& Ors. Vs. State Mizoram & Ors  Insc 24 (11 January 2005)
R.C. Lahoti, Shivaraj V. Patil, K.G. Balakrishnan, B.N. Srikrishna & G.P. Mathur.
K.G. Balakrishnan, J.
provisions of the Sixth Schedule to the Constitution have evolved a separate
scheme for the administration of the tribal areas in Assam, Meghalaya, Mizoram and Tripura
through the institution of District Councils or Regional Councils. These
councils are vested with legislative power on specified subjects, allotted
sources of taxation and given powers to set up and administer their system of
justice and maintain administrative and welfare services in respect of land,
revenue, forests, education, public health etc.
Mara Autonomous District Council, hereinafter to be referred as
"MADC" has thus been constituted as per the provisions of Paragraph
2(1) read with Paragraph 20 of the Sixth Schedule to the Constitution of India.
MADC consists of 19 elected members and the election is through adult franchise
and 4 members are nominated by the Governor of Mizoram by virtue of the powers
conferred on him under Paragraph 2(1) read with Paragraph 20BB of the Sixth
Schedule to the Constitution. The term of the elected members is for a period
of five years from the date appointed for the first meeting of the Council
after the General Election to the Council and the four nominated members would
hold office at the pleasure of the Governor.
first sitting of the Council after the General Election was held on 9.2.2000
and on 8.8.2000 four members, namely, Mrs. Lalbiakluangi Sailo;
Hiychho, Mr. C. Lawbei and Mr. S. Lalremthanga were nominated by the Governor
of Mizoram as members of MADC in exercise of the powers conferred under sub-para
(1) of Paragraph 2 read with Paragraph 20BB of the Sixth Schedule, and read
with sub-rule (1) of Rule 7 of the Mizoram Autonomous District Councils
(Constitution and Conduct of Business of the District Councils) Rules, 1974.
Governor of Mizoram by a Notification issued on 5.12.2001 terminated the
appointment/nomination of the four members who were nominated on 8.8.2000.
Thereafter, another Notification was issued on 6.12.2001 whereby four members
were nominated to MADC. It may also be pointed out that one member, namely, K. Chiama
had submitted a No Confidence Motion to the Secretary, MADC, against the
Executive Committee on 4.12.2001. The Chairman granted leave for the No
Confidence Motion and it was to be discussed and be voted on 6.12.2001. The
date for discussion and voting of the No Confidence Motion was postponed from
6.12.2001 to 7.12.2001. The termination of the membership of four members and
the nomination of new members were challenged in a Writ Petition filed before
the Aizawl Bench of the Gauhati High Court. The High Court, by an interim
order, suspended the Notification dated 6.12.2001 whereby new members were
nominated to MADC. Aggrieved by the order of suspension of the nomination to
MADC, the State of Mizoram filed an appeal before the Division
Bench, being Writ Appeal No. 518 of 2001.
the Division Bench granted an ex-parte stay of the order of suspension of
Notification granted by the learned Single Judge, but thereafter directed that
the Writ Petition be heard and disposed of by the learned Single Judge.
learned Single Judge by his order dated 18.4.2002 partly allowed the Writ
Petition. The nomination of three out of the four members was set aside by the
learned Single Judge. However, the Notification dated 5.12.2001 whereby the
membership of the four members was terminated was upheld by the learned Single
Judge. In the Writ Appeal preferred by the State, the quashing of the
Notification dated 6.12.2001 was challenged and the petitioners in the Writ
Petition by a separate Writ Appeal challenged the order of the learned Single
Judge whereby the Notification dated 5.12.2001 was upheld. The Division Bench
of the High Court of Gauhati upheld the validity of both the Notifications and
aggrieved by the same, the present appeals have been filed.
the matter came up for consideration before a Bench of two Judges on 27.1.2003,
the following order was passed :
issue which has been raised in this appeal relates to the interpretation of
paragraph 2(1) and sub-paragraph (6A) of Paragraph 2 read with paragraph 20-BB
of the Sixth Schedule to the Constitution. The dispute centres around the
nature of the discretion to be exercised by the Governor in nominating and
removing persons to the District Councils of Mizoram.
