCR330 . I do not agree with the submission made by the second respondent that he has elected not to file a counter-affidavit before this Court as he has got the protection under Section 146 of the Act 43 of 1951 and as he is only a pro forma party in the writ petitions. Reliance made by Dr. Subramanian Swamy, who appeared as party in person, with regard to Section 146 of the Act 43 of 1951 has no relevance at all. As I have already stated, even if the allegations made in the memorandum submitted by Dr. Subramanian Swamy, the second respondent herein, are factually correct, no question of disqualification arises in view of the provisions under Articles 190(3) and 192(1) of the Constitution of India read with Section 9-A of the Act 43 of 1951, with regard to the first two agreements cited supra. With regard to the third contract, it is not at all a subsisting contract, assuming that it is a contract with the appropriate Government, when in law it is not so. Looking at any angle, I am of the view, that on the facts and circumstances of the case and at the backdrop of the cases mentioned hereinabove, a writ of prohibition has got to issue.

An argument was made at the Bar that the petitioner should be asked to face the Election Commission and come up before this Court if an adverse opinion is given by Election Commission and also if an adverse order is passed by the Election Commission on the memorandum submitted by the second respondent. I do not think it necessary on the facts and circumstances of this case, to direct the petitioner to face the Election Commission and then come up before this Court for judicial review. As I am fully satisfied that this is a fit case, in which a writ of prohibition is to issue it is not necessary that the petitioner, who is the Chief Minister of a State and who has been voted to power with large majority, should be asked to face the Election Commission on such flimsy grounds at the instance of the second respondent.

15. It is submitted by learned Senior Counsel Mr. G. Ramaswamy and Dr. Subramanian Swamy that Article 192 of the Constitution specifically provides that if any question arises as to whether a member of either House of a Legislature has become subject to any of the disqualifications mentioned in Clause (1) of Article 191 of the Constitution, the question shall be referred for the decision of the Governor and his decision shall be final; that before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion; therefore, it is not open to the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to embark upon, and decide, the question arising under Article 192 of the Constitution.

16. On the contrary, it is contended by Mr. K.K. Venugopal, learned Senior Counsel appearing for the writ petitioner, that the Election Commission, while rendering its opinion, as referred to it by the Governor under Article 192 of the Constitution, acts as a quasi-judicial tribunal; such a tribunal and its decision are amenable to the jurisdiction of this Court under Article 226 of the Constitution; therefore, it is open to this Court, in the exercise of its jurisdiction under Article 226 of the Constitution, to decide as to whether the petition filed under Article 192 of the Constitution and referred to the Election Commission would at all involve a question as to whether a member of the State Legislature has become subject to any of the disqualifications mentioned in Clause (1) of Article 191 of the Constitution, read with Section 9-A of the R.P. Act; if such a question arises, then only the Election Commission will have jurisdiction to render opinion; therefore, on the undisputed facts and in the light of the decision of this Court in M.S. Devasagayam v. K.A. Krishnasami and Ors. E.P. No. 1 of 1978 dated 31.1.1979, such a question did not arise; therefore, the Election Commission was trying to clutch at the jurisdiction; hence the learned single judge of this Court was justified in going into the question and deciding the same.

17. Though the contentions, as put forth by Mr. K.K. Venugopal, learned Senior Counsel, on the first blush appears to be very plausible and attractive, but on a careful consideration of the same, we find it difficult to accept the same. It is relevant to notice that the Governor shall have to act according to the opinion of the Election Commission. In other words, the Governor has to render his decision according to the opinion of the Election Commission and such decision is final. There is no doubt that the opinion of the Election Commission, is subject to judicial review by the High Court under Article 226 of the Constitution. But that does not mean that the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, can embark upon deciding the question by itself even before the Election Commission has rendered its opinion. It may be noticed that the Constitution specifically provides for challenging the validity of an election to either Houses of Parliament or to either house of the Legislature of a State by way of an election petition and Article 329 of the Constitution specifically bars interference by courts in election matters notwithstanding anything contained in the Constitution to go into the question as to the validity of an election to either Houses of Parliament or to either house of the Legislature of a State, except by an election petition presented to such authority and in such manner as may be provided by or under any law made by the appropriate Legislature. Of course, Article 329 of the Constitution docs not cover the question arising under Article 192 of the Constitution inasmuch as Article 192 deals with the situation which arises after the election and relates to a member of a House of the Legislature of a State having become subject to any of the disqualifications mentioned in Clause (1) of Article 191 of the Constitution. Nevertheless, when the Constitution specifically provides that/such a question shall be referred for the decision of the Governor and the decision of the Governor shall have to be in accordance with the opinion rendered by the Election Commission, it must be the decision of the Governor, and Governor alone, based on the opinion rendered by the Election Commission. Though the jurisdiction under Article 226 of the Constitution is wide and it can be exercised not only for the enforcement of any of the rights conferred by Part III of the Constitution, but also for any other purpose, it cannot be exercised so as to overcome the exclusive jurisdiction conferred on a specific constitutional authority to decide a particular question, by a specific provision made in the Constitution, even though the decision of such an authority is ultimately subject to judicial review under Article 226 of the Constitution. In our view, the constitutional discipline, as contained in the various provisions of the Constitution, has to be respected while exercising the jurisdiction under Article 226 of the Constitution. It cannot be exercised so as to defeat the object and intendment of another provision contained in the Constitution namely Article 192 of the Constitution.

18. In Brundaban v. Election Commission : [1965]3SCR53 , Article 192 of the Constitution came up for consideration. The Constitution Bench of the Supreme Court held thus:

We are not impressed by these arguments. It is significant that the first clause of Article 192(1) does not permit of any limitations such as Mr. Setalvad suggests. What the said clause requires is that a question should arise; how it arises, by whom it is raised, in what circumstances it is raised, are not relevant for the purpose of the application of this clause. All that is relevant is that a question of the type mentioned by the clause should arise; and so, the limitation which Mr. Setalvad seeks to introduce in the construction of the first part of Article 192(1) is plainly inconsistent with the words used in the said clause.

Then 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 Article 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'. If the intention was that the question must be raised first in the Legislative Assembly and after a prima facie examination by the Speaker it should be referred by him to the Governor, Article 192(1) would have been worded in an entirely different manner. We do not think there is any justification for reading such serious limitations in Article 192(1) merely by implication..

The scheme of Article 192(1) and (2) is absolutely clear. The decision on the question raised under Article 192(1) has no doubt to be pronounced by the Governor, but that decision has to be in accordance with the opinion of the Election Commission. The object of this provision clearly is to leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor. When the Governor pronounces his decision under Article 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself; he has merely to forward the question to the Election Commission for its opinion, and as soon as the opinion is received, 'he shall act according to such opinion'. In regard to complaints made against the election of members to the Legislative Assembly, the jurisdiction to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals constituted by the Election Commission. Similarly, all complaints in respect of disqualifications subsequently incurred by members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor. If this scheme of Article 192(1) and (2) is borne in mind, there would be no difficulty in rejecting Mr. Setalvad's contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission, the Election Commission should proceed to try the complaint before it gives its opinion. Therefore, we are satisfied that 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.

[Italics supplied]

The above underlined portions of the decision in Brundaban's case : [1965]3SCR53 , make it clear that the decision on the question shall have to be that of the Governor and Governor alone, but that decision shall have to be in accordance with the opinion of the Election Commission. Thus, in substance, it is the opinion of Election Commission that is decisive.

19. Again, in Election Commission of India v. N.G. Ranga : [1979]1SCR210 , a question arose as to exercise of power by the President under Article 103(2) of the Constitution, which relates to the decision on questions as to disqualification of members of either house of Parliament. Articles 103 and 192 came to be substituted by the Constitution (Forty-fourth Amendment) Act, 1978 for what was substituted by the Constitution (Forty-second Amendment) Act, 1976. The first one deals with the question arising as to whether a member of either house of Parliament has become subject to any of the disqualifications and the second one relates to the question arising as to whether the member of a Legislature of a State has become subject to any of the disqualifications mentioned in Articles 101 and 191 of the Constitution respectively. Both are similarly worded. On considering the provisions contained in Article 103 of the Constitution, it was held by the Constitution Bench of the Supreme Court in the aforesaid N.G. Ranga's case : [1979]1SCR210 , that the President was bound to obtain the opinion of the Election Commission before taking a decision on the question. Not only that, the President was bound to act according to the opinion given by the Election Commission, that the amended Article expressly conferred power on the Commission to make such enquiry as it thinks fit, therefore, the Commission was charged with the obligation to tender its opinion to the President. Thus, it is clear that exclusive jurisdiction is conferred upon the Election Commission to render its opinion on the question referred to it under Article 192 of the Constitution. Not only this, the Governor is also bound by that opinion. There-lore, he has to pronounce his decision according to the opinion given by the Election Commission. Thus, in the light of the aforesaid decisions of the Supreme Court, the question cannot at all be considered to be res integra. However, the learned single judge has distinguished the aforesaid two decisions on the ground that in those decisions, the question as to whether the jurisdiction under Article 226 of the Constitution can be exercised and a decision on the question arising as to whether a member of a house of Legislature of a State has become subject to any of the disqualifications mentioned in Article 191(1) can be rendered by a High Court, even without allowing the Election Commission to render its opinion, as required by Article 192(2) of the Constitution and the Governor to give his decision in accordance with such opinion of the Election Commission, has not been considered. We are of the considered opinion that the view taken by the learned single judge in this regard cannot be accepted as it does not accord with the scheme of Article 192(1) and (2) of the Constitution and is quite contrary to the aforesaid decisions of the Supreme Court.

