1. These two matters arise out of a common reference order made by a learned single judge in two writ petitions under the following circumstances.
2. Shri r. Balakrishna pillai was sworn, In as a minister of the cabinet headed by shri k. Karunakaran in 1982. At the function of the kerala congress held at ernakulam, On the 25th of may, 1985, The minister made a speech which gave rise to four writ petitions, Two of which have been disposed of in the year 1985.
3. It is alleged that the speech of the minister was "intended to bring out hatred, Contempt or disaffection and was an attempt to excite disaffection towards the government established by law in india " and an assault on the unity and integrity of india and thus he committed a breach of his oath. The chief minister sought clarification from the minister and did not precipitate any action. K. C. Chancy, Claiming to be a citizen, Filed a writ petition in this court as o. P. No. 5360 of 1985 for the issuance of a writ of quo warranto to prevent the minister from discharging his functions as a minister. The writ petition was admitted and notice ordered on 5th june, 1985. While admitting the writ petition, A learned single judge of this court made certain ex parte observations. The minister promptly tendered his resignation immediately, On the same day. On the 10th of june, Another writ petition,. O. P. No. 5538 of 1985 was filed by shri kallara sukumaran based practically on the same cause of action. He claimed relief not only against shri r. Balakrishna pillai but against other ministers as well in respect of the speeches delivered at the same convention. That writ petition was dismissed at the admission stage on 13 - 6 - 1985 and a writ appeal against that decision, W. A. No. 261 of 1985, Was dismissed by a division bench on 24th june, 1985. That decision is reported in sukumaran v. Union of india (1985 klt 567). The division bench held that the disqualifications are, Enumerated in art. 191 of the constitution, That breach of oath is not a disqualification constitutionally listed, And that this court cannot add to those disqualifications. It was also held that "morality or propriety of an undesirable person continuing as a minister is essentially a political question. " the court refused to issue a writ of quo warranto and also dismissed the prayer for issuance of a writ of mandamus.
4. The earlier writ petition filed by shri chandy, O. P. No. 5360 of 1985. Was referred to a larger bench and was eventually heard by a full bench which dismissed the same by its judgment dated 19th august, 1985 and the decision is reported in k. C. Chandy v. R. Balakrishna pillai (1985 klt 762 (fb.)). It was held that eventhough violation of an oath is not a disqualification specified in the constitution, Breach of oath was a breach of a fundamental code of conduct and when the post is held at the pleasure of the appointing authority, The termination of the tenure "may be the possible outcome of such breach". It was, However, Pointed out that breach of oath did not entail an automatic termination of the tenure but required an independent order by the appointing authority and this court was not competent to issue such orders terminating the appointment of a minister of a state. The full bench, However, Was careful to note that atleast in two cases the court could interfere: (1) when the minister functions without the oath having been administered to him as provided in art. 164 (3) : and (2) when he continues in office, Without being member of the legislature, After six months. The full bench thus dismissed chandy's writ petition as well.
5. One would have thought that these two decisions gave a quietus to the whole issue. They did not. Shri r. Balakrishna pillai was re - inducted as a minister. He was sworn in on 25 - 5 - 1986.
6. After fresh oath taken in 1986 and re - induction in office of shri r. Balakrishna pillai, Based on the alleged violation of the earlier oath taken in 1982, An advocate of this court, Shri silvester, Filed a fresh writ petition, O. P. No 5055 of 1986, On 14th july, 1986 in which the prayers that are relevant for our purpose, Read thus:
(a) issue a writ of certiorari or other writ, Directions, Or orders quashing the appointment of the ist respondent as minister of state of kerala by the 2nd respondent.
(b) to issue a writ of mandamus, Or other writs, Directions or orders restraining the 1st respondent from continuing as a minister till such time, A proper decision is taken either by the 2nd or 3rd respondent on the question whether the 1st respondent had viola - led the oath of office.
(c) compelling the 2nd and 3rd respondents to take a decision in accordance with law as to whether the 1st respondent had committed a violation of oath of office.
(d) to issue appropriate writ, Directions or orders declaring that the 1st respondent has forfeited his right to continue as a minister of the state cabinet. "
7. Shri k. C. Chandy, Who bad filed o p. No. 5360 of 1985 earlier, Has faded from the scene. However, Shri kallara sukumaran, Undaunted by his failure in his earlier writ petition, O. P. No. 5538 of 1985, Filed again a writ petition, O. P. No. 4125 of 1986, On 26th may, 1986, With the following material prayers:
" (i) issue a writ of mandamus or other appropriate writ, Order or direction commanding the respondents 4 and s to consider ext. Pi representation on merits and take appropriate decision and to pass appropriate orders in accordance with law.
(i) (a) to declare that a situation has arisen in the state of kerala in which the government of the state cannot be carried on in accordance with the provisions of the constitution of india.
