B.R Kapur v. State Of T.N And Another

written submissions of mr soli j. sorabjee, attorney-general for india as amicus curiae

Part I

1. Representative parliamentary democracy is a salient feature of our Constitution. Great importance is attached by the Constitution about who are to be the representatives of the people, what should be their qualifications; whether they have incurred any disqualifications. A disqualified person cannot be chosen as a Member of Parliament or the State Legislature. Our constitutional scheme interdicts the selection and appointment of a person who has incurred disqualification as a Member of Parliament. A disqualified person cannot be a representative of the electorate. Such a person cannot occupy any seat or vote in either House of Parliament or either House of the State Legislature. The Constitution provides strict penalties in this behalf. (See Articles 104 and 193.)

2. The aforesaid position relating to Members applies with greater force to Ministers. It is imperative that in a responsible representative parliamentary democracy the Government is run by an elected Ministry. The concept of an unelected Minister is alien to such a democracy. The only exception is provided in Article 164(4) which “privilege” is a one-time slot for a brief period of six months for the individual concerned during the term of the House. (See S.R Chaudhuri v. State of Punjab (2001) 7 SCC 126.) Like all exceptions the exception in Article 164(4) should be strictly construed and should not be extended to situations not contemplated by it.

3. In a written Constitution it is rarely that everything is said expressly. Powers and limitations are implied from the scheme and other provisions of the Constitution. (emphasis added) Fundamental rights not expressly mentioned in Part III of the Constitution have been deduced or inferred on the principle that they are implicit or implied in the express guarantees. To give a few examples: freedom of the press implicit in Article 19(1)(a) (see Romesh Thappar AIR 1950 SC 124, Indian Express Newspapers (1985) 1 SCC 641, SCC at p. 642 headnote); right to know and right to information have been deduced from the concept of open government and the requirement of accountability in a democratic policy (see S.P Gupta 1981 Supp SCC 87, SCR at pp. 582, 602). Likewise right to privacy has been also inferred from Article 21 (see R. Rajagopal v. State of T.N (1994) 6 SCC 632). For other instances, including the right to education, see Unni Krishnan, J.P v. State of A.P (1993) 1 SCC 645

Implied limitations have been read into constitutional provisions. For example, Article 368 of the Constitution. It is a fallacy that this method of judicial interpretation involves addition of provisions to the Constitution or rewriting it.

In Kesavananda Bharati (1973) 4 SCC 225, Article 368 of the Constitution the text of which does not speak of any limitations and is plenary in nature has been held by the Supreme Court to be subject to the implied and inherent limitation, namely, that the power of the amendment cannot be so exercised so as to destroy or damage the basic structure of the Constitution. (See SCC at pp. 344-45, 349, 351, 357, 358, 453.)

Applying the doctrine that basic structure of the Constitution constitutes an implied limitation on the power of amendment under Article 368, this Hon'ble Court struck down Article 368(5) of the Constitution. (See Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625, (1981) 1 SCR 206, SCR at pp. 236, 238, 240, 249, 288, 289.)

Another instance of implied limitation arising out of the constitutional scheme is the doctrine that Parliament cannot intrude into the judicial field and nullify judgment of the court without removing the legal infirmity or the legal basis of the judgment. “[I]t is plain that the legislature attempted to overrule or set aside the decision of this Court. That, in our judgment, is not open to the legislature to do under our constitutional scheme.” (emphasis added) (See Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd. (1970) 1 SCC 509, SCC at p. 515 para 10.)

4. The silent immaculate premise of our Constitution is that a person who has been convicted by a court of law of a grave criminal offence involving moral turpitude cannot be appointed a Member, much less a Chief Minister. In other words, there is an implied inhibition in Article 164(1) prohibiting the appointment as Chief Minister of a person who has been convicted by a court of a grave criminal offence involving moral turpitude and which conviction is subsisting and is operative on the date of appointment. The disqualification is automatic and complete.

5. The implied prohibition arises from our constitutional structure and scheme, namely, that the rule of law and responsible and representative parliamentary democracy are essential features of our Constitution.

6. This Hon'ble Court in Bommai case (1994) 3 SCC 1 read into Article 356 the restriction or prohibition that the Government of a State should be carried out not only in accordance with the provisions of the Constitution but also not in violation of the basic features of the Constitution. On the basis of that reasoning and conclusion, dismissals of elected State Governments under Article 356 were upheld.

7. In any event, the disqualifications prescribed in Chapter III of the Representation of the People Act, 1951 are incorporated in Article 191 of the Constitution and operate proprio vigore.

8. If a person is appointed in breach of a constitutional prohibition, the appointment is bad and void ab initio. It is non est. Subsequent events cannot obliterate or overcome the initial incompetency or incapacity of the person. Example of age, undischarged insolvency.

9. This Hon'ble Court should decline to interpret constitutional provisions in a manner which would attribute to the founding fathers an intention to permit persons who have committed grave criminal offences involving moral turpitude to head the Government at the Centre or in the States. Such an interpretation would strike at the roots of democracy and the rule of law and should be eschewed.

10. The respondent's submissions are based on the fallacy that the non-appointment as Chief Minister by the Governor of a person who suffers from a subsisting and operative disqualification amounts to adjudication on the part of the Governor. It is submitted that there is no adjudication involved as in the case of a list between parties. The Governor merely recognises an objective fact and gives effect to it. If on the date of appointment the person had in fact incurred disqualification, his or her appointment is invalid whether the Governor knows about it or not. The writ of quo warranto questions the legal authority of the person to hold office. It is not concerned with the motives or knowledge of the appointing authority.

Indeed the respondent's submissions that the Governor should go behind the validity of the conviction or the legality of the declaration of lunacy by the court before appointing or non-appointing a Chief Minister casts upon the Governor a burden and obliges the Governor to undertake an activity which is not contemplated by the Constitution.

11. The respondent's submission that even a person who is far below the requisite qualifying age or an undischarged insolvent or is a non-citizen or is a person declared by competent court to be a lunatic which are facts which can be demonstrated and which require no adjudication at all, can be appointed as Chief Minister leads to absurd and dangerous consequences. (See G. Narayanaswami v. G. Pannerselvam (1972) 3 SCC 717, SCC at p. 721)

12. The Governor does not have an absolute unfettered discretion to appoint any person as a Chief Minister. For example, the Governor cannot appoint as Chief Minister a person who does not enjoy the confidence of the House overlooking the claims of the leader of the majority party. That is because of well-settled constitutional conventions which are also binding on the constitutional functionaries and are judicially enforceable. [See Supreme Court Advocates on Record Assn. v. Union of India (1993) 4 SCC 441, SCC at pp. 484, 656 (para 353).]

13. The argument that certain provisions were consciously dropped by the Constituent Assembly does not necessarily militate against their inclusion. For example, the due process clause. The rejection of expression “concurrence” and “retention of consultation” in Article 217 of the Constitution by the Constituent Assembly. (See SCC at p. 625, para 300.)

14. The courts are concerned not with the people's mandate but with the mandate of the Constitution. The will of the people who gave unto themselves this Constitution.

15. The rule of law and constitutional values must be preserved. Courts performing their functions of constitutional adjudication and reaching their decisions are not deterred by the prospect of lurid consequences and apprehensions of chaos that may be projected.

“There have again been arguments for taking consequences into consideration which really highlighted what would be the dire consequences if the result of the decisions being one way or the other but this Court ought not to be concerned with these aspects, if otherwise our decision is in accordance with the view of the law it takes. We should free ourselves of any considerations which tend to create pressures on the mind. (Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, SCC at p. 481, para 653 and at p. 613, para 1103.)”

“I must say this: if a local authority does not fulfil the requirements of the law, this Court will see that it does fulfil them. It will not listen readily to suggestions of ‘chaos’. The department of education and the council are subject to the rule of law and must comply with it, just like everyone else. Even if chaos should result, still the law must be obeyed; but I do not think that chaos will result. The evidence convinces me that the ‘chaos’ is much overstated.” (Bradbury v. London Borough of Enfield (1967) 3 All ER 434, All ER at p. 441G-H.)

Part II

I. In case Chief Minister's appointment is held to be unconstitutional, the following consequences would flow:

(a) The Chief Minister cannot continue to hold office thereafter. Occupation of the office after invalidation of her appointment would be that of a usurper or that of an intruder.

(b) The legal sequitur of the invalidation of the Chief Minister's appointment would be that all acts, decisions, transactions taken or done or appointments made by the Chief Minister would be without any legal efficacy and null and void.

II. However, courts in order to avoid confusion and uncertainty and to avert hardship and injustice to persons who have acted on a certain basis or their functioning prior to the declaration of law by the highest court of the land, have evolved the de facto doctrine.

III. The principle underlying the de facto doctrine is that

“the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally held as valid and binding, as if they were the acts of officers de jure”.

“[T]he doctrine is founded on good sense, sound policy and practical expedience.”

“[T]he de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where these interests were involved in the official acts of persons exercising the duties of an office without being lawful officers.”

“For the good order and peace of society their authority (must be upheld) until in some regular mode … their title is (directly) investigated and determined.” (See Gokaraju Rangaraju v. State of A.P (1981) 3 SCC 132, SCC at p. 136, para 4; p. 140, para 14; p. 139, para 11.)

IV. The de facto doctrine is applicable also in cases where the defect in the title or authority of a public functionary is traceable to the violation of a constitutional provision.

V. Therefore, on account of the de facto doctrine, acts, decisions and transactions done or effected and appointments made prior to the declaration of invalidity of the Chief Minister's appointment would be saved and the same would be deemed to have been validly and lawfully done, provided the same were not in contravention of any legal or constitutional requirements.

(emphasis added)

VI. It may be contended that the Ministers were appointed by the Chief Minister and their appointments are not invalid on account of the de facto doctrine. The Ministers so appointed did not suffer from any disqualification regarding their appointment and consequently these Ministers continue to remain in office.

This argument is not tenable in view of the scheme of Articles 163 and 164 of the Constitution. Article 163 postulates that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor. Secondly, after the Chief Minister's appointment is declared unconstitutional, the Chief Minister cannot continue in office. She would be bound to resign. Thereafter, the Governor in his discretion can immediately appoint as Chief Minister any other person belonging to a party, which enjoys the confidence of the House, preferably the leader of the party, which in the present case is the AIADMK. Subsequently, the “other Ministers shall be appointed by the Governor on the advice of the Chief Minister”. It is implicit, therefore, that the Ministers appointed upon the advice of the former Chief Minister, whose appointment has been declared to be unconstitutional, cannot continue in office in order to enable the freshly appointed Chief Minister to advise the Governor about the appointment of the Ministers in his Cabinet. In other words, with the Chief Minister's non-continuance in office the other Ministers cannot continue in office in view of the scheme of Article 164(1) and also Article 164(2). There cannot be a headless Council of Ministers. The non-continuance or resignation of the Chief Minister automatically involves non-continuance or resignation of the entire Ministry. (See D. Srinivasan v. Governor of T.N AIR 1985 Mad 187)

Reference may also be had to Hogg's observations in his treatise Constitutional Law of Canada, 4th Edn.:

“… the resignation or dismissal of a Prime Minister involves the resignation or dismissal of the entire ministry.” (p. 256)

“… The dismissal (or resignation) of a Prime Minister automatically involves the dismissal (or resignation) of the entire Ministry. Thus what is formally a dismissal of a Prime Minister is in substance the dismissal of the Ministry or the Government.” (p. 259)

Besides, constitutional practice in our country establishes that when the Prime Minister dies, the other Ministers of the Cabinet have also resigned. This happened when Pandit Jawahar Lal Nehru, Lal Bahadur Shastri and Smt Indira Gandhi died. The Central Ministers resigned, the President appointed another person from the party which enjoyed the confidence of the House as Prime Minister, who thereafter advised the President to appoint other Members of the Council of Ministers.

brief propositions by mr anil divan, senior advocate on behalf of pratap singh chautala in ca no. 246 of 2001

1. There is no case where Article 164(4) has been utilised for swearing in a Chief Minister who has been disqualified under election law because of a conviction under the Prevention of Corruption Act and who has failed to get a stay from the court. The cases relate only to those persons who were qualified to contest elections but who either lost an election from a particular constituency or did not contest the elections.

2. The impugned decision appointing Respondent 2 as Chief Minister is wholly unconstitutional, arbitrary and subverts the law and the rule of law which is part of the basic structure of the Constitution.

3. Where the nation is engaged in fighting criminalisation of politics, when the highest executive has repeatedly called corruption a cancer eating into our democratic fabric, the impugned decision blatantly encourages and condones corruption and empowers a convicted person to occupy the Chief Minister's office.

4. The precedent set by the impugned decision leads to the following among other consequences:

(a) A convicted murderer or a dacoit can be appointed not only as a Minister but also a Chief Minister or even a Prime Minister of India.

(b) Persons who have been convicted of grave offences like murder, rape etc. and who have been disqualified can be appointed as Ministers in a State or even at the Centre.

(c) A Chief Minister who may be otherwise popular and unblemished can appoint many other Ministers who have been convicted of grave offences.

