B.R. Kapoor
Vs. State of Tamil Nadu & Anr [2001] Insc 500 (21 September 2001)
G.B.
Pattanaik, S.P. Bharucha , Brijesh Kumar , Y.K. Sabharwal & Ruma Pal Pattanaik,
J.
With
W.P.(C) No. 245 of 2001, W.P.(C) No. 246 of 2001, W.P.(C) No. 261 of 2001, ,
T.C. (C) No. 26 of 2001 @ T.P.(C) No. 382 of 2001. & C.A. No. 6589 of 2001 @ S.L.P. (C) No. 11763 of 2001
Leave
granted.
I have
my respectful concurrence with the conclusions and directions in the judgment
of Brother Bharucha, J. I am conscious of the fact that plurality of judgments
should ordinarily be avoided. But, having regard to the importance of the
question involved, and the enormity of the consequences, if the contentions of
Respondent No. 2 are accepted, I consider it appropriate to express my thoughts
on some aspects. It is not necessary to reiterate the facts which have been
lucidly narrated in the judgment of Brother Bharucha,J. The question that
arises for consideration is whether a non elected member, whose nomination for
contesting the election to the Legislative Assembly stood rejected, and that
order of rejection became final, not being assailed, could still be appointed
as the Chief Minister or the Minister under Article 164 of the Constitution,
merely because the largest number of elected members to the Legislative
Assembly elects such person to be their leader.
Be it
be stated, that the nomination of such person had been rejected, on the ground
of disqualification incurred by such person under Section 8(3) of the
Representation of People Act, 1951, the said person having been convicted under
the provisions of the Prevention of Corruption Act, and having been sentenced
to imprisonment for 3 years. The main basis of the arguments advanced by Mr. Venugopal,
the learned senior counsel, appearing for respondent no. 2, and Mr. PP Rao,
learned senior counsel appearing for the State of Tamil Nadu, is that Article
164 of the Constitution conferring power on the Governor to appoint a person as
Chief Minister, and then appoint Ministers on the advice of such Chief
Minister, does not prescribe any qualification for being appointed as Minister
or Chief Minister, and on the other hand, Sub-Article (4) of Article 164
enables such a Minister to continue as a Minister for a period of six months
and said Minister ceases to be a Minister unless within that period of six
months gets himself elected as a member of the Legislaure of the State. As
such, it would not be appropriate to import the qualifications enumerated for
the members of the State Legislature under Article 173, or the dis-
qualifications enumerated in respect of a person for being chosen as or for
being a member of the Legislative Assembly under Article 191 of the
Constitution. According to the learned senior counsel, the Governor, while
exercising power under Article 164, is duty bound to follow the well settled
Parliamentary convention and invites a person to be the Chief Minister, which
person commands the confidence of the majority of the House. In other words, if
a political party gets elected to the majority of seats in a Legislative
Assembly and such elected legislatures elected a person to be their leader, and
that fact is intimated to the Governor then the Governor is duty bound to call
that person to be the Chief Minister, irrespective of the fact whether that
person does not possess the qualifications for being a member of the
Legislative Assembly, enumerated under Article 173, or is otherwise
disqualified for being chosen, or being a member of the Legislative Assembly on
account of any of the dis- qualifications enumerated under Article 191. The
aforesaid contention is based upon two reasonings.
(1)
The lack of prescription of qualification or dis-qualifications for a Chief
Minister or Minister under Article 164, and
(2) that
in a Parliamentary democracy the Will of the people must prevail.
Necessarily,
therefore, the provisions of Article 164 of the Constitution requires an indepth
examination, and further the theory that in a Parliamentary democracy, the Will
of the people must prevail under any circumstance, as propounded by Mr. Venugopal
and Mr. Rao, requires a deeper consideration. I would, therefore, focus my
attention on the aforesaid two issues.
It is
no doubt true, that Articles 164(1) and 164(4) do not provide any qualification
or disqualification, for being appointed as a Chief Minister or a Minister,
whereas, Article 173 prescribes the qualification for a person to be chosen to
fill a seat in the Legislature of a State. Article 191 provides the
disqualification for a person for being chosen as or being a member of the
Legislative Assembly or Legislative Council of a State. In the case in hand,
the respondent no. 2 was disqualified under Article 191(1)(e) read with Section
8(3) of the Representation of the People Act, 1951, in as much as the said
respondent no. 2 has been convicted under Section 13 of the Prevention of
Corruption Act, and has been sentenced to imprisonment for a period of 3 years,
though the execution of that sentence has been suspended by the Appellate Court
while the appeal against the conviction and sentence is pending before the High
Court of Madras.
According
to Mr. Venugopal, under the Constitution of India, when no qualification or
disqualification exists under Article 164(1) or 164(4), it necessarily
postulates that in the area of constitutional governance for the limited period
of six months, any person could be appointed as a Chief Minister or Minister
and it would not be open to the Court to import qualifications and
disqualifications, prescribed under the Constitution for being chosen as a
member of the Legislative Assembly. According to the learned counsel, the
reasonable conclusion to be drawn from the aforesaid constitutional provision
is that the constitution does not contemplate the scrutiny of the credentials
of a non-member Prime Minister or Chief Minister or Minister, as in
constitutional theory it is the House, consisting of the majority thereof which
proposes him for this transient, temporary and limited period of six months. It
is also contended by Mr. Venugopal that people who are the ultimate sovereign,
express their will through their elected representatives for selecting a
non-elected person as their leader and could be appointed as Chief Minister and
Article 164(4) unequivocally provides a period of six months as locus poenitentia
which operates as an exception in deference to the voice of the majority of the
elected members, which in fact is the basis of a Parliamentary Democracy. Mr. Venugopal
also urged that a disqualification being in the nature of a penalty unless
expressly found to be engrafted in the constitution or in other words, in
Article 164, it would not be appropriate for the Court to incorporate that
disqualification, which is provided for being chosen as a member of the
legislative assembly into Article 164 and pronounce the validity of the
appointment of respondent No. 2, which has purely been made on the strength of
the voice of the majority of the elected members.
I am
unable to accept these contentions of the learned counsel, as in my considered
opinion, the contentions are based on a wrong premise. In a Parliamentary
system of government, when political parties fight elections to the legislative
assembly or to the Parliament for being chosen as a member after results are
declared, it would be the duty of the President in case of Parliament and the
Governor in case of Legislative Assembly of the State, to appoint the Prime
Minister or the Chief Minister, as the case may be. When the President appoints
the Prime Minister under Article 75 or the Governor appoints a Chief Minister
under Article 164, the question that weighs with the President or the Governor is,
who will be able to provide a stable government.
Necessarily,
therefore, it is the will of the majority party that should ordinarily prevail
and it is assumed that the elected members belonging to a majority political
party would elect one amongst them to be their leader. Constitution, however
does not prevent the elected members belonging to a political party commanding
the majority of seats in the legislative assembly or the Parliament to elect a
person who never contested for being chosen as a member or a person who though
contested, got defeated in the election for one reason or the other and it is
in such a situation that person on being elected as a leader of the political
party commanding the majority in the House, could be appointed as the Prime
Minister or the Chief minister. But the constitution certainly does not
postulate such elected representatives of the people belonging to a political
party commanding a majority in the Parliament or the Assembly to elect a person
as their leader so as to be called by the President or the Governor to head the
government, who does not possess the qualification for being chosen, to fill a
seat in the Parliament or in the legislative Assembly, as contained in Articles
84 and 173 respectively of the Constitution or who is disqualified for being
chosen as or for being a member of the House of Parliament or the legislative
Assembly, as stipulated under Articles 102 and 191 of the Constitution
respectively. At any rate, even if a person is elected as the leader by the
elected members of the legislative Assembly, commanding a majority of seats in
the Assembly and such person either does not possess the qualification
enumerated under Article 173 or incurs disqualification for being chosen as, or
for being a member of the legislative Assembly, enumerated under Article 191,
then the Governor would not be bound to respect that will of the elected
members of the political party, commanding the majority in the House, so as to
appoint that person as the Chief Minister under Article 164(1) of the
Constitution. When Article 164(1) itself confers the discretion on the Governor
to appoint a Chief Minister at his pleasure and when the Governor has taken
oath under Article 159 of the Constitution to preserve, protect and defend the
Constitution and the law and shall devote himself to the service and for the
well-being of the people, it would be against such oath, if such a person who
does not possess the qualification of being chosen as a member or has incurred
disqualification for being chosen as a member is appointed as a Chief Minister,
merely because Article 164 does not provide any qualification or disqualification
for being appointed as a Chief Minister or Minister. It is indeed axiomatic
that the necessary qualification in Article 173 and the disqualification in
Article 191 proprio vigore applies to a person for being appointed as the Chief
Minister or a Minister inasmuch as in a Parliamentary system of government, a
person is required to be chosen as a member of the Legislative Assembly by the
electorate of a constituency and then would be entitled to be appointed as the
Chief Minister or a Minister on the advice of the Chief Minister.
Non-prescribing any qualification or disqualification under Article 164 for
being chosen as the Chief Minister or Minister would only enable the Governor
to appoint a person as the Chief Minister or Minister for a limited period of
six months, as contained in Article 164(4) of the Constitution, only if such
person possesses the qualification for being chosen as a member of the
legislative Assembly, as required under Article 173 and is not otherwise
disqualified on account of any of the disqualifications mentioned in Article
191. Any other interpretation by way of conferring an unfettered discretion on
the Governor or conferring an unfettered right on the elected members of a
political party commanding a majority in the legislative Assembly to elect a
person who does not possess the qualifications, enumerated under Article 173 or
who incurs the disqualifications enumerated in Article 191 would be subversive
of the constitution and would be repugnant to the theory of good governance and
would be contrary to the constitution itself, which constitution has been
adopted, enacted and given to the people of India by the people of India.
In
this connection it would be appropriate to notice that even under the
Government of India Act, 1935 where Sections 51(1) and 51(2) were somewhat
similar to Article 164 of the Constitution, even the Joint Committee Report on
Indian Constitutional Reforms would indicate that a disqualified person could
not have been appointed as a Minister, as is apparent from the following
sentence:
It
was, therefore, suggested to us that the Governor ought not to be thus
restricted in his choice, and that he ought to be in a position, if the need
should arise, to select a Minister or Ministers from persons otherwise
qualified for appointment but to whom the doubtful pleasures of electioneering
might make no appeal.
Even
in the Constituent Assembly Debates when Mohd. Tahir, an M.P. suggested an
amendment to Article 144(3) of the Draft Constitution, which corresponds with
Article 164(4) of the Constitution to the effect:
That a
member shall, at the time of his being chosen as such be a member of the
Legislative Assembly or the Legislative council of the State, as the case may
be.
and
urged that it is wholly against the spirit of democracy that a person who was
not being chosen by the people of the country, should be appointed as a
Minister, Dr. Ambedkar did not accept the amendment on the ground that tenure
of a minister must be subject to the condition of purity of administration and
confidence of the House. He further stated:
It is
perfectly possible to imagine that a person who is otherwise competent to hold
the post of a Minister has been defeated in a constituency for some reason
which, although it may be perfectly good, might have annoyed the constituency
and he might have incurred the displeasure of that particular constituency.