(ii) issue of writ mandamus or other appropriate writ order or direction commanding respondents 1 and 3 to consider whether there is a break down of constitutional machinery in the state of kerala i. E. Whether a situation has arisen in which the government of state cannot be carried on in accordance with the constitution of india, So as to warrant in action under art. 356 of the constitution of the india and to take appropriate decision on merits and in accordance with law. "
8. The chief minister filed a counter affidavit in o. P no. 4125 of 1986 stating thus:
"in the light of the enquiries made in the opinions received which were intended for his personal satisfaction, This respondent was satisfied that the allegations contained in ext. P1 are without merit and that no violation of oath as alleged therein was involved in respect of the speech made by the second respondent at ernakulam on 25 - 5 - 1985. In the circumstances having been fully satisfied as enjoined by the constitution of india, This respondent decided to nominate the 7th respondent for appointment as a minister for the state of kerala and advised the governor accordingly, Who appointed the 7th respondent as a minister and administered the oaths of office and secrecy to the 7th respondent before he assumed office as minister as provided in the constitution on 25 - 5 - 1986. It is submitted that he advice of this respondent is immune from enquiry as enjoined by art. 164 (3) of the constitution. It is also submitted that nothing turns on the alleged violation of the oath of office of the 7th respondent on account of the statement alleged to have been made by him during the course of a speech at ernakulam on may 25, 1985 for the reason that before assuming the office of minister for the state of kerala on may 25,1986, He was duly administered the oaths of office and secrecy by the governor of kerala according to the forms set out in the third schedule of the constitution of india. It is submitted that the allegation that a minister has violated the oaths of office and secrecy are serious matters involving constitutional norms and constitutional proprieties. This respondent has all along given anxious consideration to the question with all seriousness and has duly discharged his constitutional duty in the matter before deciding to include the 7th respondent in the council of ministers afresh. It is submitted that the various newspaper reports produced by the petitioner along with the original petition have no relevance tot he matter in issue before this honourable court. As already submitted all relevant
materials including the newspaper reports, Have been duly considered by this respondent in arriving at the satisfaction about the allegations contained in ext. P1 before he exercised his discretion in nominating the 7th respondent for the appointment as a minister, Which office he duly assumed on 25 - 5 - 1986. Moreover, Newspaper reports do not constitute legal evidence in a proceeding under art. 226 of the constitution of india"
9. The petitioners in these two writ petitions, Mainly relied on reports appearing in the papers and the petitioner in o. P. No. 5055 of 1986 also relied on a video cassette which was not produced along with the writ petition. Months later, The 5th respondent in that original petition produced the cassette on 7 - 10 - 1986 and by order of court, This was kept sealed with the registrar. The cassette was not played in court and the seal was never broken.
10. The learned single judge had thus before him. The averments made in the writ petitions, The newspaper cuttings and an undisclosed material in a sealed cassette. The learned judge was aware of the two decisions as well.
11. The learned advocate general raised a preliminary question of jurisdiction and the learned single judge by his order dated 10th september, 1986 directed that the "preliminary issue regarding the justifiability of the appointment of a minister can be considered at the time of the further arguments of the case. "
12. After hearing all the parties the learned single judge pronounced the common order of reference on 21 - 11 - 1986 wherein he has ordered in para. 84 as follows:
"i would place the following question for the opinion or the division beach:
the writ petition win be finally disposed of after the expression of opinion of the division bench. The office will place the papers before the hon'ble chief justice for appropriate order for the above purpose. "
13. The learned attorney general and shri k. K. Venugopal contend that hie learned single judge has referred both the original petitions for final disposal by the division bench as it is necessary to have an authoritative pronouncement of the division bench on the question of jurisdiction. In the alternative it is contended that even if the order of reference is capable of conveying that only the question of jurisdiction alone has been referred to the division bench, We should consider the reference as having the effect of referring the entire cases for the final disposal by the division bench. The stand taken by shri m. R. Rajendran nair and shri suresh, Learned counsel for the petitioners, However, Is that only the question of jurisdiction has been referred to the division bench and that we should, Therefore, Answer only the said question leaving it to the learned single judge to dispose of both the original petitions finally in the light of the opinion of the division bench. In the alternative it is contended that if the learned single judge did not have the competence to refer only a question of law to the division bench, We should then regard the reference as an incompetent one. In that event, It was submitted that the records have to be sent to the learned single judge to enable him to deal with the matters finally. It has. Therefore, Become necessary for us to pronounce on the scope and ambit of the reference.
14. S. 3 of the kerala high court act, 1958 reads:
"3. Power of single judge. The powers of the high court in relation to the following matters may be exercised by a single judge, Provided that the judge, Before whom the matter is posted for hearing may adjourn it for being heard and determined by a bench of two judges:
(1) to (9).
(10) exercise of the powers under - (i).
(ii).
(iii) clause (1) of art. 226 of the constitution of india except where such power relates to the issue of a writ of the nature of habeas corpus; and
(iv).
(11) to (13).
s. 4 of the act which deals with the power of a bench of two judges reads:
"the powers of the high court in relation to the following matters may be exercised by a bench of two judges, Provided that if both judges agree that the decision involves a question of law they may order that the matter or question of law be referred to a full bench.