of the view that the issue raises a substantial question of law as to the
interpretation of the Constitutional provisions having repercussions throughout
the State of Mizoram. In terms of Article 145(3), the
matter must be placed before the Hon'ble Chief Justice. The application for
interim relief is also referred alongwith the main appeal." Thereafter,
the matter came up before a Bench of three Judges and on 28.7.2004, the Bench
observed that in view of the order dated 27.1.2003, the matter needs to be
heard by a Constitution Bench. Thus the matter has come up before the
heard learned counsel for the appellants and also the learned counsel for the
State of Mizoram.
relevant provisions of the Sixth Schedule to the Constitution regarding the
administration of tribal areas in the State of Assam, Meghalaya, Tripura and Mizoram
are as follows:
Autonomous district and autonomous regions..
Constitution of District Councils and Regional Councils
There shall be a District Council for each autonomous district consisting of
not more than thirty members of whom not more than four persons shall be
nominated by the Governor and the rest shall be elected on the basis of adult
Each District Council and each Regional Council shall be a body corporate by
the name, respectively, of "the District Council of (name of
district)" and "the Regional council of (name of region)", shall
have perpetual succession and a common seal and shall by the said name sue and
elected members of the District Council shall hold office for a term of five
years from the date appointed for the first meeting of the Council after the
general elections to the Council, unless the District Council is sooner
dissolved under paragraph 16 and a nominated member shall hold office at the
pleasure of the Governor:
that the said period of five years may, while a Proclamation of Emergency is in
operation or if circumstances exist which, in the opinion of the Governor,
render the holding of elections impracticable, be extended by the Governor for
a period not exceeding one year at a time and in any case where a Proclamation
of Emergency is in operation not extending beyond a period of six months after
the Proclamation has ceased to operate.
further that a member elected to fill a casual vacancy shall hold office only
for the remainder of the term of office of the member whom he replaces.
By virtue of an amendment carried out by the Constitution Amendment Act, 1988
[67 of 1988] (Section 2), a new paragraph was added as "20BB", which
is to the following effect:
Exercise of discretionary powers by the Governor in the discharge of his
functions--- The Governor, in the discharge of his functions under
sub-paragraphs (2) and (3) of paragraph 1, sub-paragraphs (1) and (7) of
paragraph 2, sub-paragraph (3) of paragraph 3, sub-paragraph (4) of paragraph
4, paragraph 5, sub-paragraph (1) of paragraph 6, sub-paragraph (2) of
paragraph 7, sub-paragraph (3) of paragraph 9, sub- paragraph (1) of paragraph
14, sub-paragraph (1) of paragraph 15 and sub-paragraphs (1) and (2) of
paragraph 16 of this Schedule, shall after consulting the Council of Ministers
and if he thinks it necessary, the District Council or the Regional Council
concerned, take such action as he considers necessary in his discretion."
The above provisions show that under sub-rule (1) of Paragraph 2, the Governor
of Mizoram is competent to nominate four members to MADC.
paragraph 6A of Paragraph 2 further shows that the members thus nominated shall
hold office at the pleasure of the Governor. The Governor is given powers to
terminate the membership of the Council under sub-paragraph 6A of Paragraph 2.
The Governor is not given any discretion under Paragraph 20BB, in respect of
powers to be exercised under sub paragraph (6A) of Paragraph 2. Under the
discretionary powers of the Governor in discharge of his functions, the power
to be exercised under sub paragraph (6A) of Paragraph 2 is not included,
whereas it is specifically mentioned that the power of the Governor to be
exercised under sub paragraph (1) of Paragraph 2 could be exercised in his
discretion in the mode prescribed under paragraph 20-BB of the Sixth Schedule.
