CASE COMMENTARY

ELECTION COMMISSION V SUBRAMANIAN SWAMY 1

INTRODUCTION
This case deals with unequivocal biases that might lead to the non-enforcement of natural
justice, as the latter is something that must not only be done but also appear to be done.
The principles of Natural Justice indoctrinates the rule of fair hearing however due to the
existence of certain biases, there is a possibility of this rule being overridden and that is when
the doctrine of necessity2 comes into play. Moreover, one of the principles of natural justice
states that no one can be a judge in his own cause which essentially means that natural justice
cannot prevail when there is any kind of bias.

The principle mentioned above is also known as rule against bias. It encompasses the fact that
whenever there is suspicion of a person in command being bias towards/against a party, the
opinions or decisions passed by him should be declared void.3

FACTS
In the given case, Dr. Subramanian Swamy filed a petition under Article 192 of the
Constitution before the Governor of Tamil Nadu alleging that the elected CM of the state,
Ms. Jayalalitha was not eligible to hold the position as she was a partner of the same firm
which contracted with State government and the said contract was subsisting on the date of
petition as per Article 191(1)(e) of the Constitution read with S.9A of the Representation of
the People Act 1951 which implies that a minister of a state shall be disqualified if he/she
holds an office of profit that has been contracted to execute the orders of the said state.

Article 192(2) requires the Governor to forward the petition to the Election Commission (EC)
for its opinion on the basis of which he is supposed to take its decision. As the said governor
did not comply with the necessary actions, Dr. Swamy moved a writ petition against the

1
1996 AIR SC 1810
2
Shreya Dave, Doctrine of Necessity, Legal Services India, Accessed: May 2 2021, 5:00pm),
http://www.legalservicesindia.com/article/1113/Doctrine-of-Necessity.html
3
Souvik RoyChoudhury, Principles of Natural Justice – Meaning, Basics And Essential Components, Law
Corner, Accessed: May 1 2021, 2:30pm, https://lawcorner.in/principles-of-natural-justice-meaning-basics-and-
essential-components/
governor. However, while the writ petition was pending in the High Court, the governor
forwarded the petition to the EC for its opinion.

Furthermore, Ms. Jayalalitha filed two writ petitions before the Learned Single Judge of the
HC, first for a writ of prohibition against Shri Seshan, the Chief Election Commissioner
(CEC) to not associate himself with the petition forwarded by the Governor as she was under
the apprehension that the CEC was biased in favor of Dr. Swamy because of their familial
relationship and the second for an affirmation that she was eligible to hold office as the CM
of Tamil Nadu.

There are various kinds of biases4, one of which is called a personal bias and will be dealt
with in this case. This bias arises in situations when an adjudicator is a
relative/friend/business partner who might have some personal animosity or hostility towards
one party.

In the present case, the single judge held in favor of the first writ petition stating that the
evidence produced clearly indicated the intimate relationship Shri Seshan and Dr. Swamy
shared which was reasonable enough for Ms. Jayalalitha to apprehend bias.

It is essential to note that the principal of rule against bias is not applicable if the adjudicator
available is the only competent authority to take actions in that matter. If the doctrine of
necessity is not put to use in order to promote the decision-making process in certain
unavoidable circumstances, it would disrupt the entire justice system itself as the defaulting
party would benefit from the same.
Elucidating the impression, as per the authors, if there is a choice to either allow a biased
person to act in the decision-making process or to stifle the action altogether the choice must
fall in the favor of the former.

HC SINGLE JUDGE
Further, the doctrine of necessity was plead by the opposition to which the single judge stated
that it was not obligatory to invoke the said doctrine in the current case as it was permissible
under Article 324 of the Constitution to appoint alternative/additional election

4
What is bias? What is its significance in Administrative law?, Legal India, Accessed: May 1 2021, 3:00pm,
https://www.legalindia.com/question/what-bias-what-significance-administrative-law/
commissioners. With respect to the second writ petition, the single judge held that the
decision regarding the issue raised by Dr. Swamy lay within the exclusive domain of the
Governor. Nonetheless, the judge opined that Ms. Jayalalitha’s actions would not result in the
alleged disqualification.
From the authors point of view, while dismissing the 2nd writ, the judge virtually allowed it.
This essentially means that the decision of the Governor would somewhat be influenced by
that of the judge’s opinion.

Dr. Swamy went on to file two Special Leave Petitions under Article 136 of the Constitution
questioning the correctness of the views taken by the single judge, although the court did not
entertain the said petitions, and directed Dr. Swamy to move the Division Bench in appeal.
Consequently, he approached the Division Bench of the HC of Madras.