(1) any matter in respect of which the powers of the high court can be exercised by a single judge.
(2) to (5).
(6) an appeal from any original judgment, Order or decree passed by a single judge. (7). " (underlining is ours) ,.
it is clear from s. 3 of the act that a single judge is empowered to adjourn the case for being heard and determined by a bench of two judges. S. 3 does not confer any power on the single judge to refer only one of the questions that arises for consideration to the division bench. S. 4 of the act. On the other hand, Makes it clear that a division bench ran refer the entire case or a question of law to a full bench. If the legislature intended to confer power on a single judge to refer only a question of law to the division bench, It would have made a specific provision to that effect as has been done in s. 4 of the act. There cannot, Therefore, Be any doubt that a single judge is not competent to refer only a question of law to the division bench. The single judge, Can, If he so desires, Refer the entire case to the division bench.
15. The andhra pradesh high court has in the case reported in raja sekhar v. Immanuel (ilr (1976) ap 294) after considering similar provisions contained in rules 1 and 2 of the appellate side rules of the andhra pradesh high court, Held that a single judge cannot refer a question of law only to the division bench. We are in respectful agreement with the said view. That was a similar case in which the order of reference seemed to indicate that only the question of law as to the validity and the binding nature of the judgment in each of those cases was required to be decided by the division bench. As the appellate side rules governing the procedure to be followed in such cases, Did not contain any provision empowering a single judge to refer a question of law alone to a division bench, And as under rule (1) a single judge could only adjourn a case for determination by a bench of two judges, The andhra pradesh high court held that in the circumstances the learned single judge must be regarded as having directed that the entire case be placed before the division bench for final disposal.
16. Shri rajendran nair, Learned counsel for some of the petitioners, However, Relied upon the decision of the supreme court reported in kesho nath khurana v. Union of india and others (1981 (supp.) scc 38) and submitted that it has been laid down that where a question of law is referred by a single judge to the division bench, The bench must decide that question only and send the case back to the single judge along with its answer to that question and that it is not entitled to proceed to dispose of the entire case. The decision of the supreme court is based on the practice and procedure of the high court of himachal pradesh. Shri rajendran nair, Learned counsel, Was not in a position to show that the supreme court had considered in that case provisions analogous to s. 3 and 4 of the kerala high court act. It cannot be regarded as a general principle of law laid down by the supreme court, Applicable in all cases irrespective of the statutory provisions by which the power of making reference by a single judge to the division bench is regulated or curtailed. The decision of the supreme court, Does not apply to cases where different procedure is prescribed by the statute. Therefore, The question of applying the principle laid down by the supreme court in the said decision to the facts of the present cases does not arise.
17. We shall now examine as to the scope and ambit of the order of reference made by the learned single judge. The submission of the learned attorney general is that the learned single judge, Having come to the conclusion that a very important question of jurisdiction has arisen for consideration in regard to which an authoritative pronouncement of the division bench is necessary, Referred both the original petitions for final disposal and not the question of jurisdiction alone. After stating in para. 84 of the reference order that the question formulated therein is placed for the opinion of the division bench, The learned single judge has observed:
"the writ petition will be finally disposed of after the expression of opinion of the division bench. "
the learned attorney general also invited our attention to toe first sentence in para. 85 of the reference order wherein it is stated:
"the interregnum between now and the final hearing by the division bench may even enable the constitutional functionaries to have a fresh look on the issue, If they are so inclined, In the light of the focused findings herein."
(underlining is ours)
as the learned single judge has adverted to the final hearing by the division bench, It was submitted that it was not in the contemplation of the learned single judge to refer only the question of jurisdiction to the division bench. It was also pointed out that the learned single judge has not stated in so many words that he will proceed to dispose of the cases after the receipt of the opinion from the division bench. Shri rajendran nair submitted that this is not the correct way to understand the order of the learned single judge and the effect of the order is that the learned single judge has to make final orders after the opinion is rendered by the division bench. Though the interpretation suggested by the learned attorney general is a possible interpretation, It is necessary to point out that when these matters had come up before the division bench, On an oral submission by the learned advocate general, On the date on which the order was passed by the learned single judge, Seeking an interim order of stay, An observation was made on 21 - 11 - 1986 by a division bench to which one of us is a member, To the effect that the learned single judge has to make final orders after the opinion is rendered by the division bench, Suggesting thereby that the entire cases have not been referred.