Thus, these provisions would show that as regards the nomination of four
members to the MADC, the Governor can exercise the discretionary powers whereas
the power of termination of the members under sub paragraph (6A) of Paragraph 2
is not left to the discretion of the Governor, but he shall exercise the same
as envisaged under the Constitutional provisions in a democratic form of
Government which is explicitly made clear by various provisions of the
Constitution, especially Article 163, which is to the following effect :
Council of Ministers to aid and advise Governor
There shall be a Council of Ministers with the Chief Minister as the head to
aid and advise the Governor in the exercise of his functions, except in so far
as he is by or under this Constitution required to exercise his functions or
any of them in his discretion.
any question arises whether any matter is or is not a matter as respects which
the Governor is by or under this Constitution required to act in his
discretion, the decision of the Governor in his discretion shall be final, and
the validity of anything done by the Governor shall not be called in question
on the ground that he ought or ought not to have acted in his discretion.
The question whether any, and if so what, advice was tendered by Ministers to
the Governor shall not be inquired into in any court." There are several
powers and duties for the Governor and some of these powers are to be exercised
in his discretion and some other powers are to be exercised by him with the aid
and advice of the Council of Ministers. The executive powers of the State are
vested in the Governor under Article 154 (1). Article 163(1) states that there
shall be a Council of Ministers with the Chief Minister as the head to aid and
advise the Governor in the exercise of his functions, except in so far as he is
by or under this Constitution, required to exercise his functions or any of
them in his discretion.
163(2) states that if any question arises whether any matter is or is not a
matter as respects which the Governor is by or under this Constitution required
to act in his discretion, the decision of the Governor in his discretion shall
be final and the validity of anything done by the Governor shall not be called
in question on the ground that he ought or ought not to have acted in his
discretion. Article 143 in the Draft Constitution became Article 163 in the
Constitution. The draft Constitution in Article 144(6) said that the functions
of the Governor under that Article with respect to the appointment and
dismissal of Ministers shall be exercised by him in his discretion. This draft
article was omitted when it became Article 164 in the Constitution. There are
certain powers and functions of the Governor which speak of the special
responsibilities of the Governor. These articles are 371A(1)(b), 371A(1)(d),
371A(2)(b) and 371A (2)(f). Similarly, there are certain provisions in the
Sixth Schedule, where the words "in his discretion" are used in
relation to certain powers to be exercised by the Governor.
Constitution envisages the Parliamentary or Cabinet system of Government of the
British model both for the Union and the
States. Under the Cabinet system of Government as embodied in our Constitution
the Governor is the constitutional or formal head of the State and he exercises
all his powers and functions conferred on him by or under the Constitution on
the aid and advice of the Council of Ministers save in spheres where the
Governor is required by or under the Constitution to exercise his functions in
executive power also partakes the legislative or certain judicial actions.
Wherever the Constitution requires the satisfaction of the Governor for the
exercise of any power or function, the satisfaction required by the
Constitution is not personal satisfaction of the Governor but the satisfaction
in the constitutional sense under the Cabinet system of Government. The
Governor exercises functions conferred on him by or under the Constitution with
the aid and advice of the Council of Ministers and he is competent to make
rules for convenient transaction of the business of the Government of the
State, by allocation of business among the Ministers, under Article 166(3) of
the Constitution. It is a fundamental principle of English Constitutional Law that
Ministers must accept responsibility for every executive act. It may also be
noticed that in regard to the executive action taken in the name of the
Governor, he cannot be sued for any executive action of the State and Article
300 specifically states that Government of a State may sue or be sued in the
name of the State subject to the restriction placed therein.