20. Mr. K.K. Venugopal, learned Senior Counsel appearing for the writ petitioner, however, placed reliance on the two decisions of the Supreme Court in East India Commercial Co. v. Collector of Customs : 1983(13)ELT1342(SC) and B. Mishra v. R. Dixit : 1973CriLJ19 and contended that as the decision of the Election Commission is subject to judicial review by this Court under Article 226 of the Constitution, the Election Commission is bound to follow the decision of this Court in M.S. Devasagayam v. K.A. Krishnasami and Ors. E.P. No. 1 of 1978, dated 31.1.1979, in which it has been held that a society registered under the Societies Registration Act would not be a limb of the Government and that a contract with such society would not be a contract with the Government, there would be no justification to allow the Election Commission to go into the question which does not really arise in the light of the aforesaid decision in E.P. No. 1 of 1978. East India Commercial Company's case : 1983(13)ELT1342(SC) , it was held that a writ of prohibition against the inferior tribunal forbidding it from continuing the proceedings therein on the ground that the proceeding was without or in excess of jurisdiction, or contrary to the laws of the land could be issued. On considering the contents of the notice issued by the Collector of Customs, he was prohibited from proceeding with the same. It is necessary to point out that firstly, the Collector of Customs cannot be compared with a constitutional functionary, viz., the Election Commission; secondly, the action that was proposed to be taken by the Collector of Customs was under an enactment which can not be equated to the provisions of the Constitution; thirdly, it was found that even on the assumption that the allegations made in the notice were true, the Tribunal had no jurisdiction to proceed with the enquiry under Section 167(8) of the Sea Customs Act. Such a situation does not arise in the instant case. It has to be decided by the Election Commission as to whether there was any subsisting contract between the firm known as 'Jaya Publications' of which the writ petitioner was a partner, and the Government and if so/whether the writ petitioner had become subject to any of the disqualifications mentioned in Clause (1) of Article 191 of the Constitution. On the contrary, the learned single judge has gone into these questions and decided them. This is not at all permissible in law As pointed out earlier, it has been specifically held by the Supreme Court in the aforesaid two decisions rendered in Brundaban's case : [1965]3SCR53 and N.G. Kanga's case : [1979]1SCR210 , that,

any question of the type contemplated by Clause (1) of Article 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'.

21. B. Mishra's case : 1973CriLJ19 referred to above related to a case where a Judicial Officer was deliberately avoiding to follow the decision given by the High Court by giving wrong and illegitimate reasons. Therefore, it was held that the conduct of the Judicial Officer was clearly mala fide and amounted to disobedience and disregard of court by acting in opposition to the authority, justice and dignity thereof and thereby bringing the administration of law into disrepute. This decision was relied upon in support of the contention that the Election Commission is bound by the decision of this Court in M.S. Devasagayam v. K.A. Krishnasami and Ors. E.P. No. 1 of 1978, dated 31.1.1979 and not following the same would result in committing contempt of court; therefore, permitting the Election Commission to render its opinion in a case like this would be only an empty formality and as such, the learned single judge is justified in going into the merits of the case and deciding the same. All that we can say is that this contention can be urged before the Election Commission and not before this Court in order to bypass the provisions of Article 192 of the Constitution.

22. We may point out here the anomaly that may arise in the event this Court were to choose to exercise the jurisdiction under Article 226 of the Constitution bypassing the provisions contained in Article 192 of the Constitution and decide the question as to whether a member of the Legislature of a State has become subject to any of the disqualifications mentioned in Clause (1) of Article 191 of the Constitution. Suppose if this Court were to come to the conclusion that a member of a house of the Legislature of a State has become subject to any of the disqualifications mentioned in Clause (1) of Article 191 of the Constitution, that decision by itself will not result in the seat of such member in the house becoming vacant under Article 190(3) of the Constitution. It is only the decision of the Governor on that question that will attract Article 190(3) of the Constitution. Further, what is binding upon the Governor is the opinion of the Election Commission. Of course, the opinion of the Election Commission, may be subject to judicial review. But the exercise of power of judicial review over the opinion of the Election Commission rendered under Article 192 of the Constitution is quite different from the exercise of the very same jurisdiction bypassing the special jurisdiction created and the procedure laid down under Article 192 of the Constitution. It would be transgressing the scheme of Article 192 and thereby acting in violation of the provisions of the Constitution which is not permissible. Therefore, we are of the view that the question as to whether the writ petitioner has become subject to any of the disqualifications mentioned in Clause (1) of Article 191 of the Constitution read with Section 9-A of the Representation of the People Act should not have been gone into by the learned single judge when the same question is pending before the Election Commission under Article 192(2) of the Constitution. Point No. 1 is accordingly answered in the negative.

23. Point No. 2: Learned single judge has recorded a finding on this point in favour of the writ petitioner. In arriving at the conclusion that the writ petitioner has substantiated her case based on bias and likelihood of bias, the tests laid down in Manak Lal v. Dr. Prem Chand : [1957]1SCR575 , Ranjit Thakur v. Union of India : 1988CriLJ158 and Shri Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (1993) 3 J.T. 487 are applied by learned Judge and he has held thus:

So on a careful scrutiny of cases and the copies of records produced before me and taking into consideration the principles laid down in the cases mentioned hereinabove and on the facts and circumstances of the cases on hand, I am fully satisfied that the point raised by Mr. K.K. Venugopal, the learned senior counsel appearing for the petitioner, with regard to the question of bias, likelihood of bias and the reasonable apprehension of bias, has to be accepted. At the same time, I have to point out that on the basis of the counter-affidavit filed by the first respondent herein, it cannot be said that he will hear the case impartially. Though it is accepted by both the parties that the first respondent is a man of integrity and is also a constitutional functionary, holding a responsible post, if the principles laid down in the cases mentioned hereinabove, are to be applied to the facts of the cases on hand, I have no other option except to accept the case of the petitioner that she will not get a fair hearing or a decision from the first respondent herein. The peculiar facts of the case can be seen. Dr. Subramanian Swamy, the second respondent herein, against the petitioner herein, has given a memorandum to the Governor of Tamil Nadu According to him, there is some delay in forwarding the said memorandum to the first respondent herein. As such, the second respondent herein approached the Supreme Court byway of a writ petition in W.P. (Civil) No. 942 of 1992. Dr. Roxna S. Swamy, the wife of the second respondent herein is the advocate for the first respondent herein, in a civil suit filed by the first respondent against a news agency praying for a huge amount of Rs. one crore, as defamation. The first respondent/Election Commission is to hear the memorandum submitted by the second respondent herein. Dr. Roxna S. Swamy, a practising advocate, assisted her husband in the conduct of the writ petition against the Governor of Tamil Nadu. Now the said memorandum submitted by the second respondent herein has been forwarded to the first respondent herein. The petitioner alleges that if the first respondent is allowed to continue the hearing, it will be against the principles of natural justice. On the principles laid down by various courts, which have been extracted above, I do not think that it can be said that the contention of the learned senior counsel appearing for the petitioner is untenable. So on the peculiar facts and circumstances of this case, I have to hold that it will be meaningless to allow the first respondent to enquire into the memorandum submitted by the second respondent which had been forwarded by the Governor of Tamil Nadu, for a decision which will be a nullity and coram non judice, as it will affect the principles of natural justice....

Mr. K.K. Venugopal, the learned senior counsel also points out that Mr. T.N. Seshan, the first respondent herein, was a student of Dr. Subramanian Swamy, when Dr. Subramanian Swamy, was Professor of Economics in Harward University and it has been accepted by Dr. Subramanian Swamy during the course of arguments. The reasonable apprehension in the minds of the petitioner that the first respondent will be biased against her cannot be brushed aside lightly because of the close and intimate friendship between the first and second respondents herein and the unity and identity of interests between the counsel of the first respondent, who is the wife of the second respondent and the second respondent who has given the memorandum against the petitioner. Though it is stated that Mr. T.N. Seshan, the first respondent herein will be impartial, I am of the view, as held by Lord Denning, if right minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. It is a fact that the first respondent herein, has engaged Dr. Roxna S. Swamy, the wife of the second respondent only as his counsel in a civil suit with high stakes, in my view, it makes no difference. No reasonable man would drawany distinction between the second respondent and his wife, on seeing that she was living with the second respondent and assisting him in his case before the Supreme Court with regard to this very same subject matter, wherein a writ of mandamus was filed by the second respondent against the Governor of Tamil Nadu, when there was some delay in forwarding his memorandum to the Election Commission. It can be easily said that when deciding a petition filed by the husband of his advocate with regard to disqualification, the interest of the husband of the counsel will have an impact on Mr. T.N. Seshan's mind, the first respondent, unconsciously. This may affect the decision which may be arrived at by the first respondent. This is what is called 'real likelihood of bias.

To state in the words of Lord Denning:.So far as bias is concerned, it was acknowledged that there was no actual bias on the part of Mr. Lennon, and no want of good faith. But it was said that there was, albeit unconscious, a real likelihood of bias....