18. If two interpretations are possible, We should prefer that interpretation which is in accordance with law and also advances the. Cause of justice. If, As contended on behalf of the petitioners, The learned single judge has referred only the question of jurisdiction to the division bench, It would clearly be in conflict with s. 3 of the kerala high court act, As it does not empower a single judge to refer only a question to the division bench. If, On the other hand, The order is considered as referring the entire cases to the division bench, The order of reference would not suffer from any legal infirmity. A full bench of this court has in bar council of kerala v. Thankappan pillai (1985 klt 769). Dealing with the scope of s. 3 and 4 of the kerala high court act held in para. 9 of the judgment as follows:
"where a bench of two judges feel that a matter has not been placed before it as required by law, The proper course would be to return it to the registry, Instead of passing a judicial order in a matter, Which, In its own opinion, Is not before it. A bench to which a matter is adjourned by a single judge under s. 3 is not a superior court clothed with power to issue directions, Expressly or impliedly, To the single judge as to how or in what manner he should exercise his power of adjournment. "
in the light of the order made by the learned single judge these two cases have been placed before the division bench on the orders of the chief justice. Therefore, The matter has been placed before us as required by law. Hence, The question of returning the cases to the registry would not arise. The full bench has further held that it will not be open to a bench of two judges "to refer the case back to a single judge" once that judge has exercised his power of adjournment under s. 3. As the learned single judge has made the order in exercise of the powers conferred by s. 3 of the kerala high court act, We cannot refer the cases back to him. As we cannot refer these cases back to the learned single judge, It is reasonable and proper to regard the order of reference made by the learned single judge in exercise of the power conferred by s. 3, As an order "adjourning them for being heard and determined by a bench of two judges", Which has the effect of referring both the cases for final disposal by the division bench and not the question of jurisdiction alone.
19. As the order of reference in these cases must be regarded as referring the entire cases to the division bench for final disposal, We shall proceed to dispose of both the cases on merits. In disposing of the writ petitions, We have necessarily to decide about the question of jurisdiction. Even then, We do not think that there is any necessity to formulate the question so broadly as has been done by the learned judge this court need not answer an abstract question unrelated to facts and we think that in any case, The question posed for consideration by the learned judge has to be modified and read as follows:
"on the facts and in the circumstances of the case, Whether the high court can in the exercise of its powers under art. 226 of the constitution, Declare an appointment of a minister made under art. 164 of the constitution, Unconstitutional. "
we had invited the counsel on both sides to address us on the merits as well and we have heard their arguments.
20. It is only necessary to note that there is no dispute that a speech was made by shri r. Balakrishna pillai on 25 - 5 - 1985. There is, However, Serious dispute regarding the contents of the speech and in the counter affidavit in o. P. No. 4125 of 1986 dated 26 - 8 - 1986, Sri balakrishna pillai has stated that the original petition is based on "absolutely untrue and distorted version of the speech" and asserted that there was no violation of oath. The contention of the petitioners is that by the speech made on 25 - 5 - 1985, He committed a breach of oath resulting in automatic forfeiture of the office and that his re - induction as minister, On taking a fresh oath on 26 - 5 - 1986 was also not legally permissible.
21. The learned attorney general appearing for the chief minister and shri k. K. Venugopal, Senior counsel appearing for shri balakrishna pillai, Relied very strongly on the full bench decision of this court in k. C. Chandy v. R. Balakrishna pillai (1985 klt 762) rendered in respect of the very same speech by the same minister. They therefore, Contended that the questions raised are not res integra so far as this court is concerned. The full bench decision binds not only the parties to those cases, But has a binding effect as a judicial precedent. According to the learned single judge, Once a breach of oath is established the minister would not be entitled to continue in office, And that the constitutional functionaries are bound to take note of the legal position and act accordingly. It is, Therefore, Necessary to examine and understand the full import of the full bench decision to answer the question of jurisdiction raised in these cases.
22. The full bench has held that there is no express provision in the constitution or the law made by the parliament which attaches specifically any disqualification to the minister who commits breach of his oath. Even then, It is pointed out that it could not be assumed that there is no sanctity to the oath taken before assumption of office or that there is no authority to take action if there is a violation of that oath. In para. 5 of the judgment, It is observed:
"the oath of office insisted upon under the constitution is the prescription of a fundamental code of conduct in the discharge of the duties of these high offices. The oath binds the person throughout his tenure in that office, And be extricates himself from the bonds of the oath only when he frees himself from the office he holds. Breach of this fundamental conduct of good behaviour may result in the deprivation of the very office he holds. When posts are held, Not at the pleasure of the president or the governor, But during 'good behaviour' breach of the oaths of office and of secrecy may attract the impeachment clauses and when posts are held at the pleasure of the president or the governor, The termination, At their will, Of the tenure may be the possible outcome of such breach."