Court has consistently taken the view that the powers of the President and the powers
of the Governor are similar to the powers of the Crown under the British
Parliamentary system. We followed this (1971) 3 SCR 461 wherein this Court held
that the functions of the President under Article 311(2) of the Constitution
cannot be delegated to anyone else in the case of a civil servant of the Union
and the President has to be satisfied personally that in the interest of the
security of the State it is not expedient to hold an inquiry prescribed under
Article 311(2). held that the decisions in Sardari Lal's case did not lay down
correct principles of law as such decision was contrary to A. Sanjeevi Naidu's
case and U.N.R. Rao's case and those decisions were neither referred to nor
considered in Sardari Lal's case. In Shamsher Singh's case (supra), the powers
of the Governor were considered in detail.
scope and ambit of the powers of the Governor came up for consideration before
a Seven Judge Bench in Shamsher Singh vs. State of Punjab & Anr. (1974) 2
SCC 831. There, the two appellants were the members of the Subordinate Judicial
Service in Punjab. On the recommendations of the High
Court of Punjab & Haryana, the services of the two appellant-Judicial
Officers were terminated with immediate effect. The appellants contended that
the Governor as Constitutional or formal head of the State can exercise powers
and functions of appointment and remove the members of Judicial Service only
personally whereas the State contended that the Governor exercises powers of
appointment and removal conferred on him by or under the Constitution, like
executive powers of the State or Government, only on the aid and advice of his
Council of Ministers and not personally. Speaking for the majority, Ray, C.J.
Constitution embodies generally the Parliamentary or Cabinet system of
Government of the British model both for the Union and the States. Under this system, the President is the
constitutional or formal head of the Union
and he exercises his powers and functions conferred on him by or under the
Constitution on the aid and advice of his Council of Ministers.
103 is an exception to the aid and advice of the Council of Ministers because
it specifically provides that the President acts only according to the opinion
of the Election Commission.
is when any question arises as to whether a Member of either House of
Parliament has become subject to any of the disqualifications mentioned in
clause (1) of Article 102.
the Cabinet system of Government as embodied in our Constitution the Governor
is the constitutional or formal head of the State and he exercises all his
powers and functions conferred on him by or under the Constitution on the aid
and advice of his Council of Ministers, save in spheres where the Governor is
required by or under the Constitution to exercise his functions in his
discretion." In the instant case, the members held office during the
pleasure of the Governor and the Council of Ministers advised the Governor to
terminate the membership of these appellants and all relevant records were
placed before the Governor. The relevant papers show that the contents of all
the relevant files were brought to the knowledge of the Governor and he
accepted the advice of his Council of Ministers. As the Governor was not left
with any discretionary power, he was bound by the advice given by the Council
of Ministers. The termination of the members from Council has rightly been
upheld by the High Court.
counsel for the appellants further contended that the Sixth Schedule to the
Constitution is a "Constitution within the constitution" and that the
Governor of Mizoram is not bound by the aid and advice of the Council of
Ministers and the power of the Governor of Mizoram is independent of the rest
of the Constitution itself. This plea was raised on the basis of the opinion
expressed by M. Hidayatullah, former Chief Justice of India, as he then was, in
his third Anundoram Barooah Law Lectures at Gauhati in 1978. Hidayatullah, CJ,
traced the history of the formation of Mizoram State and also inclusion of the Sixth
Schedule to the Constitution. In his lecture, it was stated :
is not compulsory for the Governor to consult the Council of Ministers. He may
do so, but he is not bound to do so, nor is he bound to accept their advice.
The entire history of these areas, the thought that went into the enactment of
the Sixth Schedule as a Constitution independent of the rest of the
Constitution clearly establishes this." Based on this, it was argued that
the tribal areas are to be administered as per the provisions of the Sixth
Schedule only. This contention of the appellants cannot be accepted for various
reasons. The Sixth Schedule to the Constitution is a part of the Constitution
and cannot be interpreted by forgetting the other provisions in the
Constitution. It is impossible to visualize complete segregation of the Sixth
Schedule from the rest of the Constitution. As regards the inclusion of the
Sixth Schedule to the Constitution, there is a legislative history, but that by
itself is not sufficient to hold that the Sixth Schedule is a
"Constitution within the Constitution." This aspect of the matter
came up for consideration in Edwingson Bareh vs. State of Assam & Ors. (infra).
