As per case facts, Respondent No. 2 was convicted for criminal misconduct and sentenced to rigorous imprisonment for a period of not less than two years. Although her appeals were ...
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B.R. KAPUR A
v.
STATE OF TAMIL NADU AND ANR.
SEPTEMBER 21, 2001
[S.P. BHARUCHA, G,B. PATTANAIK, Y.K. SABHARWAL, RUMA PAL B
AND BRIJESH KUMAR, JJ.]
Constit~ttion of India-Articles 164.:__Appointment of Chief Minister
Govemor's power-Person convicted and sentenced to more than two years'
imprisonment-Her party winning large majofity in general election-Party C
electing her as their leader-Governor appointing her as the Chief Minister
Held, a person convicted for a criminal offence and sentenced to imprisonment
for a period not less than two years cannot be appointed the Chief Minister
Hence her appointment quashed-Representation of the People Act, 195I
Section 8( 3 ).
Constitution of India-Articles I64, 173 and 191-Chief Minister/
Minister-Qual{fications for appointment-Held, person appointed as Chief
Minister/Minister should possess qualifications enumerated in Article 173 and
should not.be disqualified.from seeking membership
of legislature under Article
I91.
Constitution
of
lndia-,-Article 164( 4 )-Appointment of Ministers for six
months-Held, cannot be used to induct short term Ministers who do not.fulfil
D
E
the requirements of Articles 173 and 191-Person appointed as Chief Minister
though convicted and sentenced
for more than two years-Held, such
appointment
is illegal for being appointed under Article 164(4) the person F
should be
qual(fied to be a member of the legislature under Article 173 and
should not be disqual(fied under Article 191-Articles 173 and 191.
Constitution of India-Artie!~ 164-Govemor s power under-Not obliged
to appoint the nominee
of the majority party as Chief Minister if the nominee
is ineligible to be appointed as Chief Minister-Governor cannot do anything G
contrary to the Constitution and laws-Will of the
People-Held, cannot prevail
over the constitutional mandate.
Constitution
of India-Article 361-Scope of Judicial Review-lllegal
appointment made by Governor not protected-Appointment of a person to the
post
of
Chief Minister/Minister made by the Governor can be challenged in quo H
191
192 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A warranto proceedings-Quo warranto proceeding lie against the appointee to
show by what authority
is he entitled to hold the office-Appointing authority
may not
be made party to such proceeding-Articles 226 and 32.
B
c
D
Constitution of India-Articles 226 and 32-Writ of quo
warranto
Meaning of.
Doctrines-De facto doctrine-Meaning o.f-Setting aside of the
appointment o.f Chief Minister-Serious consequences resulting from-De facto
doctrine used
to validate the
acts of the Chief Minister, cabinet and the
govemmentfrom the date o.f appointment to the date of judgment.
Code of Criminal Pro!edure, 1973:
Section
389-Power of appellate court-Sentence cannot be stayed by
appellate court-Appellate court can suspend only execution
of sentence
Order of suspension o.f execution of sentence does not alter the conviction o.f the
accused.
Section
374-Appeal-Pendency-E.ffect o.f.
Representation of the People Act, I 95 /-Section 8( 3 )-Held, Presumption
of innocence comes to end on conviction by the trial court-Conviction and
sentence operate against accused until set aside in appeal-Accused filed
appeal against her conviction-Execution
of sentence suspe1uled by the appellate
E court-In the meanwhile she filed nomination for election-Her party wins
Assembly elections and she was elected leader
of her party-She was sworn in
by Governor as
Chief Minister-Held, as she was convictedfor an offence and
sentenced
to more than two years imprisonment she could not have been
appointed
Chief Minister/Minister.
F
G
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Respondent No. 2, who was the Chief Minister of the State of Tamil
Nadu, was convicted
of offences punishable under section 120B of the
Penal Code
read with sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention
of Corruption Act and for offence punishable under section 409 of the
Indian Penal Code. She was sentenced to undergo three years' rigorous
imprisonment and a fine
of Rs.
10,000 in the first case and to undergo two
years' rigorous imprisonment
and a fine of Rs. 5000/-in the second case.
Against
her conviction, respondent No. 2 filed appeals before the
High Court.
By order dated 3.11.2000, the High Court, under
Section
389(2) of the Code of Criminal Procedure suspended the sentences of
imprisonment pending the criminal appeals and directed the release of
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B.R. KAPUR v. STATE 193
respondent No. 2
on bail.
As the High
Court had only suspended the sentences of imprisonment
against respondent No. 2 without staying the
order of conviction, respondent
No. 2 filed
another application seeking stay of the operation of the judgments
of the trial court which was rejected by the High Court. Respondent No. 2
did
not challenge the order of the High Court.
In the meanwhile the general elections to the Tamil Nadu Assembly
were announced.
Respondent No. 2 filed nomination papers in four
constituencies. Her nomination papers were rejected in three constituencies
A
B
on account of her disqualification under section 8(3) of the Representation C
of the
People Act. The fourth nomination paper was rejected for the
reason that she had filed her nomination for more than two seats. These
orders rejecting her nominations were not challenged by respondent No. 2.
The party of respondent No. 2 won by a large majority in the
assembly elections and elected respondent No. 2 as its leader. On 14.5.2001, D
respondent No. 2 was sworn
in as the Chief Minister of Tamil Nadu by the
Governor of the State. The appointment of respondent No. 2 as the Chief
Minister was challenged by the petitioner by way of a writ petition under
Article 32 of the Constitution of India contending that respondent No. 2
could
not have been sworn in as the Chief Minister as
she was disqualified
E
to be elected as a member of the State Legislature on account of her
disqualification under section 8(3) of the Representation of the People Act
read with Article 191 of the Constitution of India. Another writ petition
filed before
the High Court of Madras, raising the same contention, was
dismissed by the High
Court against which Special Leave Petition was filed
in this court. A third writ petition pending before the High Court of
Madras was transferred to this court to be heard along with the writ
petition filed under Article 32 of the Constitution of India.
The contentions raised by respondent No. 2 and the State of Tamil
Nadu before this Court were :-
1. Article 164
of the Constitution of India does not provide any
qualification or disqualification for being appointed as a Chief Minister or
a Minister. It was not open to the Court to read into Article 164 of the
Constitution
of India the
qualificati!-lns enumerated under Article 173 or
the disqualifications enumerated under Article 191 of the Constitution of
F
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SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
B
2. The people, who are the ultimate sovereign, had expressed their
will through their elected representatives. The people's will should prevail
for six months in a
true parliamentary democracy especially when there is
no provision for adjudicating the alleged disqualifications. The Governor
does not have the power
or the machinery for adjudicating alleged
disqualifications. Therefore, the Governor cannot ignore the will of the
people
and is bound to call the leader of the majority party to be the Chief
Minister irrespective of the fact that the said person does not possess the
qualifications for being a member of the Legislature. The appointment is
C made by the Governor on the basis of conventions of the Constitution. By
deciding
that the Chief Minister appointed by the Governor should demit
office, the
Court would be entering in.to political thicket, arrogating to
itself a power never intended by the Constitution
of India.
....
3. The Governor of a State, in view of Article 361 of the Constitution t-,.._
D of India, is not answerable to any court for performance of the powers and
duties of his office. As respondent No. 2 was appointed as Chief Minister
by the Governor in exercise
of powers of the Governor under
A.-ticle 164
of the Constitution of India, the said appointment as well as the exercise
of
discretion by the Governor is immune from being challenged and is not
E open to judicial review.
4. The disqualification under section 8(3) of the Representation of
the People Act would be attracted only when a person is convicted as well
as sentenced to imprisonment for not less
than two years. For the purpose
of section 8(3) of the Representation of the People Act, sentence alone is
F relevant. As the High Court has suspended the sentences passed against
respondent
No. 2, her disqualification
also stands suspended.
G
H
5. Under section 8(3) of the Representation of the People Act the
disqualification is
attracted on the date on which a person was convicted of
any offence and sentenced to imprisonment for not less than two years.
Law contemplates
that the conviction and the sentence could be on different
dates.
It is unworkable that the disqualification should operate from the
date of conviction which could be separate from the date of sentence
and
therefore, the conviction referred to in
Section 8(3) of the Representation
of the People Act should be taken to be
that confirmed by the appellate
court because it was only in the appellate court that the date of conviction
I
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B.R. KAPUR v. STATE 195
and sentence would be the same.
6. Under Section 8(4) of the Representation of the People Act, the
disqualification does not operate against a sitting member of Parliament
or the Legislature of the State until three months or, if an appeal, application
or revision is filed until that appeal, application or revision is disposed of.
The principle underlying Section 8(4) of the Representation of the People
Act had to be extended to a non-legislator
als~ as otherwise Article 14 of
the Constitution of India would
be violated for presumption of innocence
would apply to the sitting member till the conviction was finally affirmed
whereas in case of a non-legislator the disqualification would operate on
conviction
by the court of first instance.
Setting aside the appointment of respondent
No. 2 and making the
writ petition absolute, the court
HELD:
Per S.P. Bharucha, 1. (for himself, Y.K. Sabharwal and Ruma Pal,
JJ.):
1.1. A non-legislator can be made Chief Minister or Minister under
Article 164 of the Constitution of India only if he has the qualifications for
membership of the legislature prescribed by Article
173 of the Constitution
oflndia and
is not disqualified from the membership thereof by reason of the
disqualifications set out in Article
191 of the Constitution oflndia. [222-A]
1.2. The essential of a system of representative Government, like the
A
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one in India, is that, invariably, all Ministers are chosen out of the members F
of the legislature and only in rare cases is a non-member appointed a
Minister and he has to get himself returned to the legislature by direct
or
indirect election with a short period.
It is sub-Article (4) of Article 164 of
the Constitution of India 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 member of the Legislature of the State shall at the expiration
of
that period cease to be a Minister. Necessarily implicit in Article 164(4)
read with sub-Articles
(1) and (2) of Article
164 of the Constitution of
India
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
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196 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
failing to secure the seat in the legislature within six months, he must cease
to be a Minister. The requirement
of sub-Article (4) of Article 164 of the
Constitution
of India 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) of Article 164 of the Constitution
of India, in other words, he must be one who satisfies the qualifications for
membership of the legislature contained in Article 173 of the Constitution
of India and is not disqualified from seeking that membership by reason of
any of the provisions in Article 191 of the Constitution of India on the date
of his
appointment. [217-B; H; 218-A-C]
1.3. The provision
of sub-Article (4) of Article 164 of the Constitution
of India 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. However,
it·cannot be accepted that sub-Article (4) of Article 164 of the Constitution
of India 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 of the
E Constitution of India respectively. What sub-Article (4) of Article 164 of
the Con~titution oflndia does is to give a non-legislator appointed Minister
six months to become a
member of the legislature. Necessarily,
theref~re,
that non~legislator niust be one who, when he is appointed, is not debarred
from obtaining. membership of the legislature : he must be one who is
F qualified to stand for the legislature and is not disqualified to do so.
Sub-Article (4)
of Article
164 of the Constitution of India is not intended
for the inductio!l into the Council
of Ministers of
somemie for six months
or less so that it is of no consequence that he is in~ligible to stand for the
legislature. [218-D-F]
G Har Sharan. Verma v. Shri Tribhuvan Narain Singh, Chief Minister,
U.P.
and Am:, [1971] 1 SCC 616; Har Sharan Verma v. State of U.P. and Am:,
[1985] 2 SCC 48; Har Sharan Venna v. Union of India and Am:, [1987] Supp;
SCC 310; S.P. Anand, Indore v. H.D. Deve Gowda and Ors., [1996] 6 SCC
734; S.R. Chaudhuri v. State of Pw~jab & Ors., [2001] 5 SCALE 269; His
H Holiness Kesavananda Bharti Sripadagalavaru v. State of Kera/a, [1973]
I
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B.R. KAPUR v. STATE
Supp. SCR 1 and Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] A
1 SCR 206, referred to.
Constituent Assembly Debates, Vol. VII, referred to.