(underlining is ours)
then the full bench proceeds to observe in para. 7:
"breach of oath may thus be a betrayal of faith. The appointing authority, The governor, In such cases, Can consider whether there was, In fact, Any breach of oath. It is not for this court to embark on any such enquiry. "
what has been held by the full bench, Therefore, Is that breach of oath may result in the deprivation of the office and there is no forfeiture of the office automatically whenever there is breach of oath. In other words, What is held is that deprivation of the office may be one of the consequences that the minister, Who commits breach of oath, May have to face. It is for the appointing authority to decide whether, In fact, There was a breach of oath and, If so, Whether he should for that reason remove the minister from the office. The full bench has in categorical terms held that it is not for this court to embark on any such enquiry. This is made further clear by what is stated in para. 9 of the judgment:
"breach of oath requires a termination of the tenure of office. This power can be exercised by the appointing authority under the constitution, And according to the procedure, If any, Prescribed therein. The termination of that tenure is not the function of a court; and it would not be appropriate to exercise jurisdiction under art. 226 in such cases. Proceedings under art. 226 in such cases do not lie. "
the full bench had no hesitation in taking the view that termination of office on the ground of breach of oath is a power which could be exercised under the constitution by the appointing authority and that the high court has no jurisdiction under art. 226 of the constitution to take action for the breach of oath of office committed by the minister. This principle has been reiterated very clearly in para. 10 of the judgment where it is stated:
"the question as to whether there was breach of oaths of office and of secrecy committed by a minister is outside judicial review under art. 226 of the constitution. It is to be decided in other appropriate forums; and in the case of the minister in a state, It falls within the discretionary domain of the chief minister, And/or the governor."
(underlining is ours)
when the full bench held that the question as to whether there was breach of oath is outside judicial review under art. 226 of the constitution, And that it is a question which is within the "discretionary domain" of the chief minister, And/or the governor, That authority has the discretion to remove or not to remove the minister on the ground of breach of oath. It is a matter left entirely to the discretion of the chief minister and/or the governor as to what is the proper action to be taken, If he is satisfied that the minister has committed a breach of oath. It is so held because the minister holds his office at the pleasure of the chief minister and/or the governor and neither the constitution nor any law made by the parliament either prescribes breach of oath as a disqualification for holding the office of a minister or provides forfeiture of office as a penalty for breach of oath. It has been so held by the full bench in para. 13 of the judgment, Wherein it is observed:
"13. This statement of the law was approved in the leading case r. V, Speyar ((1916) 1 kb 595) and it has been cited in all the important cases relating to quo warranto jurisdiction a writ of quo warranto or a writ by way of information in the nature of quo warranto cannot issue in these cases when a post is held 'at pleasure'. This is the normal rule. Even in those cases however, The non - fulfillment of the conditions prescribed for assumption of office or the absence of the required qualification to hold that office affecting the title to that office will give rise to the issuance of this writ. Once the office is held under a valid title, And the continuance depends on the pleasure doctrine, The writ of quo warranto does not run; and no such writ, Which can be defeated immediately by the mere exercise of an executive will, Will therefore issue. "
in para. 14, The full bench observes:
"we hold that in the present case, The question as to whether there was a breach of oaths of office and of secrecy, Is a matter to be decided under art. 164 (1) for the purpose of the 'pleasure doctrine' applicable to the tenure in office of a minister. The minister holds office only - at the disposal' of the chief minister and/or governor and his office is held 'durante bene placito' of the chief minister and/or the governor. "
23. But it was contended on behalf of the petitioners that the observations in para. 16 of the judgment of the full bench clearly show that the above findings are only obiter dicta. The observation relied upon reads:
"while no quo warranto will go from this court on the allegation that the minister had committed breach of his oath, It would not be even expedient for this court to exercise the discretion for issuance of the writ asked for when the chief minister is already seized of the matter. "
we do not agree. The full bench, In para. 16 not only rejected the petitioner's request for adducing evidence in court but stated yet another ground to reject the prayer for the issuance of a quo warranto. The full bench, In fact, Went into the whole question exhaustively and critically and decided the case on the merits, Though there was a faint argument that the writ petition had become infructuous with the resignation of the minister and no attempt was made to withdraw the writ petition.
24. Thus, We find that the full bench has clearly laid down the following propositions:
(1) that breach of oath of office taken by the minister is not a disqualification constitutionally listed under art. 191 of the constitution or specified under any law made by the parliament;
(2) that the oath of office is the prescription of a fundamental code of conduct in the discharge of the duties of a minister and not a, Mere moral obligation and binds him throughout his tenure of office;
(3) that the office of the minister is held at the pleasure of the governor/ chief minister and therefore termination at their will may be the possible outcome of breach of oath;
(4) that the question as to whether there was breach of oath can be considered by the appointing authority under art. 164 (1) of the constitution and not by the high court under art. 226. It falls within the discretionary domain of the governor and/or the chief minister.
(5) that breach of oath requires termination and this power can be exercised by the appointing authority at its discretion and not by the court under art. 226 of the constitution.
(6) that the court has no jurisdiction under art. 226 to oust a minister on the ground that be has committed breach of oath.
24a. We may at this stage refer to art. 164 of the constitution which reads thus:
"164. (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 schedule 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. "
25. It is only on the advice of the chief minister that the other ministers are appointed by the governor. The choice is, Therefore, Of the chief minister. In choosing the members of his cabinet, The chief minister may be guided by several factors to formulate and pursue a common policy, To provide a cohesive and stable government and for an efficient administration of the state. He may consider the member's standing, His influence in the party, His ability to give valuable advice and to take the lead in the implementation of the avowed policies of the government and also his utility in the debates and discussion that take place in the legislative assembly. In fact, There are no set patterns of conduct or rule which alone should guide the chief minister in the choice of his colleagues in the cabinet and rightly therefore, The constitution has not in express terms prescribed the qualifications of the ministers. The chief minister is answerable to the electorate and the members of the assembly and he makes a wrong choice of personnel of his cabinet at his peril. The political wisdom of the chief minister to choose his cabinet colleagues does not command judicial tolerance or even demand judicial scrutiny. The continuance of the ministers in office is thus only at the pleasure of the chief minister,
"at his disposal"
.