If
purity of administration and otherwise competence to hold the post of Minister
were the factors which weighed with the founding fathers to allow a competent
person to be appointed as Chief Minister or a Minister for a limited period of
six months, who might have been defeated, it is difficult to conceive that a
person who is not an elected member, does not possess even the minimum
qualification for being chosen as a member or has incurred the disqualification
for being chosen as a member could be appointed as a Chief Minister or
Minister, on the simple ground that Article 164 is quite silent on the same and
the Court cannot import anything into the said Article. Thus on a pure
construction of provisions of Article 164 of the Constitution, the discussions
made in the Constituent Assembly, referred to earlier, the pre-existing pari materia
provision in the Government of India Act, 1935 as well as the discussion of the
Joint Committee on Indian Constitutional Reforms referred to earlier, make it
explicitly clear that notwithstanding the fact that no qualification or
disqualification is prescribed in Article 164(1) or Article 164(4) but such
qualification or disqualification provided in Articles 173 and 191 of the
Constitution for being chosen as a member will have to be read into Article 164
and so read, respondent No. 2, who had incurred the disqualification under
Article 191(1)(e) read with Section 8(3) of the Representation of the People
Act, could not have been appointed as the Chief Minister, whatever may be the
majority of her party members being elected to the legislative assembly and
they elected her as the leader of the party to form the Government.
One
ancillary argument raised by Mr. Venugopal, in this connection requires some
consideration. According to the learned counsel, no adjudicatory machinery
having been provided for in Article 164, in the event the qualifications and disqualifications
prescribed for being chosen as a member of the legislative assembly under
Articles 173 and 191 are imported into Article 164, then it will be an
impossible burden for the Governor at that stage to decide the question if the
opponent raises the question of any disqualification and no Governor can
adjudicate on each one of the disqualifications, enumerated in Article 191 read
with Sections 8 to 11 of the Representation of the People Act.
According
to the learned counsel, the constitution has avowedly not prescribed any
qualification or disqualification with regard to a non-member minister or Chief
minister and the only limitation is that such minister or Chief minister must
get elected within six months or else would cease to become a minister. In my
considered opinion, the appointment of a non-member as the Chief Minister or
Minister on the advice of a Chief Minister is made under Article 164 on the
Governors satisfaction. If any of the disqualifications mentioned in Article
191(1)(e) are brought to the notice of the Governor which can be accepted
without any requirement of adjudication or if the Governor is satisfied that
the person concerned does not possess the minimum qualification for being
chosen as a member, as contained in Article 173, then in such a case, there is
no question of an impossible burden on the Governor at that stage and on the
other hand, it would be an act on the part of the Governor in accordance with
the constitutional mandate not to appoint such person as the Chief Minister or
Minister notwithstanding the support of the majority of the elected members of
the legislative assembly. In a given case, if the alleged disqualification is
dependant upon the disputed questions of fact and evidence, the Governor may
choose not to get into those disputed questions of fact and, therefore, could
appoint such person as the Chief Minister or Minister.
In
such a case, Governor exercises his discretion under Article 164 in the matter
of appointment of the Chief Minister or a Minister. But in a case where the
disqualification is one which is apparent as in the case in hand namely the
person concerned has been convicted and has been sentenced to imprisonment for
more than two years and operation of the conviction has not been stayed and the
appeal is pending, thereby the disqualification under Article 191(1)(e) read
with Section 8(3) of the Representation of the People Act staring at the face,
the Governor would be acting beyond his jurisdiction and against the
constitutional inhibitions and norms in appointing such a disqualified person
as the Chief Minister on the sole reasoning that the majority of the elected
members to the legislative council have elected the person concerned to be
their leader. The constitution does not permit brute force to impede the
constitution. The people of India and so
also the elected members to the legislative assembly are bound by the
constitutional provisions and it would be the solemn duty of the peoples
representatives who have been elected to the legislative assembly to uphold the
constitution. Therefore, any act on their part, contrary to the constitution,
ought not to have weighed with the Governor in the matter of appointment of the
Chief Minister to form the Government. In my considered opinion, therefore, the
arguments of Mr. Venugopal, on this score cannot be sustained.
One of
the arguments advanced on behalf of the respondents was the immunity of the
Governor under Article 361 of the constitution. The genesis of the said
arguments is that the Governor of a State not being answerable to any Court in
exercise of performance of the powers and duty of his office or for any act
done or purported to be done by him in the exercise and performance of those
powers and duties and respondent No. 2 having been appointed as Chief Minister
in exercise of powers of the Governor under Article 164, the said appointment
as well as the exercise of discretion by the Governor is immune from being
challenged and is not open to judicial review. The arguments of the counsel for
the respondents is also based on the ground that any consideration by the Court
to the legality of such an appointment is not permissible as it is a political
thicket. The decision of this Court in R.K. Jain vs. Union of India, 1993(4)
SCC 119 has been relied upon. At the outset, it may be stated that the immunity
provided to the Governor under Article 361 is certainly not extended to an
appointee by the Governor. In the present proceedings, what has been prayed for
is to issue a writ of quo warranto on the averments that respondent No. 2 was
constitutionally disqualified to usurp the public office of the Chief Minister,
who has been usurping the said post unauthorisedly on being appointed by the
Governor. In fact the Governor has not been arrayed as a party respondent to
the proceedings. In the very case of R.K. Jain, it has been held by this Court
in paragraph 73 that judicial review is concerned with whether the incumbent
possessed of qualification for appointment and the manner in which the
appointment came to be made or the procedure adopted whether fair, just and
reasonable. It has been further stated in paragraph 70 of the said judgment
that in a democracy governed by rule of law surely the only acceptable
repository of absolute discretion should be the courts. Judicial review is the
basic and essential feature of the Indian constitutional scheme entrusted to
the judiciary.
It is
the essence of the rule of law that the exercise of the power by the State
whether it be the legislature or the executive or any other authority, should
be within the constitutional limitation and if any practice is adopted by the
executive, which is in violation of its constitutional limitations, then the
same could be examined by the Courts.
In
S.R. Bommai vs. Union of India, 1994(3) SCC Page 1, this Court held that a
proclamation issued by the President on the advice of the council of ministers
headed by the Prime Minister is amenable to judicial review. Even Justice Ahmadi,
as he then was, though was of the opinion that the decision making of the
President under Article 356 would not be justiciable but was firmly of the view
that a proclamation issued by the President is amenable to judicial review.
Justice
Verma and Justice Yogeshwar Dayal held that there is no dispute that the
proclamation issued under Article 356 is subject to judicial review. So also
was the view of Justice Sawant and Justice Kuldip Singh and Justice Pandian,
where Their Lordships have stated that the exercise of power by the President
under Article 356(1) to issue Proclamation is subject to the Judicial review at
least to the extent of examining whether the conditions precedent to the
issuance of the Proclamation have been satisfied or not. According to Justice Ramaswamy,
the action of the President under Article 356 is a constitutional function and
the same is subject to judicial review and according to the learned Judge, the
question relating to the extent, scope and power of the President under Article
356 though wrapped up with political thicket, per se it does not get immunity
from judicial review.
According
to Justice Jeevan Reddy and Agarwal, JJ, the power under Article 356(1) is a
conditional power and in exercise of the power of judicial review, the court is
entitled to examine whether the condition has been satisfied or not.
But in
the case in hand, when an application for issuance of a writ of quo warranto is
being examined, it is not the Governor who is being made amenable to answer the
Court.
But it
is the appointee respondent No. 2, who is duty bound to satisfy that there has
been no illegal usurpation of public office. Quo warranto protects public from
illegal usurpation of public office by an individual and the necessary
ingredients to be satisfied by the Court before issuing a writ is that the
office in question must be public created by the constitution and a person not
legally qualified to hold the office, in clear infringement of the provisions
of the constitution and the law viz. Representation of the People Act has been
usurping the same. If this Court ultimately comes to the conclusion that the
respondent No. 2 is disqualified under the constitution to hold public office
of the Chief Minister, as has already been held, then the immunity of Governor
under Article 361 cannot stand as a bar from issuing a writ of quo warranto. In
the present case, it is the State Government who has taken the positive stand
that there has been no violation of the constitutional provisions or the
violation of law in the appointment of respondent No. 2, as Chief Minister, the
correctness of that stand is the subject matter of scrutiny.
I am
tempted to quote some observations of the United States Supreme Court in the
case of Lucas vs. Colorado General Assembly 377 US 713, 12 L ed 2d 632, 84 S Ct
1472. It has been held in the aforesaid case: Manifestly, the fact that an
apportionment plan is adopted in a popular referendum is insufficient to
sustain its constitutionality or to induce a Court of equity to refuse to act.
It has been further held : The protection of constitutional rights is not to be
approached either pragmatically or expediently, and though the fact of
enactment of a constitutional provision by heavy vote of the electorate
produces pause and generates restrain we can not, true to our oath, uphold such
legislation in the face of palpable infringement of rights. It is too clear for
argument that constitutional law is not a matter of majority vote. Indeed the
entire philosophy of the Fourteenth Amendment teaches that it is personal
rights which are to be protected against the will of the majority. What has
been stated therein should more appropriately be applicable to a case where the
constitution is the supreme document which should bind people of India as well
as all other constitutional authorities, including the Governor, and, therefore
if respondent No. 2 is found to have been appointed as the Chief Minister,
contrary to the constitutional prohibition and prohibition under the relevant
law of the Representation of the People Act, there should be no inhibition on
the Court to issue a writ of quo warranto and the so-called immunity of the
Governor will not stand as a bar.
According
to Mr. P.P. Rao, learned senior counsel appearing for the State of Tamil Nadu, Parliamentary Democracy is
admittedly a basic feature of the Constitution.
It
would be the duty of every functionary under the Constitution, including the
Governor, and the judiciary to give effect to the will of the people as
reflected in the election to the Legislative Assembly of a State. Once the
electorate has given its mandate to a political party and its leader to run the
Government of the State for a term of five years, in the absence of any express
provision in the Constitution to the contrary, the Governor is bound to call
upon the leader of that Legislature Party, so elected by the elected members,
to form the Government.
According
to Mr. Rao, there is no express, unambiguous provision in the Constitution or
in the provisions of Representation of People Act, declaring that a person convicted
of an offence and sentenced to imprisonment for a period not less than 2 years
by the Trial Court shall not be appointed as Chief Minister during the pendency
of the first appeal. In such a situation, the Governor is not expected to take
a position of confrontation with the people of the State who voted the ruling
party to power and plunge the State into a turmoil. In support of this
contention, observation of this Court in the case of Shamsher Singh vs. State
of Punjab (1974 (2) SCC 831), The head of the State should avoid getting
involved in politics, was pressed into service. I am unable to persuade myself
to agree with the aforesaid submission of Mr. Rao, inasmuch as, in my
considered opinion, the people of this country as well as their voice reflected
through their elected representatives in the Legislative Assembly, electing a
disqualified person for being chosen as a member of the Legislative Assembly,
to be their leader are as much subservient to the Constitution of India as the
Governor himself. In a democracy, constitutional law reflects the value that
people attach to orderly human relations, to individual freedom under the law
and to institutions such as Parliament, political parties, free elections and a
free press. Constitution is a document having a special legal sanctity which
sets out the frame-work and the principal functions of the organs of government
within the State and declares the principles by which those organs must
operate. Constitution refers to the whole system of the governance of a country
and the collection of rules which establish and regulate or govern the
government. In our country, we have a written constitution, which has been
given by the people of India to themselves.