2.1. The Constitution prevails over the will
of the people as expressed
through the majority party. The will of the people as expressed through the
majority
party prevails only if it is in accord with the Constitution. The
Governor
is a functionary under the Constitution and is sworn to "preserve,
protect
and defend the Constitution and the
laws" (Article 159). The
Governor cannot, in the exercise of his discretion or otherwise, do anything
that is contrary to the Constitution and the laws. If the Governor is asked
by the majority party in the legislature to appoint as Chief Minister a
person who is
not qualified to be a member of the legislature or who is
disqualified
to be such, the Governor must, having due regard to the
Constitution
and the laws, to which he is subject,
decline, and the exercise
of discretion by him in this regard cannot be called in question. [231-E·G]
2.2. 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 of India 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
appointm~nt of a person to the office of Chief Minister who is not qualified
to
hold it should be struck down at the earliest. [231-H; 232-A-B; 233-E]
Shri Kumar Padma Prasad v.
Union of India and Ors., [1992] 2 SCC
428 arid State of Rajasthan and Ors. v. Union of India and Ors., [1977] 3 SCC
592, relied on.
3.1.
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. 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. This implies
that the stigma attached to the conviction and the rigour of the sentence
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SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
are completely obliterated, but that does not mean that the fact of conviction
and sentence by the lower court is obliterated until the conviction and
sentence are set aside by an appellate court. The c'.>nviction and sentence
stand pending the decision in the appeal
and for the
p~rposes of a provision
such as Section 8 of the Representation of the People Act are determinative
of the disqualifications provided for therein. [226-G-H; 228-G]
3.2.
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
disposai of appeal.
1be suspension of the execution of the sentence does not
alter
or affect the fact that the offender has been convicted of a grave
C 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 under the Representation of the People
Act. The suspension of the sentence, as the High C~mrt erroneously called
it, was in fact only the suspension of the execution of the sentences pending
D
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the disposal of the appeals filed by the respondent No. 2. The fact that she
secured the suspension of the execution of the sentences against
her did not
alter
or affect the convictions and sentences imposed on her and she
remained disqualified from seeking legislative office under Section 8(3) of
the Representation of the People Act. [223-B-C]
Raghbir Singh v. Surjit Singh, [1994) Supp. 3
SCC 162, referred to.
Padam Singh v. State of U.P., (2000) 1 SCC 621; Maru Ram v. Union of
India and Ors., [1981) 1SCC107; Dilip Kumar Shanna and Ors. v. State of
Madhya Pradesh, [1976) 1 SCC 560 and Vidya Charan Shukia v. Purshottam
Lal Kaushik,
[1981] 2 SCC 84, distinguished.
3.3.
In those cases where the sentence is imposed on a day later than
the date of conviction, the disqualification would
be attracted on the date
on which the sentence was imposed because only then would a person be
both convicted of
the offence and sentenced to imprisonment for less not
than two years, which
is cumulatively requisite to attract the disqualification
under Section 8(3) of the Representation of the
People Act. [225-H; 226-A]
3.4, Section 8(4) of the Representation of the People Act opens with
the words "notwithstanding any thing in sub-section (l), sub-section (2)
and sub-section (3)", and it applies only to sitting members of legislatures.
There is no challenge to it on the basis
that it violates Article 14 of the
•
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B.R. KAPUR v. STATE 199
Constitution of India. In any case, if it were found to be violative of Article A
14 of the Constitution of India, 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. [226-D-E]
B
3.5. 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 Article 164(4)
of the Constitution of India and cannot continue to function as such. On
the date on which ~espondent No. 2 was sworn in as Chief Minbter she was
disqualified, by reason
of 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. [234-B; 228-H; 229-A]
4. The finding that respondent No. 2 could not have been sworn in as
Chief Minister and cannot continue to function as such will have serious
consequences. Not only
will it mean that the
State has had no validly
appointed Chief Minister since 14th May, 2001, when respondent No.2 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
respondent No.2. It would also mean that all acts of the Government of
Tamil Nadu since 14th May,
2001 would become questionable. To alleviate
these consequences and in the interest of the administration of the State
and its people, who would have acted on the premise that the appointments
were legal and valid, the de facto doct,rine
is invoked and it is declared that
all acts, otherwise legal and valid, performed between 14th May,
2001 and
the date of the present judgment by the respondent No.2 as Chief Minister,
by the members of the Council
of Ministers and by the Government of
t(le
State shall not be adversely affected by reason only of this order. [233-F-H]
Per G.B. Pattanaik, J. (concurring) :
5.1. Notwithstanding the fact that
no qualification or disqualification
is prescribed in Article 164(1) or Article 164(4) of the Constitution of
India, Qualification
or disqualification provided in Articles 173 and 191 of
the Constitution of India for being chosen as a member will have to be read
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into Article 164 of the Constitution of India and so read, respondent No. 2, H
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200 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
who had incurred the disqualification under Article 191(1)(e) of the
Constitution
of India read
~ith Section 8(3) of the Representation of the
People Act, could not have been appointed as the Chief Minister, whatever
maybe the majority
of her party members being elected to the Legislative
Assembly. [239-G-H]
5.2. The Constitution
of India, does not prevent the elected members
belonging to a political party commanding the majority
of seats in the
legislative assembly
or the Parliament
to elect a person who never contested
for being chosen aa a member or a person who though contested, got
defeated in the election for one reason
or the other and it is in such a
situation
that person on being elected as a leader of the political party
commanding the majority in the House, could be appointed as the
Prime
Minister or the Chief Minister. But the Constitution certainly does not
postulate such elected representatives
of the people belonging to a political
party commanding a majority in the
Parliament or the Assembly to elect a
person as their leader
so as to be called by the
President or the Governor to
head the Government, who does not possess the qualification for being
chosen, to fill a seat in the Parliament or in the Legislative Assembly, as
contained in Articles
84 and 173 of the Constitution of India respectively
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 of India respectively. 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
of the Constitution of India or incurs disqualification for being chosen
p as, or for being a member of the Legtslative Assembly, enumerated under
Article 191
of the Constitution of India, 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 of India. When Article
G
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164(1) itself confers the discre_tion on the Governor to appoint a Chief
Minister
at his pleasure and when the Governor has taken oath under
Article 159
of the Constitution of India to preserve, protect and defend the
Constitution and the law, 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 of the Constitution
of India
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B.R. KAPUR v. STATE 201
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 of the
Constitution of India proprio vigore applies to a person for being appointed
as the Chief Minister
or a Minister in as much 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 of the Constitution of India 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 of India, 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 incurs the disqualifications enumerated in Article 191 would
be subversive of the Constitution
and would be repugnant to the theory of
good governance. [237-E-H; 238-A-E]
Constituent Assembly Debates, referred to.
5.3. The appointment
of a non-member of legislature as the Chief
Minister or Minister on the advice of a Chief Minister is made under
Article 164 of the Constitution of India on the Governor's satisfaction. If
any of the disqualification mentioned in Article 191(1)(e) of the Constitution
of India 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 of the Constitution
of India, then in such a case, 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
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202 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A 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 of the Constitution of India in the matter of
appointment of the Chief Minister or a Minister. But in a case where the
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disqualification is one which is apparent as in the case in hand namely the
person concerned has been convicted and has been sentenced
~o
imprisonment for more than two years and operation of the conviction has
not been stayed and the appeal is pending, there~y the disqualification
under Article 191(1)(e) of the Constitution of India read with Section 8(3)
of the Representation
of the
People Act staring at the face, the Governor
would be acting beyond his jurisdiction
and against the constitutional
inhibitions
and norms in appointing such a disqualified person
as the Chief
Minister on the sole reasoning
that the majority of the elected members to
the Legislative Council have elected the person concerned to be their
leader.
The· Constitution does not permit brute force to impede the
Constitution. The people of India
and so also the elected members to the
legislative assembly are bound by the constitutional provisions
and it would
be the solemn duty of the 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
t? form
the government. (240-D-H; 241-A-B]
'
6. 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,
whic!t is in violation of its constitutional
limitations, then the same could be examined by the Courts. 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 made amenable to answer
the Court. But
it is the appointee respondent
No. 2, who is duty bound to
satisfy
that there has been no illegal usurpation of public office. Quo
warranto protects public from illegal usurpation of public office by an
individual and the necessary ingredients to be satisfied by the Court before
issuing a
·writ is that the office in question must be public, created by the
Constitution
and a person not legally qualified to hold the office, in clear
infringement
of the provisions of the Constitution and the law has been
usurping the same.
If respondent No. 2 is disqualified under the Constitution
B.R. KAPUR v. STATE 203
to hold public office of the Chief Minister, then the immunity of Governor
. under Article 361 of the Constitution of India cannot stand as a
bar from
issuing a writ of quo warranto. The immunity provided to the Governor
under Article 361 of the Constitution of India
is certainly not extended to
an appointee by the Governor. [241-H; 242-A; F-G]
S.R. Bommai, v.
Union of India, [1994) 3 SCC 1, relied on.
R.K. Jain v. Union of India, [1993) 4, SCC 119, distinguished.
7.1. H the majority political party elects a person as their leader,
whom the Constitution and the laws of the country disqualify 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 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. [245-G-H]
7.2. 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
legislative supremacy in the
United Kingdom has no application in India
with a written Constitution limiting the extent
of such supremacy of the
Legislature
or
Parliament. 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 legislatµre
and entrust the ordinary courts
or a constitutional court
with the functjon
of deciding whether the acts of the legislature are in accordance with the
Constitution. In other words, the people of the country, the organs of the
Government, legislature, executive and judiciary are all bound by the
Constitution. [246-A; 246-C]
7.3. When Court has been ascribed the duty of interpreting the
Constitution and when Court finds that manifestly there is an unauthori$ed
exercise of power under the Constitution, it would be the solemn duty of
the Court to intervene. This being the position, the action of the majority
of the electl'!d 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. [246-B; D]
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
204 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
7.4. It would be a blatant violation of constitutional laws to allow
respondent
No. 2 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 their leader and
that is the expression of the will of the people. 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 to the Legislative Assembly, to be their leader are as much
subservient to the Constitution of India as
the Governor himself.
(246-G; 244-C]
Lucas v. Colorado General Assembly, 377
US 713; 12 L Ed 632; 84 S
Ct 1472 and Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981) 1
SCR 206, referred to.
Law and the Constitution, by .Sir Ivor Jennings, referred to.
8. Having regard to the mass scale corruption which has corroded ·
the court of elective democracy, it is high time for the Parliament to
consider the question
of bringing the conviction under the Prevention of
Corruption Act, as a disqualification under Section 8(1) of the
Representation of the People Act so that a person on being convicted of an
offence, punishable under the provisions of Prevention of Corruption Act,
could be disqualified for being chosen, as a member
or being continuing as
a member
of the Legislative Assembly or the Parliament. [248-CJ
Raghbir Singh v. Surjit Singh, [1994) Supp. 3 SCC 162, referred to.
Per Brijesh Kumar, J. (concurring):
9.1. A writ
of quo warranto is a writ which lies against the person,
who according to the relator
is not entitled to hold an office of public
nature and is only an usurper of the office. It is the person, against whom
the writ
of quo warranto is directed, who is required to show, by what
authority
that person is entitled to hold the office. The challenge can be
made on various grounds, including on the grounds
that the possessor of
the
office does not fulfil the required qualifications or suffers from any
disqualification, which debars the person to hol.d such office. [249-B]
9.2. Article 361
of the Constitution of India would be no impediment
H in examining the question of entitlement of a person, appointed by the
..