26. Now let us look at the oath of office which has to be administered before one enters office as minister. It reads:
"form of oath of office for a minister for a state: swear in the name of god
"i, A. B., Do that i will bear true faith and allegiance to solemnly affirm the constitution of india as by law established, That i will uphold the sovereignty and integrity of india, That i will faithfully and conscientiously discharge my duties as a minister for the state of and that 1 will do right to all manner of people in accordance with the constitution and the law without fear or favour, Affection or ill will. "
the solemn assurance contemplated by the oath is of the widest amplitude to bring within its ambit very large number of acts and omissions. In the discharge of his duties the minister is bound to take thousands of decisions and make speeches. What then constitutes breach of oath neither the constitution nor the law made by the parliament explains as to what constitutes breach of oath. Many wrong decisions honestly taken may not result in doing right to all manner of people. In such an event his action would be inconsistent with the oath. If that necessarily constitutes breach of oath, It would be impossible for a minister to take decisions in the fear of violating the oath and losing his office. Thus, The functioning of the minister may stand paralysed. Such could not have been the intention of the makers of the constitution.
27. That the intention of the founding fathers of the constitution was to leave such matters to the good sense of the chief minister and to the good sense of the legislature with the "general public holding a watching brief" upon them is what we can gather from the speech made by hon'ble dr. B. R. Ambedkar in the constituent assembly when he said:
(constituent assembly debates vol. 7 pages 1159 to 1160) :
"i want to tell ray friend prof. K. T. Shah that his amendment would be absolutely fatal to the other principle which we want to enact, Namely collective responsibility. All members of the house are very keen that the cabinet should work on the basis of collective responsibility and all agree that that is a very sound principle. But i do not know how many members of the house realise what exactly is the machinery by which collective responsibility is enforced. Obviously, There cannot be a statutory remedy supposing a minister differed from other members of the cabinet and gave expression to his views of the cabinet, It would be hardly possible for the law to come in and to prosecute him for having committed a breach of what might be called collective responsibility. Obviously, There cannot be a legal sanction for collective responsibility. The only sanction through which collective responsibility is enforced is through the prime minister. In my judgment collective responsibility is enforced by the enforcement of two principles. One principle is that no person shall be nominated to the cabinet except on the advice of the prime minister. Secondly, No person shall be retained as a member of the cabinet if the prime minister says that he shall be dismissed. It is only when members of the cabinet both in the matter of their appointment as well as in the matter of their dismissal are placed under the prime minister, That it would be possible to realise our ideal of collective responsibility. I do not see any other means or any other way of giving effect to that principle. "
"supposing you have no prime minister; what would really happen? what would happen is this, That every minister will be subject to the control or influence of the president. It would be perfectly possible for the president who is not ad idem with a particular cabinet, To deal with each minister separately singly, Influence them and thereby cause disruption in the cabinet. Such a thing is not impossible to imagine. Before collective responsibility was introduced in the british parliament you remember how the english king used to disrupt the british cabinet. He had what was called a party of king's friends both in the cabinet as well as in parliament. That sort of thing was put a stop to by collective responsibility. As i said, Collective responsibility can be achieved only through the instrumentality of the prime minister therefore, The prime minister is really the keystone of the arch of the cabinet and unless and until we create that office and endow that office with statutory authority to nominate and dismiss ministers there can be no collective responsibility.
now. Sir, With regard to the second proposition of my friend prof. K. T. Shah that a minister on appointment should seek a vote of confidence, I am sure that prof. K t. Shah will realise that there is no necessity for any such provision at all. It is true that in the early history of the british cabinet every person who. Notwithstanding the fact that he was a member of parliament, If he was appointed a minister, Was required to resign his seat in parliament and to seek re - election because it was felt that a person if he is appointed a minister will likely to be under the influence of the crown and do things in a manner not justified by public interest. The british themselves have now given up that system; by a statute they abrogated that rule and no person or member of parliament who is appointed a minister is now required to seek re - election. The provision, Therefore, Is quite unnecessary. As i explained a little while ago. If the prime minister does happen to appoint a minister who is not worthy of the post, It would be perfectly possible for the legislature to table a motion of no - confidence either in that particular minister or in the whole ministry and thereby get rid of the prime minister or of the minister if the prime minister is not prepared to dismiss him on the call of the legislature. Therefore, My submission is that the second proposition of prof. K. T shah is also unnecessary.
