Raju Puzhankara v. Kodiyeri Balakrishnan

The Judgment of the Court was delivered by

J.B Koshy, A.C.J:— This petition is filed for issuing a writ of quo warranto to declare that the State Home Minister has no authority to continue in office. It is the averment that the Home Ministeron 21.1.2009 in a public meeting at Thiruvananthapuram has disclosed that the Central Bureau of Investigation (C.B.I) has requested the Government of Kerala to grant sanction to prosecute Shri Pinarayi Vijayan, an ex-Minister in SNV Lavlin case and thus he has committed breach of trust and revealed official secret. It is further alleged that he has violated the solemn oath he has taken under 3rd Schedule of the Constitution of India and there is serious impropriety in his act and violation of the constitutional provisions.

2. A writ of quo warranto poses a question to the holder or occupier of a public office that what is your warrant of appointment by which you are holding the office. If the answer is not satisfactory, the usurper can be ousted by issuance of a writ of quo warranto. In other words, the usurper of a public office is asked by what authority or warrant he is in such office. Quo warranto is a remedy or a procedure whereby the legality of the claim by a person asserts to an office orfranchise is looked into and oust such persons from the enjoyment of public office if he has no authority to hold such office. Ingredients necessary for the quo warranto writ was considered by the Constitution Bench of the Hon'ble Supreme Court in University of Mysore v. Govinda Rao (AIR 1965 SC 491). The court defined the broad principles as follows at para. 7:

“…………Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty, if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on thejudiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions, it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that theoffice in question isa public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.”

(emphasis supplied)

3. Explanation of the doctrine in the Halsbury's Laws of England is as follows: at paragraph 169, 4th Edition, Volume I:

“An information in the nature of 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 enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.”

4. In Corpus Juris Secundum, Vol. 74, para. 1, it is stated as follows:

“Quo warranto is a proceeding to determine the right to the exercise of a franchise or office and to oust the holder if his claim is not well founded, or if he has forfeited his right.”

5. The next question to be considered is whether Hon'ble Supreme Court or High Court can issue a writ of quo warranto in an appropriate case asa writ of quo warranto is a common law remedy of a prerogative nature available to the Crown. The Honourable Supreme Court considered the matter regarding the issuance of writ of quo warranto in Shri Kumar Padma Prasad v. Union of India ((1992) 2 SCC 428 : AIR 1992 SC 1213) and held that the High Courts and Supreme Court can issue a writ of quo warranto in appropriate circumstances. The court followed its earlier decision in University of Mysore (supra). The facts of that case is, the President of India by a warrant dated October 15, 1991 under his hand and seal appointed K.N Srivastava as a Judge of Gauhati High Court. He has not as yet made and subscribed an oath/affirmation as required under Art. 219 of the Constitution of India and as such has not entered upon his office. The question under consideration was whether the appointment of Srivastava as High Court Judge is infraction of Arts. 217(2) and 217(1) of the Constitution of India. Is he qualified for appointment as a Judge - if so has the mandatory process of consultation under the Constitution been followed. He had no mandatory judicial experience or experience in the Bar. His experience was only six months in the assignment for doing judicial work in the Mizoram Government while he was Secretary of Law and he had exercised quasi judicial functions earlier. The Supreme Court issued a quo warranto writ preventing him from taking oath. The Apex Court held as follows:

“41. We allow transferred Writ Petition of Kumar Padma Prasad and declare that K.N Srivastava, on the date of issue of the warrant by the President of India, was not qualified to be appointed as a Judge of the High Court. As a consequence, we quash his appointment as a Judge of the Gauhati High Court. We direct the Union of India and other respondents present before us not to administer oath or affirmation under Art. 219 of the Constitution of India to K.N Srivastava. We further restrain K.N Srivastava from making and subscribing an oath or affirmation in terms of Art. 219 of the Constitution of India and assuming office of the Judge of the High Court”.

6. The next question is whether the petitioner has locus standi. When this case was posted as an unnumbered Writ Petition on 4.2.2009 as the Registry has doubted the locus standi of the petitioner, we have asked the counsel forthe petitionerwhether quo warrnato writ will lie even if the petitioner has got locus standi and even if the allegations are correct, whether the Writ Petition can be on the admitted facts or not, and the case was posted today to decide all these aspects regarding maintainability of the petition. The petitioner is a citizen of India and residing in Kerala State. If a person is usurping the office of Minister or acting as Minister of the State without any legal authority, a citizen can approach the court for issuance of writ of quo warranto. The Apex Court in Kashinath G. Jalmi v. The Speaker ((1993) 2 SCC 703 : AIR 1993 SC 1873) has held as follows:

“18. The decision by a Constitution Bench in Brundaban Nayak v. Election Commission of India, (1965) 3 SCR 53 : (AIR 1965 SC 1892) indicates that the significance of deciding the question of disqualification of a Member as soon as it arises, even at the instance of a citizen, since the whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status, and if any member forfeits that status by reason of a subsequent disqualification, it is in public interest…………”