The
said Constitution occupies the primary place.
Notwithstanding
the fact, we have a written Constitution, in course of time, a wide variety of
rules and practices have evolved which adjust operation of the Constitution to
changing conditions. No written constitution would contain all the detailed rules
upon which the government depends.
The
rules for electing the legislature are usually found not in the written
Constitution but in the statutes enacted by the legislature within limits laid
down by the Constitution. A Constitution is a thing antecedent to a government,
and a government or a good governance is a creature of the Constitution. A
documentary Constitution reflects the beliefs and political aspirations of
those who had framed it. One of the principle of constitutionalism is what it
had developed in the democratic traditions. A primary function that is assigned
to the written Constitution is that of controlling the organs of the
Government. Constitutional law pre-supposes the existence of a State and
includes those laws which regulate the structure and function of the principal
organs of government and their relationship to each other and to the citizens.
Where there is a written Constitution, emphasis is placed on the rules which it
contains and on the way in which they have been interpreted by the highest
court with constitutional jurisdiction. Where there is a written Constitution
the legal structure of Government may assume a wide variety of forms. Within a
federal constitution, the tasks of government are divided into two classes,
those entrusted to the federal organs of government, and those entrusted to the
various states, regions or provinces which make up the federation. But the
constitutional limits bind both the federal and state organs of government,
which limits are enforceable as a matter of law. Many important rules of
constitutional behaviour, which are observed by the Prime Minister and
Ministers, Members of the Legislature, Judges and Civil servants are contained
neither in Acts nor in judicial decisions. But such rules have been nomenclatured
by the Constitutional Writers to be the rule of the positive morality of the
constitution and some times the authors provide the name to be the unwirtten
maxims of the constitution. Rules of constitutional behaviour, which are
considered to be binding by and upon those who operate the Constitution but
which are not enforced by the law courts nor by the presiding officers in the
House of Parliament. Sir Ivor Jennings, in his book, Law and the Constitution
had stated that constitutional conventions are observed because of the
political difficulties which arise if they are not. These rules regulate the
conduct of those holding public office and yet possibly the most acute
political difficulty can arise for such a person is to be forced out of office.
The Supreme Court of Canada stated that the main purpose of conventions is to
ensure that legal frame work of the constitution is operated in accordance with
the prevailing constitutional values of the period. (see (1982) 125 DLR(3d) 1,
84).
But
where the country has a written constitution which ranks as fundamental law,
legislative or executive acts which conflicts with the constitution must be
held to be unconstitutional and thus illegal. The primary system of Government
cannot be explained solely in terms of legal and conventional rules. It depends
essentially upon the political base which underlies it, in particular on the
party system around which political life is organised. Given the present
political parties and the electoral system, it is accepted that following a
general election, the party with a majority of seats in the State legislature
or the Parliament will form the Government. This is what the Constitution
postulates and permits. But in the matter of formation of Government if the said
majority political party elects a person as their leader, whom the Constitution
and the laws of the country disqualifies for being chosen as a member of the
Legislative Assembly, then such an action of the majority elected member would
be a betrayal to the electorates and to the Constitution to which they owe
their existence. In such a case, the so called will of the people must be held
to be unconstitutional and, as such, could not be and would not be tolerated
upon. When one speaks of legislative supermacy and the will of the people, the
doctrine essentially consists of a rule which governs the legal relationship
between the legislature and the court, but what is stated to be the legislative
supermacy in the United Kingdom has no application in our country with a
written Constitution limiting the extent of such supermacy of the Legislature
or Parliament. In other words, the people of the country, the organs of the
Government, legislature, executive and judiciary are all bound by the
Constitution which Hon. Justice Bhagwati, J. describes in Minerva Mills case
(1980 (3) Supreme Court Cases, 625) to be suprema lex or the paramount law of
the land and nobody is above or beyond the Constitution. When Court has been
ascribed the duty of interpreting the Constitution and when Court finds that
manifestly there is an unauthorised exercise of power under the Constitution,
it would be the solemn duty of the Court to intervene. The doctrine of
legislative supermacy distinguishes the United Kingdom from those countries in
which they have a written constitution, like India, which imposes limits upon
the legislature and entrust the ordinary courts or a constitutional court with
the function of deciding whether the acts of the legislature are in accordance
with the Constitution. This being the position, the action of the majority of
the elected members of a political party in choosing their leader to head the
Government, if found to be contrary to the Constitution and the laws of the
land then the Constitution and the laws must prevail over such unconstitutional
decision, and the argument of Mr. Rao, that the will of the people would
prevail must give way. In a democratic society there are important reasons for
obeying the law, which do not exist in other forms of government.
Our
political system still is not perfect and there are always the scope for many
legislative reforms to be made. But the maintenance of life in modern society
requires a willingness from most citizens for most of the time to observe laws,
even when individually they may not agree with them.
In the
aforesaid premises, and in view of the conclusions already arrived at, with
regard to the dis- qualifications the respondent no. 2 had incurred, which
prevents her for not being chosen as a member of the Legislative Assembly, it
would be a blatant violation of Constitutional laws to allow her to be
continued as the Chief Minister of a State, howsoever short the period may be,
on the theory that the majority of the elected members of the Legislative
Assembly have elected her as the leader and that is the expression of the will
of the people.
One
other thing which I would like to notice, is the consciousness of the people
who brought such Public Interest Litigation to the Court. Mr. Diwan in course
of his arguments, had raised some submissions on the subject - Criminalisation
of Politics and participation of criminals in the electoral process as
candidates and in that connection, he had brought to our notice the order of
the Election Commission of India dated 28th of August, 1997. But for answering
the essential issue before us, it was not necessary to delve into that matter
and, therefore, we have not made an in-depth inquiry into the subject. In one
of the speeches by the Prime Minister of India on the subject- Whither
Accountability, published in the Pioneer, Shri Atal Bihari Vajpayee had called
for a national debate on all the possible alternatives for systematic changes
to cleanse our democratic governing system of its present mess. He has
expressed his dissatisfaction that neither Parliament nor the State Vidhan Sabhas
are doing with any degree of competence or commitment what they are primarily
meant to do: Legislative function. According to him, barring exceptions, those
who get elected to these democratic institutions are neither trained, formally
or informally, in law-making nor do they seem to have an inclination to develop
the necessary knowledge and competence in their profession. He has further
indicated that those individuals in society who are generally interested in
serving the electorate and performing legislative functions are finding it
increasingly difficult to succeed in todays electoral system and the electoral
system has been almost totally subverted by money power, muscle power, and vote
bank considerations of castes and communities. Shri Vajpayee also had indicated
that the corruption in the governing structures has, therefore, corroded the
very core of elective democracy. According to him, the certainty of scope of
corruption in the governing structure has hightened opportunism and
unscrupulousness among political parties, causing them to marry and divorce one
another at will, seek opportunistic alliances and coalitions often without the
popular mandate. Yet they capture and survive in power due to inherent
systematic flaws. He further stated casteism, corruption and politicisation
have eroded the integrity and efficacy of our civil service structure also. The
manifestoes, policies, programmes of the political parties have lost meaning in
the present system of governance due to lack of accountability.
Lot of
arguments had been advanced both by Mr. Venugopal and Mr. Rao, on the ground
that so far as the offences under Section 8(3) of the Representation of the
People Act are concerned, mere conviction itself will not incur the
disqualification, but conviction and sentence for not less than two years would
disqualify a person and, therefore, in such a case, a person even being
convicted of an offence under the Prevention of Corruption Act, will not be
disqualified, if the trying Judge imposes the punishment of imprisonment for a
term of one year, which is the minimum under Section 13(2) of the prevention of
Corruption Act and thus less than two years, which is the minimum sentence
required under Section 8(3) of the Representation of the People Act, to
disqualify a person for being chosen as a member or continuing as a member. As
has been discussed in the Judgment of Brother Bharucha, J, the validity of
providing different punishments under different sub-sections of Section 8, has
already been upheld by this Court in the case of Raghbir Singh vs. Surjit
Singh, 1994 Supp.(3) S.C.C. 162. But having regard to the mass scale corruption
which has corroded the core of elective democracy, it is high time for the
Parliament to consider the question of bringing the conviction under the
Prevention of Corruption Act, as a disqualification under Section 8(1) of the
Representation of the People Act, 1951, so that a person on being convicted of
an offence, punishable under the provisions of Prevention of Corruption Act,
could be disqualified for being chosen, as a member or being continuing as a
member of the Legislative Assembly or the Parliament. I hope and trust, our
representatives in the Parliament will bestow due thought over this issue.
These
Writ Petitions, Special Leave Petition/Civil Appeal and Transferred case stand
disposed of in terms of the directions contained in the judgment of Brother Bharucha,J.
....................................J.
(G.B. Pattanaik)
September 21, 2001 Bharucha, J.
Leave
granted.
A
question of great constitutional importance arises in these matters, namely,
whether a person who has been convicted of a criminal offence and whose
conviction has not been suspended pending appeal can be sworn in and can
continue to function as the Chief Minister of a State.
The
second respondent, Ms. J. Jayalalitha, was Chief Minister of the State of Tamil
Nadu between 1991 and 1996. In respect of that tenure in office she was (in CC
4 of 1997 and CC 13 of 1997) convicted for offences punishable under Section
120B of the Indian Penal Code read with Sections 13(1)(c), 13(1)(d) and 13(2)
of the Prevention of Corruption Act, 1988 and for the offence under Section 409
of the Indian Penal Code. She w as sentenced to undergo 3 years rigorous
imprisonment and pay a fine of Rs.10,000 in the first case and to undergo 2
years rigorous imprisonment and pay a fine of Rs.5000 in the second case.
The
fine that was imposed in both cases was paid.
The
second respondent preferred appeals against her conviction before the High
Court at Madras. The appeals are pending. On applications filed by her in the
two appeals, the High Court, by an order dated 3rd November, 2000, suspended
the sentences of imprisonment under Section 389(3) of the Code of Criminal
Procedure and directed the release of respondent No.2 on bail on the terms and
conditions specified in that order. Thereafter, she filed petitions in the two
appeals seeking the stay of the operation of the judgments in the two criminal
cases. On 14th April, 2001 a learned Single Judge of the High Court at Madras, Mr.Justice
Malai Subramanium, dismissed these petitions since the convictions were, inter alia,
for offences under Section 13(1)(c) and 13(1)(d) of the Prevention of
Corruption Act, 1988. These orders were not challenged.
In
April, 2001 the second respondent filed nomination papers for four
constituencies in respect of the general election to be held to the Tamil Nadu
Assembly. On 24th April, 2001 three nomination papers were rejected on account
of her disqualification under Section 8(3) of the Representation of the People
Act, 1951, by reason of her conviction and sentence in the two criminal cases.
The fourth nomination paper was rejected for the reason that she had filed her
nomination for more than two seats. The correctness of the orders of rejection
was not called in question.
On 13th May, 2001 the results of the election to the
Tamil Nadu Assembly were announced and the AIADMK party, which had projected
the second respondent as its Chief Ministerial nominee, won by a large
majority. On 14th May,
2001, consequent upon
the result of the election, the AIADMK elected the second respondent as its
leader.
On 14th May, 2001 the second respondent was sworn in
as Chief Minister of the State of Tamil Nadu.
