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CASE NO.:

Writ Petition (civil) 242 of 2001

PETITIONER:

B.R. KAPOOR

Vs.

RESPONDENT:

STATE OF TAMIL NADU AND ANR.

DATE OF JUDGMENT: 21/09/2001

BENCH:

G.B. Pattanaik, S.P. Bharucha , Brijesh Kumar , Y.K. Sabharwal & Ruma Pal

JUDGMENT:

With

W.P.(C) No. 245 of 2001, W.P.(C) No. 246 of 2001, W.P.(C)

No. 261 of 2001, , T.C. (C) No. 26 of 2001 @ T.P.(C) No.

382 of 2001. & C.A. No. 6589 of 2001 @ S.L.P. (C) No.

11763 of 2001

JUDGMENT

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 to the importance

of the question involved, and the enormity of the

consequences, if the contentions of Respondent No. 2 are

accepted, I consider it appropriate to express my thoughts on

some aspects. It is not necessary to reiterate the facts which

have been lucidly narrated in the judgment of Brother

Bharucha,J. The question that arises for consideration is

whether a non elected member, whose nomination for

contesting the election to the Legislative Assembly stood

rejected, and that order of rejection became final, not being

assailed, could still be appointed as the Chief Minister or the

Minister under Article 164 of the Constitution, merely

because the largest number of elected members to the

Legislative Assembly elects such person to be their leader.

Be it be stated, that the nomination of such person had been

rejected, on the ground of disqualification incurred by such

person under Section 8(3) of the Representation of People

Act, 1951, the said person having been convicted under the

provisions of the Prevention of Corruption Act, and having

been sentenced to imprisonment for 3 years. The main basis

of the arguments advanced by Mr. Venugopal, the learned

senior counsel, appearing for respondent no. 2, and Mr. PP

Rao, learned senior counsel appearing for the State of Tamil

Nadu, is that Article 164 of the Constitution conferring

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power on the Governor to appoint a person as Chief Minister,

and then appoint Ministers on the advice of such Chief

Minister, does not prescribe any qualification for being

appointed as Minister or Chief Minister, and on the other

hand, Sub-Article (4) of Article 164 enables such a Minister

to continue as a Minister for a period of six months and said

Minister ceases to be a Minister unless within that period of

six months gets himself elected as a member of the

Legislaure of the State. As such, it would not be appropriate

to import the qualifications enumerated for the members of

the State Legislature under Article 173, or the dis-

qualifications enumerated in respect of a person for being

chosen as or for being a member of the Legislative Assembly

under Article 191 of the Constitution. According to the

learned senior counsel, the Governor, while exercising power

under Article 164, is duty bound to follow the well settled

Parliamentary convention and invites a person to be the Chief

Minister, which person commands the confidence of the

majority of the House. In other words, if a political party gets

elected to the majority of seats in a Legislative Assembly and

such elected legislatures elected a person to be their leader,

and that fact is intimated to the Governor then the Governor

is duty bound to call that person to be the Chief Minister,

irrespective of the fact whether that person does not possess

the qualifications for being a member of the Legislative

Assembly, enumerated under Article 173, or is otherwise

disqualified for being chosen, or being a member of the

Legislative Assembly on account of any of the dis-

qualifications enumerated under Article 191. The aforesaid

contention is based upon two reasonings. (1) The lack of

prescription of qualification or dis-qualifications for a Chief

Minister or Minister under Article 164, and (2) that in a

Parliamentary democracy the Will of the people must prevail.

Necessarily, therefore, the provisions of Article 164 of the

Constitution requires an indepth examination, and further the

theory that in a Parliamentary democracy, the Will of the

people must prevail under any circumstance, as propounded

by Mr. Venugopal and Mr. Rao, requires a deeper

consideration. I would, therefore, focus my attention on the

aforesaid two issues.

It is no doubt true, that Articles 164(1) and 164(4) do

not provide any qualification or disqualification, for being

appointed as a Chief Minister or a Minister, whereas, Article

173 prescribes the qualification for a person to be chosen to

fill a seat in the Legislature of a State. Article 191 provides

the disqualification for a person for being chosen as or being

a member of the Legislative Assembly or Legislative

Council of a State. In the case in hand, the respondent no. 2

was disqualified under Article 191(1)(e) read with Section

8(3) of the Representation of the People Act, 1951, in as

much as the said respondent no. 2 has been convicted under

Section 13 of the Prevention of Corruption Act, and has been

sentenced to imprisonment for a period of 3 years, though the

execution of that sentence has been suspended by the

Appellate Court while the appeal against the conviction and

sentence is pending before the High Court of Madras.