with regard to his third proposition, Viz. That if a person who is appointed a member of the cabinet is not a member of the legislature, He must become a member of the legislature within six months, I may point out that this has been provided for in art. 62 (5) this amendment is, Therefore, Unnecessary
his last proposition is that no person who is convicted may be appointed a minister of the state well, So far as his intention is concerned, It is no doubt very laudable and i do not think any member of this house would like to differ from him on that proposition but the whole question is this; whether we should introduce all these qualifications and disqualifications in the constitution itself is it not desirable, Is it not sufficient that we should trust the prime minister, The legislature and the public at large watching the actions of the ministers and the actions of the legislature to see that no such infamous thing is done by either of them. I think this is a case which may eminently be left to the good - sense of the prime minister and to the good - sense of the legislature with the general public holding a watching brief upon them. I, Therefore, Say that these amendments are unnecessary. "
28. The chief minister has indeed a very wide discretion to decide whether in a particular case for an alleged violation of oath, Any action should be taken at all. The chief minister may or may not take notice of the same. Besides, It is a matter of common knowledge that allegations are made by different persons for different reasons with different motives. It is not as if the chief minister has to embark on an enquiry every time an allegation is made that there was a violation of oath. How serious is the allegation, Who has made it, What is its effect, Is it prima facie worthy of enquiry are all matters within the domain of the chief minister's discretion. If it is felt that the allegation should be enquired into, Then again, The nature and extent of enquiry are also within the realm of discretion. If an enquiry is made, As to what inferences should be drawn and if the allegations are true what action should be taken are again matters within the discretion of the chief minister. In the absence of a prescription by law that the breach of oath shall necessarily entail forfeiture of office, The governor and/or the chief minister may either remove the minister or may take such other action according to his discretion as the situation may demand. In this context it is useful to extract the following passage in the division bench case in 1985 klt 567:
"a divagation from the oath can happen in respect of many a matter referred to therein. Take for example the case where it is established that a minister omits to faithfully or conscientiously discharge his duties as a minister; or again, His acting under fear of an extra - constitutional authority, Or out of motive to favour a partisan. Take even the case where actions arise out of affection, Of are the projections of a pronounced ill will. Will anyone of these violations of oath spell in the realm of a disqualification as minister? we are of the view that it will not. A malfunctioning of a minister or by a member of assembly would be primarily a matter for assessment and judgment at the political level. That assessment and that judgment would have to be made by the party to which the erring members belong or by the people to whom he has, Under our constitutional scheme, An established accountability. May be in situations warranting drastic action, The constitutional functionaries such as the chief minister or the governor could intervene in the matter and bring about a corrective to the situation. "
what is conferred on the governor and/or the chief minister is discretion and not power coupled with duty. The appointing authority has no duty to act; it has unfettered discretion to react to the situation in the manner it deems fit. The domain being one of pleasure and discretion, As held by the full bench, There is no scope for judicial intervention. When the chief minister and/or the governor appoints a minister, He does so at his pleasure in exercise of his discretion. He is not required to examine the suitability of the person to be appointed as minister with reference to any objective criterion. Likewise, The decision to remove a minister from office is also in exercise of the discretion vested in him. That decision again is not required to be taken on the basis of his satisfaction on objective criterion. Matters which are entirely within the realm of pleasure and unfettered discretion of the appointing authority, Are not amenable to the jurisdiction of the high court under art. 226 of the constitution as held by the full bench. We are aware of the caution given by the supreme court in minerva mills ltd. V. Union of india (air 1980 sc 1789). But we would like to say that it is not because of any disinclination to interfere on the ground that the question has a political complexion but because there is no jurisdiction for judicial interference in such discretionary matters of choosing or removing ministers, That the court refuses to interfere.
29. If the chief minister decides to remove a minister he could appoint him again after some time for, Removal on the grounds of breach of oath has not been specified as a permanent disqualification or disability for appointment as minister either under the constitution or under any other law. A bare look at art. 191 of the constitution which prescribes disqualifications for membership of the state legislature, Shows that disqualification lasts only so long as those conditions exist and not thereafter. This article, Therefore, Does not envisage permanent disqualifications. Once disqualified always disqualified does not seem to be the purport and intent of art. 191. Art. 191 itself provides that a member may be disqualified by or under any law made by parliament. Under s. 8 of the representation of people act, 1951, A person convicted of an offence punishable under, S. 125,135,136 and 153 - a etc. Of the indian penal code is disqualified for a period of six years from the date of such conviction. Where a person has been sentenced to imprisonment for not less than two years, The disqualification is from the date of such conviction and continues for a further period of five years since his release. Similarly, Regarding disqualification on the ground of corrupt practices or of disloyalty, Disqualification enures only for a fixed period. We have not been shown any express provision under which the disqualification enures for life. It is, Therefore, Impossible to draw the inference that breach of oath once committed brings about an implied disqualification of a permanent character for being appointed as a minister.
30. In view of the categorical decision of the full bench, The answer to the question formulated by the learned single judge can only be that the high court cannot, In exercise of its power under art. 226 of the constitution, Declare the appointment of shri balakrishna pillai as minister, Made under art. 164 of the constitution, As unconstitutional on the ground that be committed a breach of oath of office.