These
writ petitions and appeal contend that the second respondent could not in law
have been sworn in as Chief Minister and cannot continue to function as such.
They seek directions in the nature of quo warranto against her.
The
provisions of the Prevention of Corruption Act, 1988, that are relevant to the
second respondents conviction and sentence read thus :
13.
Criminal misconduct by a public servant (1) A public servant is said to commit
the offence of criminal misconduct, - (a) ..
(b) ..
(c) if
he dishonestly or fraudulently misappropriates or otherwise converts for his
own use any property entrusted to him or under his control as a public servant
or allows any other person to do so; or (d) if he, -
i) by
corrupt or illegal means, obtains for himself or for any other person any
valuable thing or pecuniary advantage; or
ii) by
abusing his position as a public servant, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or
iii) while
holding office as a public servant, obtains for any person any valuable thing
or pecuniary advantage without any public interest; or (e) ..
(2)
Any public servant who commits criminal misconduct shall be punishable with
imprisonment for a term which shall be not less than one year but which may
extend to seven years and shall also be liable to fine.
Section
409 of the Indian Penal Code, also relevant to the conviction and sentence,
reads thus :
409.
Criminal breach of trust by public servant, or by banker, merchant or agent
Whoever, being in any manner entrusted with property, or with any dominion over
property in his capacity of a public servant or in the way of his business as a
banker, merchant, factor, broker, attorney or agent, commits criminal breach of
trust in respect of that property, shall be punished with [imprisonment for
life], or with imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine.
For
the purposes of answering the question formulated earlier, the following
provisions of the Constitution of India are most relevant:
163(1)
There shall be a Council of Ministers with the Chief Minister at 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.
164.
Other provisions as to Ministers
(1)
The Chief Minister shall be appointed by the Governor and the other Ministers
shall be appointed by the Governor on the advice of the Chief Minister, and the
Ministers shall hold office during the pleasure of the Governor:
Provided
that in the State of Bihar, Madhya Pradesh and Orissa, there shall be a
Minister in charge of tribal welfare who may in addition be in charge of the
welfare of the Scheduled Castes and backward classes or any other work.
(2)
The Council of Ministers shall be collectively responsible to the Legislative
Assembly of the State.
(3)
Before a Minister enters upon his office, the Governor shall administer to him
the oaths of office and of secrecy according to the forms set out for the
purpose in the Third Schedule.
(4) A
minister who for any period of six consecutive months is not a member of the
Legislature of the State shall at the expiration of that period cease to be a
Minister.
(5)
The salaries and allowances of Ministers shall be such as the Legislature of
the State may from time to time by law determine and, until the Legislature of
the State so determines, shall be as specified in the Second Schedule.
173.
Qualification for membership of the State Legislature A person shall not be
qualified to be chosen to fill a seat in the Legislature of a State unless he
a) is a citizen of India, and makes and subscribes before some person authorised
in that behalf by the Election Commission an oath or affirmation according to
the form set out for the purpose in the Third Schedule;
b) is,
in the case of a seat in the Legislative Assembly, not less than twenty-five
years of age and in the case of a seat in the Legislative Council, not less
than thirty years of age; and c) possesses such other qualifications as may be
prescribed in that behalf by or under any law made by Parliament.
177.
Rights of Ministers and Advocate-General as respects the Houses Every Minister
and the Advocate-General for a State shall have the right to speak in, and
otherwise to take part in the proceedings of, the Legislative Assembly of the
State or, in the case of a State having a Legislative Council, both Houses, and
to speak in, and otherwise to take part in the proceedings of, any committee of
the Legislature of which he may be named a member, but shall not, by virtue of
this article, be entitled to vote.
191.
Disqualifications for membership (1) A person shall be disqualified for being
chosen as, and for being, a member of the Legislative Assembly or Legislative
Council of a State –
a) if
he holds any office of profit under the Government of India or the Government
of any State specified in the First Schedule, other than an office declared by
the Legislature of the State by law not to disqualify its holder;
b) if
he is of unsound mind and stands so declared by a competent court;
c) if
he is an undischarged insolvent;
d) if
he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgement of allegiance
or adherence to a foreign State;
e) if
he is so disqualified by or under any law made by Parliament.
Explanation
For the purposes of this clause, a person shall not be deemed to hold an office
of profit under the Government of India or the Government of any State
specified in the First Schedule by reason only that he is a Minister either for
the Union or for such State.
(2) A
person shall be disqualified for being a member of the Legislative Assembly or
Legislative Council of a State if he is so disqualified under the Tenth
Schedule.
Provisions
of a similar nature with regard to Parliament are to be found in Articles 74,
75, 84, 88 and 102.
The
Representation of the People Act, 1951 was enacted to provide for the conduct
of elections to the Houses of Parliament and to the House or Houses of the
Legislature of each State, the qualifications and disqualifications for
membership of those Houses, the corrupt practices and other offences at or in
connection with such elections and the decision of doubts and disputes arising
out of or in connection with such elections. The relevant provisions of that
Act for our purposes are Sections 8, 8A, 9, 9A, 10 and 10A. They read thus:
8.
Disqualification on conviction for certain offences (1) A person convicted of
an offence punishable under –
(a)
section 153A (offence of promoting enmity between different groups on ground of
religion, race, place of birth, residence, language, etc., and doing acts
prejudicial to maintenance of harmony) or section 171E (offence of bribery) or
section 171F (offence of undue influence or personation at an election) or
sub-section (1) or sub-section (2) of section 376 or section 376A or section
376B or section 376C or section 376D (offences relating to rape) or section
498A (offence of cruelty towards a woman by husband or relative of a husband)
or sub-section (2) or sub-section (3) of section 505 (offence of making
statement creating or promoting enmity, hatred or ill-will between classes or
offence relating to such statement in any place of worship or in any assembly
engaged in the performance of religious worship or religious ceremonies) or the
Indian Penal Code (45 of 1860), or
(b) the
Protection of Civil Rights Act, 1955 (22 of 1955), which provides for
punishment for the preaching and practice of untouchability, and for the
enforcement of any disability arising therefrom; or
(c) section
11 (offence of importing or exporting prohibited goods) or the Customs Act,
1962 (52 of 1962); or
(d)
sections 10 to 12 (offence of being a member of an association declared
unlawful, offence relating to dealing with funds of an unlawful association or
offence relating to contravention of an order made in respect of a notified
place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or
(e) the
Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) the
Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(g) section
3 (offence of committing terrorist acts) or section 4 (offence of committing
disruptive activities) of the Terrorist and Disruptive Activities (Prevention)
Act, 1987 (28 of 1987); or
(h) section
7 (offence of contravention of the provisions of section 3 to 6) of the
Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or
(i) section
125 (offence of promoting enmity between classes in connection with the
election) or section 135 (offence of removal of ballot papers from polling
stations) or section 135A (offence of booth capturing) or clause (a) of
sub-section (2) of section 136 (offence of Fraudulently defacing or
fraudulently destroying any nomination paper) of this Act;
[or] [
(j) section
6 (offence of conversion of a place or worship) of the Places of Worship
(Special Provisions) Act 1991; [or]
[(k) section
2 (offence of insulting the Indian National Flag or the Constitution of India)
or section 3 (offence of preventing singing of National Anthem) of the
Prevention of Insults to National Honour Act, 1971 (69 of 1971);] shall be
disqualified for a period of six years from the date of such conviction.
(2) A
person convicted for the contravention of
(a) any
law providing for the prevention of hoarding or profiteering; or
(b) any
law relating to the adulteration of food or drugs; or
(c) any
provisions of the Dowry Prohibition Act, 1961 (28 of 1961); or
(d)
any provisions of the Commission of Sati (Prevention) Act, 1987 (3 of 1988),
and sentenced to imprisonment for not less than six months, shall be
disqualified from the date of such conviction and shall continue to be
disqualified for a further period of six years since his release.
(3) A
person convicted of any offence and sentenced to imprisonment for not less than
two years [other than any offence referred to sub- section (1) or sub-section
(2)] shall be disqualified from the date of such conviction and shall continue
to be disqualified for a further period of six years since his release.]
[(4)
Notwithstanding anything [in sub-section (1), sub-section (2) and sub-section
(3)] a disqualification under either sub-section shall not, in the case of a
person who on the date of the conviction is a member of Parliament or the
Legislature of a State, take effect until three months have elapsed from that
date or, if within that period an appeal or application for revision is brought
in respect of the conviction or the sentence, until that appeal or application
is disposed of by the court.
Explanation In this section (a) law providing
for the prevention of hoarding or profiteering means any law, or any order,
rule or notification having the force of law, providing for
(i) the
regulation of production or manufacture of any essential commodity;
(ii) the
control of price at which any essential commodity may be brought or sold;
(iii) the
regulation of acquisition, possession, storage,transport, distribution,
disposal, use or consumption of any essential commodity;
(iv) the
prohibition of the withholding from sale of any essential commodity ordinarily
kept for sale;
(b) drug
has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23 of
1940);
(c) essential
commodity has the meaning assigned to it in the Essential Commodities Act, 1955
(10 of 1955);
(d) food
has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954
(37 of 1954).
Central
to the controversy herein is Article 164, with special reference to sub-Article
(4) thereof. This Court has considered its Tribhuvan Narain Singh, Chief
Minister, U.P. and Another [1971 (1) SCC 616], a Constitution Bench rendered
the decision in connection with the appointment of the first respondent therein
as Chief Minister of Uttar Pradesh at a time when he was not a member of either
House of the Legislature of that State. The Court said :
3. It
seems to us that clause (4) of Article 164 must be interpreted in the context
of Articles 163 and 164 of the Constitution. Article 163(1) provides that there
shall be a Council of Ministers with the Chief Minister at 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. Under clause (1) of Article 164, the Chief Minister has to be
appointed by the Governor and the other Ministers have to be appointed by him
on the advice of the Chief Minister. They all hold office during the pleasure
of the Governor. Clause (1) does not provide any qualification for the person
to be selected by the Governor as the Chief Minister or Minister, but clause
(2) makes it essential that the Council of Ministers shall be collectively
responsible to the Legislative Assembly of the State. This is the only
condition that the Constitution prescribes in this behalf.
6. It
seems to us that in the context of the other provisions of the Constitution
referred to above there is no reason why the plain words of clause (4) of
Article 164 should be cut down in any manner and confined to a case where a
Minister loses for some reason his seat in the Legislature of the State. We are
assured that the meaning we have given to clause (4) of Article 164 is the
correct one from the proceedings of the Constituent Assembly and the position
as it obtains is England, Australia and South Africa.
The
Court set out the position as it obtained in England, Australia and South
Africa and observed that this showed that Article 164(4) had an ancient
lineage.
SCC
48], a two Judge Bench of this Court considered a writ petition for the
issuance of a writ in the nature of quo warranto to one K.P. Tewari, who had
been appointed as a Minister of the Government of Uttar Pradesh even though he
was not a member of either House of the State Legislature. Reliance was placed
upon the earlier judgment in the case of Tribhuvan Narain Singh and it was held
that no material change had been brought about by reason of the amendment of
Article 173(a) in the legal position that a person who was not a member of the
State Legislature might be appointed a Minister, subject to Article 164(4)
which said that a Minister who for any period of six consecutive months was not
a member of the State Legislature would at the expiration of that period cease
to be a Minister.