5. The basic postulate of representative government is undermined and subverted when a person who is convicted, who is disqualified, and whose stay application has been rejected by the High Court and therefore prevented by law from entering the precincts of the legislature as a member is appointed as a Chief Minister.

6. Section 8 of the RP Act, 1951 is a disqualification which applies to a person “for being chosen as, and for being a member” of any legislature. It is well-settled law that the relevant date for determination of the disqualification is the date of scrutiny of the nomination of the candidate and as a result Respondent 2 was disqualified.

7. Article 191(1)(e) of the Constitution raises a bar against a person “if he is so disqualified by or under any law made by Parliament”. Thus the bar under Section 8 is elevated to the level of a constitutional bar.

8. Constitutional interpretation must be in line with morality, observance of the law, and discouraging corrupt and criminal elements from holding office. The appointment of a convicted and corrupt official is wholly against constitutional morality.

9. If the logic of this appointment is upheld the same person may resign office a little before six months and then again may be invited to occupy the office of the Chief Minister if the majority party so decides.

10. The impugned decision far from upholding the rule of law, legitimises the rule of the outlaw.

response to the argument on behalf of respondent 2 by mr anil divan, senior advocate for the petitioners

I. Governor's discretion is not open to judicial review

(Re: R-2's Proposition IX)

Decision relied on R.K Jain v. Union of India (1993) 4 SCC 119 (SCC at p. 161, para 55).

The contention of Respondent 2 based on this case was that India follows the British model of parliamentary government and the Governor's discretion in appointing the Chief Minister is not open to judicial review. This is a “political thicket”.

Our response

Certain facts need to be noticed.

The Election Commission of India by an order dated 28-8-1997 after exhaustively dealing in detail with the legal position issued directions under Article 324. The subject of the order is “Criminalisation of Politics — Participation of Criminals in the Electoral Process as Candidates — Disqualification on Conviction for Offences — Effect of Appeal and Bail”.

[The order of the Election Commission is Annexure VI, at p. 141 of the rejoinder-affidavit in Writ Petition (Civil) No. 245 of 2001 (Dhananjayan Chauhan, Petitioner v. Union of India).]

The Election Commission directed as under:

“Accordingly, the Election Commission … hereby directs that all the Returning Officers, at the time of scrutiny of nominations, must take note of the above legal position and decide accordingly about the validity or otherwise of the candidature of contestants disqualified under the said Section 8 of the Representation of the People Act, 1951.”

This order clearly mentions that despite suspension of sentence and release on bail the order of conviction remains in operation.

The Returning Officer by a speaking order dated 24-4-2001 rejected Respondent 2's nomination papers on the ground of disqualification under Section 8(3) of the Representation of the People Act, 1951. That order is part of the compilation given to the Court at p. 28 (Annexure IV) in WP No. 242 of 2001.

Respondent 2 has not challenged the election of the respective candidates from these constituencies by an election petition on the ground that her nomination was wrongly rejected.

The period of limitation for filing the election petition is 45 days under Section 81 of the Representation of the People Act, 1951. The election results were declared on 13-5-2001 and the time expired by the end of June 2001.

As a result the rejection on the ground of disqualification has reached finality.

The case of R.K Jain v. Union of India (1993) 4 SCC 119 was concerned with the appointment of the President of CEGAT and was cited on behalf of Respondent 2 but what needs to be highlighted is at para 73, at pp. 173-74.

It says:

“73. 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. Exercise of judicial review is to protect the citizen from the abuse of the power etc. by an appropriate government or department etc.”

In this connection, the decision reported in Kumar Padma Prasad v. Union of India (1992) 2 SCC 428 is relevant. In this case, the President of India by a warrant under his hand and seal appointed one K.N Srivastava as a Judge of the Guwahati High Court. His appointment was challenged in a public interest litigation by a Senior Advocate of the Guwahati High Court. By an interim order the warrant of appointment was stayed by the High Court and Mr Srivastava was restrained from taking oath under Article 219. The petition was transferred and heard by the Supreme Court. The Supreme Court found that he was not qualified and consequently his appointment was quashed and he was restrained from taking oath of office as a High Court Judge. See para 41, at p. 457.

In Kashinath G. Jalmi (Dr) v. Speaker (1993) 2 SCC 703 the Court held that public interest in government administration required preventing continuation of usurpation of office (para 34, p. 717).

II. Governor is bound by the decision of the majority party

(R-2's Proposition IX)

Another contention urged on behalf of Respondent 2 is that the Governor is not required to hold an enquiry. There is no machinery or provision for the same. The Governor cannot take evidence or give a reasoned order. Therefore the Governor must abide by the decision of the majority party.

Our response

It is submitted that ex facie it is known that the candidate has been convicted and sentenced and that he was disqualified from contesting the elections, the Governor cannot shut his eyes to that fact. There was no further requirement or necessity of holding an enquiry.

Only in cases where the facts are in dispute or have to be established that the Governor can ignore unproved allegations.

III. Mandate of the people must be respected by the Governor

(R-2's Propositions VI and VII)

This contention was supported by the fact that AIADMK won 132 out of 234 seats and the AIADMK alliance in all won 196 seats as against the Opposition which won only 38 seats. In this connection counter-affidavit of Respondent 2 at pp. 52-54 (WP Civil No. 245 of 2001, Dhananjayan Chauhan v. Union of India).

Our response

It is submitted that the Constitution and the election laws are binding on every authority and every citizen. Constitutional provisions and the laws cannot be annulled or rendered nugatory by electoral voting. They have to be amended or enacted or repealed by the legislature concerned.

In this connection the relevant figures are given in WP (Civil) No. 245 of 2001 — Dhananjayan Chauhan v. Union of India, affidavit-in-rejoinder at p. 74 read with Annexure VII at p. 149.

It is clear from these figures that the AIADMK alliance got 50% of the votes cast while the DMK alliance obtained 38.7% of the votes cast and other parties got the balance of 11.3% of the votes cast.

Further, it is clear that AIADMK by itself got 31.4% of the votes cast while the supporting parties in the alliance got the balance of 18.6%. As against this DMK by itself got 30.9% and the balance in the DMK alliance got 7.8%. (Thus the majority of votes cast were not for AIADMK alone, even the AIADMK alliance only got 50% of the votes cast.)

A large body of voters in Tamil Nadu have not voted for AIADMK. Surely, they are entitled to the protection of the Constitution and the laws.

If this contention is accepted, it would lead to the following absurd and undesirable consequences. In all constitutional interpretations the consequences are relevant, the spirit behind a provision is important (1992) 2 All ER 924 (PC) (All ER at p. 927).

(i) A convicted murderer, dacoit or corrupt person who has lost his appeal in the final court and who is disqualified can also be appointed as a Minister.

(ii) A non-citizen can be appointed as a Minister.

(iii) A person who has suffered any of the disqualifications under Sections 8(1), (2), (3) can be appointed as a Minister and can function as such till 5 months and 29 days.

(iv) If there is a coterie of such disqualified persons, one can have the entire Ministry of such persons including the Chief Minister for a period of 5 months and 29 days in rotation.

IV. Conviction and sentence are inseparable

(R-2's Proposition II)

In this connection, observations from the judgment of Justice Malai Subramaniam dated 14-4-2001 were cited.

Our response

The leading judgment holding that they are separable and distinct is under the Companies Act, 1956 Section 287 which has discussed the question — Rama Narang v. Ramesh Narang (1995) 2 SCC 513 (SCC para 19).

This has been followed in Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera (1995) 3 SCC 377 (SCC para 9), State of T.N v. A. Jaganathan (1996) 5 SCC 329 and K.C Sareen v. CBI (2001) 6 SCC 584.

In another unreported judgment dated 13-1-1997 in State of T.N v. R. Sebastian Criminal Appeal No. 32 of 1997 the above principle has been followed and it was held that the High Court was not justified in suspending the conviction under Section 13(2) read with Section 13(1) of the Prevention of Corruption Act.

Even conceptually, if on the basis of a finding of conviction, a sentence is imposed the stay of sentence only means that the convicted person will not undergo imprisonment immediately and may be released on bail.

V. No disqualification till final judgment of conviction

(R-2's Proposition III)

A further contention was urged that Section 8(3) be interpreted in the same manner as Section 8(4) i.e the disqualification should be effective only after the final court convicts and imposes the sentence.

Our response

This flies in the face of sub-clause (4) of Section 8 which starts with the words “Notwithstanding anything in sub-section (1), sub-section (2) and sub-section (3)”. It is an exception carved out with a view to give a locus poenitentiae to sitting MLAs and sitting members of Parliament and to avoid an immediate election pending appeal. There is no challenge to the validity of Section 8(3) by Respondent 2. Such a contention cannot be permitted. There is a presumption of constitutionality. In fact this Hon'ble Court has upheld the validity of this sub-section (3) in Raghvir Singh v. Surjit Singh 1994 Supp (3) SCC 162.

An extract from an Australian judgment was cited, namely, Nile v. Wood (CLR at p. 138). The case was dismissed and rejected on the ground that there were no proper averments in the petition as required by law. The Court of Appeal has not dealt with this question at all. There is only an observation by the first court in line with the Australian law which is not relevant in India. We have a series of judgments of the Supreme Court referred to above.

VI. Presumption of innocence continues

(R-2's Proposition III)

Another contention raised was that the presumption of innocence continues till the final appeal is finally decided. For this purpose the case cited was Padam Singh v. State of U.P (2000) 1 SCC 621 (SCC at p. 625).

Our response

The ratio of the case is to be judged in the context of its facts. The Court merely decided that while hearing an appeal, the Court must satisfy itself that after looking into the evidence and material the guilt is established beyond reasonable doubt. The Court held that the presumption of innocence is not weakened by a conviction. The prosecution has to satisfy the appellate court that there is sufficient evidence and material available to prove the case beyond reasonable doubt and displace the presumption of innocence. It does not mean that because an appeal is preferred there is an automatic stay and the convicted person is innocent. On the contrary, Section 389 of the Code of Criminal Procedure and the decisions under it point to the contrary.

VII. Acquittal wipes out the conviction retrospectively

This contention was supported by relying on V.C Shukla v. Purshottam Lal Kaushik (1981) 2 SCC 84 (SCC at p. 97, paras 28 and 29). The argument was urged that if an acquittal is recorded and the conviction is set aside such an acquittal has retrospective effect and it wipes out the conviction.

Our response

This case has no relevance because the facts were entirely different. V.C Shukla's nomination as a candidate was accepted. He was elected. An election petition was filed challenging his nomination and election because he suffered a disqualification because of a conviction. In the Madhya Pradesh High Court judgment, reported in Purushottamlal Kaushik v. Vidyacharan Shukla AIR 1980 MP 188 Verma, J. (as he then was) held that on the date of his nomination Shukla was disqualified and set aside the election, even though by the time the case was argued in the High Court Shukla was acquitted by the Supreme Court [V.C Shukla v. State (Delhi Admn.) (1980) 2 SCC 665]. This was the well-known case of the film Kissa Kursi Ka when the Supreme Court's direction of viewing the film was not complied with.

It is respectfully submitted that V.C Shukla case decided by a Bench of three Judges may require a second look and reconsideration in an appropriate case. It is submitted that the High Court judgment was correct. Para 11 onwards the High Court has referred to a string of decisions of this Hon'ble Court in support of its decision. The High Court held that the decision in Manni Lal case (1970) 2 SCC 462 has to be read with the decision in Amrit Lal v. Himatbhai case (1969) 1 SCR 277. Both the cases were decided by the same Bench (J.C Shah and v. Bhargava, JJ.) and incidentally the judgment in both cases was by Bhargava, J. Amrit Lal case (1969) 1 SCR 277 clearly rules that the subsequent events happening after the date of scrutiny have no relevance. In Amrit Lal case (1969) 1 SCR 277 the effect of subsequent event was expressly considered. It is submitted that this Hon'ble Court should not give its imprimatur on the correctness of the decision in V.C Shukla case.

It is further submitted that the present case is entirely different and is the obverse viz. a case where the potential candidate's nomination was rejected and consequently the candidate was not allowed to contest. In the present case Respondent 2 Jayalalitha was not permitted to contest as her nomination was rejected. She did not contest the election. Her right to set aside the election has now become barred by limitation under Section 81 of the Representation of the People Act, 1951. Therefore, the rejection of her nomination has reached finality. This is the reverse case as mentioned in V.C Shukla case (1981) 2 SCC 84 (SCC para 39 at p. 102) and as already observed by Your Lordships.

The main point for consideration in the present case is whether Respondent 2 was disqualified from being appointed as a Minister on the date of her appointment as the Chief Minister.

And whether the stay of the sentence alone coupled with the rejection of her application for staying the conviction could protect her from the disqualification.

further response by mr anil divan, senior advocate for the petitioners

Maintainability of the petitions

1. S.P Gupta v. Union of India 1981 Supp SCC 87 — relevant paras 13, 14, 17, 23, 25, 141.

Para 23

“23. We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision.”