B.R. KAPUR v. STATE 205
Governor to hold a public office, who according to the relator is usurper to A
the office. Article 361 of the Constitution does not extend any protection or
immunity, vicariously, to holder of an office, which under the law, he is not
entitled to hold. On being called upon to establish valid authority to hold a
public office,
if the person fails to do so, a writ of quo warranto shall be
directed against such person.
It shall be no defence to say that the
appointment was made by the competent authority, who under the law
is
B
not answerable to any Court for anything done in performance of duties
or
his office. The question of fulfilling the legal requirements ~nd qualification$
necessary to hold a public office would be considered in the proceedings,
independent of the fact as to who made the appointment and the manner in
which appointment was made. [251-A; 250-G-H]
Words and Phrases Permanent Edition, Volume 35 A page 647 and 648
and
Halsbury's Laws of England, 4th Edition Reissue
Volume-I, para 265,
page 368, referred to.
10. The argument about implementing the will of the people is
misconceived and misplaced.
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
Ministe""i is not necessary, he acts in his own discretion. He is
not bound by decision/advice of any other agency. It is no doubt true that
even in the written Constitution it is not possible to provide each and every
detail. Practices and conventions do develop for certain matters. This is
how democracy becomes workable.
It is also true that the choice of the
majority party regarding its leader for appointment as Chief Minister
is
normally accepted, and rightly. But the contention that in all eventualities
whatsoever the Governor
is bound by the decision of the majority party is
not a correct proposition. The Governor cannot be totally deprived of the
element
of discretion in performance of duties of his office, if ever any such
exigency may
so demand its exercise. [251-C-D; E-H]
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 242 of
2001
Under Article 32 of the Constitution of India.
WITH
c
D
E
F
G
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206 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A W.P. (C) Nos. 245, 246, 26112001, C.A. No. 6589/2001, and T.C. (C}No.
B
c
D
26/2001 Aris!ng from T.P. (C) No. 382/2001)
; Soli J. Sorabjee, Attorney General, Harish N. Salve, Solicitor General,
' . .
Ashok H. Desai, Anil B. Divan, R. Mohan, F.S. Nariman, P.P. Rao, K.K.
yenugopal and M. Rama jois, R.K. Kapoor, R.A. Mis~ra, B.R. Kapoor, Sumit
Kumar, P. Varma, S.K. Srivastava; K.L. Vohra, Chander Shekhar Ashri, V.G~
Pragasaffi, Dinesh Kumar Garg, R.C. Kaushik, Dr. Fran~is Julian, B.V. Deepak,
Ms. Roxna Swamy, R.N. Keshwani, Ms. Reyathy Raghavan, l(s. Shweta Garg,
Manish Goswami, P. Parmeswaran, Manish Singhvi, Sanjay R. Hegde, Satya
Miira,'S.W.A. Qadri, Dhru~-Mehta, Preet;sh Kapu;, Siddharth Goswami, Ms.
Sushma Suri," K.V. Vishw~nathan, N. Jyothi, Kunwar Ajit Mohan Singh, Atul
Kumar Sinha, K.V. Venkataraman, Ms. Seema; Ms. Divya, T.V. George, Raj
Kanwar-in-person for Intervenors in I.A. No. 4/2001.
S.N. Bhat for the appearing parties.
Petitioner In-person .(NP), in W.P. (C) No. 26112001.
The Judgments of the Court were delivered by
i. BHARUCHA, J._: Leave granted.
E A question of great constitutional importance arises in these matters,
F
namely, whether a person who has been convicted of a criminal offence and
whose conviction has not been suspended Pending appeal can be sworn in and.
can continue to function as the Chief Minister
of a State.
The second respondent, Ms.
J. Jayalalitha, was Chief Minister of the
State
of Tamil Nadu between 1991 and 1996. In respect of that tenure in office
she was (in
CC 4of1997 and CC 13of1997) convicted
for offences punishable
under Section 120B of the Indian Penal Code read with Sections 13(1)(c);
13(l)(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
G undergo 3 years' rigorous imprisonment and pay a fine of Rs.10,000 in the first
case and to undergo 2 years' rigorous imprisonment and pay a fine
of
Rs.5000
in the second case.
The fine that was imposed in both cases was paid.
H The second respondent preferred appeals against her conviction before
I
~
<
...
-
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B.R. KAPUR v. STATE [BHARUCHA, J.] 207
the High Court at Madras. The appeals are pending. On applications filed by A
her in the two appeals, the High Court, by an order dated 3rd November, 2000,
suspended the sentences of imprisonment under Section 389(3) of the Code of
Criminal Procedure and directed the release of respondent No.2 on bail on the
terms and conditions specified
in that order. Thereafter, she filed
petitions in
the two appeals seeking the stay of the operation. of the judgments in the two
criminal cases. On 14th April, 2001 a learned Single Judge of the High Court
at Madras,
Mr. Justice Malai Subramanium, dismissed these petitions since the
convictions were,
inter alia, for offences under
Section 13(l)(c) and 13(1)(d)
of the Prevention of Corruption Act, 1988. These orders were not challenged.
B
In April, 2001 the second respondent filed nomination papers for four C
constituencies in respect of the general election to be held to the Tamil Nadu
Assembly. On 24th April, 2001 three nomination papers were rejected on
account
of her disqualification under
Section 8(3) of the Representation of the
People Act, 1951, by reason of her conviction and sentence in the two criminal
cases. The fourth nomination paper was rejected for the reason that she had
D
filed her nomination for more than two seats. The correctness of
the
1
orders of
rejection was not called in question.
On 13th May, 2001 the results of the election to the Tamil Nadu Assembly
were announced and the AIADMK party, which had projected the second
respondent as its Chief Ministerial nominee, won by a large majority. On 14th E
May, 2001, consequent upon the result of the election, the AIADMK elected
the second responu--•1t as its leader.
On 14th May, 2001 the second respondent was sworn in as Chief Minister
of the State of Tamil Nadu.
These writ petitions and appeal contend that the second respondent could
not in law have been sworn in as Chief Minister and cannot continue to
function as such. They seek directions in the nature
of quo warranto against
her.
F
The provisions of the
Prevention of Corruption Act, 1988, that are G
relevant to the second respondents' conviction and sentence read thus :
"13. Criminal misconduct by a public servant
(1) A public servant is said to commit the offence of criminal
misconduct, -
H
A
B
c
D
E. F
G
208
(a)
(b)
SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
•, (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
·
, 11• "· person to do so; or 't--
Ii'
f• . '
;-
"
!. .r. i
'
(d) if he, -
(i)
(ii)
(iii)
(e)
by corrupt or illegal means, obtains for himself or for any other
perso'n any ~aluable thing or pecuniary advanta~e; or ·
' , ·I
by .abusing his position ~s a public servant, obtains for himself or
for any other person any valuable thing or pecuniary advantage;
or
while holding office as a public servant, obtains for any person
any valuable thing or pecuniary· adv~ntage without any public
interest; or
(2) Any public servant who commits criminal misconduct shall be
pU!lish~ble with imprisonment for a term which shall be not less
than one year but which may extend to seven years ;o1nd shall also
be liable to fine."
Section 409 of the Indian Penal Code, also relevant to the conviction and .
sentence, reads thus :
"409. Criminal breach of trust by public servant, or by banker, merchant
or agent --Whoever, being in any manner entrust~ 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
~qich Iti~' extend to ten
years, and shall also be liable to fine.~·
For the purposes of answering the question formulated earlier, the
ff; following provisions of the Constitution of India are most relevant:
J
...
B.R. KAPUR v. STATE [BHARUCHA, J.] 209
"163(1) There shall be a Council of Ministers with the Chief Minister A
at the head to aid and advise the Governor in the exercise of his
functions, except in so far as he
is by or under this Constitution
required
to exercise his functions or any of them in his discretion.
164.
Other provisions as to Ministers
(1) The Chief Minister shall be appointed by the Governor and the
other Ministers shall be appointed
by the Governor on the advice of
the Chief Minister, and the Ministers shall hold office during the
pleasure
of the Governor:
Provided that in the State
of Bihar, Madhya
Pradesh and Orissa,
there shall be a Minister in charge
of tribal welfare who may in addition
be in charge
of the welfare of the Scheduled Castes and backward
classes or any other work .
B
c
(2) The Council of
Ministers shall be collectively responsible to the D
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.
E
(5) The salaries and allowances of Ministers shall be such as the
Legislature
of the
Stale may from time to time by law determine and, F
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
1 shall not be qualified to be chosen to fill a seat in the Legislature of G
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;
H
210
A
B
c
D
SUPREME COURT REPORTS (2001] SUPP. 3 S.C.R.
(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)
posses~es such other qualifications as may be prescribed in that
behalf by or under any law made
by Parliament.
177. Rights
o.f Ministers and Advocate-General as respects the Houses
-Every Minis~er and the Advocate-General for a State shall have the
right
to speak in, and otherwise to take part in
~he proceedings of, the
Legislative Assembly
of the
State or, in the case of a State having a
Legislative Council, both Hou~es, 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.
Disqual(fications 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
E 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;
F
G
H
(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) ifhe 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 specifiyd in the First Schedule by reason
only that he
is a Minister either for the
Union or for such State.
-
j
I
J
I
I
1
{
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B.R. KAPUR v. STATE [BHARUCHA, J.] 211
(2) A person shall be disqualified for being a member of the Legislative
Assembly or Legislative Council
of a State if he is so disqualified
under the Tenth Schedule.
Provisions
of a similar nature with regard to Parliament are to be found
in Articles 74, 75, 84, 88 and
102.
The Representation of the People Act, 1951 was enacted to provide f qr
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
A
B
in connection with such elections and the decision of doubts and disputes C
arising out of or in connection with such elections. The relevant provisions of
that Act for our purposes are Sections 8, 8A, 9, 9A,
10 and lOA. They read
thus:
"8. Disqualification on conviction for certain offences -
D
(1) A person convicted of an offence punishable under -
(a) section 153A (offence
of promoting enmity between different
groups on ground
of religion, race, place of birth, residence,
language,
etc., and doing acts prejudicial to maintenance of
E
harmony) or section 171E (offence of bribery) or section 171F
(offence
of undue influence or personation at an election) or sub-
section (1)
or sub-section (2) of section 376 or section 376A or
section 376B or section 376C or section 376D (offe"fices relating
to rape) or section 498A (offence of cruelty towards a woman by
husband
or relative of a husband) or sub-section (2) or F
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),
G
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
H
212 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R. ..
A (c) section 11 (offence of importing or exporting prohibited goods)
or the Customs Act, 1962 (52 of 1962); or
(d) sections 10 to 12 (offence of being a member of an association ...
declared unlawful, offence relating to dealing with funds of an
B
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
. .
c
(f) the Narc~tic 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
D
(h) section 7 (offence of contravention of the provisions of section
3
to 6) of the Religious Institutions (Prevention of Misuse) Act,
1988
(41 of 1988); or
(i) section
125 (offence of promoting enmity between classes in
E connection with the election)
or section 135 (offence of removal
of ballot papers from polling stations) or section 135A (offence
of booth capturing) or clause (a) of sub-section (2) of section 136
(offence
of Fraudulently defacing or fraudulently destroying any
nomination paper)
of this Act; [or]
F
[(j) section 6 '(offence of
convers~on of a place or worship) of the
Places
of Worship (Special Provisions)· Act 1991; [or]
[(k) section 2 (offence of insulting the Indian National Flag or the
Constitution
of India) or section 3 (offence of preventing singing
of National Anthem) of the Prevention of Insults to National
.;
G
Honour Act, 1971(69 of 1971);]
shall be disqualified for a period
of six years from the date of such
conviction:
H
(2) A person convicted for the contravention
9f -
I
I
B.R. KAPUR v. STATE [BHARUCHA, J.] 213
(a) any law providing for the prevention
of hoarding or profiteering; A
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),
B
and sentenced to imprisonment for not less than six months, shall be
disqualified from the date
of such conviction and
shail continue to be C
d~squalified for a further period of six years since his release.
