ELECTION COMMISSION OF INDIA Vs. SUBRAMANIAM SWAMY

JUDGEMENT

(1.) This is an appeal preferred by the Election Commission of India and Shri T.N. Seshan, the Chief Election Commissioner, (when the former was a single-member Commission) against the decision of the Division Bench of the High Court of Madras dated 15-11-1993 by which, reversing the view taken by the learned single Judge of the High court dated 2-7-1993, it held that in view of the promulgation of Ordinance (Ordinance No. 32 of 1993) the doctrine of necessity was no more attracted and applicable in the facts and circumstances of the case. The question raised in this appeal arises in the backdrop of the following facts :

(2.) Both these writ petitions came up for disposal before a learned single Judge of the High Court. He allowed the first writ petition holding that the evidence placed on record clearly established that Ms. J. Jayalalitha's apprehension that Shri Seshan may not be able to take an impartial view because of his strong bias in favour of Dr. Swamy could not be said to be misplaced or unreasonable and it would be just, fair and proper to issue a writ of prohibition directing Shri Seshan to refrain from expressing any opinion on Dr. Swamy's petition alleging disqualification, since at the relevant time the Election Commission was a one-member body. On the plea based on the doctrine of necessity, the learned Judge observed that while the principle of natural justice may have to yield in favour of the doctrine of necessity, it was not obligatory to invoke the said doctrine in all cases, in particular in the case on hand, since it was not obligatory to invoke the said doctrine in all cases, in particular in the case on hand, since it was permissible under Article 324 of the Constitution to appoint an additional Election Commissioner, who if appointed, would constitute an alternative forum for dealing with the matter. So far as the second writ petition is concerned, while the learned single Judge held that the decision on the issue raised by Dr. Swamy law within the exclusive domain of the Governor, he opined that Ms J. Jayalalitha had not incurred the alleged disqualification. Therefore, while dismissing the second writ petition, he virtually allowed it, in that, the Governor while taking a decision under Article 192 (2) would feel inhibited by the said decision.

(3.) Dr. Swami filed two Special Leave Petitions Nos. 1089-90 of 1993 in this Court under Article 136 of the Constitution questioning the correctness of the view taken by the learned single Judge in the said two petitions. This Court, however, did not entertain the said two petitions and by its order dated 20-8-1993 directed the petitioner to move the Division Benches in appeal. Consequently Dr. Swami preferred an appeal, being Writ Appeal No. 956 of 1993, in the High Court of Madras.