Union
of India and Another [1987 (Supp.) SCC 310] considered the question in the
context of membership of Parliament and Article 75(5), which is similar in
terms to Article 164(4). The Court said that a person who was not a member of
the either House of Parliament could be a Minister for not more than six months;
though he would not have any right to vote, he would be entitled, by virtue of
Article 88, to participate in the proceedings of Parliament.
(6)
SCC 734], the first respondent, who was not a member of Parliament, was sworn
in as Prime Minister. This was challenged in a writ petition under Article 32.
Reference was made to the earlier judgments. It was held, on a parity of
reasoning if a person who is not a member of the State Legislature can be
appointed a Chief Minister of a State under Article 164(4) for six months, a
person who is not a member of either House of Parliament can be appointed Prime
Minister for the same period.
269],
one Tej Parkash Singh was appointed a Minister of the State of Punjab on the advice of the Chief
Minister, Sardar Harcharan Singh Barar. At the time of his appointment as a
Minister Tej Parkash Singh was not a member of the Punjab Legislative Assembly.
He was not elected as a member of that Assembly within a period of six months
and he submitted his resignation. During the same legislative term Sardar Harcharan
Singh Barar was replaced as Chief Minister by Smt.
Rajinder
Kaur Bhattal. On her advice, Tej Parkash Singh was appointed a Minister yet
again. The appointment was challenged by a writ petition in the High Court
seeking a writ of quo warranto. The writ petition was dismissed in limine and
an appeal was filed by the writ petitioner in this Court. The judgments
aforementioned were referred to by this Court and it was said :
17.
The absence of the expression from amongst members of the legislature in
Article 164 (1) is indicative of the position that whereas under that provision
a non-legislator can be appointed as a Chief Minister or a Minister but that
appointment would be governed by Article 164(4), which places a restriction on
such a non-member to continue as a Minister or the Chief Minister, as the case
may be, unless he can get himself elected to the Legislature within the period
of six consecutive months from the date of his appointment. Article 164(4) is,
therefore, not a source of power or an enabling provision for appointment of a
non- legislator as a Minister even for a short duration. It is actually in the
nature of a disqualification or restriction for a non-member who has been
appointed as a Chief Minister or a Minister, as the case may be, to continue in
office without getting himself elected within a period of six consecutive
months.
The
Court said that in England the position was this :
In the
Westminster system, it is an established
convention that Parliament maintains its position as controller of the
executive. By a well settled convention, it is the person who can rely on
support of a majority in the House of Commons, who forms a government and is
appointed as the Prime Minister. Generally speaking he and his Ministers must
invariably all be Members of Parliament (House of Lords or House of Commons)
and they are answerable to it for their actions and policies. Appointment of a
non- member as a Minister is a rare exception and if it happens it is for a
short duration. Either the individual concerned gets elected or is conferred
life peerage.
The
Court noted the constitutional scheme that provided for a democratic
parliamentary form of Government, which envisaged the representation of the
people, responsible Government and the accountability of the Council of
Ministers to the legislature. Thus was drawn a direct line of authority from
the people through the legislature to the executive. The position in England,
Australia and Canada showed that the essentials of a system of representative
Government, like the one in India, were that, invariably, all Ministers were
chosen out of the members of the legislature and only in rare cases was a non-
member appointed a Minister and he had to get himself returned to the legislature
by direct or indirect election within a short period. The framers of the
Constitution had not visualised that a non-legislator could be repeatedly
appointed a Minister, for a term of six months each, without getting elected
because such a course struck at the very root of parliamentary democracy. It
was accordingly held that the appointment of Tej Parkash Singh as a Minister
for a second time was invalid and unconstitutional.
Mr.
K.K. Venugopal, learned counsel for the second respondent, was right when he
submitted that the question that arises before us has not, heretofore, arisen
before the courts. This is for the reason that, heretofore, so far as is known,
no one who was ineligible to become a member of the legislature has been made a
Minister.
Certainly,
no one who has earned a conviction and sentence covered by Section 8 of the
Prevention of Corruption Act would appear to have been appointed Chief
Minister.
To
answer the question before us, three sub-Articles of Article 164 need, in our
view, to be read together, namely, sub-Articles (1),(2) and (4). By reason of
sub-Article (1), the Governor is empowered to appoint the Chief Minister; the
Governor is also empowered to appoint the other Ministers, but, in this regard,
he must act on the advice of the Chief Minister. Sub-Article (2) provides, as
is imperative in a representative democracy, that the Council of Ministers
shall be collectively responsible to the Legislative Assembly of the State. The
political executive, namely, the Council of Ministers, is thus, through the
Legislative Assembly, made representative of and accountable to the people of
the State who have elected the Legislative Assembly. There is necessarily
implicit in these provisions the requirement that a Minister must be a member
of the Legislative Assembly and thus representative of and accountable to the
people of the State. It is sub-Article (4) which makes the appointment of a
person other than a member of the Legislature of the State as a Minister
permissible, but it stipulates that a Minister who for any period of six
consecutive months is not a member of the Legislature of the State shall at the
expiration of that period cease to be a Minister. Necessarily implicit in
sub-Article (4) read with sub- Articles (1) and (2) is the requirement that a
Minister who is not a member of the legislature must seek election to the
legislature and, in the event of his failing to secure a seat in the
legislature within six months, he must cease to be a Minister. The requirement
of sub- Article (4) being such, it follows as the night the day that a person
who is appointed a Minister though he is not a member of the legislature shall
be one who can stand for election to the legislature and satisfy the
requirement of sub-Article (4). In other words, he must be one who satisfies
the qualifications for membership of the legislature contained in the
Constitution (Article 173) and is not disqualified from seeking that membership
by reason of any of the provisions therein (Article 191) on the date of his
appointment.
The
provision of sub-Article (4) of Article 164 is meant to provide for a situation
where, due to political exigencies or to avail of the services of an expert in
some field, it is requisite to induct into the Council of Ministers a person
who is not then in the legislature. That he is not in the legislature is not
made an impassable barrier. To that extent we agree with Mr. Venugopal, but we
cannot accept his submission that sub-Article (4) must be so read as to permit
the induction into the Council of Ministers of short term Ministers whose term
would not extend beyond six months and who, therefore, were not required to
have the qualifications and be free of the disqualifications contained in
Articles 173 and 191 respectively. What sub-Article (4) does is to give a
non-legislator appointed Minister six months to become a member of the
legislature. Necessarily, therefore, that non-legislator must be one who, when
he is appointed, is not debarred from obtaining membership of the legislature :
he must be one who is qualified to stand for the legislature and is not
disqualified to do so. Sub-Article (4) is not intended for the induction into
the Council of Ministers of someone for six months or less so that it is of no
consequence that he is ineligible to stand for the legislature.
It
would be unreasonable and anomalous to conclude that a Minister who is a member
of the legislature is required to meet the constitutional standards of
qualification and disqualification but that a Minister who is not a member of
the legislature need not. Logically, the standards expected of a Minister who
is not a member should be the same as, if not greater than, those required of a
member.
The
Constituent Assembly Debates (Volume VII) note that when the corresponding
Article relating to Members of Parliament was being discussed by the
Constituent Assembly, Dr. B.R. Ambedkar said:
.. The
first amendment is by Mr. Mohd. Tahir. His suggestion is that no person should
be appointed a minister unless at the time of his appointment he is an elected
member of the House.
He
does not admit the possibility of the cases covered in the proviso, namely,
that although a person is not at the time of his appointment a member of the
House, he may nonetheless be appointed as a minister in the cabinet subject to
the condition that within six months he shall get himself elected to the House.
The second qualification is by Prof. K.T. Shah. He said that a minister should
belong to a majority party and his third qualification is that he must have a
certain educational status. Now, with regard to the first point, namely, that
no person shall be entitled to be appointed a Minister unless he is at the time
of his appointment an elected member of the House. I think it forgets to take
into consideration certain important matters which cannot be overlooked.
First
is this, - it is perfectly possible to imagine that a person who is otherwise
competent to hold the post of a Minister has been defeated in a constituency
for some reason which, although it may be perfectly good, might have annoyed
the constituency and he might have incurred the displeasure of that particular
constituency. It is not a reason why a member of the Cabinet on the assumption
that he shall be able to get himself elected either from the same constituency
or from another constituency. After all the privilege that is permitted is a
privilege that extends only for six months. It does not confer a right to that
individual to sit in the House without being elected at all..
(Emphasis
supplied) What was said by Dr. B.R. Ambedkar is self-explanatory. It shows
clearly that the Constituent Assembly envisaged that non- legislator Ministers
would have to be elected to the legislature within six months and it proceeded
on the basis that the Article as it read required this. The manner in which we
have interpreted Article 164 is, thus, borne out.
It was
submitted on behalf of the respondents that it was not open to the Court to
read into Article 164 the requirement that a non- legislator Minister must be
elected to the legislature within six months. No qualifications or
disqualifications could, it was submitted, be read into a constitutional
provision. Reliance was placed upon passages from the some of the judgments in
His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, [1973 (Supp.) S.C.R. 1].
What
we have done is to interpret Article 164 on its own language and to read
sub-Article (4) thereof in the context of sub- Articles (1) and (2). In any
event, it is permissible to read into sub- Article (4) limitations based on the
language of sub-Articles (1) and (2). of India & Ors. [1981 (1) SCR 206],
considered in some detail the judgment in Kesavananda Bharati. It was
considering the validity of the clauses introduced into Article 368 by the
Constitution (Forty- second Amendment) Act. They provided :
(4) No
amendment of this Constitution (including the provisions of Part III) made or
purporting to have been made under this article (whether before on after the
commencement of section 55 of the Constitution (Forty-second Amendment) Act,
1976) shall be called in question in any court on any ground.
(5)
For the removal of doubts, it is hereby declared that there shall be no
limitation whatever on the constituent power of Parliament to amend by way of
addition, variation or repeal the provisions of this Constitution under this
article.
Chandrachud,
C.J. noted in his judgment that the avowed purpose thereof was the removal of
doubts. He observed that after the decision in Kesavananda Bharti, there could
be no doubt as regards the existence of limitations on Parliaments power to
amend the Constitution. In the context of the constitutional history of Article
368, the true object of the declaration contained in clause (5) was the removal
of those limitations. Clause (5) conferred upon Parliament a vast and undefined
power to amend the Constitution, even so as to distort it out of recognition.
The theme song of the Court in the majority decision in Kesavananda Bharti had
been, Amend as you may even the solemn document which the founding fathers have
committed to your care, for you know best the needs of your generation. But,
the Constitution is a precious heritage; therefore, you cannot destroy its
identity. The majority judgment in Kesavananda Bharti conceded to Parliament
the right to make alterations in the Constitution so long as they were within
the basic framework. The Preamble assured the people of India of a polity whose basic structure
was described therein as a Sovereign Democratic Republic; Parliament could make
any amendments to the Constitution as it deemed expedient so long as they did
not damage or destroy Indias sovereignty and its democratic,
republican character. Democracy was a meaningful concept whose essential
attributes were recited in the Preamble itself : Justice, social, economic and
political : Liberty of thought, expression, belief,
faith and worship; and Equality of status and opportunity. Its aim, again as
set out in the Preamble, was to promote among the people an abiding sense of
Fraternity assuring the dignity of the individual and the unity of the Nation.