HC DIVISION BENCH
Meanwhile, there was a new development in the EC. An ordinance was passed which was
later converted into act. The S.9 and 10 of this Act, indicated that after the promulgation of
the said ordinance, EC turned into a multi-member body.

The Division Bench of the Madras HC, raised three points on appeal. First being whether the
single judge’s opinion regarding the CM’s disqualification was justified. Secondly, whether
the apprehension of bias against Shri Seshan was reasonable. Lastly, whether the doctrine of
necessity was applicable after the enactment of the ordinance and S.9 and 10.

With respect to Issue 1, the court held that it was not the single judge’s place to opine
regarding the disqualification of the CM as it fell within the exclusive domain of the EC.
On the 2nd issue, the court affirmed the decision of the single judge.
Regarding the 3rd issue, the division bench held that the doctrine of necessity cannot be
attracted since two other election commissioners were appointed after the promulgation of
ordinance no.32.

SUPREME COURT
Not satisfied by the decision passed by the Division Bench, the EC and Shri Seshan appealed
to the SC. This appeal was only concerned with providing clarity with regards to the
obligation of Shri Seshan to participate in the decision-making process as he was alleged to
be a biased authority.

It was analysed by the SC that Article 192(2) makes it clear from the use of the wards ‘shall
obtain the opinion of the Election Commission’, that it is obligatory to obtain the opinion of
the EC.

Shri Sanghi, the counsel for Shri Seshan contested the litigation because in his view he could
not excuse himself from the process of decision-making. According to him it was Shri
Seshan’s constitutional obligation under Article 192(2) to discharge his function by giving an
opinion to the Governor. Moreover, the use of the word ‘and’ after the word CEC and the use
of the word ‘other’ before the EC in Article 324(2) and 324(3) clearly indicate that the
presence of the CEC is necessary and cannot be foregone under any circumstance.

Counsel for Ms. Jayalalitha reiterated the contention of personal bias on the ground that Dr.
Swamy’s wife and Shri Seshan developed a family friendship which went beyond their
professional relation.

It was further submitted that the doctrine of necessity was not applicable as the EC was no
longer a single member body. Hence, in spite of this new development in EC, the CEC giving
its opinion would be violating the principles of natural justice. In our view, reiterating the
fact that the doctrine of necessity can only be applicable in cases where the adjudicator is the
only person available to take action in that matter. However, since the EC became a multi-
member body the CEC was no longer the only person who had the authority to give its
opinion on the said issue.

The SC upheld the decisions passed by the single judge and the division bench regarding the
possibility of bias that was reasonable enough to be apprehended by Ms. Jayalalitha. The SC
further questioned whether Shri Seshan was bound to opine on the issue of disqualification.
Shri Seshan contended that the opinion had to be of everyone who constituted the EC or not
at all. This argument implied that the concept of decision by majority should be held to be
inconsistent with the provisions envisaged under Article 324. The SC rejected this contention.
The next question raised was if the Chief Election Commissioner, for reason of possible bias,
is disqualified from expressing an opinion, how should the Election Commission conduct
itself? To further elaborate, if a situation arises that the two election commissioners are in
conflict of opinion, can the doctrine of necessity be invoked in favour of the Chief Election
Commissioner? The SC answered this question by providing an alternative. It held that if the
two Election Commissioners are able to reach a unanimous decision, there is no need for the
CEC to participate, if not, the doctrine of necessity may have to be invoked.

CRITIQUE
After a detailed analysis of the case we observed that the Division Bench’s verdict highlights
the fact that unlike the SC, the Division Bench failed to take cognisance of the fact that new
election commission constituted of two ECs and one CEC, which meant that by prohibiting
the CEC, the HC overlooked the possible scenarios of conflict between the two ECs. Hence,
the Supreme Court largely agreed with the orders passed by the High Court, but modified the
same by providing an alternative. The apex court analysed every possible outcome of
prohibiting the CEC from taking part in the decision-making process, used the provision of
decision by majority as mentioned in Section 10(3) of the Chief Election Commissioner and
other Election Commissioners (Conditions of Service) Act, 1991as an alternative only if
required. However, the authors feel that the SC could have eliminated the entire bias itself by
simply appointing more election commissioners to adjudicate on the matter. The only reason
behind the court’s decision to involve Shri Seshan on a contingency of conflict was that there
were only two other election commissioners, although, this alternative would not have been
approached if there were more election commissioners to utilize the decision by majority
provision. Hence, as there was an option to appoint more election commissioners, the
doctrine of necessity should not have been used at all because the entire purpose of it is to be
used only when there are no other alternatives. Hence, the SC tried to follow the law but it
failed to comply with its meaning. The SC should have prohibited Shri Seshan from
indulging in the matter in its entirety as with more election commissioners, his presence
would not have been required to settle a conflict in opinion.