2. D.C Wadhwa (Dr) v. State of Bihar (1987) 1 SCC 378 — challenging repeated or repromulgation of ordinances.

Para 3 at pp. 383-84:

“Besides Petitioner 1 is a Professor of Political Science and is deeply interested in ensuring proper implementation of the constitutional provisions. He has sufficient interest to maintain a petition under Article 32 even as a member of the public because it is a right of every citizen to insist that he should be governed by laws made in accordance with the Constitution and not laws made by the executive in violation of the constitutional provisions.

***

The rule of law constitutes the core of our Constitution and 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 limitations and if any practice is adopted by the executive which is in flagrant and systematic violation of its constitutional limitations, Petitioner 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice. We must, therefore, reject the preliminary contention raised on behalf of the respondents challenging the locus of the petitioners to maintain these writ petitions.”

3. Sub-Committee on Judicial Accountability v. Union of India (1991) 4 SCC 699, SCC at p. 719, para 116

The law as to standing to sue in public interest actions has undergone a vast change over the years and liberal standards for determining locus standi are now recognized. The matter has come to be discussed at considerable care and length in S.P Gupta v. Union of India 1981 Supp SCC 87. The present matter is of such nature and the constitutional issues of such nature and importance that it cannot be said that the Members of the Bar and particularly the Supreme Court Association have no locus standi in the matter. An elaborate resurvey of the principles and precedents over again is unnecessary. Suffice it to say that from any point of view the petitioners satisfy the legal requirements of the standing to sue. We, therefore, reject the contention H.

4. Janata Dal v. H.S Chowdhary (1992) 4 SCC 305

Para 97

In short, the decision in Gupta case 1981 Supp SCC 87 is a golden master key which has provided access to the courts for the poor and downtrodden — discussion on PIL and locus standi from paras 50 to 96. Further discussion from paras 98 to 114.

5. Tamil Nadu Cauvery v. Union of India (1990) 3 SCC 440 — writ petition filed under Article 32 for direction to refer the dispute to the Tribunal under Section 4 of the Inter-State Water Disputes Act, 1956 — entertained and directions given.

6. S.P Anand v. H.D Deve Gowda (1996) 6 SCC 734Para 17

“Notwithstanding the decisions rendered in the said two cases, to which we have already referred to, we are informed by the petitioner himself that he had raised the issue in the Madhya Pradesh High Court and another such petition was filed in the Allahabad High Court. To avoid such snowballing leading to multiplicity of cases we thought it in public interest to examine the issue with a view to avoid conflict of opinions.”

7. Vineet Narain v. Union of India (1998) 1 SCC 226 — public interest litigation filed under Article 32.

8. Ranji Thomas v. Union of India (2000) 2 SCC 81 (Constitution Bench) — when important public issue involving interpretation of Article 156 is involved the petitioner need not be denied locus standi.

Article 361 — judicial review and political question

9. In S.R Bommai v. Union of India (1994) 3 SCC 1 the question in relation to judicial review has been authoritatively dealt with. See the headnote at pp. 30-42 of the Report. All the Judges have held that a proclamation under Article 356 is amenable to judicial review but there was a difference of opinion only on the area and extent of justiciability. See para 32, at p. 80 (Ahmadi, J.); paras 40 and 43, at pp. 83, 84 (per Verma and Yogeshwar Dayal, JJ.); para 74, at p. 102 (Sawant and Kuldip Singh, JJ.); paras 200-01, at pp. 177-178 (per K. Ramaswamy, J.); para 330, at pp. 246-47. (At para 2, p. 65 Pandian, J. is in agreement with Sawant, J.)

10. Kehar Singh v. Union of India (1989) 1 SCC 204

The question here was interpretation of Article 72 and the President's power to grant a pardon. Even here the Court has held that the power is subject to judicial review.

11. Minerva Mills v. Union of India (1980) 3 SCC 625, SCC at pp. 693-94

Bhagwati, J. has clearly enunciated the difference between a political question not involving determination of any legal or constitutional right or obligation which the court would not entertain, since the court is concerned only with adjudication of legal rights and liabilities. He observed: “The controversy before the court may be political in character, but so long as it involves determination of a constitutional question, the court cannot decline to entertain it.” (SCC para 98)

written submissions on behalf of the petitioner submitted by mr ashok h. desai, senior advocate

I. Interconnected writ petitions and other petitions

There are in all six connected matters: four writ petitions in which rule was issued on 20-7-2001; one SLP and one transfer petition, and in both these petitions notice was issued on 20-7-2001 and were tagged with WP No. 242 of 2001. These are:

1. WP No. 242 of 2001 — B.R Kapur v. State of T.N

2. WP No. 245 of 2001 — Dhananjayan Chauhan v. Union of India.

3. WP No. 246 of 2001 — Pratap Singh Chautala v. Union of India.

4. WP No. 261 of 2001 — B.L Wadhera v. State of Tamil Nadu.

5. SLP No. 11763 of 2001 — V. Selvaraj v. Union of India.

Against an order dated 29-6-2001 dismissing the petitioner's writ petition (WP No. 10570 of 2001) (along with two other writ petitions) without going into merits, on the ground that the abovementioned writ petitions were pending in the Supreme Court of India.

6. TP No. 382 of 2001 — Dr Subramaniam Swamy v. Union of India.

Petition seeking to transfer writ petition (No. 10682 of 2001) filed on 28-5-2001 which is before the High Court of Madras.

II. Important question of law

This Hon'ble Court has in its order dated 20-7-2001 (Annexure 1) set out the issue, as referred to the Constitution Bench, in the following terms:

“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 an appeal can be sworn in and can continue to function as the Chief Minister of a State.”

III. Brief factual context

9-10-2000

Tansi I (CC No. 4 of 1997): Ms Jayalalitha was convicted by the Special Judge for offences punishable under Section 120-B 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 was sentenced to 3 years' rigorous imprisonment and a fine of Rs 10,000 was imposed on her. (The fine amount has been paid.)

Criminal Appeal No. 972 of 2000 has been filed against the judgment in Tansi I case which is pending before the High Court of Madras.

Tansi II (CC No. 13 of 1997): Ms Jayalalitha was convicted by the Special Judge for offences punishable under Section 120-B 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 was sentenced to 2 years' rigorous imprisonment and a fine of Rs 5000 was imposed on her.

Criminal Appeal No. 969 of 2000 has been filed against the judgment in Tansi II case which is pending before the High Court of Madras.

3-11-2000

In Criminal Appeals Nos. 969 and 972 of 2000, Ms Jayalalitha filed Criminal MPs Nos. 7728 and 7731 of 2000 before the High Court of Judicature, Madras. In these criminal MPs an order was passed on 3-11-2000, wherein the sentence of imprisonment alone was suspended and Ms Jayalalitha and others were released on bail. (See Annexure 2 herein.)

14-4-2001

In Criminal MPs Nos. 2026 and 2025 of 2001 as filed in the two criminal appeals (Nos. 972 and 969 of 2000) before the High Court of Madras, Ms Jayalalitha sought the stay of operation of the effect of the judgments or conviction in both the Tansi appeals. By the order dated 14-4-2001, the High Court dismissed both the criminal MPs and thus declined to stay the operation of the judgments and conviction. (See Annexure 3 herein.)

April 2001

In the general election to the Tamil Nadu Assembly, Ms Jayalalitha filed her nomination papers from four constituencies, contrary to Section 33(7)(b) of the Representation of the People Act, 1951.

24-4-2001

The nomination papers were rejected on account of her disqualification under Section 8(3) of the Representation of the People Act, 1951. (These orders have not been challenged and Ms Jayalalitha has also not filed election petitions against the returned candidates within the limitation period of 45 days.) (See Annexure 4 herein.)

13-5-2001

The election results to the Tamil Nadu Assembly were announced, and Ms Jayalalitha's party, AIADMK won 132 seats out of 234 seats. The AIADMK alliance secured 196 seats.

14-5-2001

After the result of the general election was announced, by a resolution of AIADMK, Ms Jayalalitha was elected leader of the largest party in the Assembly. The resolution also stated that the party was not ready to either consider or accept any other person as their leader. Ms Jayalalitha was sworn in as the Chief Minister on the same day.

17-5-2001

CWP No. 242 of 2001 was filed in the Supreme Court against her appointment as the Chief Minister. Subsequently other writ petitions were also filed.

4-6-2001

Order of the Hon'ble Supreme Court, issuing notice in the writ petitions. Notice was also issued to the learned Attorney-General. However, the interlocutory applications were rejected. The matter was directed to be heard by a three-Judge Bench.

20-7-2001

Order of the Hon'ble Supreme Court issuing rule in the writ petitions. Notice was also issued in the connected SLP and the transfer petition.

By the said order the three-Judge Bench referred the matter to a Constitution Bench by framing the abovementioned question of law.

IV. Relevant provisions of law

(a) Constitution of India

Provisions relating to Union of India — Articles 74, 75, 84, 88, 102

Provisions relating to State — Articles 163, 164, 173, 177 and 191

(b) Representation of the People Act, 1951

Section 3 — Qualifications for membership of the Council of States.

Section 4 — Qualifications for membership of the House of the People.

Section 5 — Qualifications for membership of a Legislative Assembly.

Section 5-A — Qualifications for membership of the Legislative Assembly of Sikkim.

Section 6 — Qualifications for membership of a Legislative Council.

Section 7 — Definition.

Section 8 — Disqualification on conviction for certain offences.

Section 8-A — Disqualification on ground of corrupt practices.

Section 9 — Disqualification on dismissal for corruption or disloyalty.

Section 9-A — Disqualification for government contracts, etc.

Section 10 — Disqualification for office under government company.

Section 32 — Nomination of candidates for election.

Section 37 — Withdrawal of candidature.

Section 100 — Grounds for declaring election to be void.

V. The issue of a non-member being a Minister and the provisions of Articles 164(4) and 75(5) have been considered by this Court in 5 decisions as follows:

— Har Sharan Verma v. Tribhuvan Narain Singh, (1971) 1 SCC 616 (Constitution Bench) paras 3, 6.

— Har Sharan Verma v. State of U.P, (1985) 2 SCC 48 paras 12, 15.

— Harsharan Verma v. Union of India, 1987 Supp SCC 310 paras 2, 3.

— S.P Anand v. H.D Deve Gowda, (1996) 6 SCC 734 paras 8, 14.

— S.R Chaudhuri v. State of Punjab, (2001) 5 Scale 269.

— Inder Mohan v. Union of India, AIR 1980 Del 20.

VI. History of Article 164(4)

Section 10(2) of the Government of India Act, 1935—

“10. (2) A Minister who for any period of six consecutive months is not a member of either Chamber of the Federal Legislature shall at the expiration of that period cease to be a Minister.”

In Prof. C.L Anand's Constitutional Law and History of Government of India, Government of India Act, 1935 and the Constitution of India (7th Edn., 1992) referring to the parliamentary debates on the enactment of clause (2) of Section 10 of the Government of India Act, 1935, the author says:

“… As a matter of practice, however, even in England appointments are not made from outside Parliament except in case of some national emergency such as war. While the law in England does not require that a Minister must be a member of Parliament, there is a strong convention to the effect that a Minister who has not a seat in Parliament must get one, the reason being the advantage of the interplay between the executive and the Legislature.

***

An amendment was moved by Sir Charles Oman to leave out clause (2) of Section 10 (supra). Viscount Wolmer referred to the difficulties which made the amendment (provision) desirable, such as the occasional practical difficulty in forming a suitable Ministry without breaking the normal practice, and emphasised the advisability of securing that elasticity in the choice of Ministers which exists under an unwritten Constitution….

***

In reply to the view taken that members of the Federal Assembly would be returned by indirect election and, therefore, would not necessarily be representative of public opinion, it was stated that, nevertheless, it was on the hole (sic) more democratic to select Ministers form (sic) such persons than to nominate them from outside the Legislature. The amendment was negatived.”

Article 144(3) of the Draft Constitution which corresponds with Article 164(4) of the Constitution reads as under: CAD, Vol. 8, p. 505, Vol. 7, 1173.

“144. (3) 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.”

Amendment proposed by Mr Mohd. Tahir, MP, Vol. 7, 1173—

“A member shall, at the time of his being chosen as such be a member of the Legislative Assembly or Legislative Council of the State as the case may be.”

Dr Ambedkar opposed the amendment:

“… 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 or 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 so competent as that should be not permitted to be appointed 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.”

See: CAD, Vol. 8, p. 521

S.R Chaudhuri v. State of Punjab, (2001) 5 Scale 269, paras 7-10. Harsharan Verma v. Union of India, 1987 Supp SCC 310, para 3.

Har Sharan Verma v. Tribhuvan, (1971) 1 SCC 616, para 7.

VII. Schemes of other Constitutions

1. UK — Jennings, Cabinet Government, 3rd Edn., p. 60—

“It is a well-settled convention that these Ministers should be either peers or members of the House of Commons. There have be (sic) occasional exceptions. … The House of Commons is, however, critical of such exceptions.”