In this case, the wife will be interested in a cause taken by her husband and when she is the counsel for the first respondent Mr. T.N. Seshan, the submission of Mr. K.K. Venugopal, the learned senior counsel for the petitioner that the decision to be arrived at by Mr. T.N. Seshan, the first respondent herein will be against the principles of natural justice has got to be accepted. So on the facts and circumstances of this case, I am fully satisfied that the contention raised by the learned senior counsel for the petitioner, on the question of-bias, likelihood of bias, a real likelihood of bias is well taken, especially in the absence of counter-affidavit, on facts, by the second respondent herein.

Ultimately, in paragraph 36 of the order, the learned single judge has concluded thus:

It is true that even if the contentions raised by the Election Commission/the first respondent herein in paragraph 6 of the counter-affidavit are accepted that the Election Commissioner had discharged his duties with competence, sense of responsibility and a high degree of excellence and that he enjoyed the reputation of an outstanding official and known for discretion, objectivity, circumspection and responsibility, yet if the principles of natural justice as laid down in the abovementioned cases are applied, I am of the view, that though the first respondent claims to hold a very high office, still the principles of 'bias' and 'real likelihood of bias' will apply to him also from hearing the case or from proceeding with the enquiry on the memorandum submitted by the second respondent herein. In my view, however, the person may be highly placed, when he is subjected to the test, applying the principles of natural justice, the consideration about the outstanding authority or responsibility of the first respondent herein cannot come in the way. The fact alleged by the petitioner is not disputed in paragraph 5 of the counter-affidavit filed by the first respondent. It has been admitted by the first respondent that Dr. Roxna S. Swamy, the wife of the second respondent herein is the counsel for him in a civil suit filed before the High Court, New Delhi against a news agency. It is also seen that Dr. Roxna S. Swamy, the wife of the second respondent was assisting her husband in conducting a writ petition before the Supreme Court of India against the Governor of Tamil Nadu. It is also seen that the first respondent is the family friend of the second respondent. Just because the questions of 'bias' and 'likelihood of bias' are raised by the petitioner herein, it does not mean that the petitioner does deliberately attempt to defame and bring down the stature of the first respondent as the constitutional functionary. In my view, the petitioner is entitled to voice out her grievances before this Court, to substantiate her case based on 'bias' and likelihood of bias'. A passage in 'Administrative Law - H.W.R. Wade, Sixth Edition - can be usefully referred to. At page 489 it has been held as follows:.Among other obvious cases of prejudice are personal friendship or hostility and family relationship....

So if the facts of the case before this Court are looked upon in the backdrop of cases decided by various decisions in various courts, mentioned hereinabove, I do not think I can accept the arguments of Mr. G. Ramaswamy, the learned senior counsel appearing for the first respondent/Election Commission, that the question of 'bias' is raised only to protract the proceedings. Equally so, I am not satisfied with the argument that the question of bias is raised only to stultify the constitutional functionaries. Also I am not convinced with the arguments of Dr. Subramanian Swamy that the question of bias raised in this case is a shallow bubble and far-fetched.

As a part of this paragraph, the learned single judge has also referred to a passage in 'Administrative Law - H.W.R. Wade, Sixth Edition, at page 484 in support of the view taken by him. We do not consider it necessary to reproduce the same.

24. It is contended before us by Dr. Subramanian Swamy and learned Counsel for respondents 1 and 3 that the case of bias, or likelihood of bias by the first respondent cannot be held to have been made out by the writ petitioner merely because Dr. Roxna S. Swamy, the wife of Dr. Subramanian Swamy, is the advocate of the first respondent in the suit filed by him against United News of India, New Delhi, in the High Court of Delhi; and also because of the fact that the Election Commission has sent a communication to the Secretary to the Governor of Tamil Nadu, dated 4.12.1992, along with the representation submitted by Dr. Subramanian Swamy to the first respondent. It is also contended that the learned single judge, after having held that the first respondent is a man of integrity and is also a constitutional functionary, holding a responsible post, is not justified in accepting the case of the writ petitioner. That the first respondent was a student of the second respondent and he is a family friend of the second respondent cannot also be considered to be circumstances so as to hold that the first respondent would be, or is likely to be biased in favour of the second respondent.

25. On the contrary, it is contended on behalf of the writ petitioner by her learned senior counsel, Mr. K.K. Venugopal, that in the light of the averments contained in paragraphs 6,7,8 and 9 of the writ petition and the communication dated 4.11.1992 sent by the Election Commission to the Secretary to the Governor of Tamil Nadu pursuant to the letter dated 2.11.1992 of the second respondent, addressed to the first respondent, discloses the special anxiety shown by the first respondent to have seize in over the case and decide the same; that the Election Commission, while performing its functions under Article 192 of the Constitution and rendering an opinion on the question referred to it, acts as a quasi judicial authority, that the special anxiety shown by him to have seizin over the matter only shows the bias of the first respondent in favour of the second respondent. Therefore, it is contended that the learned single judge is justified in holding that the writ petitioner has made out a case of bias.

It is also contended that the suit filed by the first respondent is very crucial to him inasmuch as he has invested a huge sum and his prestige is involved; that its success depends upon the successful prosecution of the case by Dr. Roxna S. Swamy; that as there is unity and identity of interest between Dr. Roxna S. Swamy and her husband, Dr. Subramanian Swamy, the first respondent will not be able to give unbiased opinion; that even otherwise, these circumstances are sufficient to give rise to reasonable apprehension in the mind of the writ petitioner or for that matter, any reasonable person, that the first respondent is not likely to give fair and just decision.

26. It is always a question of fact to be decided in each case as to whether the bias attributed to a judge or members constituting a tribunal or quasi judicial authority is made out. It has to be decided on the facts and circumstances of each case. While deciding the question of bias, it has to be borne in mind that whether there is reasonable ground made out for assuming the possibility of bias and whether it is likely to produce, in the minds of the litigant or the public at large, the reasonable doubt about the fairness of the administration of justice.

27. Under Section 146(1) of the Representation of the Peoples Act, 1951, the Election Commission enjoys the power to require any person, subject to any privilege, which may be claimed by that person, under any law for the time being in force, to furnish information on such points or matters, as in the opinion of the Commission may be useful for, or relevant to, the subject matter of the enquiry.

28. Thus, the Election Commission, for the purpose of enquiry, enjoys the powers which a civil court has, while trying a suit. The opinion it renders on the question referred to it by the Governor under Article 192(2) of the Constitution affects the right of the party concerned to continue as member of the Legislature of a State. Therefore, the Election Commission is required to hold an enquiry with notice to the person concerned and formulate its opinion on the basis of the oral and documentary evidence placed before it during the course of the enquiry. As such, the Election Commission acts as a quasi judicial authority or a tribunal. Therefore, it is required to act free from bias and render its opinion judicially in conformity with law justice and fair play. Nothing has to be done by it, which creates even a slight suspicion that there has been an improper interference in the course of justice or which erodes the confidence.

29. It applies not only to the justices, but to all tribunals and bodies, which are given jurisdiction to determine, judicially the rights of parties. See Manak Lal v. Dr. Prem Chand : [1957]1SCR575 .

In Metropolitan Properties v. Lanon (1968) 3 All E.R. 304 : (1969) 1 Q.B. 577, it has been observed:

The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.

It has also been further observed:

There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking 'The Judge was biased'.

[Italics supplied]

In Ranjit Thakur v. Union of India : 1988CriLJ158 , as to the test of real likelihood of bias, it has been observed:

The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely....

It is the essence of a judgment that it is made after due observance of the judicial process; that the court or tribunal passing it observes, atleast the minimal requirements of natural justice is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial coram non judice

It has also been further observed:

As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, 'am I biased?' but to look at the mind of the party before him.

[Italics supplied]

In Ranjit Thakur v. Union of India : 1988CriLJ158 , the observations made by Lord Esher in Allinson v. General Council of Medical Education and Registration (1894) 1 Q.B. 750, by Lord Denning M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1969) 1 Q.B. 577 and Frankfurter, J. in Public Utilities Commission of the District of Columbia v. Pollak (1951) 343 U.S. 451 have also been quoted with approval, which are as follows:

The question is not, whether in fact he was or was not biased. The court cannot inquire into that... In the administration of justice, whether by a recognised legal court or by persons who, although not a legal public court are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration any person who is to take part in it should not be in such a position that he might be suspected of being biased. (Lord Esher in Allinson's case.).in considering whether there was a real likelihood of (sic), the court does not look at the mind of the Justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be nevertheless if right minded persons would think that in the circumstances there was a real likelihood of bias on his part, then he should not sit... (Lord Denning, M.R. in Metropolitan Properties Co. (F.G.C.)'s case (1969) 1 Q.B. 577.

[Italics supplied]

The judicial process demands that a judge moves within the framework of relevant legal rules and the court covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole Judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But, it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating. Judges rescue themselves. They do not sit in judgment....