(3) A person convicted
of any offence and sentenced to imprisonment
for not less than two years [other than any offence referred
to sub
section (1) or sub-section (2)] shall be disqualified from the date
of
such conviction and shall continue to be disqualified for a further
period
of six years since his release.]
[(4) Notwithstanding anything [in sub-section
(1), sub-section (2) and
sub-section (3)] a disqualification under either sub-section shall not,
in the case
of a person who on the date of the conviction is a member
of
Parliament or the Legislature of a State, take effect until three
months have elapsed from that date or,
if within that period an appeal
or application for revision is brought in respect
of the conviction or the
sentence, until that appeal
or application is disposed of by the court.
Explanation
-In this section -
(a) "law providing for the prevention of hoarding or profiteering"
means any law, or any order, rule or notification having the fore~
of law, providing for -
D
E
F
(i) the regulation of production or manufacture of any essential G
commodity;
(ii) the control
of price at which any essential commodity may
be
brought or sold;
(iii) the regulation
of acquisition, possession, storage, transport, H
A
B
c
D
E
F
G
H
214 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R..
distribution, disposal, use or consumption of any essential
commodity;
(iy) 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, 1'.,54 (37 of 1954).
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. Shri Tribhuvan Narain Singh, Chief Minister,
U.P. and Am:, [1971] 1 SCC 616, a Constitution Bench rendered the decision
in connection with the appointment of the first respondent therein as Chief
Minister
of
Uttar Pradesh at a time when he was not a member of either House
of the Legislature of that State. The Court said :
"3. It seems to us that clause ( 4) of ArtieJe 164 must be interpreted in.
the context
of Articles 163 and 164 of the Constitution. Article 163( 1)
provides that
"there shall be a Council of Ministers with the Chief
Minister at the head
to aid and advise the Governor in the exercise of
his functions, except in so far as he is by or under this Constitution
required
to exercise his functions or any of them in his
discretion".
Under clause (1) of Article 164, the Chief Minister has to be appointed
by the Governor and the other Ministers have to be appointed by him
on the advice
of the Chief Minister. They all
hold office during the
pleasure of the Governor. Clause ( 1) does not provide any qualification
for the person
to
pe 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 th~• the Constitution prescribes in this
behalf.
6. It seems to us that irt the context of the other provisions of the
Constitution referred
to above there is no reason why the plain words
B.R. KAPUR v. STATE [BHARUCHA, J.] 215
of clause (4) of Article 164 should be cut down in any manner and A
confined to a case where a Minister loses for some reason his seat in
the Legislature
of the State. We are assured that the meaning we have
given
to clause (4) of Article 164 is the correct one from the proceedings
of the Constituent Assembly and the position as it obtains is England,
Australia and South
Africa." B
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".
In Har Sharan Verma v. State of U.P. and Am:. [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 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
c
cease to be a Minister. E
Another two Judge Bench of this Court in Harsharan Venna v. Union
of India and
Am:, [1987] Supp. SCC 310 considered the question in the context
of membership of Parliament and Article 75(5), which is similar in terms to
Article 164( 4
). The Court said that a person who was not a member of the either
. House
of Parliament could be a Minister for not more than six months; though F
he would not have any right to vote, he would be entitled, by virtue of Article
88, to participate in the proceedings
of Parliament.
In
S.P. Anand, Indore v. H.D. Deve Gowda
and Ors., [1996] 6 SCC 734,
the first respondent, who was not a member
of
Parliament, was sworn in as
Prime Minister. This
was challenged in a writ petition under Article 32. Reference G
was made to the earlier judgments. It was
held, on a "parity of reasoning if a
person who is not a member of the State Legislature can be appointed a Chief
Minister
of a State under Article 164(4) for six months, a person who is not
a member
of either House of Parliament can be appointed Prime Minister for
the same
period". H
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In
S.R. Chaudhuri v. State of
Punjizb & Ors., (2001) 5 SCALE 269, one
Tej Parkash Singh w!ls appointed a Minister of the State of Punjab on the advice
of the Chief Minister, Sardar Harcharan Singh Barar. At the time of his
appointment as a Minister Tej Parkash Singh was not a member of the Punjab
Legislative Assembly. He was not elected as a member of that Assembly within
a period
of six months and he submitted his resignation. During the same
legislative term Sardar Harcharan Singh Barar was replaced as
Chief Minister
by Smt. Rajinder Kaur Bhattal.
On her advice, Tej Parkash Singh was appointed
a Minister yet again. The appointment was challenged by a writ petition in the
High Court seeking a writ
of quo warranto. The writ petiti6n 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 :
''.-l-'74he absence of the expression "from amongst members of the
Iegislature" 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 a~ 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
hi.J?Self 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 establi~hed 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."
,, ... )
B.R. KAPUR v. STATE [BHARUCHA, J.] 217
The Court noted the constitutional scheme that provided for a democratic
parliamentary form
of Government, which envisaged the representation of the
people, responsible Government and the accountability
of the Council of
Ministers to the legislature. Thus was drawn a direct line of authority from the
people through the legislature to the executive. The position in England,
Australia and Canada showed that the essentials
of a system of representative
Government, like the one in India, were that, invariably, all Ministers were
chosen out
of the members of the legislature and only in rare cases was a non
member appointed
a Minister and he had to get himself returned to the legislature
by direct or indirect election within a short period. The framers
of the
Constitution had not visualised that a non-legislator could be repeatedly
appointed a Minister, for a term
of six months each, without getting elected
because such a course struck at the very root
of parliamentary democracy. It
was accordingly held that the appointment
of Tej Parkash Singh as a Minister
for a second time was invalid and unconstitutional.
Mr. K.K. Venugopal, learned counsel for the second respondent, was
right when he submitted that the question that arises before
us has not, heretofore,
arisen before the courts. This
is for the reason that, heretofore, so far as is
known, no one who was
ineligi~le 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
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appear to have been appointed Chief Minister. E
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 Gov.ernor 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) F
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
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218 SUPREME COURT REPORTS (2001] SUPP. 3 S.C.R.
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· sue!), it
follows
as the night the day that a person who is appointed a Minister rhough
he is not a member
of the legislature shall be one who can stand for election
tc 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.
_ .1:he 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
legisla~ure. 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
E
· 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:
'1e must be one who is qualified to stand for the legislature and is not disqualified
F
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to do so. Sub-Article (4) is not intended for the induction into the Council of
Ministers .of someone for six months or less so that it is of no consequence that
he is ineligible
to stand for the legislature.
It would be unreasonable and anomalous
to conclude that a Minister who
is a member
of the legislature is required to meet the constitutional standards
of qualification and disqualification but that a Minister who is not a member
of the
iegislature 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 memter.
The Constituent Assembly Debates (Volume VII) note that when the
H corresponding
Article relating to Members of Parliament was being discussed
B.R. KAPUR v. STATE [BHARUCHA, J.]
by the Constituent Assembly, Dr. B.R. Ambedkar said:
219
" ........... The first amendment is by Mr. Mohd. Tahir. His suggestion
is that no person should be appointed a minister unless at the time of
his appointment he is an elected member of the House. He does not
admit the possibility
of the cases covered
in the proviso, namely, that
although-a person is not at the time of his appointment a member of
.the House, he may nonetheless be appointed as a.minister in the cabinet
subject to the condition that within six months he shall get himself
elected to the House. The second qualification is by Prof. K.T. Shah.
He said that a minister should belong to a majority party and his third
qualification is that he must have a certain educational status. Now,
with regard to the first point, namely, that no person shall be entitled
to be appointed a Minister unless he is at the time
of his appointment
an elected member
of the House. I think it forgets to take into
consideration certain important matters which cannot be overlooked.
First is this, -it is perfectly possible to imagine
that a person who is
otherwise competent to hold the post
of a Minister has been defeated
in a constituency for some reason which, although it may
be perfectly
good, might have annoyed the constituency and he might have incurred
the displeasure
of that particular constituency. It is not a reason why
a member
of the Cabinet on the assumption that he shall be able to get
himself elected either from the same constituency
or from another
constituency. After all the privilege that
is permitted
-is a privilege
that extends only for six months.
It does not
cm~fer a right to that
individual to sit in the House without being elected at all." ............... .
(Emphasis supplied)
What was said by
Dr. B.R. Ambedkar
"is self-explanatory. It shows
clearly that the Constituent Assembly envisaged that non-legislator Ministers
would have to be elected
to the legislature within six months and it proceeded
on the basis that the Article as it read required this. The manner in which we
have interpreted Article
164 is, thus, borne out.
It was submitted on behalf
of the respondents that it was not open to the
Court to read into Article 164 the requirement that a non-legislator Minister
must be elected to the legislature within six months. No qualifications
or
disqualifications could, it was submitted, be read into a constitutional provision.
Reliance was placed upon passages from
tl1e some of the
juC:gments in His
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220 SUPREME COURT REPORTS (2001] SUPP. 3 S.C.R.
A Holiness Kesavananda Bharati Sripadagalavaru v. State o.fKerala; (1973]
Supp. S.C.R. 1.
B
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).
A Constitution Bench in Minerva Mills Ltd.
&
Ors. v. Union of India &
Ors., [1981] I S~R 206, considered in .some detail the judgment in Kesavananda
Bharati.
It was considering the validity of the clauses introduced into Article
C 368 by the
Coni.titution (Forty-second Amendment) Act. They provided :
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"(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
commencem~nt of section 55 of the
Constitution (Forty-second .Amendment) Act, 1976).shall be caJled in
question in any court on any ground.
(5) For the removal
of doubts, it is hereby declared that there shall be
no limitation whatever on the constituent power
of
Parliament to
amend by way
of addition, variation or repeal the provisions of this
Constitution under this
article".
Chandrachud, C.J. noted in his judgment that the avowed purpose thereof was
the "removal of doubts". He observed that after the decision in Kesavananda
Bharti, there could be no doubt as regards the existence
of limitations on 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 Bharti had been, "Amend as you may even the solemn document
which the founding fathers have committed
to your care, for you know best
the needs
of
your generation. But, the Constitution is a precious heritage;
therefore, you cannot destroy its identity". The majority judgment in
Kesavananda Bharti conceded to Parliament the right to make alterations in the
Constitution so long as they were within the basic framework. The Preamble ·
~ssured the people of India of a polity whose basic structure was described
therein as a Sovereign Democratic Republic; Parliament could make any
I
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B.R. KAPUR v. STATE [BHARUCHA, J.] 221
amendments to the Constitution as it deemed expedient so long as they did not
A
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
dortee
of a
limited power could not by the exercise of that power convert the
limited power into
an unlimited one.
~
All this was said in relation to the Article 368(1) and(~). Sub-Article (1)
read thus :
"368. Power of Parliament to amend the Constitution and procedure
therefor -
(1) Notwithstanding anything in this Constitution, Parliament may in
exercise of its constituent power amend by way of addition, variation
or repeal
arty provision of this Constitution in accordance with the
procedure laid down in this
article."
Nothing can better demonstrate that is permissible for the Court to read limitations
into the Constitution based on its language and scheme and its basic structure.
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222 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A We hold, therefore, that a non-legislator can be made Chief Minister or
B
Minister under Article 164 only if he has the qualifications for membership of
the legislature prescribed· by Article 173 and is not disqualified from the
membership thereof
by reason of the disqualifications set out in Article 191.
The next question
is : Was the second respondent qualified for membership
of the
legislature and not disqualified therefor when she was appointed Chief
Minister on 14th May, 2001.
It was submitted by·learned counsel for the respondents that the suspension
of the sentences passed against the second respondent by the High Court at
C 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
D
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), in so far
as it applied to her, was also suspended.