Referred to in:

Har Sharan Verma v. Tribhuvan Singh, (1971) 1 SCC 616 at p. 618, para 8.

S.R Chaudhuri v. State of Punjab, (2001) 5 Scale 269, p. 279, para 25.

Bradley, A.W and Ewing, K.D Constitutional and Administrative Law, 12th Edn., p. 300—

“It is a convention that the ministerial office-holders should be members of one or the other House of Parliament. Such membership is essential to the maintenance of ministerial responsibility. There is, however no law that a Minister must be in Parliament.”

S.R Chaudhuri v. State of Punjab, (2001) 5 Scale 269, p. 279, para 26.

In Halsbury's Laws of England (4th Edn.,) Vol. 8, para 819 dealing with British conventions, it is observed:

“… Since the Sovereign must always act upon ministerial advice, Ministers are always politically responsible to the House of Commons for their acts, even if done in Her name. Their responsibility is both personal and collective.”

Halsbury's Laws of England (4th Edn.), Vol. 34, para 1006—

“… Ministers of the Crown cannot indefinitely remain in office without being members of either the House of Lords or the House of Commons.”

S.R Chaudhuri v. State of Punjab, (2001) 5 Scale 269, p. 279, paras 23 and 24.

2. Australia — Section 64 of the Australian Constitution Act says—

“… no Minister of State shall hold office for a longer period than three months unless he is or becomes a Senator or a member of the House of Representatives.”

Har Sharan Verma v. Tribhuvan Singh, (1971) 1 SCC 616 at p. 618, para 9.

3. Canada—

There is no statutory prohibition against a non-member becoming a Minister. But by convention, he must within a reasonable time, become a member of either House of Parliament or resign.

See: Basu's Commentary on the Indian Constitution, p. 291 E/I.

4. South Africa — Act, 1909 Section 14(1)—

“… no Minister shall hold office for a longer period than three months unless he is or becomes a member of either House of Parliament.”

Har Sharan Verma v. Tribhuvan Singh, (1971) 1 SCC 616 at pp. 618-19, para 11.

VIII. The Constitution does not envisage that a person who is disqualified from being or is not qualified to be a member of the Legislature can be appointed as a Minister under Article 164(4)

(a) The purpose of Article 164(4) is to enable those persons who are otherwise competent, but who are not members of the Legislature, to work as a Minister for a limited period. It is basically a good governance provision, which should not be so read as to allow those persons who are ineligible at the time of appointment to become Ministers.

(b) The provisions of Article 164(4) itself postulate that a person who has been appointed a Minister ceases to be one if such person does not become a member of the Legislature within the short prescribed time. This necessarily means that such a person is eligible to be a member at the time of appointment as a Minister but is in fact not such a member.

(c) Article 164(4) has to be read in conjunction with Articles 163, 173 and 191 of the Constitution of India, as well as the Representation of the People Act, 1951 (“the RoP Act”).

(d) An appointment of any person as a Minister while such person is not a member of the Legislature is an exception to the normal rule that a Minister must be a member of the Legislature at the time of appointment.

(e) The appointment of a Minister under Article 164(4) should be read subject to the provisions of Article 164(2) which speak of the collective responsibility of the Council of Ministers. This means that each Minister is individually and collectively responsible to the House.

(f) It is submitted that Article 164(4) should be interpreted as above, otherwise:

(i) a person who does not have even the qualification to be a member of the Legislature under Article 173 can become a Minister, though he is not:

— a citizen of India;

— 25 years of age;

(ii) a person who is disqualified under Article 191 could become a Minister, even though:

— he holds an office of profit under the Government;

— he is of unsound mind and declared so by a competent court;

— he is an undischarged insolvent;

— he is not a citizen of India or has voluntarily acquired the citizenship of a foreign State or acknowledged allegiance or adherence to a foreign State;

— he has been disqualified by or under any law made by Parliament.

(iii) a person who is disqualified under Chapter III of the RoP Act could become a Minister even though:

— he is convicted under Sections 8(1), 8(2) or 8(3);

— he is guilty of corrupt practice under Section 8-A;

— he is dismissed for corruption or disloyalty under Section 9;

— he is disqualified for reason of entering into government contracts under Section 9-A;

— he is disqualified for the reason that he holds office under a government company under Section 10;

— he is disqualified for not having lodged the accounts under Section 10-A;

(g) It is submitted that the provisions of Section 8(4) of the RoP Act in fact support the above interpretation since a limited exception is carved out only in the case of sitting MPs or MLAs. The fact that this exception had to be expressly carved out shows that the general rule is as submitted by the petitioner.

(h) The provisions should be interpreted purposively to advance the constitutional scheme of good governance. The provision is an exception essentially required to be used to meet very extraordinary situations.

IX. Suspension of a sentence does not mean suspension of conviction — see the following judgments:

State of T.N v. A. Jaganathan, (1996) 5 SCC 329, 2J, para 3.

Dy. Director v. S. Nagoor Meera, (1995) 3 SCC 377, 2J, paras 7 and 8.

K.C Sareen v. CBI, (2001) 6 SCC 584, paras 11, 12 and 13.

Vikram Anand v. Rakesh Singha, AIR 1995 HP 130, paras 18-30.

Bhanubhai M. Raval v. Union of India, AIR 1991 Bom 91 : Corruption.

Sarat Chandra v. Khagendranath Nath, (1961) 2 SCR 133.

X. Under the Constitution there is collective responsibility of the Minister. The principle of collective responsibility governs the democratic process. Collective responsibility is essentially a political concept

— Article 75(3) “The Council of Ministers shall be collectively responsible to the House of the People.”

— Article 164(2) “The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.”

— Har Sharan Verma v. State of U.P, (1985) 2 SCC 48, p. 53 para 12.

Article 177 ensures the implementation of constitutional principle contained in Article 164(2). Ministerial responsibility to the Legislative Assembly is a means of assuring that the Government is in line with popular opinion.

— S.P Anand v. H.D Deve Gowda, (1996) 6 SCC 734, para 16.

— Secy., Jaipur Development Authority v. Daulat Mal, (1997) 1 SCC 35, 2J, paras 10-13.

— Mackintosh, John P. The British Cabinet, pp. 529 and 531.

— Jennings, Ivor Cabinet Government, p. 449.

— Bradley, A.W and Ewing, K.D Constitutional and Administrative Law, pp. 115-18.

— Philips, Hood O. Constitutional and Administrative Law, 7th Edn., p. 125.

XI. Good governance is a basic postulate of our Constitution

Secy., Jaipur Development Authority v. Daulat Mal, (1997) 1 SCC 35, 2J, p. 47, para 15 — corruption and its effect on democratic institutions—

“[I]t is particularly dangerous for democracy because it undermines two of the major principles on which democracies are based; the equality of citizens' rights and the transparency of the political decision-making process. Bribes open up the way for access to the State for those who are willing to pay and can afford the price. The situation may leave non-corrupt citizens with the belief that one ‘counts’ only if one has the right personal contacts with those who hold power.”

Vineet Narain v. Union of India, (1998) 1 SCC 226, 3J, pp. 268-69, paras 56 and 57—

“The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold. It also has adverse effect on foreign investment and funding from the International Monetary Fund and the World Bank who have warned that future aid to underdeveloped countries may be subject to the requisite steps being taken to eradicate corruption, which prevents international aid from reaching those for whom it is meant. Increasing corruption has led to investigative journalism which is of value to a free society. The need to highlight corruption in public life through the medium of public interest litigation invoking judicial review may be frequent in India but is not unknown in other countries: R. v. Secy. of State for Foreign and Commonwealth Affairs [(1995) 1 WLR 386].

***

It cannot be doubted that there is a serious human rights aspect involved in such a proceeding because the prevailing corruption in public life, if permitted to continue unchecked, has ultimately the deleterious effect of eroding the Indian polity.”

K.C Sareen v. CBI, (2001) 6 SCC 584, 2J-para 12 — corruption by public servants has reached monstrous dimensions in India.

Patangrao Kadam v. Prithviraj, (2001) 3 SCC 594, 3J, p. 605, para 13 — election petition— “Clean, efficient and benevolent administration are the essential features of good governance which in turn depends upon persons of competency and good character. … this purpose is sought to be achieved by these provisions contained in the RPA.”

Kashinath G. Jalmi (Dr) v. Speaker, (1993) 2 SCC 703, 3J, p. 717, para 34 — Tenth Schedule case—

“34. In our opinion the exercise of discretion by the court even where the application is delayed, is to be governed by the objective of promoting public interest and good administration; and on that basis it cannot be said that discretion would not be exercised in favour of interference where it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality.”

Bhanubhai M. Raval v. Union of India, AIR 1991 Bom 91 , p. 94, para 7.

“In the instant case, the evident object of the statutes such as the Representation of the People Act or the Regulations in question is to give a clean and decent administration to the citizenry. It must be assumed that the Legislature did not want, at the helms of the affairs of the State, persons with unwiped-off convictions of offences. Words assume different meanings and colours in the context of the objects of the statutes in which the words are employed. Giving clean administration to the citizenry is, ex hypothesi, the object of every election statute.”

— Barnett, Hilaire, Constitutional and Administrative Law, p. 262 —qualification for ministerial office — the most elementary qualification demanded of a Minister is honesty and incorruptibility.

— Jennings, I. Cabinet Government, 3rd Edn., p. 106.

— Secy., Jaipur Development Authority v. Daulat Mal, (1997) 1 SCC 35, 2J, p. 46, para 14.

“The most elementary qualification demanded of a Minister is honesty and incorruptibility. He should not only possess these qualifications but should also appear to possess the same.”

submissions in rejoinder by mr ashok h. desai on behalf of the petitioner

On preliminary points

(a) The issue in the present case has to be considered in the light of admitted facts (see the main writ petition and counter-affidavit-in-reply at pp. 31-33):

9-10-2000

Conviction and sentence in two cases for 3 years and a fine of Rs 10,000 and, for 2 years and fine of Rs 5000 respectively.

3-11-2000

Order of Mr Justice B. Akbar Basha Khadiri (Compilation: Written submissions for the petitioner, p. 3).

1-4-2001

Order of Mr Justice Malai Subramanian (Compilation: p. 8). (The sentence of fine has been carried out. The execution of the sentence of imprisonment is suspended.)

24-4-2001

Nomination papers of Respondent 2 were rejected because of disqualification under Section 8(3) of the Representation of the People Act, 1951. This order remained unchallenged.

14-5-2001

Appointment of Respondent 2 as the Chief Minister.

18-5-2001

Appointment of Respondent 2 as the Chief Minister was challenged under quo warranto.

The present case raises no question of any adjudication on any factual dispute. The question is purely of interpretation.

(b) The issue for consideration is whether a non-member can be appointed as a Minister even if he does not have the prescribed qualifications to be a member of the State Legislature under Article 173 or suffers from any of the disqualifications for being chosen as a member of the Legislature as prescribed under Article 191 read with the provisions of Section 8 of the Representation of the People Act [in this case Section 8(3)]. The respondents have candidly accepted that as per their submissions a foreigner or a person who is less than even 24 years of age, or a person who is declared to be of unsound mind by a competent court or who is dismissed from office under the Government for his disloyalty (Section 9 of the RoP Act) can become a Chief Minister (and by analogy the Prime Minister).

(c) In the present case the petitioner has averred the violation of the fundamental rights: in para 1 at p. 2. The averments clearly allege that the State's action is arbitrary and in violation of Article 14 of the Constitution. In any view of the matter, as the appointment of Ms Jayalalitha is arbitrary and unconstitutional, the petition is clearly maintainable.

— S.P Gupta v. Union of India, 1981 Supp SCC 87 at pp. 218, 219 para 23.

— D.C Wadhwa (Dr) v. State of Bihar, (1987) 1 SCC 378 para 3.

— Ranji Thomas v. Union of India, (2000) 2 SCC 81 para 6.

(d) It is submitted that the petitioner seeks a writ of quo warranto (“by what authority”) which questions the authority of the Chief Minister to hold that public office. If the Chief Minister has no such authority on the date of appointment the court would set aside the usurpation of the public office.

— S.R Chaudhuri v. State of Punjab, (2001) 5 Scale 269, para 1 — quo warranto issued against the appointment of a Minister.

Section 8 of the RoP Act, 1951

(a) The constitutionality of Section 8 of the RoP Act has already been considered by the Court. This Court has upheld the classification as provided under Sections 8(1) read with sub-section (2) or (3).

— Raghbir Singh v. Surjit Singh, 1994 Supp (3) SCC 162, paras 6 and 7.

The constitutionality of Section 8 is upheld. The categories covered by sub-sections (1), (2), (3) being distinct and different, the question of comparison inter se between any two of these 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.

(b) The marginal note of Section 8 clearly demonstrates that it imposes disqualifications on conviction for certain offences. The first three sub-sections lay down that the conviction must relate to the type of offences and the term of sentence specified therein. Section 8(4) is the only exception carved out of Section 8. Even under this sub-section, if there is no appeal within 3 months, the disqualification becomes final. Section 8(4) does not apply to other disqualifications under Chapter III i.e Section 8-A to Section 10 of the RoP Act, 1951.