majority in that decision repelled this contention. This was a case in which
the appellants challenged the Notification of the Governor of Assam to create
an autonomous district to be called Jowai district excluding it from the United
Khasi-Jaintia Hills District with effect from 1.12.1964. A Commission was
appointed by the Governor and the Commission went into the question and
submitted a report and it was considered by the Council of Ministers and it
decided to accept the report of the Commission. A memorandum was drawn up and
the whole file was placed before the Governor, who after reading the file
recorded "Seen, thanks". The Assembly thereafter passed a resolution
approving the proposal of the Government and a Notification creating new
district was issued. This Notification was challenged in that case. The
appellants contended that the Governor acted outside his authority. The plea of
the appellants was rejected and it was held that the Governor exercised his
powers and acted on the advice of his Council of Ministers and the affidavit
filed by the respondents showed that the matter was considered by the Council
of Ministers and the proceedings were placed before the Governor who read the
proceedings and expressed his concurrence with words "Seen, thanks",
and the Court held that this was in accordance with the conditions prescribed
by para 14(2) of the Sixth Schedule. Therefore, the contention that the
Governor was not bound by the aid and advice of the Council of Ministers is
only to be rejected.
termination of the membership of four members from the Council was also
challenged on the ground that these members were not given any notice and they
were not heard and that there was a violation of the principles of natural
justice. It is pertinent to note that these members held their office at the
pleasure of the Governor.
the "pleasure" doctrine comes into play when the appointment of a
Crown servant is terminated. Lord Diplock in Chelliah Kodeeswaran vs. Attorney
General of Ceylon 1970 AC 1111, at 1118 (PC) stated
the English law as follows :
is now well established in British Constitutional theory, at any rate as it has
developed since the eighteenth century, that any appointment as a Crown
servant, however subordinate, is terminable at will unless it is expressly
otherwise provided by legislation. " The Constitutional protection and
privileges available under Article 311 to a person who holds a civil post under
the Union or States are not applicable to a
member of a Council who is nominated by the Governor.
Court in Dr. Rash Lal Yadav vs. State of Bihar & Ors. (1994) 5 SCC 267 held
that the principles of natural justice are not applicable in the absence of
express words. That was a case where the removal from the Chairmanship of Bihar
Schools Board was challenged. Relying on an earlier decision in A.K. Kraipak
vs. Union of India (1969) 2 SCC 262, it was held that if the statute, expressly
or by necessary implication omits the application of the rule of natural
justice, the statute will not be invalidated for this omission on the ground of
the contention of the appellants that these members of the Council were not
heard before their nomination/appointment was terminated and hence illegal,
cannot be accepted, as they held their office at the pleasure of the Governor.
next point that was raised for consideration is whether the Notification dated
6.12.2001 nominating four members to the Council by virtue of the powers under
sub paragraph (1) of Paragraph 2 was constitutionally legal. As already
noticed, the Governor of Mizoram has been given discretionary powers to
nominate four members to the Council.
20BB inserted in the Sixth Schedule to the Constitution by Act 67 of 1988
expressly gives this power. Paragraph 20BB also says that the Governor shall
consult the Council of Ministers and if he thinks it necessary, the District
Council or the Regional Council concerned, and take such action as he considers
necessary in his discretion. Therefore, it is clear that the Governor shall
consult the Council of Ministers, but the consultation with the District
Council or the Regional Council is optional. The learned Single Judge found
fault with the procedure adopted by the Government of Mizoram in bringing the
matter to the notice of the Governor to nominate the four members to MADC.
counsel for the appellants contended that in the case of nomination of four
members, the Governor accepted the advice of his Council of Ministers and he
did not exercise the discretionary powers vested in him under Para 20BB of the
Sixth Schedule. This contention was raised on the basis that the initiation for
issuing the Notification dated 6.12.2001 was from the Council of Ministers and
the Governor acted upon the advice of the Council of Ministers. We do not find
any force in this contention.
the provisions of Paragraph 20BB, the Governor shall consult the Council of
Ministers. Merely because of the fact that the Governor made consultation with
the Council of Ministers for nominating four members, it cannot be assumed that
Governor failed to exercise the discretionary powers. The Governor could have
even consulted the District Council or the Regional Council in this regard.