Section 389
of the Code of Criminal Procedure on the basis of which the
E second respondent was released on bail by the Madras High Court· reads, so
far as is
.relevant, as follows :
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"389. Suspension of sentence pending the appeal; release of appellant
on bail -
(1) Pending any appeal by a convicted person, the Appellate Cqurt
may, for reasons to be recorded by it in writing, order that the execution
of the sentence or order appealed against be suspended and, also, if
he is in confinement, that he be released on bail, or on his own bond".
(Emphasis supplied)
It is true that the order
of the High Court at Madras on the application
of the second respondent states,
"Pending criminal appeals the sentence of
imprisonment alone is suspended and the petitioners shall be released on
bail.. ............... ", but this has to be read in the context of Section 389 under
which the power was exercised. Under Section 389 an appellate court may
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B.R. KAPUR v. STATE [BHARUCHA, J.] 223
order that "the execution of the sentence or order appealed against be
suspended ................. ". It is not within the power of the appellate court to
suspend the sentence; it can only suspend the execution
of the sentence pending
the disposal
of
appeal. The suspension of the execution of the sentence does
not alter or affect the fact that the offender has been convicted of a grave
offence and has attracted the sentence
of imprisonment of not
less than two
years. The suspension
of the execution of the sentences, therefore, does not
remove the disqualification against the second respondent. The suspension
of
the sentence, as the Madras High Court erroneously called it, was in fact
only
the suspension of the execution of the sentences pending the disposal of the
appeals filed by the second respondent. The fact that she secured the suspension
of the execution of the sentences against her did not alter or affect the convictions
and the sentences imposed on her and she remained disqualified from seeking
legislative office under Section 8(3).
In the same connection, learned counsel for the respondents drew our
attention to the judgment
of a learned single Judge of the High Court at Madras,
Mr. Justice
Malai Subramanium, on the application of the second respondent
for stay
of the execution of the orders of conviction against her. The learned
Judge analysed Section 8
of the Representation of the
People Act and came to
this conclusion:
"In this case, sentence of imprisonment has already been suspended.
Under ,, .. ::-h circumstances, in my view, there may not be any
disqualification for the petitioner to contest
in the
election."
Learned counsel submitted that it was because of this conclusion that the
learned Judge had not stayed the execution
of the orders, anci 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 te11tative, 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,
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224 SUPREME COURT REPORTS [2001) SUPP. 3 S.C.R.
A when she was appointed Chief Minister, qualified to be a legislator under
Article
173 and not disqualified under Article 191.
_In relation to the difference in the periods of disqualification in sub
sections
(1), (2) and (3) of Section 8 of the Representation of the
People Act
an argument similar
to that which was raised and rejected in Raghbir Singh v.
B Surjit Singh, [1994) Supp 3 SCC 162 was advanced. This Court there said:
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"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
year§ since his release. Sub-section (3) then
prescribes a similar lon~ef 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
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B.R. KAPUR v. STATE [BHARUCHA, J.] 225
period
of sentence of imprisonment of not less than two years for A
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
senten~e
being not less than two years. B
6. In sub-section (3) of Section 8, all persons convicted of any offen~e
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 C
offence referred to in sub-section (1) or sub-section (3) and sentenced
to imprisonment of not less than two years constitute one class and ar~
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 D
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 E
wisdom, which is not open to judicial
scrutiny."
It was pointed out by learned counsel for the respondents that under
Section 8(3)
of the Representation of the
People Act the disqualification was
attracted on the date on which a person was convicted
of any offence and F
sentenced to imprisonment for not less than two years. It was pointed out,
rightly, that the
Jaw 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
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226 SUPREME COURT REPORTS (2001] SUPP. 3 S.C.R.
A offence and sentenced to imprisonment for less not than two years which is
cumulatively requisite to attract the disqualification under Section 8(3).
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The focus was then turned upori Section 8( 4) of the Representation of
the People Acl 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
l!entence. This was for the reason that the principle underlying Section 8(4)
~ad to be extended to a non legislator as, otherwise, Article 14 would stand
violated for the presumption
of innocence would apply to a sitting member till
.the conviction was finally affirmed but in the case of a non-legislator the
disqualification would operate on conviction
by the court of first instance. It
was submitted that Section 8(4) had
to be
"read down" so that its provisions ·
were not restricted to sitting members and in all cases the disqualification
applied only when the conviction and sentence was finally upheld.
Section 8(4) opens with the words "Notwithstanding anything in sub
section
(1), sub-section (2) and sub-section
(3)", and it applies only to sitting
D 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 i_n _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
E 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
"readipg down", and that is not known to the law.
In much the same vein, it was submitted that the presumption of innocence
F 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
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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
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I
B.R. KAPUR v. STATE [BHARUCHA, J.] 227
altogether erased. But that it is not to say that the presumption
of innocence A
continues after the conviction by the trial court. That conviction and the
sentence it carries operate against the accused in all their rigour until set aside
in appeal, and a disqualification that attaches to the conviction and sentence
applies as well.
Learned counsel cited from the judgment
of this Court in Padam 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
B
in the case and arrive at an independent condusion as to whether the said
evidence can be relied upon or not and even if it can be relied upon, then
C
whether the prosecution can be said to have been proved beyond reasonable
doubt on the said
evidence."
(Page 625 'C')
The passage is relevant to the duty of an appeal court. It is the duty of an appefll
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.
In
Maru Ram V.
Union of India and Ors., (1981] 1sec107 it was stated:
" ......... When a person is convictedin appeal, it follows that the appellate
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Court has exercised its power in the place of the original court and the F
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 Chief Minister, she
suffered from a disqualification
by reason of the convictions and sentences
against
her.
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' 228 SUPREME COURT REPORTS [2001) SUPP. 3 S.C.R.
In Dilip Kumar Sharma and Ors. v. State of Madhya Pradesh, [1976] 1
SCC 560, this Court was concerned with Section 303 of the Indian Penal Code,
which provided : "Whoever being under sentence of imprisonment for life,
commits.murder shall be punished with death." Sarkaria, J., in his concurring
judgment, held, on an interpretation
of the
sedion, that once it was established
that, at the time
of committing the murder, the prisoner was under a sentence
of life imprisonment, the court had no discretion but to award the sentence of
death, notwithstanding mitigating circumstances. The provision was, therefore,
Draconion in its severity. It was in these circumstances that he held that the phq1se "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
C
were concerned for the other alternative would lead to unreasonable and unjust
results. The observation~ 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.
D Lastly, in this connection, our attention was drawn to the case of Vidya
Charan Shukla
v. Purshottqm 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 was set aside and he was acquitted on appeal before
E 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
F construction of Article 164 was not in issue. There can be no doubt that in
a
crimi~al 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
G
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 an_d for the purposes of a provision such as Section 8 of the Representa~ion
of the People Act are determinative of the disqualifications provided for therein.
Our conclusion, therefore, is that on the date on which the second
.•· H respondent was sworn in as Chief Minister she was disqualified, by reason of
......
I
B.R. KAPUR v. STATE [BHARUCHA, J.] 229
her convictions under the Prevention of Corruption Act and the sentences of
imprisonment of not less than two years, for becoming a member of the
legislature under Section 8(3)
of the Representation of the
People Act.
It was submitted by learned counsel for the respondents that, even so,
the court could do nothing about it. It was submitted that in the case
of a Chief
Minister or Minister appointed under Article 164(1) read with (4) the
pecfple,
who were the ultimate sovereign, had expressed their will through their elected
representatives. For the period
of six months the locus penitentiae operated as
an exception, as a result of which, for that period, the 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
w that an appointment that had been
mad~ under Article 164 could not be rendered one without the authority of
law If it did so, the court would be entering the political thicket. When
qualifications and disqualifications were prescribed for a candidate or a member
of the legislature and a machinery was provided for the adjudication thereof,
the absence
of the prescription of any qualification for a Minister or Chief
Minister appointed under Article 164(1) read with (4) and for adjudication
thereof meant that the Governor had to accept the will
of the people in
selecting the Chief Minister
or Minister, the only consideration being whether
the political party and its leader commanded a majority
in the legislature and
could provide a stable government.
Once the electorate had given its mandate
to a political party and its leader to run the government
of a State for a term
of five years, in the absence of any express provision in the Constitution to
the contrary, the Governor was bound
to call the leader of that legislature party
to form the government. There was no express, unambiguous provision in the
Constitution or
in the Representation of the
People Act or any decision of this
Court or a High Court declaring that a person convicted
of an offence and
sentenced
to imprisonment for a period of not less than two years by the trial
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230 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
court shall not be appointed Chief Minister during the pendency of his first
appeal. In such a situation, the Governor could not be expected
to take a
position
of confrontation with the people of the State who had voted the ruling
party to power
and plunge the State into turmoil. In the present case, the
Governor was entitled to proceed on the basis that the appeals
of the second
respondent having been directed, in October,
2000, to be heard within two
months, it would be open to the second respondent to have the appeals disposed
of within the time limit of six months and, in case of an acquittal, no question
of ineligibility to contest an election within the period of six months would
arise.
If the Governor invited the leader of the party which had a majority in
the legislature to form a government, it would, if the leader was a non legislator,
thereafter not be open to the court in quo warranto proceedings to decide that
the Chief Minister was disqualified. Otherwise, this would mean that when
the Governor had invited, in accordance with conventions, the leader to be
Chief Minister, in the next second the leader would have
to vacate his office
by reason
of the quo warranto. The court would then be placing itself in a
position
of prominence among the three organs of the State, as a result of
which, instead of the House deciding whether or not to remove such a person
through a motion
of no confidence, the court would take over the function,
contrary to the will
of the legislature which would mean the will of the people
represented
by the majority in the legislature. In then deciding that the Chief
Minister should demit office, the court would be entering the political thicket,
arrogating to itself a power never intended
by the Constitution, the exercise of
which would result in instability· in the governance of the State.
We are, as we have said, not concerned here with the correctness or
otherwise of the action of the Governor in swearing the second respondent in
as Chief Minister in the exercise
of the Governor's discretion.
But supmissions 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
68
B.R. KAPUR v. STATE [BHARUCHA, J.] 231
respondents submitted that the Governor was so obliged even when the person A
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-citi:z;en
or under-age or lunatic or insolvent Chief Minister could be removed was by
a vote of no-confidence in the legislature or at the next election.
The nomination to appoint a person who is a non-citizen or under-age
or a lunatic or
an insolvent as Chief Minister having been made by the majority
party
in the legislature, it is hardly realistic to expect the legislature to pass a
no-confidence motion against the Chief Minister; and the election would
ordinarily come after the Chief Minister had finished his term.
To accept learned counsel's submission is to
-invite disaster. As an
example, the majority party in the legislature could recorruhend the appointment
of a citizen of a foreign country, who would not be a member of the legislature
B
c
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;-~nd the
Governor would be obliged
to comply; the legislature would be unable to pass D
a
no:confidence motion against the foreigner Chief Minister because the majority
party would oppose it; and the foreigner Chief Minister would be ensconced
jn 9ffice 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. E
The will of the people as expressed through the majority party prevails only
if it is in accord with the Constitution. The Governor is a functionary under
the Constitution and is sworn to "preserve, protect and defend the Constitution
and the laws" (Article 159). The Governor cannot, in the exercise of his
discretion
or otherwise, do anything that is contrary to the Constitution and the
laws.
It is another thing that by reason of the protection the Governor enjoys F
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 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, G
decline, and the exercise of discretion by him in this regard cannot be called
in question.
If perchance, for whatever reason, the Governor does appoint as Chief
Minister a person who is not qualified to be a member of the\egislature or who
is disqualified
to be such, the appointment is contrary to
the provisions of H
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232 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
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.