(c) Section 8(3) of the Representation of the People Act is fully applicable in the present case. Under Section 389 of the Criminal Procedure Code the appeal court has the power to grant stay of the order (of conviction) or only stay of the execution of the sentence. In the present case what the learned Judge has suspended is only the execution of the sentence and not the conviction. The application for stay of conviction was specifically dismissed. No appeal was filed against that order. It became final. Further the suspension of sentence does not mean suspension of conviction. Please see the earlier note. (Compilation: at p. ‘L’)

General

(a) When there is violation of constitutional provisions, there is no question of the courts abstaining from deciding it on the ground that it may involve a political question. Indian courts have consistently rejected the concept of political thicket. In the case of S.R Chaudhuri v. State of Punjab (supra) this Court set aside the appointment of the Minister. Some other judgments on this point are:

S.R Bommai v. Union of India, (1994) 3 SCC 1.

State of Rajasthan v. Union of India, (1977) 3 SCC 592.

(b) Judicial review has been held to be a part of the basic structure of the Constitution:

Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 para 87.

L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 para 78.

In conclusion

Article 164(4) of the Constitution has to be read in conjunction with Articles 163, 173, 191 of the Constitution and Section 8(3) of the RoP Act, 1951. The purpose of Article 164(4) is to enable those persons who are Otherwise Competent, but who are not members of the Legislature at the time of appointment, but must become so as quickly as possible, latest within 6 months. It is a limited privilege but essentially a part of good governance provision, which should not be so read as to allow those persons who are ineligible, at the time of appointment, to become Ministers. An appointment of any person as a Minister while such person is not a member of the Legislature is an exception to the normal rule that a Minister must be a member of the Legislature at the time of appointment.

brief submission-in-rejoinder — article 164

slp no. 11763 of 2001 — v. selvaraj v. union of india and others

submitted by mr f.s nariman, senior advocate

1. It is not necessary to read any implied limitations in Article 164 — the submission that a person who is disqualified from being appointed a member of the Legislative Assembly cannot be appointed a Chief Minister or Minister flows directly from the language employed in Article 164(4).

2. The words “is not a member …” in Article 164(4) indicate that the proposed appointee must be eligible or qualified to be a member at the date of his or her appointment; this is not merely implicit in the words actually used:

— It was also the avowed assumption of those who first drafted Section 51(2) of the Government of India Act, 1935, Annexure I.

— It was also the assumption of the framers of our Constitution.

— It has been the assumption accepted in judgments of courts.

(i) Re: Government of India Act, 1935 Section 51: See Joint Committee Report on Indian Constitutional Reform, Vol. I, paras 85-88 (Governor's Selection of Ministers) — Annexure II.

(ii) Assumption of the framers of our Constitution: on 31-12-1948 see Statement of Dr B.R Ambedkar, CAD, Vol. 7, Book 3, p. 1186 (also quoted in p. 48 of Mr P.P Rao's compilation:

“… 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 so competent as that should be not permitted to be appointed 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.”

Note.—(1) According to Dr Ambedkar, the assumption was that “he shall be able to get himself elected” i.e on the date of his appointment.

(2) It is this passage which is quoted in Deve Gowda case, (1996) 6 SCC at pp. 734-42.

(iii) Assumption in court judgments:

(a) See AIR 1962 All 301 (Har Sharan Varma v. Chandra Bhan) S.S Dhavan, J. (already cited), at p. 305, para 23—

“23. The next question is whether this Court can interfere. The petitioner contended that it can and should. But I am of the opinion that this Court cannot interfere in this case. The nomination of the first respondent has not been shown to be illegal. If, for example, the Governor had nominated a person who was not a citizen of India, this Court would have issued a writ of quo warranto on the ground that that person was not qualified to be a member of the Legislature. But in the present case the petitioner has not shown that Mr Chandra Bhan Gupta was disqualified or that the Governor had no power to nominate him. He merely had made out a prima facie case that the power of nomination was made for a political purpose and therefore improper. This is not enough, in my opinion, to empower the Court to interfere and issue notice to the first respondent.”

(b) Inder Mohan v. Union of India, AIR 1980 Del 20 at p. 22, para 3 (Division Bench) already cited—

“Mr Lekhi contends that if a person cannot be a member of Parliament if he is under any acknowledgment of allegiance or adherence to a foreign State, it inevitably follows that such a person is also disqualified to be a Minister. Though Article 102 does not mention disqualification for being a Minister, we are prepared to accept that a person will be ineligible for being a Minister if he suffers from any of the disqualifications as mentioned in Article 102. This is both logical and understandable. Because if there is any constitutional bar on a person being a member of either House of Parliament it surely cannot be accepted that a Minister who holds a more responsible position should be free from fetters of the disqualifications laid down in the Constitution. The broad argument that if a person is disqualified under Article 102(1)(d) to be a member he will not be entitled to be a Minister can be readily accepted.”

“51. Other provisions as to Ministers.—(1) The Governor's Ministers shall be chosen and summoned by him, shall be sworn as members of the Council, and shall hold office during his pleasure.

(2) A Minister who for any period of six consecutive months is not a member of the Provincial Legislature shall at the expiration of that period cease to be a Minister.

(3) The salaries of Ministers shall be such as the Provincial Legislature may from time to time by Act determine, and, until the Provincial Legislature so determine, shall be determined by the Governor:

Provided that the salary of a Minister shall not be varied during his term of office.

(4) The question whether any, and, if so what, advice was tendered by Ministers to the Governor shall not be enquired into in any court.

(5) The functions of the Governor under this section with respect to the choosing and summoning and the dismissal of Ministers, and with respect to the determination of their salaries, shall be exercised by him in his discretion.”

ANNEXURE I

Government of India Act, 1935

“52. Special responsibilities of Governor.—(1) In the exercise of his functions the Governor shall have the following special responsibilities, that is to say—

(a) the prevention of any grave menace to the peace or tranquillity of the Province or any part thereof;

(b) the safeguarding of the legitimate interests of minorities;

(c) the securing to, and to the dependants of, persons who are or have been members of the public services of any rights, provided or preserved for them by or under this Act and the safeguarding of their legitimate interests;

(d) the securing in the sphere of executive action of the purposes which the provisions of Chapter III of Part V. of this Act are designed to secure in relation to legislation;

(e) the securing of the peace and good government of areas which by or under the provisions of this Part of this Act are declared to be partially excluded areas;

(f) the protection of the rights of any Indian State and the rights and dignity of the ruler thereof; and….”

ANNEXURE II

JOINT COMMITTEE REPORT ON INDIAN CONSTITUTIONAL REFORM

(SESSION 1933-34): VOLUME I: (PART I)

(ii) The Governor's selection of Ministers

“85. Qualifications proposed for Ministers.—The White Paper proposes that the instrument of instructions shall direct the Governor to select his Ministers in consultation with the person who in his judgment is likely to command the largest following in the Legislature, and to appoint those persons, including so far as possible members of important minority communities, who will best be in a position collectively to command the confidence of the Legislature. It is also proposed that Ministers must be, or become within a stated period (by which we understand a period of six or twelve months to be intended), members of the Legislature.

86. Ministerial responsibility and representation of communities.—The question how a direction to the Governor to include among his Ministers, so far as possible, members of important minority communities is to be reconciled with ministerial responsibility, in the accepted sense of that expression, to a Legislature which is itself based on a system of communal representation and in which the numbers of the representatives of the different communities are fixed by statute and unalterable, will be more conveniently discussed later when we examine the more general question of the relation of the Provincial Executive to the Provincial Legislature. We accordingly confine ourselves here to a consideration of the proposal in the White Paper that every Minister shall be, or become within a stated period, a member of the Legislature.

87. Difficulties of proposal that Ministers should be elected members of Legislature.—Indian opinion appears to attach great importance to this qualification as securing in the most effective manner control by the Legislature over the executive. It is unknown to the law of the United Kingdom; but it has long been the rule in this country that a Minister must either find a seat within a reasonable time or resign his appointment, unless the Prime Minister should see fit to recommend him for a peerage; so that the qualification exists in practice, if not in law, though during the war there were instances of Ministers who had a seat in neither House. On the other hand we were impressed by the argument that at least in some Provinces the Governor might find it difficult to constitute an efficient Ministry from the members of a small and inexperienced Legislature; and it is no doubt true that in India, owing to the very small proportion which the educated classes bear to the total population, there is no certainty that in the smaller Provinces the Legislatures will always contain men fit or experienced enough to assume the heavy responsibilities which Provincial autonomy under the new order must necessarily involve. 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.

88. Suggested methods for meeting difficulty.—We have considered various suggestions to meet this difficulty: (1) that the Governor should be empowered, if he thought fit, to appoint a Minister from outside the Legislature, the Minister so appointed having precisely the same status as other Ministers and sharing their policy and political fortunes, with the right to take part in all proceedings of the Legislature, though not entitled to vote; (2) that in addition to the elected members, there should be one or two members nominated by the Governor, who would be eligible for appointment as Ministers, though not necessarily so appointed; (3) that the Governor should be empowered, if he desired to have an outside Minister, to nominate the person whom he selected as a member ad hoc of the Legislature; and (4) that the Ministers themselves should be empowered, if so requested by the Governor, to co-opt someone from outside and present him to the Governor for appointment. We can see no advantage, and many disadvantages, in the second and third of these suggestions, and the fourth is open to the grave objection that it would infringe upon the Governor's prerogative. The only plan, therefore, which, in our opinion, merits consideration is the first. We have, however, come to the conclusion that such advantages as might be anticipated from a provision in the Constitution Act enabling the Governor to appoint to his Ministry one or more persons who are not members of the Legislature would weigh little in the balance against the dislike and suspicion with which such a provision would undoubtedly be viewed with almost universally in India — a dislike and suspicion so strong that we think it unlikely that any Governor would, in fact, find it possible to exercise such a power. We recommend, therefore, that the proposal in the White Paper to which we have alluded should remain unchanged.”

reply to argument under article 361 submitted by

mr F.S Nariman, Senior Advocate

1. (a) The contention that the Governor is not answerable in any court for his actions is correct. But it does not follow that his actions cannot be tested in a court of law: second proviso to Article 361.

(b) Kihoto case (Kihoto Hollohan v. Zachillhu), 1992 Supp (2) SCC 651 cited by counsel for Respondent 2 itself answers the argument raised that there can be no judicial review of discretion of the Governor because of a finality clause in Article 163(2) of the Constitution. See Justice Venkatachaliah's judgment in Kihoto on how such a finality is to be read 1992 Supp (2) SCC 651 at p. 711; the minority judgment in fact struck down clause 7 of the Ninth Schedule 1992 Supp (2) SCC 651 at pp. 741-43.

2. Whilst it is true that a writ of quo warranto is addressed to the appointee, and not to the appointor, the State Government in the present case has actually supported the action of the Governor as constitutional (para 3 of the counter), and arguments that the Governor has no adjudication machinery at hand are all irrelevant on the facts of this case.

3. In the present case, the State Government has taken a positive stand on merits viz.

(a) that the Governor had “considered all legal aspects and satisfied (herself) that the third respondent is qualified to become the Chief Minister of the State” (para 7 of the counter); and

(b) that there is no violation of law in the Governor appointing the third respondent as the Chief Minister (paras 16 and 18 of the counter).

4. It is settled law that although the Governor is not answerable to any court for any act done in purported exercise of his powers and functions, this does not restrict the right of any person to bring appropriate proceedings against the Government of the State to have such acts declared unconstitutional.

propositions on behalf of the second respondent, ms jayram jayalalitha by mr k.k venugopal, senior advocate

I. In a conviction covered by Section 8(3) of the Representation of the People Act, 1951 the nature and character of offence are not relevant and it is the sentence alone which is relevant, as a result of which the stay or suspension of the sentence amounts to suspension of the disqualification.

II. Additionally, the requirement of Section 8(3) that the person should be convicted and sentenced are conjunctive as a result of which by suspending the sentence the cumulative requirement of Section 8(3) no more operates.

III. The presumption of innocence continues until the final judgment affirming the conviction is passed and as a result, as of today, no disqualification operates against this respondent.

IV. The principle underlying Section 8(4) has to be extended to an Article 164(4) Minister, or a candidate for election, as otherwise Article 14 would stand violated as the presumption of innocence will apply to a sitting member till the conviction is finally affirmed, but in the case of an Article 164(4) Minister, or a candidate, the disqualification will operate on conviction by the court of first instance itself.

V. If the date of final affirmation of the conviction is not taken as the date of disqualification, then Article 14 will stand violated as the period of disqualification in the case of the more serious offences under Section 8(1) will be a maximum of six years, while in the cases covered by Section 8(2) and Section 8(3) the entire period of incarceration plus a further period of six years thereafter would operate as the period of disqualification.

