NATHU SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) IN pursuance of section 12 of the Representation of the People Act, 1951 (43 of 1951), hereinafter to be referred to as the Act, the President issued a notification (Ex. 4), published in an Extraordinary issue of the Gazette of INdia, dated June 17, 1980, calling upon the elected members of the Legislative Assembly of Rajasthan to elect 4 members for the purpose of filling the seats of such of the members of the Council of States as had retired on April 2,1980, on the expiration of the term of their office. As a follow-up to the aforesaid notification, the Election Commission of INdia issued another notification under section 39 (1) of the Act, published in the same issue of the Gazette of INdia, appointing; June 24, 1980, as the last date for making nominations; June 25, 1980, as date for scrutiny of nominations; June 27, 1980, as the last date for withdrawal of candidatures July 4, 1980 as the date on which a poll shall, if necessary, be taken; and July 7, 1980, as the date before which the election shall be completed. The Returning Officer concerned has already issued a public notice of the intended election. Ex 2 is a Cyclostyled copy of the said notice.

(2.) A general election was held in the last week of May, 1980 for the purpose of constituting a new Legislative Assembly for the State of Rajasthan. Results of the said election were declared early in the first week of June, 1980. In pursuance of section 73 of the Act, the Election Commission of India issued a notification dated, June 6. 1980, and published in the Official Gazette, notifying the names of all the 200 members election for various constituencies. According to section 73, upon the issue of such a notification, the Legislative Assembly "shall be deemed to be duly constituted". None of the elected members has so far made and subscribed the requisite oath or affirmation as required by Article 188 of the Constitution of India.

(3.) A careful study of the relevant provisions of the Act and the Constitution will show that election of a person to a seat in either House of Parliament, or in the House or either House of the Legislative of a State, is one thing; and the taking by that person of the seat to which he has been elected is quite another. "election to a seat " and "taking a seat" are two entirely different legal concepts. "election to a seat" is provided for and dealt with by the Act. "taking a seat" is a concept which is linked with conduct of business of the Legislative 'conduct of Business" of the Legislative is provided for by the Constitution. Articles 99 and 100 of the Constitution deal with "conduct of Business" in either House of Parliament; and Articles 188 and 189 deal with "conduct of Business" in the Legislative Assembly or the Legislative Council of a State. Article 99 relating to either House of Parliament and Article 188 relating to either House of the Legislature of a State make it obligatory upon every member of either House of Parliament or Legislature of a State, regardless of the fact whether he is an elected member or a nominated member, to make and subscribe an oath or affirmation in the form prescribed in the Third Schedule of the Constitution as a condition precedent of his "taking his seat" to which he has been elected or nominated, as the case may be. Whether a person has become a member of either House of Parliament or the Legislature of a State is a question which is determined by reference to the provisions of the Act alone. Whether, after becoming such a member, he has taken the seat to which he has been elected or nominated, as the case may be, is a different issue which can be resolved by reference to Articles 99 and 188, and the Third Schedule, of the Constitution.