(...Frankfurter, J. in Public Utilities Commission of the District of Columbia case (1951) 343 U.S. 451

In Shri Rattan Lal Sharma v. Managing Committee Dr. Hari Ram (Co-Education) Higher Secondary School and Ors. (1993) 3 J.T. 487, while dealing with the administrative law and rules of natural justice, it has been observed thus:

One of the cardinal principles of natural justice is 'nemo debet esse judex in propria causa' (No man shall be a judge in his own cause)

It has been further observed, after referring to the decisions in R. v. Sunderland Justices (1924) 1 KB. 357 and R. v. Sussex Justices (1924) 1 K.B. 256 and Manak Lal v. Dr. Prem Chand : [1957]1SCR575 and also Halsbwy's Laws of England (4th Edn.), Vol. 2, para. 551, thus:

The test is not whether in fact, a bias, has affected the judgment, the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done must also appear to be done.

[Emphasis supplied]

It is also relevant to notice the statement of law as to the test of likelihood of bias stated in 'Review of Administrate Action' by Mark Aronson and Nicola Franklin, a publication by The Law Book Company Ltd., in 1987, at page 195, wherein under the caption 'Personal Factors', it has been stated thus:

Kinship, friendship, personal involvement or prejudice can produce disqualifying bias, depending upon the intensity of the suspicion of bias reasonably aroused....

Kinship, direct friendship, or friendship with the family of a party or witness can disqualify. Such links between bench and bar table can also disqualify.

30. Bearing in mind these tests or norms as laid down by the various authoritative pronouncements referred to above, we proceed to determine as to whether on the basis of the facts and circumstances placed on record, it can be held that the apprehension of bias entertained by the writ petitioner that she is not likely to get a fair and just decision at the hands of the first respondent, Mr. T.N. Seshan, Chief Election Commissioner, on the petition dated 2.10.1992, filed by the second respondent, is reasonable.

31. The case of the writ petitioner is that the first respondent has filed a suit for defamation in the High Court of Delhi being Civil Suit No. 3286 of 1992 in August, 1992 against the United News of India, New Delhi, claiming a sum of Rs. 1 crore as damages for the defamation alleged in the suit. In that suit, the first respondent, who is the plaintiff, is represented by Dr. Roxna S. Swamy, Advocate, who is the wife of Dr. Subramanian Swamy, the second respondent. It is further alleged that Dr. Roxna S. Swamy assisted her husband Dr. Subramanian Swamy and instructed him in conducting his case before the Supreme Court, being W.P. (Civil) No. 942 of 1992, which was filed against the writ petitioner and the Governor of Tamil Nadu, for issuing a direction to the Governor of Tamil Nadu to forward the petition presented by Dr. Subramanian Swamy, under Article 192 of the Constitution to the Election Commission for opinion. It is further alleged that the first respondent has paid a court fee of Rs. one lakh on the plaint filed in C.S. No. 3286 of 1992, that his success in the suit depends upon the performance of his counsel Dr. Roxna S. Swamy, that the first respondent having invested his savings over the years as a Government servant and later as the Chief Election Commissioner of India, the stakes in the suit as far as he is concerned, both monetarily as well as by way of protecting his reputation, are very high and that, therefore, he is wholly indebted to his counsel Dr. Roxna S. Swamy, whether she is appearing for him on professional basis, on payment of fees, or otherwise on account of any family friendship with the counsel and her husband for the efficient and successful conduct of the case. It is also further alleged that whatever it may be, the first respondent is fully aware of the unity and identity of interests between Dr. Roxna S. Swamy, who is his counsel in his Rs. One crore case and her husband Dr. Subramanian Swamy who is hotly pursuing his charge of disqualification against the writ petitioner. Therefore, it is alleged that the first respondent would find it embarrassing and difficult to decide freely and impartially the case of disqualification put forward by Dr. Subramanian Swamy against the writ petitioner, which is in substance and effect would be a decision and opinion against his counsel Dr. Roxna S. Swamy.

32. In paragraph 8 of the petition, it is also further averred that independent of what is averred in paragraphs 6 and 7, the writ petitioner would never have confidence that the first respondent would be able to dissociate his lawyer-client relationship with Dr. Roxna S. Swamy in the Rs. 1 crore suit from the adjudication of the question referred to by the Governor for opinion on the petition of Dr. Subramanian Swamy, filed under Article 192 of the Constitution.

33. It is also further alleged that the decision of the first respondent would have a far-reaching consequence and repercussions not only on the writ petitioner as a member of the Legislative Assembly or as the Chief Minister of the State of Tamil Nadu but the very political future of the State of Tamil Nadu.

34. We would like to make it clear at this stage itself that the aforesaid averment is eschewed from our consideration because what is relevant for our purpose is not the consequences or the position held by the writ petitioner, but to see whether the apprehension of bias entertained by the writ petitioner that she is not likely to get a fair and just decision at the hands of the first respondent is reasonable and whether in the facts and circumstances of the case, reasonable people might think that the first respondent is or was biased.

35. The writ petitioner has also further averred that she is entitled to have a judge totally independent and impartial inasmuch as the Governor of the State is bound by the opinion of the first respondent. It has also been averred in paragraph 9 of the petition that the second respondent appears to have been obtaining special help and assistance from the Election Commission of India in presenting and prosecuting the case in Civil Writ Petition No. 942 of 1992 filed before the Supreme Court. In support of this averment, paragraph 7 of the Civil Writ Petition No. 942 of 1992 is extracted, which is as follows:

Para. 7: The petitioner has also separately applied both to the President of India and the Chief Election Commissioner praying that the respondent No. 1 be directed to obey the man - date of Article 192(2) of the Constitution of India. Appended hereto as Annexure 'C' colly are the aforesaid representations of the petitioner to the President of India and the Chief Election Commissioner. The petitioner understands that both these high constitutional functionaries have contacted the respondent No. 1 to inform him of the correct legal position. Nevertheless the respondent No. 1 continues adamant and has failed to obey the constitutional mandate.

It has also been further averred that the aforesaid averments made in paragraph 7 of the Civil Writ Petition No. 942 of 1992 were further expanded by the second respondent by filing a list of dates appended to the writ petition in which it is stated as follows:

November, 1992:

Both the President of India and the Election Commission communicate to respondent No. 1 the requirements of the Constitution in regard to Article 192(2). This includes two circulars dated 20.3.1957 and 24.6.1983 whereby the Election Commission had directed the Secretaries to the Governors of all States that in future the Commission's opinion on such references should be sought as soon as practicable after they are received by the Governor and that no such reference should be withheld pending any inquiry or the obtaining of any legal opinion before its communication to the Commission.

On the basis of the aforesaid extracts, it is further averred that it is obvious that without the assistance of the Election Commission of India, the second respondent could not have known the fact that the Election Commission of India had been in confidential communication with the Governor of the State of Tamil Nadu to persuade the Governor to make a reference of his memorandum to the Election Commission of India.

It is further alleged in paragraph 9 that taking the circumstances individually or collectively, the first respondent is disqualified from dealing with the reference made to him on the memorandum filed by the second respondent before the Governor as the principles of 'bias' or 'likelihood of bias' or 'real apprehension of bias' would be attracted to the case.

36. In the counter-affidavit filed by the first respondent, it is admitted that he has filed Civil Suit No. 3286 of 1992 for damages against the United News of India in the High Court of Delhi of a sum of Rs. 1 crore; that Dr. Roxna S. Swamy, wife of the second respondent is his counsel. However, it is asserted that the allegation that on account of the above fact he is likely to be biased while deciding the question placed in the petition submitted by the second respondent is totally without any basis; that the allegation of bias or likelihood of bias has been deliberately made with a view to bring down the stature of the constitutional office held by the first respondent; that he has enjoyed the reputation of an outstanding official and is known for discretion, objectivity circumspection and responsibility; that the allegation of bias or likelihood of bias raised against him is totally without any legal or factual basis and that it is just and necessary to expunge the same by condemning the writ petitioner; that in W.P. No. 1862 of 1993 filed by the AIADMK, represented by its Head-quarters Secretary, Thiru C.R. Aranganayagam, for which party the writ petitioner is the General Secretary, allegations of bias were raised against him stating that he is a family friend of the second respondent (Dr. Subramanian Swamy) and therefore, he has taken a decision against the AIADMK party, that in the writ petition it is alleged that the first respondent has filed a separate affidavit refuting the allegations made therein; that the allegation of bias have been raised against the first respondent not because the second respondent's wife happens to be his counsel in the suit filed in the High Court of Delhi, but it is a deliberate attempt to defame the first respondent; that the allegation made in paragraph 9 of the affidavit of the writ petitioner that the second respondent appears to have been obtaining special help and assistance from the Election Commission of India in presenting and prosecuting the case in Writ Petition (Civil) No. 1942 of 1993 in the Supreme Court of India is absolutely without any basis and the same is specifically denied; that the allegation that the second respondent could not have known the fact that the Election Commission of India had been in confidential communication with the Governor of Tamil Nadu without the help of the Election Commission of India and the allegation that the second respondent was given assistance in getting this information are also specifically denied. The first respondent has further averred that the filing of the counter-affidavit by him before this Court in the writ petition should not be misconstrued as his anxiety to hear the matter, that he is filing this counter-affidavit as it is his duty to bring to the notice of the court certain constitutional obligations cast upon him to decide certain issues. Further allegations in the counter-affidavit are in respect of doctrine of necessity. Therefore, the same are not referred to while dealing with Point No. 2. In addition to this, the first respondentlias stated that he is prepared to be bound by any order that may be passed by this Court and that he would assure and reiterate before this Court that in the event of any memorandum relating to disqualification of the writ petitioner being/going to be placed before him for his opinion, he will decide the same without fear of, or favour to, any party and without any bias.