VI. While qualifications and disqualifications are prescribed for a candidate or a member of the Legislature and machinery is provided for the adjudication thereof, the absence of the prescription of any qualification or disqualification for an Article 164(4) Minister and for adjudication thereof, would mean that a Governor has to accept the will of the people in selecting a Chief Minister or Minister, the only consideration being whether the political parties and its leader commands a majority in the House and can provide a stable Government.

VII. In the case of an Article 164(4) Minister/Chief Minister the people who are the ultimate sovereign express their will through their elected representatives so that for a period of six months a “locus poenitentiae” operates as an exception, as a result of which for that period the people's will prevails in a true parliamentary democracy, especially as no provision is made for adjudicating the alleged disqualifications like holding of an office of profit or a subsisting contract for supply of goods or execution of works.

VIII. In other words, in this area of constitutional governance, for the limited period of six months, it would not be open to the court to import qualifications and disqualifications for a Minister qua Minister, when none exists in Article 164(4).

IX. The Governor not being armed with the machinery for adjudicating qualifications or disqualifications e.g on the existence of subsisting contracts or holding of offices of profit and having no power to summon witnesses, or to administer oath or to summon documents and deliver a reasoned judgment, the appointment made on the basis of the conventions of the Constitution cannot be challenged by quo warranto so that an appointment validly made cannot be rendered one without the authority of law. In doing so the court will be entering into the political thicket.

further propositions on behalf of the second respondent

I. A disqualification is in the nature of a penalty and has to be expressly found engrafted in the Constitution or the law in regard to that person or that situation.

II. The Constitution prescribes disqualifications for a member of the House and for a candidate contesting election to Parliament or the Legislature, but does not prescribe disqualifications for a Minister qua Minister, so that a non-member can be a Minister for the limited period of six months, without being subject to any adjudication of alleged disqualifications.

III. The constitutional provision would be clear by examining the provisions regarding the Governor, who though part of the House, is not subject to disqualifications of a member as in the case of a non-member Minister so that no quo warranto would lie against a Governor by reason of any disqualification relating to a member.

IV. The absence of a machinery for adjudicating any disqualification in regard to a non-member Minister or the Governor would establish that no such disqualification exists.

V. If a member's disqualifications were to be read into the appointment of a non-member Minister under Article 164(4), then the Governor or the President should be competent to adjudicate on each one of the disqualifications in Articles 102/191 read with Sections 8 to 11(a) of the RP Act or none at all. The Constitution does not make any difference between alleged ex facie disqualifications and the rest.

VI. If so the President and the Governor, in the case of a non-member Minister, would have to convert themselves into quasi-judicial authorities, and if necessary, record evidence and deliver a reasoned order and in the result expose themselves and their orders to judicial review, a matter not contemplated by Article 361 of the Constitution or the other provisions thereof.

VII. The only valid and reasonable conclusion to be drawn is that the Constitution does not contemplate the scrutiny of the credentials of a non-member Prime Minister, Chief Minister, 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 6 months, and it is the House alone which can remove him.

VIII. In any event, no judicial review of the Governor's appointment under Article 164(4) is open, without calling for the Governor's files, for ascertaining the basis on which the appointment was made in the background of the alleged disqualification.

a submission in regard to issues which may arise for the consideration of the court — for respondent 2

I. The Governor/President can appoint only a person to be a Minister/Chief Minister/Prime Minister who is eligible to be elected.

1. There should be a possibility of such eligibility arising by the end of the period of six months, even if Article 75(4) and Article 164(4) are read as requiring such eligibility.

2. In the present case a Governor was entitled to proceed on the basis that the appeals having been directed, in October 2000, to be heard within two months, it would always be open to the accused to have the appeal disposed of within the time-limit of six months and, in case of an acquittal, no question of ineligibility to contest elections within the period of six months will arise. The hearing of the appeals had in fact commenced on 27-8-2001 and would have been completed in the normal course, long before the expiry of the period of six months.

3. Even today, with the order of the Supreme Court directing that the appeals should not be heard before 1-10-2001, it is possible to have the appellate judgment sufficiently in advance, for the purpose of being elected before the expiry of six months, of course, on the basis that the Chief Minister will be able to establish her innocence in the appeal.

II. Even if the Governor/President has immunity against his/her decision to appoint a Minister/Chief Minister/Prime Minister from being called in question, the appointee Minister/Chief Minister/Prime Minister has no such protection.

1. The answer to this can only be that if the Governor has in fact invited the leader of the party, if he be a non-member, to form the Government, it would thereafter not be open to the courts in a quo warranto to decide that the Prime Minister or the Chief Minister is disqualified. In other words, otherwise, this would mean that the Governor/President validly invites, in accordance with conventions, the leader to be a Chief Minister/Prime Minister and the next second, ipso facto, the leader is to vacate his office by reason of the quo warranto.

2. This will also give rise to a precedent where immediately after a leader, who is a non-member, is invited to be the Prime Minister or the Chief Minister, the issue of his qualifications and disqualifications would forthwith become the subject-matter of judicial review by the courts, as a result of which writ petitions would be filed against the Prime Minister's appointment in every court of the country, for alleged absence of qualifications or disqualifications, resulting in destabilising the very functioning of the Prime Minister himself.

3. Additionally, the courts would then be placing themselves in a position of pre-eminence among the three organs of the State, as a result of which, instead of the House deciding whether to remove such a person through a no-confidence or not, the courts will take over the functions, contrary to the will of the House, which would mean the will of the people represented by the majority in the House. The courts will then decide that the Prime Minister should demit office. This will equally apply to the case of the Chief Minister. The court will be entering into the political thicket with the court reserving to itself a power never intended by the Constitution and the exercise of which power could result in instability in the governance of the country.

submissions of mr p.p rao, senior advocate on behalf of the state of tamil nadu

A. Preliminary submissions

I. The writ petitions having not made out any case of violation of a fundamental right, they are not maintainable under Article 32.

Nain Sukh Das v. State of U.P, 1953 SCR 1184, 1185, 1187-88 (CB).

Sadhu Ram v. Custodian General, (1955) 2 SCR 1113, 1114, 1117 (CB).

Bhagwandas v. UOI, AIR 1956 SC 175, 176, para 5 (CB).

Kasturi & Sons v. N. Salivateeswaran, 1959 SCR 1, 10-11 (CB).

State of J&K v. Mir Gulam Rasul, (1961) 3 SCR 969, 972-73 (CB).

E.P Royappa v. State of T.N, (1974) 4 SCC 3, 384, 385-86 (CB).

II. There cannot be more than one PIL based on the same cause of action and seeking the same relief. The very first writ petition represents the entire public. Consequently all other writ petitions filed in the Supreme Court and in the High Court are liable to be dismissed as not maintainable. The principle contained in Explanation VI to Section 11 CPC is applicable to PIL.

Forward Construction Co. v. Prabhat Mandal, (1986) 1 SCC 100, para 21.

III. The action of the Governor in appointing the unanimously elected leader of the legislature party of AIADMK which commands a majority in the State Assembly as the Chief Minister, in exercise of her discretion, is not unconstitutional and not amenable to judicial review. This is evident from Articles 163 and 361. The framers were of the view that legal sanction would be inadequate and public opinion would be a better sanction. Constituent Assembly Debates, Vol. VII, pp. 1026-37, 1146, 1159-60, 1175-89

(i) Ramamoorthi, In Re, AIR 1953 Mad 94, 95, para 4.

(ii) Mahabir Prasad Sharma v. Prafulla Chandra Ghose, AIR 1969 Cal 198, 208-11, paras 40, 41, 43 and 50.

(iii) R.K Nokulsana Singh v. Rishang Keising, AIR 1981 Gau 47, 49-50, para 6, p. 51, paras 10-11.

(iv) Jogendra Nath Hazarika v. State of Assam, AIR 1982 Gau 25, 29, para 6, p. 32, para 11, p. 33, para 12, p. 34, para 13.

(v) Har Sharan Varma v. Chandra Bhan Gupta, AIR 1962 All 301, 302, paras 1, 2 and 5, 303-04, paras 1-12.

(vi) G. Krishta Goud v. State of A.P, (1976) 1 SCC 157, 160 para 7.

IV. Scope of Article 32 read with Article 13(2) being limited to the enforcement of fundamental rights against the State, only the validity of action taken by the State or by the Governor on the advice of the Council of Ministers can be examined, but not the action taken by the Governor in her sole discretion in view of the immunity under Article 361(1). As the order of appointing the Chief Minister was made by the Governor without the aid and advice of the Council of Ministers, the Constitution does not expect, much less require, the State Government to defend the action of the Governor. In such cases, where neither the Governor is answerable for the impugned action taken in her sole discretion nor the State Government is answerable, a writ of quo warranto cannot be issued under Article 32.

(i) HEH The Nizam v. State, AIR 1955 Hyd 241, 245-47, paras 12-16.

(ii) Bijayananda v. President of India, AIR 1974 Ori 52 at pp. 61-62, paras 20, 21, 22.

(iii) Pratapsingh R. Rane v. Governor of Goa, AIR 1999 Bom 53, 64, 66, paras 36-47 (already placed by Mr K.K Venugopal).

V. (a) Unless there is a clear infringement of a constitutional or statutory provision, a writ of quo warranto cannot issue either under Article 32 or under Article 226.

(i) Statesman v. H.R Deb, (1968) 3 SCR 614, 621 mid. pr. (CB).

(ii) A.N Shashtri v. State of Punjab, 1988 Supp SCC 127, 131.

(b) Was there any clear violation of a constitutional or a statutory provision by the Governor? When the Governor made the appointment under Article 164(1), the law was not clear. There is no express provision either in the Constitution or in the Representation of the People Act, 1951 disqualifying a person who suffered conviction for an offence and a sentence of imprisonment of not less than two years, even after the suspension of the sentence by the trial court and by the appellate court later during the pendency of an appeal. There is a conflict of views among the High Courts as to whether suspension of sentence would have the effect of suspension of disqualification under Section 8(3) of the RP Act, 1951 or not. The High Courts of Madhya Pradesh, Allahabad, Himachal Pradesh and Bombay took the view that suspension of sentence does not suspend the disqualification. However, the High Court of Madras expressed the contrary view, that if the sentence of imprisonment is suspended, there may not be any disqualification for a person to contest in the election. The Governor of a State cannot disregard the law declared by the High Court of the State till the judgment of the High Court is reversed by a superior court.

(i) Purushottamlal v. V.C Shukla, AIR 1980 MP 188.

(ii) S.N Tripathi v. Dood Nath, 84 ELR 46 (All).

(iii) Vikram Anand v. Rakesh Singha, AIR 1995 HP 130.

(iv) Bhanuhai M. Raval v. UOI, AIR 1991 Bom 91 . Followed in AIR 1980 MP 188.

The law declared in the above decisions requires reconsideration.

(v) The judgment dated 11-4-2001 of the Madras High Court in Criminal MPs Nos. 2025 and 2026 of 2001 in Criminal Appeals Nos. 769-72 of 2000 (p. 8 at pp. 17 to 18) of Mr Ashok Desai's compilation (already placed by Mr K.K Venugopal).

VI. In the event of the writ petitions being dismissed as not maintainable, the order of the High Court impugned in SLP (C) No. 11763 of 2001 V. Selvaraj v. UOI dismissing WP No. 10570 of 2001 will be liable to be set aside as the High Court proceeded on the assumption that the writ petitions filed in this Hon'ble Court would be decided on merits, and the WP will be liable to be dismissed as not maintainable for the reasons stated in Submissions III and V. above.

B. Submissions on merits

1. Parliamentary democracy is admittedly a basic feature of the Constitution. It is 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 as far as possible.

2. 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 to form the Government. Article 164(4) permits appointment of a non-member of the State Legislature to be appointed as Chief Minister, but to continue as the Chief Minister beyond six months, he should become a member of the Legislature before the said period expires. There is no other constitutional limitation.

3. There is no express, unambiguous provision in the Constitution or in the RP Act, 1951 or any decision of the Supreme Court or a High Court declaring that a person convicted of an offence and sentenced to imprisonment for a period of not less than 2 years by the trial court shall not be appointed as the Chief Minister during the pendency of the first appeal. In such a situation, the Governor cannot be 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. As held in Samsher Singh v. State of Punjab, (1974) 2 SCC 831, 885, para 154 “the head of the State should avoid getting involved in politics”.

4. Conviction of offences under the Prevention of Corruption Act does not per se constitute disqualification. Under the Government of India Act, 1935 also, the position was no different vide Sections 26 and 69.