31. It was, However, Contended on behalf of the petitioners that even if this court has no jurisdiction to oust shri balakrishna pillai from his office or to examine whether he has committed any breach of oath, And even if these are matters within the exclusive domain and competence of the appointing authority, This court can examine and has a duty to examine whether the governor and/or the chief minister discharged the functions in accordance with law and if they have not so acted, Appropriate directions to act in accordance with law can be issued.
32. On merits it was contended that the satisfaction of the chief minister in regard to the alleged breach of oath is non - existent in the eye of law. It was further contended that the averment of the petitioner in o. P no. 5055 of 1986 that the chief minister has not considered all aspects of the evidence and has not taken a satisfactory decision, Has not been expressly denied by the chief minister. Again, It is contended that no attempt was made to collect material that was available such as video cassette of the speech and the evidence of journalists. In these circumstances, It was submitted that the only reasonable inference to be drawn is that the satisfaction of the chief minister must be regarded as non - existent and consequently, The advice tendered by him to the governor also must be regarded as non - existent. We have already held that these are not matters which are open for judicial review in view of the clear pronouncement of the full bench in this behalf. Even assuming that the satisfaction of the chief minister is subject to judicial review can it be said that his satisfaction can be regarded as non - existent for the reasons advanced by the petitioners. So far as the pleadings are concerned, It has to be pointed out that the chief minister has filed separate counter affidavits in each of these writ petitions. In o. P. No. 5055 of 1986, The petitioner has alleged in para. 5 of the writ petition that neither the chief minister nor the governor has taken a decision in accordance with law considering all the aspects and evidence. The reply given by the chief minister in para. 2 of his counter affidavit is to deny the allegations of the petitioner and to further assert that it is not correct to say that be has not taken a decision in accordance with law after considering all the aspects. In the counter affidavit filed in op. No. 4125 of 1986 the chief minister has stated at para. 6 that all relevant materials including the newspaper reports have been considered in arriving at the satisfaction about the allegations contained in ext. P1 before exercising the discretion to appoint the minister. Having regard to the nature of the pleadings it is not possible to draw an inference that there is an admission of the chief minister by non - traverse. So far as the video cassette and the evidence of the journalists ace concerned, It has to be pointed out that it is not even the case of the petitioners that they were tendered for consideration by the chief minister at any time. The video cassette was not produced before this court in 1985 when the earlier case was disposed of and was not produced along with the original petitions now. It was produced months later, Only during the pendency of these cases when these materials were thus not readily available it is too much to expect that the chief minister should have gone "in search of materials such as journalists' evidence, Cassette tapes and records, Before taking a decision. In these circumstances, It is not possible to draw the inference that the chief minister did not act fairly and reasonably in not attempting to secure these materials. Even the genuineness of the materials placed now before this court is seriously challenged by shri balakrishna pillai. In our opinion, The petitioners have not made out any cogent, Convincing, Clear, Acceptable reasons or circumstances to infer that the averment of the chief minister that he has considered all available material including press reports before taking a decision in the matter, Is false. An inference that the satisfaction of the chief minister must be regarded as non - existent cannot reasonably be drawn simply because the petitioners now assert that evidence of journalists and video cassette could have been secured before arriving at the satisfaction.
33. As the question whether the minister has committed breach of oath cannot be examined under art. 226 of the constitution, This court cannot record a finding in this behalf one way or the other. It is also not proper to record any finding, Prima facie or otherwise in a case of this type when the very jurisdiction is questioned; especially on disputed materials which have not been accepted as substantive evidence. As it is well settled that a finding recorded by a court which has no jurisdiction is a nullity, The observations made by the learned single judge in the reference order regarding the alleged breach of oath by the minister and the resultant consequences have to be treated as
"nonest"
.
34. In the light of what we have said above, The question of issuing a direction to consider the representation ext. Pi in o. P. No. 4125 of 1986 does not arise. We fail to see how this court can make a declaration that a situation has arisen in the state of kerala to clamp emergency, As that is a matter on which the president of india has to be satisfied under art. 356 of the constitution. No case has been made out for the issue of a direction to the union of india and the prime minister of india to consider whether there is a break down of the constitutional machinery in the state of kerala, In the exercise of our jurisdiction under art. 226 of the constitution.
for the reasons stated above, Both these original petitions fail and are dismissed. The parties shall bear their respective costs.
dismissed.
the petitioners in these two cases sought leave to appeal to the supreme court under art. 132 (1) and 133 (1) of the constitution read with art. 134a. As we have decided these two cases relying upon well settled principles of law, We are of the opinion that these cases do not involve any substantial question of law as to the interpretation of the constitution and further that no question of law of general importance which needs to be decided by the supreme court arises for consideration in these cases to merit certificate prayed being granted. Hence leave to appeal in both the cases is declined.
let photostat copy be furnished to all the counsel forthwith. Leave declined.