The judgment
of this Court in Shri Kumar Padma Prasad v. Union of
India and
Ors., [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
C 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
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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, Jhe qualific~tion
of that person to hold that office can be examined in quo warranto ~roceedings
and the appointment can be quashed.
..,, I
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 and
Othfrs v. Union of
India and Ors., [1977] 3 SCC 592, it ~ 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."
B.R. KAPUR v. STATE [BHARUCHA, J.] 233
We are satisfied that in the appointment of the second respondent as
Chief Minister there has been a clear infringement
of a constitutional provision
and that a writ
of quo warranto must issue.
We are not impressed by the submissions that the writ petitions for quo
warranto filed in this Court are outside our jurisdiction because no 'breach
of
fundamental rights has been pleaded therein; that the appeal against the decision
of the Madras High Court in the writ petition for similar relief filed before it
was correctly rejected because the same issue was pending here; and that the
transferred writ petition for similar relief should, in the light
of the dismissal
of the writ petitions filed in this Court, be sent back to the High Court for being
heard. Breach
of Article 14 is averred in at least
the lead writ petition filed
in this Court (W.P.(C) No.242 of2001). The writ petition which was dismissed
by the High Court and against which order an appeal is pending in this Court
was filed under Article 226,
as was the transferred writ petition. This Court,
therefore, has jurisdiction
to issue a writ of quo warranto. We propose to pass
the order in the lead writ petition, and dispose
of the other writ petitions, the
appeal and the transferred writ petition in the light thereof.
We are not impressed by the submission that we should not exercise our
discretion to issue a writ
of quo warranto because the period of six months
allowed by Article 164(4) to the second respondent would expire in about two
months from now and it was possible that the second respondent might succeed
in the criminal appeals which she
has filed. We take the view that the appointment
of a person to the office of Chief Minister who is not qualified to hold it should
be struck down at the earliest.
We are aware that the finding that the second respondent could not have
been sworn in
as Chief Minister and cannot continue to function as such will
have serious consequences. Not only will it mean that the State has had
no
validly appointed Chief Minister since 14th May,
2001, when the second
respondent was sworn in, but also that it has had no validly appointed Council
of Ministers, for the Council of Ministers was appointed on the recommendation
of the second respondent. It would also mean that all acts of the Government
of Tamil Nadu since 14th May,
2001 would become questionable. To alleviate
these consequences and
in the interest of the administration of the State and
its people, who would have acted on the premise that the appointments were
legal and valid, we propose
to invoke the de facto doctrine and declare that all
acts, otherwise legal and valid, performed between 14th May,
2001 and today
by the second respondent as Chief Minister, by the members
of the Council of
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234 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.lt
A 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.
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We are of the view that a person who is convicted for a criminal offence
and sentenced to imprisonment for a period of not less than two years cannot
be appointed the Chief Minister
of a State under Article 164(1) read with (4)
and cannot continue
to function as such.
. .
We, accordingly, order and
declare that the appointment of the second
respondent
as Chief Minister of the State of
Tamil Nadu on 14th May, 2001
was not legal and valid and that she cannot continue to function as such. The
appointment
of the second respondent as Chief Minister of the State of Tamil
Nadu
is quashed and set aside.
All acts, otherwise
legal and valid, performed between 14th May, 2001
and today by the second respondent acting as Chief Minister of the State Of
Tamil Nadu, by the members of the Council of Ministers of that State and by
the Government of that State shall not be adversely affected by reason only of
this order.
Writ Petition
(C) No.242
of2001 is made absolute in the aforesaid terms.
In the light of this order, the other writ petitions, the appeal and the
transferred writ petition stand disposed of.
No order
as to costs.
PATTANAIK,
J. : Leave granted.
I have
my respectful concurrence with the conclusions and directions in
the judgment
of Brother Bharucha, J. I am conscious of the fact that
plurality
of judgments should ordinarily be avoided. But, having regard co the importance
of the question involved, and the enormity of the consequences, ifthe conten.tiohs
of Respondent No. 2 are accepted, I consider it appropriate to express my
thoughts on some aspects.
It is not necessary to reiterate the facts which have
been
lucidly narrated in the judgment of Brother Bharucha, J. The question that
arises for consideration is whether a non elected member, whose nomination
for contesting the election
to the Legislative Assembly stood rejected,
and that
order
of rejection became final, not being assailed,
could still be appointed as
the Chief Minister or the Minister under Article 164 of the Constitution, merely
because the largest number
of elected members to the Legislative Assembly
elects such person
to be their leader. Be it be stated, that the nomination of such
B.R. KAPUR v. STATE [PATTANAIK, J.] 235
person had been rejected, on the ground
of disqualification incurred by such
person under Section 8(3)
of the Representation of People Act, 1951, the said
person having been convicted under the provisions
of the Prevention of
Corruption Act, and having been sentenced to imprisonment for 3 years. The
main basis
of the arguments advanced by Mr. Venugopal, the learned senicr
counsel, appearing for respondent no.
2, and Mr.
PP Rao, learned senior
counsel appearing for the State
of Tamil Nadu, is that Article 164 of the
Constitution conferring power on the Governor to appoint a person
as Chief
Minister, and then appoint Ministers on the advice
of such Chief Minister, does
not prescribe any qualification for being appointed
as Minister or Chief Minister,
and on the other hand, Sub-Article (4)
of Article 164 enables such a Minister
to continue as a Minister for a period
of six months and said Minister ceases
to be a Minister unless within that period
of six months gets himself elected
as a member
of the Legislaure of the State. As such, it would not be appropriate
to import the qualifications enumerated for the members
of the State Legislature
under Article 173, or the dis-qualifications enumerated in respect
of a person
,,
for being chosen as or for being a member of the Legislative Assembly under
Article 191
of the Constitution. According to the learned senior counsel, the
Governor, while exercising power under Article 164, is duty bound to follow
the well settled Parliamentary convention and invites a person to be the Chief
Minister, which persoa commands the confidence
of the majority of the House.
In other words, if a political party gets elected to the majority of seats in a
Legislative Assembly and such elected legislatures elected a person to
be their
leader, and that fact is intimated to the Governor then the Governor is duty
bound to call that person
to be the Chief Minister, irrespective of the fact
whether that person does not possess the qualifications for being a member
of
the Legislative Assembly, enumerated under Article 173, or is otherwise
disqualified for being chosen, or being a member
of the Legislative Assembly
on account of any of the dis-qualifications enumerated under
Art!cle 191. The
aforesaid contention
is based upon two reasonings. ( 1) The lack of prescription
of qualification or dis-qualifications for a Chief Minister or Minister under
Article 164, and (2) that in a Parliamentary democracy the Will
of the people
must prevail. Necessarily, therefore, the provisions
of Article 164 of the
Constitution requires an indepth examination, and further the theory that in a
Parliamentary democracy, the Will
of the people must prevail under any
circumstance, as propounded by
Mr. Venugopal and Mr. Rao, requires a deeper
consideration. I would, therefore, focus my attention on the aforesaid two
issues.
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236 SUPREME COURT REPORTS [2001) SUPP. 3 S.C.R.
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 th.e Legislature of a State. Article 191 provides the
disqualification for a person for being chosen
as or being a member of the
Legislative Assembly or Legislative Council
of a State. In the case in hand, the
respondent
no. 2 was disqualified under Article 191(1)(e) read with Section
8(3)
of the Representation of the
People Act, 1951, in as much as the said
respondent no. 2 has been convicted under Section
13 of the
Prevention of
Corruption Act, and has been sentenced to imprisonment for a period of 3
years, thougli the execution
of that sentence has been suspended by the Appellate
C Court while the appeal against the conviction and sentence is pending before
the High Court
of Madras.
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According to Mr. Venugopal, under the Constitution of India, when no
qualification or disqualification exists under Article 164(1) or 164(4), it
necessarily postulates that in the area
of constitutional governance for the
limited period
of six months, any person could be appointed as a Chief Minister
or Minister.and it would not be open
to the Court to import qualifications and
disqualifications, prescribed under the Constitution for being chosen
as a
member
of the Legislative Assembly. According to the learned counsel, the
reasonable conclusion
to be drawn from the aforesaid constitutional provision
is that the constitution does not contemplate the scrutiny of the credentials of
a non-member
Prime Minister or Chief Minister or Minister, as in constitutional
theory it is the House, consisting of the majority thereof which proposes him
for this transient, temporary and limited period of six months. It is also contended
by Mr. Venugopal that people who are the ultimate sovereign, express their will
through their elected representatives for selecting a non-elected person
as their
leader and could be appointed
as Chief Minister and Article 164(4) unequivocally
provides a period
of six months as locus poenitentia which operates. as an
exception in deference to the voice of the majority of the elected members,
which in fact
is the basis of a Parliamentary Democracy. Mr. Venugopal also
urged that a disqualification being in the nature
of a penalty unless expressly
found
to be engrafted in the constitution or in other words, in Article. 164, it
would not be appropriate for the Court
to incorporate
that disqualification,
which
is provided for being chosen as a member of the legislative
asst".mbly
into Article 164 and pronounce the validity of the appointment of respondent
No.
2, which has
purely been made on the strength of the voice of the majority
of the elected members. I am unable to accept these contentions of the learned
r
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B.R. KAPUR v. STATE [PATTANAIK, J.] 237
counsel,
as in my considered opinion, the contentions are based on a wrong
premise. In a Parliamentary system
of government, when political parties fight
elections
to the legislative assembly or to the Parliament for being chosen as
a member after results are declared, it would be the duty
of the:.Presicient in
c~se of Parliament and the Governor in case of Legislativ~:A'.ssembly of the
State, to appoint the Prime Minister or the Chief Minister,~$ ¢,Y case may be.
When the President appoints the Prime Minister under Article 75 or the <;Jovernor
appoints a Chief Minister under Article l64, the question that weighs with the
President or the Governor is, who will be able to provide a stable government.
Necessarily, therefore, it is the will
of the majority party that should ordinarily
prevail and it is assumed that
the elected members belonging to a majority
political party would elect one amongst them
to be their leader. Constitution,
however does not prevent the elected members belonging to a political party
commanding the majority
of seats in the legislative assembly or the
Parliament
to elect a person who never contested for being chosen as a member or a person
who though contested, got defeated in the election for one reason
or the other
and it is in such a situation that person on being elected as a leader
of the
political party commanding the majority in the House, could be appointed as
the Prime Minister or the Chief Minister. But the constitution certainly does not
postulate such elected representatives
of the people belonging to a political
party commanding a majority in the
Parliament or the Assembly to elect a
person as their leader so
as to be called by the
President or the Governor to
head the government, who does not possess the qualification for being chosen,
to fill a seat in the ~.1.-Jiament 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.eaumerated
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
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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
Articl~ 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 colDlDanding 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.
p In-this connection it would be appropriate to notice that even under the
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Government oflndia 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 o_ught 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
otl:ze1wise qual(fied for appointment but to whom the doubtful pleasures
of electioneering might make no appeal."
B.R. KAPUR v. STATE [PATTANAIK, J.] 239
Even in the Constituent Assembly Debates when Mohd. Tahir,
an
M.P. suggested A
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
wn0 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
Mini1>ter 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 fo be read into Article 164
and so read, respondent No.
2, who had incurred the disqualification under
Article
191 ( 1 )( e) read with Section 8(3) of the Representation of the
People
Act, could not have been appointed as the Chief Minister, whatever may be the
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240 SUPREME COURT REPORTS [2001) SUPP. 3 S.C.R.
A 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.