The newly introduced clause (5) demolished the very pillars on which the
Preamble rested by empowering Parliament to exercise its constituent power
without any limitation whatever. No constituent power could conceivably go
higher than the power conferred by clause (5) for it empowered Parliament even
to repeal the provisions of this Constitution, that is to say, to abrogate
democracy and substitute for it a totally antithetical form of government. That
could most effectively be achieved, without calling democracy by any other
name, by denial of social, economic and political justice to the people, by
emasculating liberty of thought, expression, belief, faith and worship and by
abjuring commitment to the magnificient ideal of a society of equals. The power
to destroy was not a power to amendment. Since the Constitution had conferred a
limited amending power on Parliament, Parliament could not under the exercise of
that limited power enlarge that very power into an absolute power. A limited
amending power was one of the basic features of the Constitution and,
therefore, the limitations on that power could not be destroyed. In other
words, Parliament could not, under Article 368, expand its amending power so as
to acquire for itself the right to repeal or abrogate the Constitution or to
destroy its basic and essential features. The donee of a limited power could
not by the exercise of that power convert the limited power into an unlimited
one.
All
this was said in relation to the Article 368(1) and (5). Sub- Article (1) read thus
:
368.
Power of Parliament to amend the Constitution and procedure therefor (1)
Notwithstanding anything in this Constitution, Parliament may in exercise of
its constituent power amend by way of addition, variation or repeal any
provision of this Constitution in accordance with the procedure laid down in
this article.
Nothing
can better demonstrate that is permissible for the Court to read limitations
into the Constitution based on its language and scheme and its basic structure.
We
hold, therefore, that a non-legislator can be made Chief Minister or Minister
under Article 164 only if he has the qualifications for membership of the
legislature prescribed by Article 173 and is not disqualified from the
membership thereof by reason of the disqualifications set out in Article 191.
The
next question is : Was the second respondent qualified for membership of the
legislature and not disqualified therefor when she was appointed Chief Minister
on 14th May, 2001.
It was
submitted by learned counsel for the respondents that the suspension of the
sentences passed against the second respondent by the High Court at Madras was tantamount to the suspension of
the convictions against her. Our attention was then drawn to Section 8(3) of
the Representation of the People Act, which says that a person convicted of any
offence and sentenced to imprisonment for not less than two years shall be
disqualified.. In learned counsels submission, for the purposes of Section
8(3), it was the sentence alone which was relevant and if there were a
suspension of the sentence, there was a suspension of the disqualification. The
sentences awarded to the second respondent having been suspended, the
disqualification under Section 8(3), in so far as it applied to her, was also
suspended.
Section
389 of the Code of Criminal Procedure on the basis of which the second
respondent was released on bail by the Madras High Court reads, so far as is
relevant, as follows :
389.
Suspension of sentence pending the appeal;
release
of appellant on bail (1) Pending any appeal by a convicted person, the
Appellate Court may, for reasons to be recorded by it in writing, order that
the execution of the sentence or order appealed against be suspended and, also,
if he is in confinement, that he be released on bail, or on his own bond.
(Emphasis
supplied) It is true that the order of the High Court at Madras on the application of the second
respondent states, Pending criminal appeals the sentence of imprisonment alone
is suspended and the petitioners shall be released on bail.., but this has to
be read in the context of Section 389 under which the power was exercised.
Under Section 389 an appellate court may order that the execution of the
sentence or order appealed against be suspended... It is not within the power
of the appellate court to suspend the sentence; it can only suspend the
execution of the sentence pending the disposal of appeal. The suspension of the
execution of the sentence does not alter or affect the fact that the offender
has been convicted of a grave offence and has attracted the sentence of
imprisonment of not less than two years. The suspension of the execution of the
sentences, therefore, does not remove the disqualification against the second
respondent. The suspension of the sentence, as the Madras High Court
erroneously called it, was in fact only the suspension of the execution of the
sentences pending the disposal of the appeals filed by the second respondent.
The fact that she secured the suspension of the execution of the sentences
against her did not alter or affect the convictions and the sentences imposed
on her and she remained disqualified from seeking legislative office under
Section 8(3).
In the
same connection, learned counsel for the respondents drew our attention to the
judgment of a learned single Judge of the High Court at Madras, Mr. Justice Malai Subramanium, on
the application of the second respondent for stay of the execution of the
orders of conviction against her. The learned Judge analysed Section 8 of the
Representation of the People Act and came to this conclusion:
In
this case, sentence of imprisonment has already been suspended. Under such
circumstances, in my view, there may not be any disqualification for the
petitioner to contest in the election.
Learned
counsel submitted that it was because of this conclusion that the learned Judge
had not stayed the execution of the orders, and his conclusion bound the
Governor. In the first place, the interpretation of the provision by the
learned Judge is, as shown above, erroneous.
Secondly,
the reason why he refused to stay the execution of the orders was because the
second respondent had been found guilty of offences under the Prevention of
Corruption Act. Thirdly, the learned Judge was required by the application to
consider whether or not the execution of the orders against the second
respondent should be stayed; the consideration of and conclusion upon the provisions
of Section 8 of the Representation of the People Act was wholly extraneous to
that issue. Fourthly, the conclusion was tentative, as indicated by the use of
the word may in the passage quoted from his judgment above. Lastly, as will be
shown, we are not here concerned with what the Governor did or did not do; we
are concerned with whether the second respondent can show that she was, when
she was appointed Chief Minister, qualified to be a legislator under Article
173 and not disqualified under Article 191.
In
relation to the difference in the periods of disqualification in sub-sections
(1), (2) and (3) of Section 8 of the Representation of the People Act an
argument similar to that which was raised and rejected advanced. This Court
there said :
5.
Section 8 prescribes disqualification on conviction for certain offences.
Sub-section (1) provides the disqualification for a period of six years from
the date of conviction for the offences specified in clauses (a) to (i)
thereof. In sub- section (1), the only reference is to conviction for the
specified offences irrespective of the sentence awarded on such conviction.
Sub-section (2) then prescribes that on conviction for the offences specified
therein and sentence to imprisonment for not less than six months, that person
shall be disqualified from the date of such conviction and shall continue to be
disqualified for a further period of six years since his release. Thus, in case
of conviction for the offences specified in sub- section (2), the disqualification
is attracted only if the sentence is of imprisonment for not less than six
months and in that event the disqualification is for a period of not merely six
years from the date of such conviction but commencing from the date of such
conviction it shall continue for a further period of six years since his
release. Sub-section (3) then prescribes a similar longer period of
disqualification from the date of such conviction to continue for a further
period of six years since his release where a person is convicted of any
offence and sentenced to imprisonment for not less than two years, other than
any offence referred to in sub-section (1) or sub-section (2). The
classification is clear. This classification is made with reference to the
offences and the sentences awarded on conviction. In sub-section (1) are
specified the offences which are considered to be of one category and the
period of six years disqualification from the date of conviction is provided
for them irrespective of one sentence awarded on such conviction. In
sub-section (2) are specified some other offences, the conviction for which is
considered significant for disqualification only if the sentence is of
imprisonment for not less than six months and in that case a longer period of
disqualification has been considered appropriate.
Then comes
sub-section (3) which is the residuary provision of this kind wherein the
disqualification is prescribed only with reference to the period of sentence of
imprisonment of not less than two years for which the longer period of
disqualification is considered appropriate. The legislature itself has
classified the offences on the basis of their nature and in the residuary
provision contained in sub-section (3), the classification is made only with
reference to the period of sentence being not less than two years.
6. In
sub-section (3) of Section 8, all persons convicted of any offence and
sentenced to imprisonment for not less than two years [other than any offence
referred to in sub-section (1) or sub-section (2)] are classified together and
the period of disqualification prescribed for all of them is the same. All
persons convicted of offences other than any offence referred to in sub-section
(1) or sub-section (3) and sentenced to imprisonment of not less than two years
constitute one class and are governed by sub-section (3) prescribing the same
period of disqualification for all of them. The category of persons covered by
sub-sections (1), (2) and (3) being different and distinct, the question of
comparison inter se between any two of these three distinct classes does not
arise. Without such a comparison between persons governed by these different
sub- sections being permissible, the very basis of attack on the ground of
discrimination is not available.
Prescription
of period of disqualification for different classes of persons convicted of
different offences is within the domain of legislative discretion and wisdom,
which is not open to judicial scrutiny.
It was
pointed out by learned counsel for the respondents that under Section 8(3) of
the Representation of the People Act the disqualification was attracted on the
date on which a person was convicted of any offence and sentenced to
imprisonment for not less than two years. It was pointed out, rightly, that the
law contemplated that the conviction and the sentence could be on different
dates. It was submitted that it was unworkable that the disqualification should
operate from the date of conviction which could precede the date of sentence;
therefore, the conviction referred to in Section 8(3) should be taken to be
that confirmed by the appellate court because it was only in the appellate
court that conviction and sentence would be on the same day. We find the
argument unacceptable. In those cases where the sentence is imposed on a day
later that the date of conviction (which, incidentally, is not the case here)
the disqualification would be attracted on the date on which the sentence was
imposed because only then would a person be both convicted of the offence and
sentenced to imprisonment for less not that two years which is cumulatively
requisite to attract the disqualification under Section 8(3).
The
focus was then turned upon Section 8(4) of the Representation of the People Act
and it was submitted that all the disqualifications set down in Section 8 would
not apply until a final court had affirmed the conviction and sentence. This
was for the reason that the principle underlying Section 8(4) had to be
extended to a non legislator as, otherwise, Article 14 would stand violated for
the presumption of innocence would apply to a sitting member till the
conviction was finally affirmed but in the case of a non-legislator the
disqualification would operate on conviction by the court of first instance. It
was submitted that Section 8(4) had to be read down so that its provisions were
not restricted to sitting members and in all cases the disqualification applied
only when the conviction and sentence was finally upheld.
Section
8(4) opens with the words Not withstanding anything in sub-section (1),
sub-section (2) and sub-section (3), and it applies only to sitting members of
legislatures. There is no challenge to it on the basis that it violates Article
14. If there were, it might be tenable to contend that legislators stand in a
class apart from non legislators, but we need to express no final opinion. In
any case, if it were found to be violative of Article 14, it would be struck
down in its entirety.
There
would be, and is no question of so reading it that its provisions apply to all,
legislators and non-legislators, and that, therefore, in all cases the
disqualification must await affirmation of the conviction and sentence by a
final court. That would be reading up the provision, not reading down, and that
is not known to the law.
In
much the same vein, it was submitted that the presumption of innocence
continued until the final judgment affirming the conviction and sentence was
passed and, therefore, no disqualification operated as of now against the
second respondent. Before we advert to the four judgments relied upon in
support of this submission, let us clear the air. When a lower court convicts
an accused and sentences him, the presumption that the accused is innocent
comes to an end. The conviction operates and the accused has to undergo the
sentence. The execution of the sentence can be stayed by an appellate court and
the accused released on bail. In many cases, the accused is released on bail so
that the appeal is not rendered infructuous, at least in part, because the
accused has already undergone imprisonment. If the appeal of the accused
succeeds the conviction is wiped out as cleanly as if it had never existed and
the sentence is set aside. A successful appeal means that the stigma of the
offence is altogether erased. But that it is not to say that the presumption of
innocence continues after the conviction by the trial court. That conviction
and the sentence it carries operate against the accused in all their rigour
until set aside in appeal, and a disqualification that attaches to the
conviction and sentence applies as well.