37. The second respondent has filed written submissions. It is his stand that he has not filed a counter-affidavit because the averments made in the writ petition are against the first respondent and that it is a matter between the first respondent and the writ petitioner and therefore, he has not filed a counter-affidavit and has chosen to file only the written submissions. It is contended by him in the written submissions that the conduct of the writ petitioner clearly goes to show that she is not prepared to face the enquiry before the Election Commission of India and somehow wants to thwart the petition presented by him to the Governor of Tamil Nadu which has now been forwarded to the Election Commission of India. He has further stated that it is malicious to state that the Chief Election Commissioner passed on confidential papers or any papers to him; that the averment made in paragraph 6 of the affidavit filed in support of the writ petition that there is unity and identity of interest between him and his wife, Dr. Roxna S. Swamy in prosecuting the charge of disqualification averred against the writ petitioner is absolutely irrelevant; that the fact that Dr. Roxna S. Swamy is the counsel on record for Mr. T.N. Seshan has got no relevance for the disqualification incurred by the writ petitioner under Articles 191 and 192 of the Constitution; that Dr. Roxna S. Swamy has got a duty under the Advocates' Act to represent her client; that the writ petitions are filed on flimsy grounds to avoid the statutory enquiry before the Election Commission; that the fact that Dr. Roxna S. Swamy happens to be the counsel in a suit for defamation filed by the second respondent as an individual cannot interfere with the second respondent's right to have his petition for disqualification being enquired into by the Election Commission of India, that the first respondent would be dealing with the case as Election Commission of India and not in his individual capacity; that bias or likelihood of bias cannot be attributed to the first respondent in the eye of law; that the allegations made in paragraphs 7 and 8 of the affidavit filed by the writ petitioner are without any legal basis whatsoever; that the allegations made in paragraph 9 of the affidavit of the writ petitioner that the second respondent was obtaining special help and assistance from the Election Commission of India for preparing and prosecuting his case in W.P. No. 942 of 1992 in the Supreme Court of India is not correct and it is misleading; that he denies that he has got any assistance from the Election Commission of India for obtaining the communications referred to in paragraph 9 of the affidavit and that those allegations are far from truth to the knowledge of the writ petitioner.

38. The Secretary of the Election Commission of India has filed a counter-affidavit on behalf of the Election Commission of India. He has stated that the allegation made in paragraph 9 of the affidavit of the writ petitioner that the second respondent (Dr. Subramanian Swamy) appears to have been obtaining special help and assistance from the Election Commission of India in presenting and prosecuting the case in W.P. (Civil) No. 942 of 1992 in the Supreme Court is totally incorrect. He has also specifically denied the same. He has also denied the allegation made in paragraph 9 of the affidavit of the writ petitioner that without the assistance of the Election Commission of India, the second respondent (Dr. Subramanian Swamy) could not have known the fact that the Election Commission of India had been in confidential communication with the Governor of the State of Tamil Nadu to persuade the Governor to make a reference of his memo to the Election Commission of India. In addition to this, he has further stated that the second respondent addressed a letter dated 2.11.1992 to the Election Commission of India, enclosing his memo dated 2.10.1992, that the said letter along with its enclosure, as received by the Election Commission of India, was forwarded to the Governor of Tamil Nadu by the Commission's letter dated 4.11.1992 along with two general circulars issued in the past with a request to the Governor of Tamil Nadu to deal with the same in accordance with law; that except the communication dated 4.11.1992, no other communication was sent by the Election Commission of India to the Governor of Tamil Nadu in respect of the matter in question.

39. Thus, on a close examination of the averments made in the affidavit of the writ petitioner, the counter-affidavit of the first respondent (Thiru T.N. Seshan) and also of the Secretary to the Election Commission of India filed in the writ appeal, the averments made by the second respondent in his written submissions, the letter dated 2.11.1992 of the second respondent addressed to the first respondent and the letter of the Election Commission of India dated 4.11.1992 addressed to the Secretary to Governor of Tamil Nadu, the following facts and circumstances emerge.

(a) The first respondent on paying a heavy court-fee of Rs. 1 lakh, has filed Civil Suit No. 3286 of 1992 in the High Court of Delhi against the United News of India, claiming a sum of Rs. 1 crore as damages for defamation alleged in the suit. It is a very crucial case for the first respondent. Not only because he has paid a huge court fee of Rs. 1 lakh which sum, from any standard, is a big sum for a civil servant like the first respondent, though he is now the Chief Election Commissioner, but it is a suit filed for damages on the ground that the United News of India has defamed him. Therefore, the very image and reputation of the first respondent are at stake apart from the mone tary aspect of it.

(b) The first respondent has filed such a suit through Dr. Roxna S. Swamy, Advocate, who is none other than the wife of the second respon dent, Dr. Subramanian Swamy. The suit was filed in the month of August, 1992. Dr. Subramanian Swamy and his wife have been together appearing in the case filed by Dr. Subramanian Swamy against the writ petitioner and the present proceedings initiated by the writ petitioner. Dr. Roxna S. Swamy assisted the second respondent in W.P. (Civil) No. 942 of 1992 filed by him in the Supreme Court against the present writ petitioner and the Gover nor of Tamil Nadu, seeking a mandamus to the Governor to forward the petition dated 2.10.1992 filed by him to disqualify the writ petitioner from being a Member of the State Legislature. There fore, it cannot be said that Dr. Roxna S. Swamy is unconnected with, or has .no knowledge of, the proceedings that are going on between the second respondent and the writ petitioner before the Supreme Court and before this Court.

(c) It would be unrealistic to think or consider that Dr. Roxna S. Swamy, when she has been assisting her husband, the second respondent, in prosecuting the proceeding against the writ petitioner before the Supreme Court and before this Court, would not be interested and unaware of the proceedings in question and the importance and value of the same to her husband, Dr. Subramanian Swamy. Therefore, the case of the writ petitioner that there is unity and identity of interest between the second respondent and his wifr 'not be rejected.

(d) The first respondent is a family friend of the second respondent and he was also a student of the second respondent when the second respondent was a Professor of Economics in Harward University. This fact was accepted by the second respondent, as observed by the learned single judge, during the course of the arguments.

(e) In addition to these circumstances, it is also established in this case that the second respondent did avail the assistance of the first respondent for expeditious forwarding of his petition dated 2.10.1992 to the Election Commission by the Governor of Tamil Nadu. Apart from the averments made in paragraph 9 of the affidavit of the writ petitioner, in the writ appeal, learned Counsel for the first respondent, along with a memo produced xerox copies of the letter dated 2.11.1992 of the second respondent addresses to the first respondent and the letter dated 4.11.1992 by the Secretary to the Election Commission to the Secretary to the Governor of Tamil Nadu. The second respondent has not addressed the letter to the Election Commission or to the Chief Election Commissioner, but has addressed it to Thiru T.N. Seshan, though he has described him as the Chief Election Commissioner. The letter does not appear to have been submitted purely as an official correspondence inasmuch as it addressed Thiru T.N. Seshan as 'Dear C.E.C.'. Along with the letter, he has enclosed a copy of the memorandum dated 2.10.1992 handed over by him in advance to the Governor of Tamil Nadu on 27.9.1992. In the second paragraph, it is stated that the memorandum raises the question of disqualification under Article 191(e) of the Constitution, of the writ petitioner as an M.L.A., having been elected in 1991. It is also further averred in the letter that though the Governor is required under the Constitution to forward the same to the Election Commission without any further delay, but more than a month has already passed without any response from the Governor, despite the verdict of the Supreme Court on the mandatory requirement of Article 192 and the Election Commission's letter to the Governor of Tamil Nadu (Ref. No. 113/1/AP/Governor/91-JS). Ultimately, he has sought the intervention of the Chief Election Commissioner to set matters on legally proper course. A copy of this letter of the second respondent, along with its enclosure, was forwarded to the Secretary to the Governor of Tamil Nadu with the letter dated 4.11.1992. The said letter apart from forwarding a copy of the letter dated 2.11.1992 of the second respondent had drawn the attention of the Secretary to the Governor to the Commission's Circular No. 113/1/AP/Governor/91-JS-1, dated 10.3.1992 and also enclosed a copy of the same. The letter further requested the Secretary to the Governor to take suitable action in accordance with law. Lastly, it stated that the receipt of the letter be acknowledged by return Fax/Telex.

