Full Judgement
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