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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 oppon~nt raises the question of any disqualification and no Governor can
adjudicate on each one
of the disqualifications, enumerated in Article 191 read
with Sections 8 to
11 of the Representation of the
People Act. According to
the learned counsel, the constitution has avowedly not prescribed any
qualification or disqualification with regard
to a non-member minister or Chief
minister and the only limitation
is that
such minister or Chief Minister must get
elected within six months or else .would cease
to become a minister. In my ~onsidered opinion, the appoinunent 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(l)(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
E as a meinber, as contained in Article 173, then in such a case, there is no
que,stion
of an impossible burden on the Governor at that stage and on the other
~~nd, 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
F .. of the _legislative assembly. In a given case, if the alleged disqualification is
dependant upon the disputed questions
of fact and evidence, the Governor may
choose not
to get into those disputed questions of fact and, therefore, could
appoint such person
as the Chief Minister or Minister
.. In such a case, G?vernor
exercises ~is discretion under Article 164 in the matter of appointment of the
Chief Minist~r or a Minister. But in a case where the disqualification is one
G 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
~d
. 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
H be acting beyond his jurisdiction and against the constitutional inhibitions and
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B.R. KAPUR v. STATE [PATTANAIK, J.] 241
norms in appointing such a disqualified person as the Chief Minister on the sole
reasoning that the majority
of the elected members to the legislative council
have elected the person concerned to be their leader. The constitution does not
permit brute force to impede the constitution. The people
of India and so also
the elected members to the legislative assembly are bound by the constitutional
provisions and it would be the solemn duty
of the 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.
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
A
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for any act done or purported to be done by him in the exercise and performance D
of those powers and duties and respondent No. 2 having been appointed as
Chief Minister in exercise
of powers of the Governor under Article 164, the
said appointment as well as the exercise
of discretion by the Governor is
immune from being challenged and is not open
to judicial review. The arguments
of the counsel for the respondents is also based on the ground that any
consideration by the Court to the legality
of such an appointment is not E
permissible as it is a political thicket. The decision of this Court in R.K. Jain
v.
Union of India, [ 1993] 4 SCC 119 has been relied upon. At the outset, it may
be stated that the immunity provided to the Governor under Article 361 is
certainly not extended to an appointee by the Governor.
In the present
proceedings, what has been prayed for
is to issue a writ of quo warranto on F
the averments that respondent No. 2 was constitutionally disqualified to usurp
the public office
of the Chief Minister, who has been usurping the said post
unauthorisedly on being appointed
by the Governor. In fact the Governor has
not been arrayed
as a party respondent to the proceedings. In the very case of
R.K. Jain, it has been held by this Court in paragraph 73 that judicial review
is concerned with whether the incumbent possessed
of qualification for G
appointment and the manner in which the appointment came to be made or
the
procedure adopted whether fair, just and reasonable. It has been further stated
in paragraph 70 of the said judgment that in a democracy governed by rule of
law surely the only acceptable repository of absolute discretion should be the
courts. Judicial review is the basic and essential feature
of the Indian H
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SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
constitutional scheme entrusted to the judiciary. It is the essence of tlie 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 Page 1, this Court held that a
proclamation issued by the President on the advice
of the council of ministers
headed by the
Prime Minister is amenable to judicial review. Even Justice
Ahmadi, as he then was, though was
of the opinion
that the decision making
of the President under Article 356.would not be justiciable but was firmly of
the view that a proclamation issued by ·the President is amenable to judicial
review. Justice Verma and Justice Yogeshwar Dayal held that there is no dispute
that the proclamation issued under Article 356 is subject
to judicial review. So also was the view of Justice Sawant and Justice Kuldip Singh and Justice
Pandian, where Their Lordships have stated that the exercise
of power by the President under.Article 356(1) to issue Proclamation is subject to the Judicial
review at least to the extent
of examining whether the conditions precedent to
the issuance
of the Proclamation have been satisfied or not. According to
Justice Ramaswamy, the action
of the
President under Article 356 is a
constitutional function and the same is subject to judicial review and according
to the learned Judge, the question relating to the extent, scope and power
of
the President under Article 356 though wrapped up with
political thicket, per
se it does not get immunity from judicial review. According to Justice Jeevan
Reddy and Agarwal, JJ, the power under Article 356(1) is a conditional power
and in exercise
of the power of judicial review, the court is entitled to examine
whether the condition has been satisfied
o·r not. But in the case iri hand, when
an. application for issuance
of a writ of quo warranto is being examined, it is
not the Governor who
is being
ma~e amenable to answer the Court. But it is
the appointee respondent No. 2, who is duty bound to satisfy that there has been
no illegal usurpation
of public office. Quo warranto protects
public from illegal
usurpation
of public office by an individual and the necessary ingredients to
be satisfied by the Court before
issuing'a writ is that the office in question must
be public created
by the constitution and a person
not legally qualified to hold
the office, in clear infringement
of the provisions of the constitution and the
law viz. Representation
of the
People Act has been usurping the same. If this
Court ultimately comes to the conclusion that the respondent
No. 2 is disqualified
under the constitution to hold public office
of the Chief Minister, as has already
been held, then the
i~unity of Governor under Article 361 cannot stand as
a bar from issuing a writ
of quo warranto. In the present case, it is the State
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B.R. KAPUR v. STATE [PATTANAIK, J.] 243
Government who has taken the positive stand that there has been no violation
A
of the constitutional provisions or the violation of law in the appointment of
respondent No. 2, as Chief Minister, the correctness of that stand is the subject
matter
of scrutiny.
I am tempted to quote some observations
of the
United States Supreme
Court
in the case of Lucas v.
Colorado General Assembly, 377 US 713, 12 L
ed 2d 632, 84 S Ct 1472. It has been held
in the aforesaid case:
"Manifestly,
the fact that an apportionment plan is adopted in a popular referendum is
insufficient to sustain its constitutionality or
to induce a Court of equity to
refuse to
act." It has been further held : "The protection of constitutional rights
is not
to be approached either pragmatically or expediently, and though the fact
of enactment of a constitutional provision by heavy vote of the electorate
produces pause and generates restrain we can not, true to our oath, uphold such
legislation in the face
of palpable infringement of rights. It is too clear for
argument that constitutional law
is not a matter of majority vote. Indeed the
entire philosophy
of the Fourteenth Amendment teaches that it is personal
rights which are to be protected against the will
of the
majority." What has been
stated therein should more appropriately be applicable to a case where the
constitution is the supreme document which should bind people
of India as well
as all other constitutional authorities, including the Governor, and, therefore
if
respondent No. 2 is found to have been appointed as the Chief Minister,
contrary to the constitutional prohibition and prohibition under the relevant law
of the Representation of the
People Act, there should be no inhibition on the
Court to issue a writ
of quo warranto and the so-called immunity of the
Governor will not stand as a bar.
According to
Mr.
P.P. Rao, learned senior counsel appearing for the State
of Tamil Nadu, Parliamentary Democracy is admittedly a basic feature of the
Constitution. It would be the duty
of every functionary
under the Constitution,
including the Governor, and the judiciary to give effect to the will
of the people
as reflected in the election to the Legislative Assembly
of a
State. Once the
electorate has given its mandate
to a political party and its leader to run the
Government
of the
State for a term of five years, in the absence of ;my express
provision
in the Constitution to the contrary, the Governor is bound to call upon
the leader
of that Legislature
Party, so elected by the elected members, to form
the Government. According to
Mr. Rao, there is no express, unambiguous
provision
in the Constitution or in the provisions of Representation of
People
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Act, declaring that a person convicted of an offence and sentenced to H
244 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A imprisonment for a period not less than 2 years by the Trial Court shall not be
appointed as Chief Minister during the pendency
of the first appeal. In such
a situation, the Governor
is not expected to take a position of confrontation
with the people
of the
State who voted the ruling party to power and plunge
the State into a turmoil. In support of this contention, observation of this Court
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in the case of Shainsher Singh v. State of Punjab, [1974] 2 SCC 831, 'The head
of the State should avoid getting involved in politics', was pressed into service.
I am unable to persuade myself
to agree with the aforesaid
submission· of Mr.
Rao, inasmuch as, in my considered opinion, the people
of this country as well aS'their voice reflected through their elected representatives in the Legislative
Assembly, electing a disqualified person for being chosen as a member
of the
Legislative Assembly, to be
theif leader are as much subservient to the
Constitution
of India as the Governor himself. In a democracy, constitutional
law reflects the
value that people attach to orderly human relations, to individual
freedom under the law and to institutions such as Parliament, political parties,
free elections and a free press. Constitution is a document having a special legal
sanctity which sets out the frame-work and the principal functions
of the organs
of government within the
State and declares the principles by which those
· organs must operate. Constitution refers to the whole system of the governance
of a country and the collection of rules which establish and regulate or govern
the government. In our country, we have a written constitution, which has been
given by the people
of India to themselves. The said Constitution occupies the
primary place. Notwithstanding the fact, we have a
written· Constitution, in
course
of time, a wide variety of rules and practices have evolved which adjust
operation
of the Constitution to changing conditions. No written constitution
would contain all the detailed rules upon which the government depends. The
rul.es for electing the legislature are usually found not in the written Constitution
p but in the statutes enacted by the legislature within limits laid down by the
Constitution. A Constitution is a thing antecedent to a government, and a
government
or a good governance is a creature of the Constitution. A
documentary Constitution reflects the beliefs and political aspirations
of those
who had framed
it.
One of the principle of constitutionalism is what it had
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developed in the democratic traditions. A primary function that is assigned to
the written Constitution is that of controlling the organs of the Government.
Constitutional law pre-supposes the existence
of a
State and inclu9es those
' laws which regulate the structure and function of the principal organs of
government and their relationship to each other and to the citizens. Where there
is a written Constitution, emphasis is placed on the rules which it contains and
on the way in which they have been interpreted by the highest court with
·-
I
B.R. KAPUR v. STATE [PATTANAIK, J.] 245
constitutional jurisdiction. Where there
is a written Constitution the legal A
structure of Government may assume a wide variety of forms. Within a federal
constitution, the tasks
of government are divided into two classes, those entrusted
to the federal organs of government, and those entrusted to the various states,
regions or provinces which make up the federation. But the constitutional limits
bind both the federal and state organs
of government, which limits are enforceable
as a matter
of law. Many important rules of constitutional behaviour, which are
observed by the Prime Minister and Ministers, Members
of the Legislature,
Judges and Civil servants are contained neither in Acts nor
in judicial decisions.
But such rules have been nomenclatured
by the Constitutional Writers to be the
rule
of 'the positive morality of the constitution' and some times the authors
provide the name
to be 'the unwirtten maxims of the constitution'. Rules of
constitutional behaviour, which are considered to be binding by and upon those
who operate the Constitution but which are not enforced
by the law courts nor
by the presiding officers in the House of Parliament. Sir Ivor Jennings, in his
book, 'Law and the Constitution' had stated that constitutional conventions are
observed because
of the political difficulties which arise if they are not. These
rules regulate the conduct
of those holding
public office and yet possibly the
most acute political difficulty can arise for such a person is to be forced out
of office. The Supreme Court of Canada stated that the main purpose of
conventions is to ensure that legal frame
work of the constitution is operated
in accordance with the prevailing constitutional values
of the period. (see
(1982) 125 DLR(3d)
1, 84). But where the country has a written constitution
which ranks
as fundamental law, legislative or executive acts which conflicts
with the constitution must be held to be. unconstitutional and thus illegal. The
primary system
of Government cannot be explained
solely in terms of legal and
conventional rules. It depends essentially upon the political base which underlies
it, in particular on the party system around which political life is organised.
Given the present political parties and the electoral system, it is accepted that
following a general election, the party with a majority
of seats in the State
legislature or the Parliament will form the Government. This
is what the
Constitution postulates and permits. But
in the mauer 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
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not be tolerated upon. When one speaks of legislative supermacy and the will H
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246 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
of the people, the doctrine essentially consists of a rule which governs the legal
relationship between the legislature and the court, but what is stated to be the
legislative supermacy in the United Kingdom has no application in our country
with a written Constitution limiting the extent
of such supermacy of the
Legislature or Parliament.