40. The facts and circumstances stated above as (a), (b), (c) and (d) would establish that there is more than an ordinary relationship between the first respondent on the one hand and the second respondent and his wife on the other. The relationship of lawyer and client, apart from being contractual, is a relationship rooted in confidence. No party entrusts the case to a counsel unless he has confidence in the counsel. Therefore, the relationship between the client and the counsel is not an ordinary relationship. It can even be stated that it is a fiduciary one. Counsel would normally be in a dominating position. On the facts and circumstances of the case, it cannot be said that Dr. Roxna S. Swamy will not at all be interested in the proceedings being prosecuted by her husband, Dr. Subramanian Swamy,, against the writ petitioner. In such circumstances, it would be unrealistic and ignoring the normal human conduct and would be opposed to common sense, to hold that the interest of Dr. Roxna S. Swamy and Dr. Subramanian Swamy in the proceedings would not operate in the mind of the first respondent while giving his opinion on the petition dated 2.10.1992 presented by Dr. Subramanian Swamy, the husband of Dr. Roxna S. Swamy, to disqualify the writ petitioner. It is not the assertion, and confidence, of the first respondent that he would give his opinion without any fear of, or favour to, any person, and without bias in favour of the second respondent, and even assuming that he would do so, that is relevant for keeping beyond. reasonable doubt about the fairness of administration of justice. But what is relevant is as to how, in the facts and circumstances of the case, the writ petitioner feels. Is it not, in the facts and circumstances of the case, reasonable for the writ petitioner to assume the possibility of bias or likelihood of bias of the first respondent in favour of the second respondent? We have no doubt that the facts and circumstances of the case do create a reasonable apprehension in the mind of the writ petitioner and it would also be sufficient to produce in the mind not only of the writ petitioner but also of the public at large a reasonable doubt about the fairness of the administration of justice and a suspicion that there is a likelihood of bias by the first respondent in favour of the second respondent.

This is further fortified by another circumstance, viz., persuading the Governor of Tamil Nadu to forward the petition dated 2.10.1992 filed by the second respondent to the Chief Election Commissioner. The letter dated 2.11.1992 of the second respondent addresses the first respondent as 'Dear C.E.C.,', disclosing familiarity. Immediately it has been sent to the Secretary to the Governor of Tamil Nadu to take suitable action in accordance with law and to acknowledge the receipt of the letter by return Fax/Telex. This circumstance shows the unusual anxiety shown by the first respondent to have seisin of the matter. We have, in the earlier portion of this judgment, pointed out that the Chief Election Commissioner, while rendering opinion on the question referred by the Governor under Article 192 of the Constitution, acts as a quasi-judicial authority or a tribunal. Therefore, he has to act judicially as he decides the right of a party beforehim. Itisunbecomingof any judge, tribunal or an authority empowered to discharge judicial functions to chase a case and to have it before him for decision.

41. The conduct of the first respondent in trying to have the petition forwarded to him immediately, undoubtedly exhibits his extraordinary interest in the matter which cannot at all be considered to be consistent with the Judicial Code of Conduct. Naturally, such a conduct tends to create an apprehension, which cannot be termed as unreasonable, or wild guess, or baseless in the mind of the writ petitioner, that the first respondent is or is likely to be biased in favour of the second respondent or at any rate he will not be or not likely to be, free from bias, thereby he will not, or is not likely to, be able to decide without fear or favour.

42. No doubt, the respondents 1 and 2 have denied that the first respondent is hiased in favour of the 2nd respondent. The basic facts and circumstances as pointed out above are not denied. Therefore, it is only a matter of drawing inevitable or unavoidable, inferences from those facts and circumstances. In cases like this, it is always a matter of inference from the proved facts and circumstances. In such cases, direct evidence is not always available, though it may be possible in some cases.

43. We have, with reference to a decision in Manak Lal's case : [1957]1SCR575 , pointed out that the question as to whether, a judge, tribunal or an authority to act judicially is likely to be biased or there is a possibility of bias, is always a question of fact to be decided on the facts and circumstances of each case. Therefore, applying the tests laid down in the various authoritative pronouncements, referred to above, we have no doubt in holding that in the facts and circumstances of the case, apprehension of bias entertained by the writ petitioner that she is not likely to get a fair and just decision at the hands of the Chief Election Commissioner, Mr. T.N. Seshan, on the petition dated 2.10.1992 filed by the second respondent is reasonable and it is well founded. Accordingly, we agree with the learned single judge on this point and answer Point No. 2 in the affirmative.

44. Point No. 3: It is the case of the respondents 1 to 3 that the scheme of Article 192 and the provisions contained in Article 324 of the Constitution would make it clear that it is the Chief Election Commissioner, who is to give an opinion under Article 192(2) of the Constitution which binds the Governor as he has to pronounce his decision in accordance with the opinion of the Election Commissioner. There is no other authority which is vested with the jurisdiction or is competent to giveopinion on the question referred by the Governor for opinion under Article 192(1) of the Constitution. The Election Commission, while rendering its opinion under Article 192(2) of the Constitution, acts as a judicial tribunal, therefore, necessarily the first respondent has to give opinion on the question referred by the Governor under Article 192(1) of the Constitution. Merely because the writ petitioner has chosen to attribute bias to the first respondent, who is the constitutional authority and there is no other authority to decide the question referred under Article 192(1) of the Constitution, the first respondent cannot be refrained from giving his opinion. To do so would amount to failure of justice, which cannot be allowed to take place; that in order to meet such a situation, the doctrine of necessity has been evolved and applied in India; that even appointment of two additional Election Commissioners has not changed the situation because the Election Commission cannot function and discharge its duties, administrative and judicial, without the first respondent, who is the Chief Election Commissioner. Therefore, it is contended that the Ordinance 32 of 1993 has not made any difference, nor it has affected the applicability of the doctrine of necessity to the case, inasmuch as, in the light bf a decision of the Supreme Court in S.S. Dhanoa v. Union of India : [1991]3SCR159a , the Election Commission cannot function without the Chief Election Commissioner- the first respondent in the instant case.

45. On the contrary, it is contended on behalf of the writ petitioner that once it is found that the apprehension of bias attributed to the first respondent, is reasonable, he becomes disqualified to hear and decide the question referred to him by the Governor on the petition dated 2.10.1992, filed by the second respondent, that his decision becomes coram non judice, as such, the doctrine of necessity itself in inconsistent with the principle of coram non judice. The doctrine of necessity cannot be applied in India because of the wide powers of judicial review under Article 226 of the Constitution. It is contended that instead of compelling the writ petitioner, in case whose apprehension of bias attributed to the first respondent is accepted, to go through the proceedings before the first respondent and have the decision subsequently quashed on the ground of coram non judice which will be an exercise in futility, it is better not to have a biased judge and to allow a disqualification to continue. It would be highly unjust and opposed to rule of law and principles of natural justice to subject a person to a biased judge. Therefore, it is submitted, in view of the vast power of judicial reviewavailable under Article 226 of the Constitution, that the question as to whether the doctrine of necessity should at all be applied in India is required to be reviewed. In the present situation, however, there is no need to apply the doctrine of necessity to the case on hand in view of the Ordinance 32 of 1993, issued by the President and appointment of two more Election Commissioners, who can perform the same functions as are to be performed by the first respondent.

46. Both the sides have also placed reliance on certain decisions, which will be considered in due course.

47. Learned single judge, on the question of doctrine of necessity, on considering the decisions cited before him and on considering the provisions contained in Article 324(2) of the Constitution, has held:.that though the principle of natural justice has to give way, if doctrine of necessity warrants, it is not necessary to apply the doctrine of necessity in all circumstances.

Considering the peculiar facts and circumstances of the case and the peculiar situation in which the petitioner is placed, I am of the view, that relief can be given by the Government of India under Article 324 of the Constitution of India as it provides for an appointment of additional Election Commissioner, to solve the question posed before this Court under Article 226 of the Constitution of India, Since Article 324 of the Constitution of India provides for an appointment of additional Election Commissioner, an alternate forum I am of the view that doctrine of necessity need not be applied to this case. This Court is fully convinced with the contentions raised by the learned senior counsel for the petitioner, with regard to the question of bias, the real likelihood of bias and that the first respondent/Election Commission should not be allowed to proceed with the memorandum given by the second respondent and given an opinion and that if it is given it will be a nullify. So this Court is of the view that a writ of prohibition can issue against the first respondent not to proceed with the enquiry on the memorandum submitted by Dr. Subramanian Swamy, the second respondent herein, dated 2.10.1992.

48. It must be noticed that there are certain things which the law permits to be done as a matter of necessity. All those such things are not quite in consonance with the principles of judicial propriety. The doctrine of necessity is one such which arises when the judge has exclusive jurisdiction to try the case. It is applied to ensure that the course of justice is not impeded. Sometimes it becomes necessary to subdue some principles of judicial propriety. To put it in other words, the doctrine of necessity overrides the requirement of judicial propriety. No doubt, it is an anomaly in law. The doctrine of necessity arises in the case of bias, when there is no other judge who has jurisdiction to decide the case. Murphy ad Prit Chett in 'Courts, judges and Politics', published by Randum House, 1961 III Edition at pages 185 and 186, while dealing with the rule of necessity, judicial ethics and disqualification have stated that the rule of necessity which has been traced back in English Common Law to 1430 is that a judge is not disqualified to try a case because of his personal interest in the matter at issue, if there is no other judge available to hear and decide the case.

In Volume 48-A Corpus Juris Secundrum at paragraph 100, it is stated that the Rule for disqualification of judges must yield to demands of necessity and will not prevail if disqualification will prevent resort to the only tribunal to which relief may be obtained. It has been specifically slated that particularly such disqualification would result in denial of a litigant's constitutional right to have a question properly presented to such Court and adjudicated. It is also stated that if disqualification operates so as to bar justice to the parties and if no other Tribunal is available the disqualified judge or judges may, by necessity proceed to judgment.