5. (i) For a correct interpretation of Section 8(3) of the RP Act, 1951, it is necessary to consider all the sub-sections of Section 8 and Section 11. In terms of sub-section (1) conviction for any of the offences specified therein by itself operates as disqualification. Under sub-section (2), mere conviction for the contravention of any of the laws mentioned therein does not ipso facto operate as a disqualification. In addition to conviction there should be sentence of imprisonment for not less than six months to constitute disqualification. Offences under the Prevention of Corruption Act are not considered by Parliament so serious as the offences mentioned in sub-sections (1) and (2). They are not even separately dealt with. They are covered by the residuary provision in sub-section (3). For an offence under the Prevention of Corruption Act, both conviction and a sentence of imprisonment for not less than two years together constitute disqualification. Unless both conviction and sentence of not less than 2 years operate simultaneously, there is no disqualification. According to Section 8(3) the disqualification operates from the date of conviction. However, conviction and sentence by the trial court need not take place on the same date. Under CrPC there can be a gap of a few days between the conviction and sentence. Only the appellate court can pass an order of conviction and sentence on the same day invariably. This apart, in the event of either conviction or sentence being suspended there will be no disqualification till the order of suspension is vacated. There is no need to suspend both conviction and sentence to suspend the operation of the disqualification. In other words, the disqualification can only run on two wheels, namely, conviction and sentence of imprisonment of not less than two years. When the sentence is suspended, one wheel gets immobilized. Therefore, the disqualification cannot operate by the force of conviction alone. This interpretation of sub-section (3) will be in harmony with the intention of Parliament clearly expressed in sub-section (4).

(a) Sections 235(2), 248(2) and Section 309(2) third proviso.

(b) 48th Law Commission Report, pp. 16-17.

(c) Santa Singh v. State of Punjab, (1976) 4 SCC 190, 194-197, para 205 (P.N Bhagwati, J.), 199, 200-01, para 14 (S.M Fazl Ali, J.).

(d) Muniappan v. State of T.N, (1981) 3 SCC 11, pp. 13-14, para 2.

(e) Allauddin Mian v. State of Bihar, (1989) 3 SCC 5, 20-21, para 10.

(f) Malkiat Singh v. State of Punjab, (1991) 4 SCC 341, 356, para 18.

(g) State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700, 748.

(h) Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714, 740-41, paras 25-28, pp. 742-43, paras 32 and 33.

(ii) What is implicit in sub-section (3) is made explicit in sub-section (4) by Parliament by providing that a sitting member of the Legislature shall not be subjected to any disqualification under Section 8 till the disposal of his appeal or application for revision by the superior court. Even if the sitting member happens to be a Minister, he does not suffer any disqualification till the appeal or application for revision is disposed of. Could it be the intention of Parliament that a non-member of the Legislature should be subjected to disqualification under Section 8(3) notwithstanding the suspension of his sentence by a competent court during the pendency of his appeal against conviction and sentence while a sitting member is not? The principle of harmonious construction requires that sub-section (3) should be so interpreted so as to be in consonance with sub-section (4). Otherwise it would lead to a serious anomaly inasmuch as a sitting member including a Minister whose continuance as such is more risky and prejudicial to public interest can enjoy his position without any disqualification during the pendency of his appeal or revision, but a non-member politician whose case falls under sub-section (3) has to suffer irreparable damage, for no good reason, which cannot be undone if the appeal is allowed subsequently. Such an unreasonable and unprincipled intention cannot be attributed to Parliament. The real purpose of sub-section (4) is to give a sitting member three months' time to prefer an appeal or revision against the conviction and sentence and to ensure that in the meanwhile the disqualification does not take effect till the disposal of the appeal or revision.

(iii) Rule of law postulates at least one appeal against conviction and sentence. The right of appeal is a basic human right. The Criminal Procedure Code provides for a right of appeal on the assumption that the judgment of the trial court could be erroneous. It is part of the procedure established by law in terms of Article 21. The appeal cannot be rendered infructuous either wholly or partly by making a person suffer irreparable loss due to penal consequences like disqualification during the pendency of his appeal. That would be unreasonable, unjust and unfair.

(i) 14th Report of the Law Commission, Vol. 1, p. 364, para 9 and p. 371, para 16.

(ii) 54th Report of the Law Commission, p. 74, para 1-J. 16-A.

(iii) Article 14(5) of the Universal Declaration of Human Rights, 1948.

(iv) M.H Hoscot v. State of Maharashtra, (1978) 3 SCC 544, 551-53 paras 10-13.

(v) A.R Antulay v. R.S Nayak, (1988) 2 SCC 602, 56 B-C, 64-C, 69-F, 71 B-E.

(iv) Deprivation of personal liberty can only be in accordance with the procedure established by law (Article 21). As the Criminal Procedure Code confers a right of appeal, deprivation can take only after the appellate court has affirmed the conviction and sentence. So long as the sentence remains suspended the convict is free to participate in elections or serve the country as Minister if called upon to shoulder the responsibility.

Articles 21(3) and (6) of the Universal Declaration of Human Rights.

6. The rule of law is a basic feature of the Constitution. It does not permit irreversible penal consequences to flow from a sentence while the appeal is pending. Precisely for this reason there are provisions for bail and suspension of sentence in the Criminal Procedure Code. For this very reason, Section 389 CrPC mandates the trial court to suspend a sentence not exceeding three years. Once the sentence is suspended, the disqualification which arises out of the sentence also stands suspended automatically.

Gudikanti N. v. Public Prosecutor, (1978) 1 SCC 240, 247, para 19.

S.R Bommai v. UOI, (1994) 3 SCC 1, 123-24, paras 112-14 and pp. 224-25, para 289.

7. The inability of the courts to effectively enforce the right to speedy trial (which includes appeal) cannot make the appellant in a criminal case suffer any penal consequences before the disposal of his appeal.

Abdul Rehman Antulay v. R.S Nayak, (1992) 1 SCC 225, 270, para 86(2).

(1988) 2 SCC 602, 69-70; 71-72, 84-85, 88-89.

8. Assuming that conviction and a sentence of not less than two years awarded by the trial court constitutes disqualification, such disqualification will be provisional in character during the pendency of the appeal. So long as the disqualification is provisional or tentative in character and subject to the decision in the pending appeal, the possibility of the person concerned getting rid of the disqualification either on account of acquittal or reduction of sentence by the appellate court within the period of six months stipulated in clause (4) of Article 164 cannot be ruled out. Therefore, such a person can be appointed under Article 164(1) of the Constitution as Chief Minister, provided he commands the confidence of the House.

9. In the event of the court declaring the impugned appointment unconstitutional, it will be open to the court to decline to issue a writ of quo warranto for the following reasons:

(i) The writ of quo warranto is discretionary — Halsbury's Laws of England, 4th Edn., Vol. I., at p. 167, para 177.

(ii) “If the irregularity in the appointment of an office held at pleasure could be cured by immediate reappointment, the court in the exercise of its discretion would doubtless refuse the information.”

R. v. Speyer, (1916) 1 KB 595, 612-13.

Hari Shankar Prasad Gupta v. Sukhdeo Prasad, AIR 1954 All 227, paras 4, 15.

P.L Lakhanpal v. A.N Ray, AIR 1975 Del 66, 68-71 paras 6-11 (FB).

(iii) The period of six months will expire in about 2 months from now. The appeal filed by Respondent 2 is due to be heard next month and there are three possibilities: acquittal or reduction of sentence to less than two years or affirmation of the conviction and sentence. In the event of her acquittal or reduction of sentence by the appellate court a writ of quo warranto issued in the meantime would become a futile exercise for all practical purposes. Therefore, unsettling the administration of the State all of a sudden and creating a vacuum in the office of Chief Minister and the Council of Ministers by issuing the writ will not be in public interest.

(iv) When the period left for the operation of the impugned order is too short, the court will only declare the law and will not give effect to it in that particular case.

K.N Guruswamy v. State of Mysore, (1955) 1 SCR 305, 312-13.

10. The following are some of the cases in which the Supreme Court declared the law for the future, but declined to grant relief:

(i) Golaknath v. State of Punjab, (1967) 2 SCR 762, 805-14 (11 Judges).

(ii) Ajay Hasia v. Khalid Mujib, (1981) 1 SCR 722, 109-F (CB).

(iii) Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417, 700 (4 Judges).

(iv) Waman Rao v. UOI, (1980) 3 SCC 587, 588 (CB).

(v) Synthetics & Chemicals Ltd. v. State of U.P, (1990) 1 SCC 109, 159, para 89, 28-58 (7 Judges).

concluding submissions of mr p.p rao for the state of tamil nadu

1. Democracy is a basic feature. It functions through political parties and periodic elections which throw leaders acceptable to the people from time to time to govern the States and the Union. Unless it is a constitutional compulsion, ordinarily the verdict of the people shall prevail, in the appointment of a Chief Minister.

2. Public interest lies in respecting people's choice of legislators and their choice of leader. Public interest does not permit destabilization of administration of the State and creating a vacuum of leadership before the final verdict is given in the pending appeals of Respondent 2.

3. As held in Statesman v. H.R Deb, (1968) 3 SCR, pp. 614, 621 (D-F) if there be some doubt about the impugned appointment that is to be resolved in favour of upholding the appointment. Unless there is a clear infringement of the law, a writ of quo warranto will not be issued. There is no clear infringement of law.

4. The writ petitions filed under Article 32 are clearly not maintainable and liable to be dismissed for not making out a case of violation of any fundamental right. Consequently transfer petition of Dr Subramanian Swami is not maintainable. The WP filed by V. Selvaraj in the Madras High Court is also not maintainable as the impugned appointment is not subject to judicial review.

5. The qualifications mentioned in Article 173 and the disqualifications mentioned in Article 191 for membership of the Legislative Assembly are not made applicable to the appointment of a Minister under Article 164(1) read with (4) thereof. Wherever framers of the Constitution intended that these qualifications and disqualifications should apply to a non-member of a Legislature, they have made an express provision to that effect — vide Article 58(1)(c) — one of the qualifications for election as President is that the person concerned is qualified for election as a member of the House of the People and Article 66(3)(c) which requires a person to be eligible for election as Vice-President to be qualified for election as a member of the Council of States. There is no such prescription in the case of a Minister appointed by virtue of Article 164(4) who can function only for six consecutive months without being a member of the Legislature of a State.

6. Article 164(4) is like a safety valve intended to be invoked in exceptional circumstances and in larger public interest. Such power should remain flexible, as it has been all along.

7. The office of Chief Minister is a high political office as described in the Special Courts Bill, 1978, In re, (1979) 1 SCC 380, 394 — consequently the appointment is a political appointment. In this area the exercise of power is subject only to political sanctions such as the State Legislature consisting of elected representatives of the people and the people themselves. Such appointments involve assessment of political situation requiring an entirely different approach from the one adopted by the courts. There are no judicially manageable standards to enable courts to interfere with such appointments. As rightly pointed out by Dr B.R Ambedkar on the floor of the Constituent Assembly, such matters should be left to the good sense of the Legislatures and the public at large. Public opinion was considered a far better sanction than outside legal sanction. The instant case warrants judicial statesmanship and not judicial interference with the discretion exercised by the Governor in the appointment of the Chief Minister.

8. Section 8(3) of the RP Act can apply only when conviction and sentence are awarded on the same date. In view of the requirement of separate hearing on sentence and power of the court to adjourn the hearing to enable the parties to place materials bearing on sentence, conviction and sentence need not take place on the same date in every case when the trial court disposes of the case. That is possible only at the appellate stage.

9. Assuming that Section 8(3) is susceptible to two interpretations on the question whether the disqualification arises immediately after the judgment of the trial court convicting a person and awarding a sentence of not less than 2 years or when the conviction and sentence has become final, considering the penal nature of the provision the court will prefer that interpretation which is favourable to the convict. The principle of harmonious construction also favours the view that as in Section 8(4), under Section 8(3) also the disqualification does not operate till the conviction and sentence become final on appeal or revision.

10. So far the courts have proceeded on the footing that the exercise of power of a Chief Minister by the Governor is not subject to judicial review. In R.K Jain v. Union of India, (1993) 4 SCC 119, 161, para 55 the Supreme Court has expressed the same view. If this Constitution Bench is inclined to overrule that view and read the qualifications and disqualifications prescribed for a member into Article 164(4) for the first time, it would be an eminently fit case for declaring the law for future operation without affecting the appointment in question.

11. The writ petitions and the SLP are premature as the appeals of Respondent 2 are due to be heard next month and there is every possibility of the judgment in the appeals being pronounced before the expiry of 6 months from the date of the impugned appointment and in the event of the verdict of the appellate court erasing the alleged disqualification from the inception, any judgment pronounced by this Hon'ble Court in the present proceedings in the meanwhile would become a futile exercise and in the event of the petition being allowed it is likely to have an unsettling effect on the administration as political stability is necessary for effective governance.

———

The Judgments of the Court were delivered by

S.P Bharucha, J.— (for himself, Y.K Sabharwal and Ruma Pal, JJ.)— Leave granted.

2. 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.

3. The second respondent, Ms J. Jayalalitha, was the Chief Minister of the State of Tamil Nadu between 1991 and 1996. In respect of that tenure in office she was (in CCs Nos. 4 and 13 of 1997) convicted for offences punishable under Section 120-B 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 was 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.

4. The fine that was imposed in both cases was paid.

5. 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 3-11-2000, suspended the sentences of imprisonment under Section 389(3) of the Code of Criminal Procedure and directed the release of Respondent 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 14-4-2001 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 Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988. These orders were not challenged.

6. 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 24-4-2001 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.