In other words, the·people of the country, the organs
of the Government, legislature, executive and judiciary are all bound by the
Constitution which Hon. Justice Bhagwati,
J.
descrioes in Minerva Mills case
[1980] 3 Supre~e Court Cases, 625, to be suprem'a lex or the paramount l~w
of the land and nobody is above or beyond the Constitution. When Court has
been ascribed the duty
of interpreting the Constitution and when Court finds
that manifestly there is
an unauthorised exercise of power under the Constitution,
it would be the solemn
duty of the Court to intervene. The doctrine oflegislative
supermacy distinguishes the United Kingdom from those countries in which
they have a written constitution, like India, which imposes limits upon the
legislature and entrust the ordinary courts or a constitutional court with the
function
of deciding whether the acts of the legislature are
in
1
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 cQntrary to the Constitution and the laws of the land
then the Constitution and the laws must prevail over such unconstitutional
decision, and the argument
of Mr. Rao, that the will of the people would prevail
must give way.
In a democratic society there are important reasons for obeying
the
law,_which do not exist in other forms of government. Our political system
still is not perfect and there are always the scope for many legislative reforms
to be made.
:a·ut the maintenance oflife in modern society requires a willingness
from most citizens for most
of the time to observe laws, even when individually
they may not agree with them.
In the
aforesai~ premises, and in view of the conclusions already arrived
at, with regard to the disqualifications the respondent
no. 2 had incurred, which
prevents her for not being chosen as a member
of the Legislative Assembly,
it would be a blatant violation
of Constitutional laws to allow her to be
continued
as the Chief Minister of a State, howsoever short the period may be,
on the theory that
the, majority of the elected members of the Legislative
Assembly have el~cted her as the leader and that is the expression of the will
of the people.
One other thing which I would like to notice, is the consciousness of the
people who brought such Public Interest Litigation to the Court.
Mr. Diwan in
course of his arguments, had raised some submissions on the subject -
B.R. KAPUR v. STATE [PATTANAIK, J.] 247
"Criminalisation
of
Politics" and participation of criminals in the electoral
process
as candidates and in that connection, he had brought to our notice the
order
of the Election Commission of India dated 28th of August, 1997. But for
answering the essential issue before us, it was not necessary to delve into that
matter and, therefore,
we have not made an in-depth inquiry into the subject.
In one of the speeches by the
Prime Minister of India on the subject-"Whither
Accountability'', published in the Pioneer, Shri Atal Bihari Vajpayee had called
for a national debate on all the possible alternatives for systematic changes to
cleanse our democratic governing system
of its
pr('.sent 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 hightened opportunism and
unscrupulousness among political parties, causing them to marry and divorce
one another at will, seek opportunistic alliances and coalitions often without
the popular mandate.
Yet they capture and survive in power due to inherent
systematic flaws. He further stated casteism, corruption and politicisation have
eroded the integrity and efficacy
of our civil service structure also. The
manifestoes, policies, programmes
of the political parties have lost meaning in
the present system
of governance due to lack of accountability. Lot of arguments
had been advanced both
by Mr. Venugopal and Mr. Rao, on the ground that
so
"far as the offences under Section 8(3) of the Representation of the People
Act are concerned, mere conviction itself will not incur the disqualification, but
CQ_nviction 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 Jess than two years, which is the minimum sentence required under Section
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248 SUPREME COURT REPORTS (2001] SUPP. 3 S.C.R.
A 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, (1994] Supp. 3 S.C.C. 162. But
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having regard to the mass scale corruption which has corroded the core of
elective democracy, it is high time for the Parliament to consider the question
of bringing the conviction under the Prevention of Corruption Act, as a
disqualification under Section
8(1
k4:if--tnf"Representation of the People Act,
1951, so that a person on being convicted
of an offence, punishable under the
provisions
of Prevention of Corruption Act, could be disqualified for being
chosen, as a member or being continuing
as a member of the Legislative
Assembly or the Parliament. I hope and trust, our representatives in the Parliament
will bestow due thought over this issue.
These Writ Petitions, Special Leave Petition/Civil Appeal and Transferred
case stand disposed
of in terms of the directions contained in the judgment of
Brother Bharucha, J.
BRUESH KUMAR, J. Leave granted in SLP No. 11763/2001.
I have the advantage of going through the judgment prepared.by Brother
E Bharucha, J. I am in respectful agreement with the same. While doing so, I
propose to record my views in addition, on a few points only, in brief, since
such points had been argued at some length and with all vehemence.
The,
points are
also no doubt important.
Amongst other points, the learned counsel for the respondents submitted
F that the appointment of respondent No.2 as Chief Minister by the Governor,
could not be challenged,
in view of the provisions under Article 361 of the ,
Constitution, providing that the Governor shall not be answerable to any Court
for the exercise and performance
of the powers and duties of his office. It
was also submitted that in appointing the Chief Minister, the Governor exercised
G
his discretionary powers, therefore, his action is not justiciable. Yet another
submission is that the Governor had only implemented the decision
of the
majority party, in appointing the respondent No.2 as a Chief Minister i.e. he
had only given effect to the
will of the people.
In so far it relates to Article
361 of the Constitution, that the Governor
H shall not be answerable to any
~ourt for performance of duties of his office
B.R. KAPUR v. STATE [BRIJESH KUMAR, J.] 249
as Governor, it may, at the very outset, be indicated that we are considering the
prayer for issue
of writ of Quo Warranto against the respondent No.2, who
according to the petitioner suffers from disqualification to hold the public
office
of the Chief Minister of a State. A writ of Quo Warranto is a writ which
lies against the person, who according to the relator is not entitled to hold
an
office of public nature and is only an usurper of the office. It is the person,
against whom the writ
of quo warranto is directed, who is required to show,
by what authority that person
is entitled to hold the office. The challenge can
be made on various grounds, including on the grounds that the possessor
of
the office does not fulfill the required qualifications or suffers from any
disqualification, which debars the person
to hold such office. So as to have
an idea about the nature of action in a proceedings for writ of quo warranto
and its original form,
as it used to be, it would be beneficial to quote from
Words and
Phrases Permanent Edition, Volume 35A page 648. It reads as
follows:-
"The original common-law writ of "quo warranto" was a civil writ at
the suit
of the crown, and not a criminal prosecution. It was in the
nature
of a writ of right by the King against one who usurped or
claimed franchises
or liabilities, to inquire by what right he claimed
them. This writ, however, fell into disuse in England centuries ago,
and its place was supplied
by an information in the nature of a quo
warranto, which in its origin was a criminal method
of prosecution, as
well to punish the usurper
by a fine for the usurpation of the franchise,
as to oust him or seize it for the crown. Long before
our Revolution,
however, it lost its character
as a criminal proceeding in everything
except form, and was applied
to the mere purposes of trying the civil
right, seizing the franchise, or ousting the wrongful possessor, the fine
being nominal only; and such, without any special legislation
to that
effect, has always been its character
in many of the states of the
Union,
and it is therefore a civil remedy only. Ames v. State of Kansas, 4
S.Ct.437, 442,111 U.S. 449,28 L.Ed.482; People v. Dashaway Ass'n,
24 P.277,278,84 Cal.114."
In the same Volume of Words and Phrases Permanent Edition at page
647 we find as follows:-
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G
"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 H
A
B
c
250 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
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 in/McKittrick v. Murphy, 148.S.
W.2d 527 ,529 ,530,347
Mo.484. (emphasis. supplied)
Information
in nature of
"quo warranto'; does not command
performance
of official functions by any officer to whom it may run,
since it is not directed
to officer as such, but to person holding office
or exercising.franchise, and not.for purpose of dictating or prescribing
official duties, but only to ascertain whether he is right.full/entitled to
exercise functions claimed.
State ex inf.
ITT-tlsh v. Thatcher, 102
. '
S.W.2d 937,938,340 Mo.865."
(emphasis supplied)
In Halsbury's Laws
of England Fourth Edition Reissue Volume-I
Para
265, Page 368 it is found as follows:-
"266. In general. An information in the nature of a quo warranto
D took the place of the absolete writ of quo warranto which lay against
a person who claimed
or usurped an office, franchise, or
liberty, to
inquire by what authority he supported his claim, in order what the
right
to the office
of franchise might' be d~termined.'", .
(Emphasis supplied)
E Besides the
above, niany High Courts as well as this Court have, taken
the view that a· writ of quo warranto lies against a person, who is
1called upon
to establish his legal entitlement to hold the office in question. Reference:
AIR (1~52) Trav. Cochin 66, (1944) 48 Cal. W.N. 766, AIR
(1977) Noc. 246, AIR (1952) Nag. 330, ·AIR (1945) Cal.249 and AIR
F (1965) S.C. 49~.
In view of the legal position as indicated above it would not be necessary to
implead the appointing authority as respondent in the proceedings. In the case
in hand, the Governor need not be made answerable
to Court. Article 361 of
the Constitution however does not extend any protection or immunity,
G vicariously, to holder of an office, which under the law, he is not entitled
to
hold. On being called upon to establish valid authority to hold a public office,
if the person fails to do so, a writ of quo warranto shall be directed against
such person. It shall be no defence
to
s~y 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
H the legal requirements and qualifications necessary to hold a public office
B.R. KAPUR v. STATE [BRIJESH KUMAR, J.] 251
would
be considered in the proceedings, independent of the fact as to who
made the appointment and the manner in which appointment was made.
Therefore, Article
361 of the Constitution would be no impediment in examining
the question
of entitlement of a person, appointed by the Governor to
hol~ a
public office, who according to the petitioner/relator
is usurper to the office.
The other point which was pressed, with no less vehemence was that in
making the appointment
of the Chief Minister, the Governor acts in exercise
of his discretionary powers. In this connection, learned counsel for the
respondents referred to Article 163
of the Constitution to indicate that there
shall be a Council of Ministers headed by the Chief Minister to aid and advise
the Governor in exercise
of his functions except where, under the Constitution
the Governor has
to discharge his functions in his discretion. Thereafter,
Article 164 of the Constitution has been referred to indicate that Chief Minister
shall be appointed
by the Governor and the other Ministers shall be appointed
by the Governor on the advise of the Chief Minister. It is submitted that the
Governor appoints the Chief Minister at a time, when there is no Council
of
Ministers to aid or advise him. The Governor makes the appointment in his own
discretion. Learned counsel for the respondent No.2 submitted that the party
in majority by means of a resolution had chosen respondent No.2 as their
leader. Accordingly, the respondent No.2 was appointed as the Chief Minister.
It has been very categorically submitted, without any ambiguity, that the
Governor is bound
to appoint any person whosoever is chosen by majority
party,
as the Chief Minister. This argument cuts against his own submission
made earlier that the Governor appoints the Chief Minister in exercise
of his
discretionary powers.
If it is right, that the Governor is bound by the decision
of the majority party, the element of discretion of Governor, in the matter,
disappears. In the scheme
of Constitutional provisions the Governor is to act
with the aid and advise
of the Council of Ministers headed by the Chief
Minister. He is bound
to act accordingly. The other functions which the
Governor performs in which aid and advice
of the Council of Ministers is not
necessary, he acts in his own discretion. He is not bound
by decision/advice
of any other agency. It is no doubt true that even in the written Constitution
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it is not possible to provide each and every detail. Practices and conventions G
do develop for certain matters. This is how democracy becomes workable.
It is also true that the choice
of the majority party regarding its leader for
appointment
as Chief Minister is normally accepted, and rightly. But the
contention that in all eventualities whatsoever the Governor is bound by the
decision
of the majority party is not a correct proposition. The Governor H
252 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A cannot be totally deprived of element of discretion in performance of duties
of his office, if ever any such exigency may so demand its exercise. The
argument about implementing the
will of the people in the context indicated a,bove is misconceived and misplaced.
B.K.M. Writ Petitions/ Appealffransferred
writ petition disposed of.
I
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