J.Jayalalitha vs. Dr.

Subramaniam swamy & Ors (1994) 1 MLJ 314

-N.Shalini

BC0160040

Facts: In June 1991, J.Jayalalitha was elected to the Legislative Assembly of Tamil Nadu. Then
she was elected as the leader of the AIADMK party which secured majority in the Assembly and
she was became the Chief Minister. Before the general elections, she had formed a partnership
firm in the name of "Jaya Publications" with V.Sashikala and it was registered on 05-02-1990.
Before the Governor of Tamil Nadu under Article 192 of the Constitution a petition was filed on
02-10-1992 to declare that J.Jayalalitha has become subject to a disqualification under Article
191(1) (e) and as her partnership firm Jaya Publications entered into a contract with the State
Government and that contract subsisted hence her seat in the assembly has become vacant.

Issues:

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 Representation of People’s 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, 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?

Analysis:

The Article 192 of the Indian Constitution provides that if any circumstance arise if a member of
House of a parliament is subject to disqualification under Article 191(1), then the question is
alluded to the decision of the Governor. The decision becomes final when the Governor provides
his decision along with the opinion to the Election Commission. In Brundaban v. Election
Commission,1 the Supreme Court of India declares that the decision of the Governor must be
final according to the opinion of the Election Commission. Thus, the opinion of Election
Commission is conclusive.

The decision of the Election Commission is persuaded to the judicial review under Article 226
when it provides its opinion acts as a quasi-judicial tribunal. Before the Election Commission has
rendered its opinion and makes it conclusive decision the High Court under Article 226 cannot
exercise of its jurisdiction.

The Election Commission for the purpose of enquiry has the powers of a civil court. 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 submitted. In Manak Lal
v. Dr. Prem Chand,2 the court held that the question as to whether a judge, tribunal or an
authority to act judicially is likely to partial or there is a possibility of prejudice, is always a
question of fact to be decided on the facts and circumstances of each case. No man shall be a
judge in his own cause is that one of the cardinal principles of natural justice.

The doctrine of necessity must be applied when there is no way to guarantee that not only is
justice served, but that it appears to have happened. This does not apply in the case of an
alternate court or judge. In SS Dhanoa v. Union of India3 the Supreme Court held that without
the Chief Election Commissioner the Election Commission cannot function. The business of the
Election Commission shall be transacted in accordance with the provisions of this Act. 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. By inserting the Section 9 and 10, it is clear that the business of the
Election Commission which consists of three members including the Chief Election
Commissioner shall have to be perform with one accord and if, there is any difference in the
opinion between the Chief Election Commissioner and other Election Commissioners then the
matter should be decided according to the majority opinion.

Conclusion:

1
AIR 1965 SC 1892
2
AIR 1957 SC 425
3
AIR 1991 SC 1745
After analyzing the case, it is resolute that the writ petitioner is not subject to disqualification
under Article 191(1) of the Constitution. There is a reasonable concern of prejudice for writ
petitioner that she is not likely to get impartial decision from the Chief Election Commissioner.
The Doctrine of necessity cannot be applied in the present case.