7. On 13-5-2001 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 14-5-2001, consequent upon the result of the election, AIADMK elected the second respondent as its leader.

8. On 14-5-2001 the second respondent was sworn in as the Chief Minister of the State of Tamil Nadu.

9. These writ petitions and appeal contend that the second respondent could not in law have been sworn in as the Chief Minister and cannot continue to function as such. They seek directions in the nature of quo warranto against her.

10. The provisions of the Prevention of Corruption Act, 1988, that are relevant to the second respondent's 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 so to do; 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.”

11. 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.”

12. 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 insofar 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 States 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.”

13. Provisions of a similar nature with regard to Parliament are to be found in Articles 74, 75, 84, 88 and 102.

14. 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, 8-A, 9, 9-A, 10 and 10-A. They read thus:

“8. Disqualification on conviction for certain offences.—(1) A person convicted of an offence punishable under—

(a) Section 153-A (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 171-E (offence of bribery) or Section 171-F (offence of undue influence or personation at an election) or sub-section (1) or sub-section (2) of Section 376 or Section 376-A or Section 376-B or Section 376-C or Section 376-D (offences relating to rape) or Section 498-A (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) of 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 Sections 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 135-A (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 of 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 in 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) or 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 of 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 bought 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).”

15. Central to the controversy herein is Article 164, with special reference to sub-article (4) thereof. This Court has considered its import in a number of decisions. In Har Sharan Verma v. Tribhuvan Narain Singh, Chief Minister, U.P (1971) 1 SCC 616 a Constitution Bench rendered the decision in connection with the appointment of the first respondent therein as the 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 insofar 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 in 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”.

16. In Har Sharan Verma v. State of U.P (1985) 2 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 (2001) 7 SCC 126 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.

17. Another two-Judge Bench of this Court in Harsharan Verma v. Union of India 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 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.

18. In S.P Anand v. H.D Deve Gowda (1996) 6 SCC 734 the first respondent, who was not a member of Parliament, was sworn in as the Prime Minister. This was challenged in a writ petition under Article 32. Reference was made to the earlier judgments. It was held, by 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 duration”.

19. In S.R Chaudhuri v. State of Punjab (2001) 7 SCC 126, (2001) 5 Scale 269 one Tej Parkash Singh was appointed a Minister of the State of Punjab on the advice of the Chief Minister, Sardar Harcharan Singh Brar. 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 Brar 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. The Constituent Assembly Debates (Vol. VII) notes that when the corresponding article relating to members of Parliament was being discussed by the Constituent Assembly, Dr B.R Ambedkar said: (Vol. 8, p. 521)

“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 or 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 so competent as that should be not permitted to be appointed 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)

25. 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.

26. 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 some of the judgments in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, 1973 Supp SCR 1.

27. 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).

28. A Constitution Bench in Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625, (1981) 1 SCR 206 considered in some detail the judgment in Kesavananda Bharati (1993) 1 SCC 645. It was considering the validity of the clauses introduced into Article 368 by the Constitution (Forty-second Amendment) Act. They provided:

“368. (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article (whether before or 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 Bharati (1993) 1 SCC 645

there could be no doubt as regards the existence of limitations on Parliament's 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 Bharati (1993) 1 SCC 645 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 Bharati (1993) 1 SCC 645 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 India's 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 magnificent 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.

29. All this was said in relation to Articles 368(1) and (5). Sub-article (1) reads 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 it is permissible for the court to read limitations into the Constitution based on its language and scheme and its basic structure.

30. We hold, therefore, that a non-legislator can be made a 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.

31. 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 14-5-2001?

32. 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 counsel's 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), insofar as it applied to her, was also suspended.

33. 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)

34. 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).

35. 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.”

Leaned 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.

36. 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 in Raghbir Singh v. Surjit Singh 1994 Supp (3) SCC 162 was 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 (2) 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.”

37. 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 than 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 not less than two years which is cumulatively requisite to attract the disqualification under Section 8(3).

38. 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 were finally upheld.

39. Section 8(4) opens with the words “notwithstanding anything in sub-section (1), sub-section (2) or 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.

40. 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 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.

41. Learned counsel cited from the judgment of this Court in Padam Singh v. State of U.P (2000) 1 SCC 621 the passage which reads:

“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.”

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.

42. In Maru Ram v. Union of India (1981) 1 SCC 107 it 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 court's 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 the Chief Minister, she suffered from a disqualification by reason of the convictions and sentences against her.

43. In Dilip Kumar Sharma v. State of M.P (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, draconian 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.

44. Lastly, in this connection, our attention was drawn to the case of Vidya Charan Shukla v. Purshottam Lal Kaushik (1981) 2 SCC 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 were 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.

45. 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.

46. 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 a 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 poenitentiae operated as an exception, as a result of which, for that period, the people's 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 a 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 the 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 the 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 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 the 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.

47. We are, as we have said, not concerned here with the correctness or otherwise of the action of the Governor in swearing in the second respondent as the Chief Minister in the exercise of the Governor's discretion.

48. But submissions were made by learned counsel for the respondents in respect of the Governor's 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 Governor's knowledge, a non-citizen, under age, a lunatic or an undischarged insolvent, and the only way in which a non-citizen or an under age or a lunatic or an insolvent Chief Minister could be removed was by a vote of no-confidence in the Legislature or at the next election.

49. 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.

50. To accept learned counsel's 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 law” (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 Governor's 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 the 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.

51. 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.

52. The judgment of this Court in Kumar Padma Prasad v. Union of India (1992) 2 SCC 428, (1992) 20 ATC 239 is a case in 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 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.

53. 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 State of Rajasthan v. Union of India (1977) 3 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.”

54. We are satisfied that in the appointment of the second respondent as the Chief Minister there has been a clear infringement of a constitutional provision and that a writ of quo warranto must issue.

55. 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 [WP (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.

56. 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.

57. We are aware that the finding that the second respondent could not have been sworn in as the 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 14-5-2001, 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 14-5-2001 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 14-5-2001 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.

58. 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.

59. We, accordingly, order and declare that the appointment of the second respondent as the Chief Minister of the State of Tamil Nadu on 14-5-2001 was not legal and valid and that she cannot continue to function as such. The appointment of the second respondent as the Chief Minister of the State of Tamil Nadu is quashed and set aside.

60. All acts, otherwise legal and valid, performed between 14-5-2001 and today by the second respondent acting as the 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 affected by reason only of this order.

61. Writ Petition (C) No. 242 of 2001 is made absolute in the aforesaid terms.

62. In the light of this order, the other writ petitions, the appeal and the transferred writ petition stand disposed of.

63. No order as to costs.

Pattanaik, J. (concurring)— Leave granted.

65. 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 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 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 the 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 2, and Mr P.P 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 the said Minister ceases to be a Minister unless within that period of six months he gets himself elected as a member of the Legislature 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 disqualifications 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 conventions 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 (sic legislators) 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 disqualifications enumerated under Article 191. The aforesaid contention is based upon two reasonings: (1) The lack of prescription of qualifications or disqualifications 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 in-depth 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.

66. 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, Respondent 2 was disqualified under Article 191(1)(e) read with Section 8(3) of the Representation of the People Act, 1951, inasmuch as the said Respondent 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.

67. 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 the 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 (sic who) could be appointed as Chief Minister and Article 164(4) unequivocally provides a period of six months as locus poenitentiae 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 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 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 the 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. The Constitution, however, does not prevent the elected members belonging to a political party commanding the majority of seats in the Legislative Assembly or Parliament from electing 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 a 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 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 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.

68. 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 MP 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 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.

69. 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 a Chief Minister and the only limitation is that such Minister or Chief Minister must get elected within six months or else would cease to be 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 Governor's 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 dependent 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, the 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 (sic Assembly) 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 people's 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.

70. 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 2 having been appointed as the 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 of the legality of such an appointment is not permissible as it is a political thicket. The decision of this Court in R.K Jain v. Union of India (1993) 4 SCC 119, (1993) 25 ATC 464 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 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 para 73 that judicial review is concerned with whether the incumbent possessed qualification for appointment and the manner in which the appointment came to be made or the procedure adopted whether was fair, just and reasonable. It has been further stated in para 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 v. Union of India (1994) 3 SCC 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 Justices Jeevan Reddy and Agarwal, 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. It is Respondent 2 appointee, who is duty-bound to satisfy that there has been no illegal usurpation of public office. Quo warranto protects the 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 Respondent 2 is disqualified under the Constitution to hold public office of the Chief Minister, as has already been held, then the immunity of the 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 2, as the Chief Minister, the correctness of that stand is the subject-matter of scrutiny.

71. I am tempted to quote some observations of the United States Supreme Court in the case of Lucas v. Colorado General Assembly 84 S Ct 1459 (1964). It has been held in the aforesaid case: (US p. 736)

“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: (US p. 737, fn 30)

“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 restraint we cannot, 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 the people of India as well as all other constitutional authorities, including the Governor, and, therefore if Respondent 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.

72. Accordingly 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 the Representation of the 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 the 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 Samsher Singh v. State of Punjab (1974) 2 SCC 831, “the head of 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. The Constitution is a document having a special legal sanctity which sets out the framework and the principal functions of the organs of the Government within the State and declares the principles by which those organs must operate. The 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 principles 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 presupposes the existence of a State and includes those laws which regulate the structure and function of the principal organs of the 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 the Government may assume a wide variety of forms. Within a federal constitution, the tasks of the Government are divided into two classes, those entrusted to the federal organs of the 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 the 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 constitution-writers to be the rule of “the positive morality of the constitution” and sometimes the authors provide the name to be “the unwritten 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 (sic if) 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 framework of the constitution is operated in accordance with the prevailing constitutional values of the period. But where the country has a written constitution which ranks as fundamental law, legislative or executive acts which conflict with the constitution must be held to be unconstitutional and thus illegal. The primary system of government (sic governance) 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 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 supremacy 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 supremacy in the United Kingdom has no application in our country with a written constitution limiting the extent of such supremacy 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'ble Justice Bhagwati, J. describes in Minerva Mills case (1973) 4 SCC 225 to be suprema lex or the paramount law of the land and nobody is above or beyond the Constitution. When the court has been ascribed the duty of interpreting the Constitution and when the 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 supremacy distinguishes the United Kingdom from those countries in which they have a written constitution, like India, which imposes limits upon the Legislature and entrusts 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 is 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.

73. In the aforesaid premises, and in view of the conclusions already arrived at, with regard to the disqualifications Respondent 2 had incurred, which prevents her from not being chosen as a member of the Legislative Assembly, it would be a blatant violation of the 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.

74. 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 Divan 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 28-8-1997. 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 enquiry 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 Behari 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 today's 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 heightened 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 that casteism, corruption and politicisation have eroded the integrity and efficacy of our civil service structure also. The manifestos, 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 v. Surjit Singh (1980) 3 SCC 625, (1981) 1 SCR 206. But having regard to the mass-scale corruption which has corroded the core of elective democracy, it is high time for 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 the Prevention of Corruption Act, could be disqualified for being chosen, as a member or being continued as a member of the Legislative Assembly or Parliament. I hope and trust, our representatives in Parliament will bestow due thought over this issue.

75. 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.

Brijesh Kumar, J. (concurring)— Leave granted.

77. 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.

78. Amongst other points, the learned counsel for the respondents submitted that the appointment of Respondent 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 her discretionary powers, therefore, her action is not justiciable. Yet another submission is that the Governor had only implemented the decision of the majority party, in appointing Respondent 2 as a Chief Minister i.e she had only given effect to the will of the people.

79. Insofar as 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 the writ of quo warranto against Respondent 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 a 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 fulfil 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 the 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 Edn., Vol. 35-A, p. 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 as 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 28 L Ed 482 (1884), People v. Dashaway Assn.”

80. In the same volume of Words and Phrases, Permanent Edn., at p. 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.

Information in the 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.”

(emphasis supplied)

81. In Halsbury's Laws of England, 4th Edn., Reissue Vol. I, p. 368, para 265 it is found as follows:

“265. In general.—An information in the nature of a quo warranto took the place of the obsolete 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 that the right to the office or franchise might be determined.”

(emphasis supplied)

82. 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.” AIR 1952 Trav Co 66, (1943-44) 48 CWN 766, AIR 1977 NOC 246, ILR 1977 HP 17 (HP), AIR 1952 Nag 330, ILR 1952 Nag 409, AIR 1945 Cal 249, AIR 1965 SC 491 In view of the legal position as indicated above it would not be necessary to implead the appointing authority as the respondent in the proceedings. In the case in hand, the Governor need not be made answerable to the court. Article 361 of the Constitution however does not extend any protection or immunity, vicariously, to the 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 the 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.

83. 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 at his discretion. Thereafter, Article 164 of the Constitution has been referred to indicate that 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. 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 Respondent 2 submitted that the party in majority by means of a resolution had chosen Respondent 2 as their leader. Accordingly, Respondent 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 the 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 the Governor, in the matter, disappears. In the scheme of constitutional provisions the Governor is to act with the aid and advice 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 the Chief Minister is normally accepted, and rightly so. 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 the 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.