49. The Supreme Court of United States in Walter Evans v. J.Rogers Core, has stated:

Stated in its broadest aspect, the contention involves the power of tax the compensation of Federal judges in general, - and also the salary of the President, as to which the Constitution (Article 2, 1, C1, 6) contains a similar limitation. Because of the individual relation of the members of this Court to the question, thus broadly stated, we cannot but regret that its solution falls to us; and this although each member has been paying the tax in respect of his salary voluntarily and in regular course. But jurisdiction of the present case cannot be declined or renounced. The plaintiff was entitled by law to invoke our (248) decision on the question as respects his own compensation, in which no other judge can have any direct personal interest; and there was no other appellate tribunal to which, under the law, he could go.

50. Mark Aronson and Nicola Franklin, in 'Review of Administrative Action', published by the Law Book Company Ltd., in 1987, dealingwith the doctrine of necessity, have stated that 'It has long been recognised that the bias rule is subject to the doctrine of 'necessity'. The appeal to the House of Lords against the judgment of the Lord Chancellor in Dimes v. Grand Function Canal (1852) 3 H.L.C. 759, was upheld on the ground of that judge's pecuniary interest.' It has also been further stated that 'a decision maker may not always invoke 'necessity' to defeat an objection on the ground of bias, even where no other body is qualified to act in lieu of that person or body. If the ground of disqualification was, for example, voluntarily or unnecessarily assumed by the decision-maker, the Court must choose between the twin evils of allowing an unnecessarily biased person to act, or preventing action altogether.' R. v. Optical Board-Ex pane Qurban (1933) S.A.S.R. 1, has been quoted wherein the members of the Board took active role in the investigation leading to the charge and they were held disqualified even though this left the board without a quarum. It was held that they should have got someone else to do the investigation. 'The Full Court in South Australia refused to allow the 'necessity' principle to prevail over the bias it perceived in having a magistrate and prosecuting counsel belonging to the same department and sharing the Crown Solicitor as their department head. It was said that the informant could brief someone else, or a justice of the peace could hear the case. It was also noted that there was no impasse, as the Government could repeal the recent proclamation which has brought the magistrates and prosecuting counsel too close to each other. The judges got their way; the magistrates were removed to another department.'

In Miller v. Aldridge 39 A.L.R. 1479, on the question of limitations of Rule (of necessity), it is stated that the rule permitting action by a disqualified judge when no other is competent to act, being an exception, enforced by necessity, to a rule resting on sound public policy, its application in any case can be justified only by strict and imperious necessity; a disqualified judge not being entitled to act, if it is possible to secure another judge to sit in his place'.

At paragraph 66 of Volume I of 'American Jurisprudence', Second Edition, it is stated that 'there is an exception, based upon necessity, to the rule of disqualification of an administrative officer. Disqualification will not be permitted to destroy the only tribunal with power in the premises.'

It is also further stated that if there is anyone else who can act in the place of the disqualified person or persons, or if a board or commission may act in the absence of the disqualified person or persons, the doctrine of necessity does not apply.

Similarly, Geoffrey A. Flick, in his book 'Natural Justice', Second Edition, published by Butter-worths, dealing with the rule of necessity, has stated that 'the rule if firmly established in both English and Commonwealth jurisdictions and in American jurisdictions and is to the effect that disqualification of an adjudicator or will not be permitted to destroy the only Tribunal with power to act.'

It is also further stated that 'clearly the rule is inapplicable where the statute provides an alternative forum to the biased tribunal or where the statute contemplates that a majority of the agency can reach a decision.

In Miller v. Aldridge 39 A.L.R. 1470, it is held that all the authorities have generally agreed that, of course, the rule of disqualification is the paramount policy and is only to yield when the necessity is so great and overwhelming, that there may not be an entire failure of justice. The Courts have treated the question as presenting a comparison of wrongs, or achoiceof two evils. Theopposition to the doctrine of necessity insists that it were better the question be delayed until the commission be remediated by legislative enactment.

Our Apex Court in J. Mohapatra and Co. v. State of Orissa : [1985]1SCR322 , has held that 'The doctrine of necessity applies not only to judicial matters, but also to quasi-judicial and administrative matters. The High Court, however, wrongly applied this doctrine to the author-members of the assessment subcommittee. It is true, the members of this sub-committee were appointed by a Government resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, Education Department of the Government of Orissa and the Director, Higher Education, etc., There was, however, nothing to revenue those whose books were submitted forselection from pointing out this fact to the State Government so that it could amend its Resolution by appointing a substitute or substitutes as the case may be. There was equally nothing to prevent such non-official author-members from resigning from the committee on the ground of their interest in the matter.'

51. Thus, it can be deduced from the aforesaid decisions that the doctrine of necessity is applicable even though a judge or tribunal is disqualified on the ground of bias, if there is no other judge or Tribunal available to decide. The doctrine of necessity, as the name itself suggests is evolved out of sheer necessity to prevent failure of justice by enabling the judge, even though he is disqualified on the ground of bias, to adjudicate. Thus, it is applied in order to ensure that course of justice is not impeded and that a party who is entitled to have his case adjudicated does not go without the case being adjudicated. Therefore, it has to be applied when there is no way out to ensure that justice must not only be done but must also appear to be done. If there is a possibility to have alternative or another judge to adjudicate it should be adopted. Thus, where there is alternative tribunal or a judge, thedoctrineof necessity does not apply. It is of importance to notice that in Mohapatra's case : [1985]1SCR322 , the Supreme Court declined to apply the doctrine of necessity on the ground that it was possible for the Government to amend its resolution by appointing a substitute or substitutes and it was equally possible for such of those members who had interest in the subject matter to resign from the committee. It is also established that in the case of multi-member tribunal, the doctrine of necessity cannot be applied, if the remaining members of the tribunal can adjudicate.

52. As already pointed out, after the hearing of this case was completed and the judgment was reserved, Ordinance 32 of 1993 came to be promulgated by the President of India, amending the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Act, 1991, making the Election Commission a multi-member body. In the light of this Ordinance, we have also heard both the sides once again. Thus, as the matter stands, the Election Commission is not a single member commission. It consists of three members including the first respondent who is the Chief Election Commissioner.

53. It is contended by Mr. G.Ramaswamy, learned Senior Counsel appearing for the first respondent, that the Chief Election Commissioner being an integral part of the Election Commission, without him the Election commission cannot function or discharge any of its duties and the applicability of doctrine of necessity is not affected by reason of Ordinance 32 of 1993. The same is the contention of Dr. Subramanian Swamy. They have heavily relied upon the decisions in S.S. Dhanoa v. Union of India : [1991]3SCR159a and R. Viswanathan v. Abdul Wajid : [1963]3SCR22 . As far as the decision in Viswanathan's case, is concerned, no sustenance can be drawn as the Election Commission has now become a multi-member commission. Further, the observation that Mr. Medappa and Mr. Balakrishnaiya consistent with the dignity of the Court should not have sal in the Full Bench, goes in favour of the writ petitioner.

53.1 In Dhanoa's case : [1991]3SCR159a , the rescinding of the notification, creating two posts of Election Commissioners and also the rescinding of the notification by which Mr. Dhanoa and Mr. S.G. Gill were made as Election Commissioners, were challenged. Considering Article 324 of the Constitution, the Supreme Court quoted with approval the speech made by Dr. Ambedkar:

We, of course, do not propose to give the same status to the other members of the Commission. We have left the matter to the President as to the circumstances under which he would deem fit....

It is also further observed by the Supreme Court,

What is therefore, evident from the discussion of the framers of the Constitution, is firstly, they did not want to give thesamestatus to the Election Commissioners as of the Chief Election Commissioner and secondly they wanted the Chief Election Commissioner to be in overall control of the business of the Commission. The nearest analogy of another constitutional institution that comes to our mind in this connection is that of the Council of Ministers under Articles 74 and 163 of the Constitution. The Prime Minister and the Chief Minister, as the case may be, are at the head of the Council of Ministers and they together with the other Ministers constitute the council. They are, however, not bound by the views of the other Ministers and may even override them.

It is also relevant to notice the observations made with regard to the rule of transacting business in a multi-member body and also the advisability of having multi-member body, in paragraphs 15 and 21 of the judgment in the aforesaid case:

15. It is further an acknowledged rule of transacting business in a multi-member body that when there is no express provision to the contrary, the business has to be carried on unanimously. The rule to the contrary such as the decision by majority, has to be laid down specifically by spelling out the kind of majority-whether simple, special, of all the members or of the members present and voting etc. In a case such as that of the Election Commission which is not merely an advisory body but an executive one, it is difficult to carry on its affairs by insisting on unanimous decisions in all matters. Hence, a realistic approach demands that either the procedure for transacting business is spelt out by a statute or a rule either prior to or simultaneously with the appointment of the Election Commissioners or that no appointment of Election Commissioners is made in the absence of such procedure. In the present case, admittedly, no such procedure has been laid down.

