Presidential Election Must Be Completed Before Term Ends Despite Dissolved Assembly: Supreme Court

The Gujarat Legislative Assembly was dissolved in March 1974, and a new Assembly could be elected only after fresh delimitation on the basis of the 1971 census, which could not be completed before the President's term expired in August 1974 (paras 1-2, 43, 48). The President referred six questions under Article 143(1): who makes up the electoral college under Article 54, whether dissolution creates vacancies under Article 71(4), whether the election must be held before the term expires, and whether the outgoing President can continue under Article 56(1)(c) (paras 1-2, 50). Interveners argued that the election could not be held without the dissolved State's representatives (paras 20, 22, 31).

The fixed term in Article 56(1) and the command in Article 62(1) that the election "shall be completed before the expiration of the term" reflect the dominant constitutional purpose, with no provision for extension (paras 3-5). ‘Otherwise’ in Article 62(2) does not cover expiry of the term (paras 6-8). Whether a provision is mandatory depends on its subject matter, importance and relation to the general object, and "It is the duty of the courts to get at the real intention of the legislature" (para 13). Impossibility caused by a candidate's death does not rob Article 62(1) of its mandatory character (paras 14-16), and, as held in Khare, vacancies cannot hold up the election (paras 17-18). Article 54 only prescribes the qualifications of electors; the Assemblies are not members of the electoral college, and members of a dissolved Assembly are not elected members entitled to vote (paras 24, 30, 32). Article 71(4) bars challenges based on any vacancy, including one caused by dissolution (paras 34-36). The Court left open mala fide dissolution and dissolution of a substantial number of Assemblies (para 37). It could not go behind the recitals in the Reference (para 39).