7. Therefore, we are of the opinion that petitioner has got locus standi to file the Writ Petition and therefore the Registry is directed to number the Writ Petition. The next question is whether a Minister is holding a public office, so that a quo warranto writ can be issued, if he is functioning as a Minister without any legal authority. Another incidental question is, even if his initial assumption is valid in law, whether if he subsequently disqualify to hold office, can a writ of quo warranto be issued. There is no dispute that if a Minister is holding his office against law, a quo warranto writ can be issued. In S.R Chowdhury v. State of Punjab ((2001) 7 SCC 126 : AIR 2001 SC 2707), quo warranto writ was issued by the Supreme Court. In that case, a person who was not a member of the Legislative Assembly was appointed as Chief Minister. The Hon'ble Supreme Court held that even though under Art. 164(4) of the Constitution of India, he can be appointed for an initial period of six months, he cannot be repeatedly continued to hold the office beyond the period of six months and, therefore, after the first six months, he cannot be appointed again and in that particular case quo warranto writ was issued. The court also noticed that if he is repeatedly appointed to the above post, it will be flouting the constitutional scheme and mandate. In B.R Kapur v. State of Tamil Nadu ((2001) 7 SCC 231 : AIR 2001 SC 3435), the Hon'ble Supreme Court also held that even if a person is disqualified to become a member of the legislature, he cannot be appointed as a Minister or Chief Minister under the guise of Art. 164(4) and a quo warranto writ can be issued to oust such person from office. In that case, Smt. Jayalalitha, who was convicted and sentenced by a court of law for imprisonment for more than two years, without becoming a member of the Legislative Assembly occupied office of Chief Minister of Tamilnadu by virtue of Art. 164(4) of the Constitution. The Apex Court held that if she is not qualified to become a member of the Legislative Assembly, she cannot be appointed as a Minister or a Chief Minister. The Apex Court held as follows:

“50………… 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 functionary under the Constitution and is sworn to “preserve, protect and define the Constitution and the laws” (Art. 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 Art. 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 Chief Minister a person who is not qualified to be a member of the legislature or who is disqualified 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 Art. 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 the 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 Shri Kumar Padma Prasad v. Union of India, ((1992) 2 SCC 428) is a case on point. One K.N Srivastava was appointed a Judge of the Gauhati High Court by a warrant of appointment signed by the President of India. Before the oath of his office could be administered to him, quo warranto proceedings were taken against him in that High Court. An interim order was passed directing that the warrant of appointment should not be given effect to until further orders. A transfer petition was then filed in this Court and was allowed. This Court, on examination of the record and the material that it allowed to be placed before it, held that Srivastava was not qualified to be appointed a High Court Judge and his appointment was quashed. This case goes to show that even when the President, or the Governor, has appointed a person to a constitutional office, the qualification of that person to hold that office can be examined in quo warranto proceedings and the appointment can be quashed.”.

8. As far as the present case is concerned, the first respondent was elected as the Member of the Legislative Assembly and he became the Home Minister after complying with all legal formalities. There is no dispute with regard to his initial appointment and there is no contention that he was disqualified under any of the provisions of the enactments or the Constitution. The only contention is that he has violated the oath of secrecy which was taken at the time of assumption of office. The form of oath of office to be taken at the time of assumption of office is as follows:

“I……………………swear in the name of God/solemnly affirm that 1 will bear true faith and allegiance to 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 Kerala) and that I will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill-will.”

9. The oath of secrecy to be taken is as follows:

“I ……………………swear in the name of God/solemnly affirm that I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the (State of Kerala) except as may be required for the due discharge of my duties as such Minister”.

10. In this case, C.B.I, prepared a final report after investigation. Two Government officers and one ex-Minister are arrayed as accused. C.B.I, has sought sanction to prosecute them and the Minister. It is stated in Ext. P2 paper report that the first respondent has stated that cases are not new to Pinarayi and they will fight the case politically. According to the petitioner, by the above statement, the Minister has divulged the information that Pinarayi, an Ex-minister, is an accused and thereby violated the oath. The violation of oath of office is a very serious matter. But the questions are whether there is any violation, and even if there is violation of oath, who is the authority to take action and whether writ of quo warranto will lie. When final report was filed levelling charges against an ex-Minister, a spontaneous reaction was made by the first respondent. Whether such expression by the Home Minister before consideration of the issue by the Cabinet is improper is not a question to be considered by us. Impropriety of a statement by the Minister is non justiciable. Violation of oath is different from impropriety, in any event, a writ of quo warranto cannot be issued on the ground of impropriety and, in any view, for the impropriety in the conduct of a Minister writ of quo warranto will be issued by the court sparingly in very special circumstances. It is a discretionary remedy. Even though the C.B.I, has filed charges against the ex-Minister, unless he is found gurlty by the court, he is deemed to be innocent. Primafacie, weare ofthe opinion thatthe observations made by the Minister is not a violation of oath. This is only a prima facie opinion, as we are not called upon to give a verdict on that aspect in this proceedings. Even assuming that there is violation of oath, a Full Bench of this Court in K.C Chandy v. R. Balakrishna Pillai (1985 KLT 762 (F.B)) held that quo warranto cannot be issued in such situation. The court held that breach of oath is different from absence of oath and if there is breach of oath, action has to be exercised by the appointing authority under the Constitution. Whether breach of oath of office and of secrecy committed bya Minister is outside the judicial review under Art. 226 of the Constitution of India. The Full Bench held as follows:

“7. Breach of oath may thus bea 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.

8. Breach of oath is different from absence of oath. Absence of oath prevents entry into office while breach affects the continuance after a valid entry. If no oath is taken before assumption of office as enjoined by the Constitution, there is no legal title to hold that office and a writ of quo warranto will naturally go from this court. Similarly, 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. This is the mandate of Art. 164(3) of the Constitution. A person without authority cannot function; and the jurisdiction under Art. 226 could be invoked to prevent that usurper in office from functioning.

9. 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. It was Jefferson who said:

“Our peculiar security is in the possession of a written Constitution; let us not make it a blank paper by construction.” (Government by Judiciary - Raoul Berger - p. 304.)

10. 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.”

11. Therefore, even if there is violation of oath, a petition filed under Art. 226 of the Constitution of India to issue a writ of quo warranto is not maintainable and hence this Writ Petition is dismissed in limine.