Learned
counsel cited from the judgment of this Court in Padam It is the duty of an
appellate court to look into the evidence adduced in the case and arrive at an
independent conclusion as to whether the said evidence can be relied upon or
not and even if it can be relied upon, then whether the prosecution can be said
to have been proved beyond reasonable doubt on the said evidence.
(Page
625 C) The passage is relevant to the duty of an appeal court. It is the duty
of an appeal court to look at the evidence afresh to see if the case against
the accused has been established by the prosecution beyond reasonable doubt,
uninfluenced by the decision of the trial court; in other words, to look at it
as if the presumption of the innocence of the accused still applied. The
passage does not support the proposition canvassed.
was
stated :
When a
person is convicted in appeal, it follows that the appellate Court has
exercised its power in the place of the original court and the guilt,
conviction and sentence must be substituted for and shall have retroactive
effect from the date of judgment of the trial Court. The appellate conviction
must relate back to the date of the trial Courts verdict and substitute it.
There
is no question of the correctness of what is set out above but it has no
application to the issue before us. What we are concerned with is whether, on
the date on which the second respondent was sworn in as Chief Minister, she
suffered from a disqualification by reason of the convictions and sentences
against her.
Pradesh
[1976 (1) SCC 560], this Court was concerned with Section 303 of the Indian
Penal Code, which provided : Whoever being under sentence of imprisonment for
life, commits murder shall be punished with death. Sarkaria, J., in his
concurring judgment, held, on an interpretation of the section, that once it
was established that, at the time of committing the murder, the prisoner was
under a sentence of life imprisonment, the court had no discretion but to award
the sentence of death, notwithstanding mitigating circumstances. The provision
was, therefore, Draconion in its severity. It was in these circumstances that
he held that the phrase being under sentence of imprisonment for life had to be
restricted to a sentence which was final, conclusive and ultimate so far as
judicial remedies were concerned for the other alternative would lead to
unreasonable and unjust results. The observations of the learned Judge are
relevant to the case before him; they do not have wider implications and do not
mean that all convictions by a trial court do not operate until affirmed by the
highest Court.
Lastly,
in this connection, our attention was drawn to the case of 84]. The Court held
that if a successful candidate was disqualified for being chosen, at the date
of his election or at any earlier stage of any step in the election process, on
account of his conviction and sentence exceeding two years imprisonment, but
his conviction and sentence was set aside and he was acquitted on appeal before
the pronouncement of the judgment in the election petition pending against him,
his disqualification was retrospectively annulled and the challenge to his
election on the ground that he was so disqualified was no longer sustainable.
This case dealt with an election petition and it must be understood in that
light. What it laid down does not have a bearing on the question before us: the
construction of Article 164 was not in issue. There can be no doubt that in a
criminal case acquittal in appeal takes effect retrospectively and wipes out
the sentence awarded by the lower court. This implies that the stigma attached
to the conviction and the rigour of the sentence are completely obliterated,
but that does not mean that the fact of the conviction and sentence by the
lower court is obliterated until the conviction and sentence are set aside by
an appellate court. The conviction and sentence stand pending the decision in
the appeal and for the purposes of a provision such as Section 8 of the
Representation of the People Act are determinative of the disqualifications
provided for therein.
Our
conclusion, therefore, is that on the date on which the second respondent was
sworn in as Chief Minister she was disqualified, by reason of her convictions
under the Prevention of Corruption Act and the sentences of imprisonment of not
less than two years, for becoming a member of the legislature under Section
8(3) of the Representation of the People Act.
It was
submitted by learned counsel for the respondents that, even so, the court could
do nothing about it. It was submitted that in the case of a Chief Minister or
Minister appointed under Article 164(1) read with (4) the people, who were the
ultimate sovereign, had expressed their will through their elected
representatives. For the period of six months the locus penitentiae operated as
an exception, as a result of which, for that period, the peoples will prevailed
in a true parliamentary democracy, especially as no provision was made for
adjudicating alleged disqualifications, like the holding of an office of profit
or a subsisting contract for the supply of goods or execution of works. In this
area of constitutional governance, for the limited period of six months, it was
not open to the court to import qualifications and disqualifications for a
minister qua minister when none existed in Article 164(4). The Governor, not
being armed with the machinery for adjudicating qualifications or
disqualifications, for example, on the existence of subsisting contracts or the
holding of offices of profit, and having no power to summon witnesses or to
administer an oath or to summon documents or to deliver a reasoned judgment,
the appointment made by him on the basis of the conventions of the Constitution
could not be challenged in quo warranto proceedings so that an appointment that
had been made under Article 164 could not be rendered one without the authority
of law. If it did so, the court would be entering the political thicket.
When
qualifications and disqualifications were prescribed for a candidate or a
member of the legislature and a machinery was provided for the adjudication
thereof, the absence of the prescription of any qualification for a Minister or
Chief Minister appointed under Article 164(1) read with (4) and for
adjudication thereof meant that the Governor had to accept the will of the
people in selecting the Chief Minister or Minister, the only consideration
being whether the political party and its leader commanded a majority in the
legislature and could provide a stable government. Once the electorate had
given its mandate to a political party and its leader to run the government of
a State for a term of five years, in the absence of any express provision in
the Constitution to the contrary, the Governor was bound to call the leader of
that legislature party to form the government.
There
was no express, unambiguous provision in the Constitution or in the
Representation of the People Act or any decision of this Court or a High Court
declaring that a person convicted of an offence and sentenced to imprisonment
for a period of not less than two years by the trial court shall not be
appointed Chief Minister during the pendency of his first appeal. In such a
situation, the Governor could not be expected to take a position of
confrontation with the people of the State who had voted the ruling party to
power and plunge the State into turmoil. In the present case, the Governor was
entitled to proceed on the basis that the appeals of the second respondent
having been directed, in October, 2000, to be heard within two months, it would
be open to the second respondent to have the appeals disposed of within the
time limit of six months and, in case of an acquittal, no question of ineligibility
to contest an election within the period of six months would arise. If the
Governor invited the leader of the party which had a majority in the
legislature to form a government, it would, if the leader was a non legislator,
thereafter not to be open to the court in quo warranto proceedings to decide
that the Chief Minister was disqualified. Otherwise, this would mean that when
the Governor had invited, in accordance with conventions, the leader to be
Chief Minister, in the next second the leader would have to vacate his office
by reason of the quo warranto. The court would then be placing itself in a
position of prominence among the three organs of the State, as a result of
which, instead of the House deciding whether or not to remove such a person
through a motion of no confidence, the court would take over the function,
contrary to the will of the legislature which would mean the will of the people
represented by the majority in the legislature. In then deciding that the Chief
Minister should demit office, the court would be entering the political
thicket, arrogating to itself a power never intended by the Constitution, the
exercise of which would result in instability in the governance of the State.
We
are, as we have said, not concerned here with the correctness or otherwise of
the action of the Governor in swearing the second respondent in as Chief
Minister in the exercise of the Governors discretion.
But
submissions were made by learned counsel for the respondents in respect of the
Governors powers under Article 164 which call for comment. The submissions were
that the Governor, exercising powers under Article 164(1) read with (4), was
obliged to appoint as Chief Minister whosoever the majority party in the
legislature nominated, regardless of whether or not the person nominated was
qualified to be a member of the legislature under Article 173 or was
disqualified in that behalf under Article 191, and the only manner in which a
Chief Minister who was not qualified or who was disqualified could be removed
was by a vote of no- confidence in the legislature or by the electorate at the
next elections.
To a
specific query, learned counsel for the respondents submitted that the Governor
was so obliged even when the person recommended was, to the Governors
knowledge, a non-citizen, under-age, a lunatic or an undischarged insolvent,
and the only way in which a non-citizen or under-age or lunatic or insolvent
Chief Minister could be removed was by a vote of no-confidence in the
legislature or at the next election.
The
nomination to appoint a person who is a non-citizen or under-age or a lunatic
or an insolvent as Chief Minister having been made by the majority party in the
legislature, it is hardly realistic to expect the legislature to pass a
no-confidence motion against the Chief Minister; and the election would
ordinarily come after the Chief Minister had finished his term.
To
accept learned counsels submission is to invite disaster. As an example, the
majority party in the legislature could recommend the appointment of a citizen
of a foreign country, who would not be a member of the legislature and who
would not be qualified to be a member thereof under Article 173, as Chief
Minister under Article 164(1) read with (4) to the Governor; and the Governor
would be obliged to comply; the legislature would be unable to pass a no-
confidence motion against the foreigner Chief Minister because the majority
party would oppose it; and the foreigner Chief Minister would be ensconced in
office until the next election. Such a dangerous such an absurd interpretation
of Article 164 has to be rejected out of hand. The Constitution prevails over
the will of the people as expressed through the majority party. The will of the
people as expressed through the majority party prevails only if it is in accord
with the Constitution. The Governor is a functionary under the Constitution and
is sworn to preserve, protect and defend the Constitution and the laws (Article
159). The Governor cannot, in the exercise of his discretion or otherwise, do
anything that is contrary to the Constitution and the laws. It is another thing
that by reason of the protection the Governor enjoys under Article 361, the
exercise of the Governors discretion cannot be questioned. We are in no doubt
at all that if the Governor is asked by the majority party in the legislature
to appoint as Chief Minister a person who is not qualified to be a member of
the legislature or who is disqualified to be such, the Governor must, having
due regard to the Constitution and the laws, to which he is subject, decline,
and the exercise of discretion by him in this regard cannot be called in
question.
If
perchance, for whatever reason, the Governor does appoint as Chief Minister a
person who is not qualified to be a member of the legislature or who is
disqualified to be such, the appointment is contrary to the provisions of
Article 164 of the Constitution, as we have interpreted it, and the authority
of the appointee to hold the appointment can be challenged in quo warranto
proceedings. That the Governor has made the appointment does not give the
appointee any higher right to hold the appointment. If the appointment is
contrary to constitutional provisions it will be struck down. The submission to
the contrary unsupported by any authority must be rejected.
Union of India and Others [1992(2) SCC 428] is a case on point. One K.N. Srivastava
was appointed a Judge of the Gauhati High Court by a warrant of appointment
signed by the President of India. Before the oath of his office could be
administered to him, quo warranto proceedings were taken against him in that
High Court. An interim order was passed directing that the warrant of
appointment should not be given effect to until further orders. A transfer
petition was then filed in this Court and was allowed. This Court, on
examination of the record and the material that it allowed to be placed before
it, held that Srivastava was not qualified to be appointed a High Court Judge
and his appointment was quashed. This case goes to show that even when the
President, or the Governor, has appointed a person to a constitutional office,
the qualification of that person to hold that office can be examined in quo warranto
proceedings and the appointment can be quashed.
It was
submitted that we should not enter a political thicket by answering the
question before us. The question before us relates to the interpretation of the
Constitution. It is the duty of this Court to interpret the Constitution. It
must perform that duty regardless of the fact that the answer to the question
would have a political effect. In SCC 592], it was said by Bhagwati, J. , But
merely because a question has a political complexion, that by itself is no
ground why the Court should shrink from performing its duty under the
Constitution, if it raises an issue of constitutional determination. Every
constitutional question concerns the allocation and exercise of governmental
power and no constitutional question can, therefore, fail to be political . So
long as a question arises whether an authority under the Constitution has acted
within the limits of its power or exceeded it, it can certainly be decided by
the Court. Indeed it would be its constitutional obligation to do so. It is
necessary to assert the clearest possible terms, particularly in the context of
recent history, that the Constitution is suprema lex, the paramount law of the
land and there is no department or branch of Government above or beyond it.