21. There is no doubt lhat two heads are better than one, and particularly when an institution like the Election Commission is entrusted with vital functions, and is armed with exclusive uncontrolled powers to execute them, it is both necessary and desirable that the powers are not exercised by one individual, however, all-wise he may be. It ill-conforms the tenets of the democratic rule. It is true that the independence of an institution depends upon the persons who man it and not on their number. A single individual may sometimes prove capableof withstanding all the pulls and pressures, which many may not. However, when vast powers are exercised by an institution which is accountable to none, it is politic to entrust its affairs to more hands than one. It helps to assure judiciousness and want of arbitrariness. The fact, however, remains that where more individuals than one, man an institution, their roles have to be clearly defined, if the functioning of the institution is not to come to a naught.

54. It appears to us that keeping in view the observations made by the Supreme Court in paragraphs 15 and 21 in Dhanoa's case, the Ordinance 32 of 1993 has been issued to amend the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Act 11 of 1991. The Ordinance amends the title of the Act by substituting for the words 'and for matters', by the words 'and to provide for the procedure for transaction of business by the Election Commission and for matters'. Thus, the object of the Ordinance is to provide for the procedure for transaction of business of the Election Commission and also to make the Election Commission a multi-member Commission. The Ordinance inserts Chapter III containing Sections 9 and 10 in Act 11 of 1991. These sections are as follows:

9. The business of the Election Commission shall be transacted in accordance with the provisions of this Act.

10. (1) The Election Commission may, by unanimous decision, regulate the procedure for transaction of its business as also allocation of its business amongst the Chief Election Commissioner and other Election Commissioners.

(2) Save as provided in Sub-section (1), all business of the Election Commission shall, as far as possible, be transacted unanimously.

(3) Subject to the provisions of Sub-section (2), if the Chief Election Commissioner and other Election Commissioners differ in opinion on any matter, such matter shall be decided according to the opinion of the majority.

A reading of these provisions in the background of the object with which they are inserted, makes it clear that the business of the Election Commission which consists of three members including the Chief Election Commissioner, shall have to be transacted in accordance with the provisions of Act 11 of 1991. The Election Commission shall have to 'unanimously' decide regarding the regulation of the procedure for transaction of its business and also the allocation of its business amongst the Chief Election Commissioner and other two Election Commissioners. The business of the Election Commission shall have to be, as far as possible, transacted unanimously and if, in the event the Chief Election Commissioner and other Election Commissioners differ in opinion on any matter, such matter shall have to be decided according to the opinion of the majority. Though Sub-section (1) of Section 10, as inserted by the Ordinance, uses the word 'may' as the power under Section 10 is coupled with duty, therefore, it is necessary for the Commission to evolve a procedure and allot its business amongst the Chief Election Commissioner and other two Election Commissioners. If it does not do so, it will be failing in discharging its legal obligation which the Election Commission cannot afford to do. Therefore, it is incumbent upon the Election Commission in the light of the provisions contained in Section 10, inserted by Ordinance 32 of 1993 in Act 11 of 1991 coupled with its onerous duties and functions to immediately decide unanimously to regulate the procedure of transaction of its business and also allocation of its business amongst the Chief Election Commissioner and two other Commissioners. While doing so, as the Election Commission has now faced with the problem of bias attributed to the Chief Election Commissioner in the matter of rendering opinion under Article 192(2) of the Constitution and such a situation can even arise in future, it becomes necessary for the Election Commission to specifically make a provision in the regulations or rules to meet such a situation. It is common knowledge that in a multi-member commission, matters relating to judicial as well as administrative, decision can be taken on the basis of the majority view. Therefore, the Commission has to fix a coram.

55. In general, quorum means a majority of the view of the whole body. The meaning of 'quorum', as is given in Black's Law Dictionary, is as follows:

A majority of the entire body; e.g., a quorum of a state Supreme Court. The number of members who must be present in a deliberative body before business may be transacted. In both houses of Congress a quorum consists of a majority of those chosen and sworn.

Such a number of the members of a body as is competent to transact business in the absence of the other members. The idea of quorum is that, when that required number of persons goes into a session as a body, such as directors of a Corporation, the votes of a majority thereof are sufficient for binding action. Benintendi v. Kenton Hotel 294 N.Y. 112, 60 N.E. 2d 829. When a committee, board of directors, meeting of share-holders, legislature or other body of persons cannot act unless a certain number at least of them are present, that number is called a 'quorum'. In the absence of any law or rule fixing the quorum, it consists of a majority of those entitled to act.

56. Therefore, the Election Commission, while framing the rules or regulations or passing resolutions relating to the procedure for transaction of its business, shall have to provide for the quorum. The functions of an Election Commission can be transacted by one member or two members together, or all the three together, as may be resolved by the Commission. In Ashok Kumar Yadav v. State of Haryqna : AIR1987SC454 at paragraph 18, it has been observed:

When two or more members of a Public Service Commission are holding a viva voce examination, they are functioning not as individuals but as the Public Service Commission. Of course, we must make it clear that when a close relative of a member of a Public Service Commission is appearing for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him.

As the Election Commission is created under the Constitution and is invested under the law with not only administrative powers but also with certain judicial powers by the State, however fractional it may be, to exclusively resolve disputes inter alia between rival parties with regard to certain matters. See: A.P.H.L. Conference Shillong v. W.A. Sangma : [1978]1SCR393 , it becomes necessary for it to regulate the procedure for transaction of its business and also to allocate its business amongst the Chief Election Commissioner and other Election Commissioners. The judicial-functions and powers of the Election Commission can be entrusted, as may be resolved by the Election Commission, to one member or two members together and the Chief Election Commissioner or all the three together. As already pointed out, in the event of all the three together exercising the powers and discharging the functions especially in the matter of judicial functions, it would have to be by majority unless the judicial function is entrusted to one of them, which is also permissible for the Election Commission to do so.

57. In the matter of discharging of judicial functions, in the light of the experience gained, it would be appropriate and practicable and func tional if it is entrusted to one of the members or the Chief Election Commissioner with a provi sion for entrusting the same to any other member in the event the member who is entrusted with the judicial function becomes disqualified to discharge the judicial functions. Similarly, in case, the Chief Election Commissioner is entrusted with the judi cial functions and he becomes disqualified, as has happened in the instant case, a provision shall have to be made to entrust the same to another member. Section 10 of Act 11 of 1991, as inserted by Ordinance 32 of 1993, enables the Election Commission to provide for all these aspects by framing the regulations or rules or passing the resolutions, as it deems necessary. Thus, it is not possible to hold, as contended by Mr. G. Ramaswamy, learned senior counsel for the first respondent, that as a result of Ordinance 32 of 1993, the applicability of the doctrine of Necessity is not in any way affected and no decision on the basis of majority without the Chief Election Commissioner can be arrived at. It is also not possible to accept the situation, as contended by the learned Counsel, that even if the Chief Election Commissioner is excluded, the other two members, if they differ, there will be a stalemate. It has already been pointed out by us that in the matter of performing of judicial functions, it is just and appropriate and practicable to entrust it to any one of the members or the Chief Election Commissioner individually, with a provision for re-entrustment or transfer of such function to any other member or the Chief Election Commissioner as the case may be in the event such Election Commissioner or Chief Election Commissioner becomes disqualified, to hear and'decide the same. We accordingly answer point No. 3 as follows: In view of the appointment of two Election Commissioners and in the light of the provisions contained in Sections 9 and 10 of the Chief Election Commissioner and other Election Commissioners (Conditions of Service and Transaction of Business) Act, 1991, as inserted by Ordinance 32 of 1993, the doctrine of necessity cannot be applied to the case on hand.

58. As already pointed out, the writ petitioner has filed C.M.P. No. 13874 of 1993 to direct the first respondent Mr. T.N. Seshan) to recuse himself when the question of the alleged disqualification of the writ petitioner is taken up for adjudication. The first respondent has also filed the counter affidavit to it. In the light of the findings recorded on points No. 2 and 3, it has to be held that Mr. T.N. Seshan, the Chief Election Commissioner is disqualified to hear the petition dated 2.10.1992 filed by the second respondent before the Governor of Tamil Nadu and forwarded to the first respondent. As such, he has to be directed to recuse himself and participating in the proceedings pertaining to the writ petitioner by the Election Commission.

59. Point No. 4: For the reasons stated above, the writ appeal is allowed in part; (a) the writ of prohibition, prohibiting the Election Commission from going into the petition dated 2.10.1992 filed by the second respondent and rendering its opinion as per Article 192(2) of the Constitution is set aside, (b) W.P. No. 6095 of 1993 is dismissedtis not maintainable as the question whether the writ petitioner has become subject to the disqualification under Article 191 read with Section 9-A of the Representation of the Peoples Act,1951, has to be gone into by the Election Commission as per Article 192(2) of the Constitution. All the contentions of the writ petitioner and the respondents in this regard are left open, (c) The order of the learned single judge is accordingly modified and W.P. No. 6094 of 1993 is allowed in the following terms: A writ of prohibition is issued to the first respondent (Mr. T.N. Seshan) from in any manner dealing with, hearing, adjudicating upon or disposing of the memorandum dated 2.10.1992 filed by the second respondent (Dr. Subramanian Swamy) and forwarded by the Governor of Tamil Nadu to the first respondent. We make it clear that it is open to the Election Commission, while regulating theproce-dure for transaction of its business or allocation of its business to allot it to any one of the other two members or to both, as it deems necessary and proper. In the facts and circumstances of the case, there will be no order as to costs.