There is nothing to show that the Governor did not exercise his discretionary
powers independently. Moreover, as noted above, Article 163(2) of the
Constitution expressly prohibits challenging the validity of the exercise of
such discretionary power.
counsel also contended that Paragraph 20-BB to the Sixth Schedule was inserted
by the Constitution (Amendment) Act, 1988 (Act 67 of 1988) with the object of
giving more autonomous powers to administrators of tribal areas and that is why
the Governor was given more discretionary powers and that is evident from the
object and reasons given in the Constitution (Amendment) Act, 1988 and it was
submitted that the Governor should have exercised the powers independently and
any advice or instruction on the part of the Council is objectionable and would
make the notification illegal.
relevant portion of the objects and reasons of Act 67 of 1988 is as follows:-
Over a period of time, the minority tribals of Mizoram covered under the Sixth
Schedule have come to feel that their autonomy under the Sixth Schedule will be
more meaningful and they can achieve speedier progress if there is less overall
control of the State Government over them in matters like approval of the rules
made by the District Councils, nomination of their members, appointment of
Commission to inquire into their administration, their dissolution, etc. They
have, therefore, represented that the Governor should exercise powers in his
discretion in these matters.
Memorandum of Settlement on Mizoram, there is a provision that the rights and
privileges of the minorities in Mizoram as envisaged in the Constitution shall
continue to be preserved and protected. Similarly, in the Memorandum of
Settlement on Tripura, there is a commitment to the protection of tribal
pursuance to the Memoranda and to meet the aspirations of the minority tribals
in Mizoram and Tripura it has been provided that the Governor shall act in his
discretion in the discharge of certain of his functions. Opportunity has been availed of to bring the
language of the provisions relating to the application of the Acts of
Parliament and of the State Legislatures in line with the language used in the
corresponding provisions in relation to the State of Assam. The Bill also
provides for a time limit in making over the share of royalties to the District
Bill seeks to achieve the aforesaid objects." Relying on the object and
reasons of the Amendment Act, the counsel for the appellant contended that the
Governor had been given discretionary power to nominate the members to the
Council and the facts disclosed that he nominated members with the aid and
advice of the Council of Ministers and this was not in accordance with the
provisions of Paragraph 20BB and the autonomy envisaged under the provisions of
the Sixth Schedule is not given its true and meaningful importance. The
contention of the appellants is that by inserting Paragraph 20-BB to the Sixth
Schedule Governor is given more discretionary powers to protect the autonomy of
the tribal areas and if Governor acts on the aid and advice of the Council of
Ministers and does not act independently, the purpose of the legislation is not
achieved. Except for the fact that the file for nominating new members
initiated from the Council of Ministers, there is nothing on record to show
that the Governor failed to exercise the discretionary power vested in him. The
Governor exercised his discretion after making proper consultations, as
envisaged under Paragraph 20BB of the Sixth Schedule and the nomination of the
four members had been validly made.
result, we hold that the Governor was bound by the aid and advice of the
Council of Ministers and the termination of the four members from the MADC by
order of the Governor on 5.12.2001 was perfectly in accordance with the
Constitutional provisions and the Sixth Schedule to the Constitution. The
nomination of the four members to the Council by order dated 6.12.2001 was
legal and the Governor acted by virtue of the discretionary power vested in
him. The Governor was justified in making consultation with the Council of
Ministers and the Governor making such incidental consultation with the Council
of Ministers did not in any way affect his discretionary power. No other
authority interfered with the independent exercise of the Governor's discretion
in nominating the four members to the MADC and the Notification issued by the
Governor on 6.12.2001 was validly made and the decision of the Division Bench
of Gauhati High Court does not call for any interference.
appeals are without any merit and are dismissed accordingly.
will be no order as to costs.