We are
satisfied that in the appointment of the second respondent as Chief Minister
there has been a clear infringement of a constitutional provision and that a
writ of quo warranto must issue.
We are
not impressed by the submissions that the writ petitions for quo warranto filed
in this Court are outside our jurisdiction because no breach of fundamental
rights has been pleaded therein; that the appeal against the decision of the
Madras High Court in the writ petition for similar relief filed before it was
correctly rejected because the same issue was pending here; and that the
transferred writ petition for similar relief should, in the light of the
dismissal of the writ petitions filed in this Court, be sent back to the High
Court for being heard. Breach of Article 14 is averred in at least the lead
writ petition filed in this Court (W.P.(C) No.242 of 2001). The writ petition
which was dismissed by the High Court and against which order an appeal is
pending in this Court was filed under Article 226, as was the transferred writ
petition. This Court, therefore, has jurisdiction to issue a writ of quo warranto.
We propose to pass the order in the lead writ petition, and dispose of the
other writ petitions, the appeal and the transferred writ petition in the light
thereof.
We are
not impressed by the submission that we should not exercise our discretion to
issue a writ of quo warranto because the period of six months allowed by
Article 164(4) to the second respondent would expire in about two months from
now and it was possible that the second respondent might succeed in the
criminal appeals which she has filed. We take the view that the appointment of
a person to the office of Chief Minister who is not qualified to hold it should
be struck down at the earliest.
We are
aware that the finding that the second respondent could not have been sworn in
as Chief Minister and cannot continue to function as such will have serious
consequences. Not only will it mean that the State has had no validly appointed
Chief Minister since 14th May, 2001, when the second respondent was sworn in,
but also that it has had no validly appointed Council of Ministers, for the
Council of Ministers was appointed on the recommendation of the second
respondent. It would also mean that all acts of the Government of Tamil Nadu
since 14th May, 2001 would become questionable. To
alleviate these consequences and in the interest of the administration of the
State and its people, who would have acted on the premise that the appointments
were legal and valid, we propose to invoke the de facto doctrine and declare
that all acts, otherwise legal and valid, performed between 14th May, 2001 and
today by the second respondent as Chief Minister, by the members of the Council
of Ministers and by the Government of the State shall not be adversely affected
by reason only of the order that we now propose to pass.
We are
of the view that a person who is convicted for a criminal offence and sentenced
to imprisonment for a period of not less than two years cannot be appointed the
Chief Minister of a State under Article 164(1) read with (4) and cannot
continue to function as such.
We,
accordingly, order and declare that the appointment of the second respondent as
Chief Minister of the State of Tamil Nadu on 14th May, 2001 was not legal and valid and that
she cannot continue to function as such. The appointment of the second
respondent as Chief Minister of the State of Tamil Nadu is quashed and set aside.
All
acts, otherwise legal and valid, performed between 14th May, 2001 and today by the second respondent acting as Chief Minister
of the State of Tamil Nadu, by the members of the Council of
Ministers of that State and by the Government of that State shall not be
adversely effected by reason only of this order.
Writ
Petition (C) No.242 of 2001 is made absolute in the aforesaid terms.
In the
light of this order, the other writ petitions, the appeal and the transferred
writ petition stand disposed of.
No
order as to costs.
..J.
(S.P. Bharucha)
..J.
(Y.K. Sabharwal)
..J.
(Ruma
Pal) September 21, 2001 Brijesh Kumar, J.
Leave
granted in SLP © 11763/2001.
I have
the advantage of going through the judgment prepared by Brother Bharucha, J. I
am in respectful agreement with the same.
While
doing so, I propose to record my views in addition, on a few points only, in
brief, since such points had been argued at some length and with all vehemence.
The points are also no doubt important.
Amongst
other points, the learned counsel for the respondents submitted that the
appointment of respondent No.2 as Chief Minister by the Governor, could not be
challenged, in view of the provisions under Article 361 of the Constitution,
providing that the Governor shall not be answerable to any Court for the
exercise and performance of the powers and duties of his office. It was also
submitted that in appointing the Chief Minister, the Governor exercised his
discretionary powers, therefore, his action is not justiciable. Yet another
submission is that the Governor had only implemented the decision of the
majority party, in appointing the respondent No.2 as a Chief Minister i.e. he
had only given effect to the will of the people.
In so
far it relates to Article 361 of the Constitution, that the Governor shall not
be answerable to any Court for performance of duties of his office as Governor,
it may, at the very outset, be indicated that we are considering the prayer for
issue of writ of Quo Warranto against the respondent No.2, who according to the
petitioner suffers from disqualification to hold the public office of the Chief
Minister of a State. A writ of Quo Warranto is a writ which lies against the
person, who according to the relator is not entitled to hold an office of
public nature and is only an usurper of the office. It is the person, against
whom the writ of quo warranto is directed, who is required to show, by what
authority that person is entitled to hold the office. The challenge can be made
on various grounds, including on the grounds that the possessor of the office
does not fulfill the required qualifications or suffers from any disqualification,
which debars the person to hold such office. So as to have an idea about the
nature of action in a proceedings for writ of quo warranto and its original
form, as it used to be, it would be beneficial to quote from Words and Phrases
Permanent Edition, Volume 35A page 648. It reads as follows:- The original
common-law writ of quo warranto was a civil writ at the suit of the crown, and
not a criminal prosecution. It was in the nature of a writ of right by the King
against one who usurped or claimed franchises or liabilities, to inquire by
what right he claimed them. This writ, however, fell into disuse in England centuries ago, and its place was
supplied by an information in the nature of a quo warranto, which in its origin
was a criminal method of prosecution, as well to punish the usurper by a fine
for the usurpation of the franchise, as to oust him or seize it for the crown.
Long
before our Revolution, however, it lost its character as a criminal proceeding
in everything except form, and was applied to the mere purposes of trying the
civil right, seizing the franchise, or ousting the wrongful possessor, the fine
being nominal only; and such, without any special legislation to that effect,
has always been its character in many of the states of the Union, and it is
therefore a civil remedy only. Ames v. State
of Kansas, 4 S.Ct.437, 442,111 U.S. 449,28 L.Ed.482; People v. Dashaway Assn,
24 P.277,278,84 Cal.114.
In the
same Volume of Words and Phrases Permanent Edition at page 647 we find as
follows:- The writ of quo warranto is not a substitute for mandamus or
injunction nor for an appeal or writ of error, and is not to be used to prevent
an improper exercise of power lawfully possessed, and its purpose is solely to
prevent an officer or corporation or persons purporting to act as such from
usurping a power which they do not have. State ex inf.McKittrick v. Murphy,
148.S.W.2d 527,529,530,347 Mo.484. (emphasis supplied) Information in nature of
quo warranto does not command performance of official functions by any officer
to whom it may run, since it is not directed to officer as such, but to person
holding office or exercising franchise, and not for purpose of dictating or
prescribing official duties, but only to ascertain whether he is rightfully
entitled to exercise functions claimed. State ex inf.
Walsh
v. Thatcher, 102 S.W.2d 937,938,340 Mo.865. (emphasis supplied) In Halsburys
Laws of England Fourth Edition Reissue Volume-I Para 265, Page 368 it is found
as follows:- 266. In general. An information in the nature of a quo warranto
took the place of the absolete writ of quo warranto which lay against a person
who claimed or usurped an office, franchise, or liberty, to inquire by what
authority he supported his claim, in order what the right to the office or
franchise might be determined. (Emphasis supplied) Besides the above, many High
Courts as well as this Court have, taken the view that a writ of quo warranto
lies against a person, who is called upon to establish his legal entitlement to
hold the office in question. Reference:
AIR
1952 Trav. Cochin 66, (1944) 48 Cal.
W.N.
766, AIR 1977 Noc. 246, AIR 1952 Nag.
330,
AIR 1945 Cal.249 and AIR 1965 S.C. 491.
In
view of the legal position as indicated above it would not be necessary to implead
the appointing authority as respondent in the proceedings. In the case in hand,
the Governor need not be made answerable to Court. Article 361 of the
Constitution however does not extend any protection or immunity, vicariously,
to holder of an office, which under the law, he is not entitled to hold. On
being called upon to establish valid authority to hold a public office, if the
person fails to do so, a writ of quo warranto shall be directed against such
person. It shall be no defence to say that the appointment was made by the
competent authority, who under the law is not answerable to any Court for
anything done in performance of duties of his office. The question of
fulfilling the legal requirements and qualifications necessary to hold a public
office would be considered in the proceedings, independent of the fact as to
who made the appointment and the manner in which appointment was made.
Therefore, Article 361 of the Constitution would be no impediment in examining
the question of entitlement of a person, appointed by the Governor to hold a
public office, who according to the petitioner/relator is usurper to the
office.
The
other point which was pressed, with no less vehemence was that in making the
appointment of the Chief Minister, the Governor acts in exercise of his
discretionary powers. In this connection, learned counsel for the respondents
referred to Article 163 of the Constitution to indicate that there shall be a
Council of Ministers headed by the Chief Minister to aid and advise the
Governor in exercise of his functions except where, under the Constitution the
Governor has to discharge his functions in his discretion. Thereafter, Article
164 of the Constitution has been referred to indicate that Chief Minister shall
be appointed by the Governor and the other Ministers shall be appointed by the
Governor on the advise of the Chief Minister. It is submitted that the Governor
appoints the Chief Minister at a time, when there is no Council of Ministers to
aid or advise him. The Governor makes the appointment in his own discretion.
Learned counsel for the respondent No.2 submitted that the party in majority by
means of a resolution had chosen respondent No.2 as their leader. Accordingly,
the respondent No.2 was appointed as the Chief Minister. It has been very categorically
submitted, without any ambiguity, that the Governor is bound to appoint any
person whosoever is chosen by majority party, as the Chief Minister. This
argument cuts against his own submission made earlier that the Governor
appoints the Chief Minister in exercise of his discretionary powers. If it is
right, that the Governor is bound by the decision of the majority party, the
element of discretion of Governor, in the matter, disappears. In the scheme of
Constitutional provisions the Governor is to act with the aid and advise of the
Council of Ministers headed by the Chief Minister. He is bound to act
accordingly. The other functions which the Governor performs in which aid and
advice of the Council of Ministers is not necessary, he acts in his own discretion.
He is not bound by decision/advice of any other agency. It is no doubt true
that even in the written Constitution it is not possible to provide each and
every detail. Practices and conventions do develop for certain matters. This is
how democracy becomes workable. It is also true that the choice of the majority
party regarding its leader for appointment as Chief Minister is normally
accepted, and rightly. But the contention that in all eventualities whatsoever
the Governor is bound by the decision of the majority party is not a correct
proposition. The Governor cannot be totally deprived of element of discretion
in performance of duties of his office, if ever any such exigency may so demand
its exercise. The argument about implementing the will of the people in the
context indicated above is misconceived and misplaced.
----------------------J.
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