According to Mr. Venugopal, under the Constitution of

India, when no qualification or disqualification exists under

Article 164(1) or 164(4), it necessarily postulates that in the

area of constitutional governance for the limited period of six

months, any person could be appointed as a Chief Minister

or Minister and it would not be open to the Court to import

qualifications and disqualifications, prescribed under the

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Constitution for being chosen as a member of the Legislative

Assembly. According to the learned counsel, the reasonable

conclusion to be drawn from the aforesaid constitutional

provision is that the constitution does not contemplate the

scrutiny of the credentials of a non-member Prime Minister

or Chief Minister or Minister, as in constitutional theory it is

the House, consisting of the majority thereof which proposes

him for this transient, temporary and limited period of six

months. It is also contended by Mr. Venugopal that people

who are the ultimate sovereign, express their will through

their elected representatives for selecting a non-elected

person as their leader and could be appointed as Chief

Minister and Article 164(4) unequivocally provides a period

of six months as locus poenitentia which operates as an

exception in deference to the voice of the majority of the

elected members, which in fact is the basis of a Parliamentary

Democracy. Mr. Venugopal also urged that a

disqualification being in the nature of a penalty unless

expressly found to be engrafted in the constitution or in other

words, in Article 164, it would not be appropriate for the

Court to incorporate that disqualification, which is provided

for being chosen as a member of the legislative assembly into

Article 164 and pronounce the validity of the appointment of

respondent No. 2, which has purely been made on the

strength of the voice of the majority of the elected members.

I am unable to accept these contentions of the learned

counsel, as in my considered opinion, the contentions are

based on a wrong premise. In a Parliamentary system of

government, when political parties fight elections to the

legislative assembly or to the Parliament for being chosen as

a member after results are declared, it would be the duty of

the President in case of Parliament and the Governor in case

of Legislative Assembly of the State, to appoint the Prime

Minister or the Chief Minister, as the case may be. When the

President appoints the Prime Minister under Article 75 or the

Governor appoints a Chief Minister under Article 164, the

question that weighs with the President or the Governor is,

who will be able to provide a stable government.

Necessarily, therefore, it is the will of the majority party that

should ordinarily prevail and it is assumed that the elected

members belonging to a majority political party would elect

one amongst them to be their leader. Constitution, however

does not prevent the elected members belonging to a political

party commanding the majority of seats in the legislative

assembly or the Parliament to elect a person who never

contested for being chosen as a member or a person who

though contested, got defeated in the election for one reason

or the other and it is in such a situation that person on being

elected as a leader of the political party commanding the

majority in the House, could be appointed as the Prime

Minister or the Chief minister. But the constitution certainly

does not postulate such elected representatives of the people

belonging to a political party commanding a majority in the

Parliament or the Assembly to elect a person as their leader

so as to be called by the President or the Governor to head

the government, who does not possess the qualification for

being chosen, to fill a seat in the Parliament or in the

legislative Assembly, as contained in Articles 84 and 173

respectively of the Constitution or who is disqualified for

being chosen as or for being a member of the House of

Parliament or the legislative Assembly, as stipulated under

Articles 102 and 191 of the Constitution respectively. At any

rate, even if a person is elected as the leader by the elected

members of the legislative Assembly, commanding a

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majority of seats in the Assembly and such person either does

not possess the qualification enumerated under Article 173 or

incurs disqualification for being chosen as, or for being a

member of the legislative Assembly, enumerated under

Article 191, then the Governor would not be bound to

respect that will of the elected members of the political party,

commanding the majority in the House, so as to appoint that

person as the Chief Minister under Article 164(1) of the

Constitution. When Article 164(1) itself confers the

discretion on the Governor to appoint a Chief Minister at his

pleasure and when the Governor has taken oath under

Article 159 of the Constitution to preserve, protect and

defend the Constitution and the law and shall devote himself

to the service and for the well-being of the people, it would

be against such oath, if such a person who does not possess

the qualification of being chosen as a member or has incurred

disqualification for being chosen as a member is appointed as

a Chief Minister, merely because Article 164 does not

provide any qualification or disqualification for being

appointed as a Chief Minister or Minister. It is indeed

axiomatic that the necessary qualification in Article 173 and

the disqualification in Article 191 proprio vigore applies to a

person for being appointed as the Chief Minister or a

Minister inasmuch as in a Parliamentary system of

government, a person is required to be chosen as a member

of the Legislative Assembly by the electorate of a

constituency and then would be entitled to be appointed as

the Chief Minister or a Minister on the advice of the Chief

Minister. Non-prescribing any qualification or

disqualification under Article 164 for being chosen as the

Chief Minister or Minister would only enable the Governor

to appoint a person as the Chief Minister or Minister for a

limited period of six months, as contained in Article 164(4)

of the Constitution, only if such person possesses the

qualification for being chosen as a member of the legislative

Assembly, as required under Article 173 and is not otherwise

disqualified on account of any of the disqualifications

mentioned in Article 191. Any other interpretation by way of

conferring an unfettered discretion on the Governor or

conferring an unfettered right on the elected members of a

political party commanding a majority in the legislative

Assembly to elect a person who does not possess the

qualifications, enumerated under Article 173 or who incurs

the disqualifications enumerated in Article 191 would be

subversive of the constitution and would be repugnant to the

theory of good governance and would be contrary to the

constitution itself, which constitution has been adopted,

enacted and given to the people of India by the people of

India.

In this connection it would be appropriate to notice that

even under the Government of India Act, 1935 where

Sections 51(1) and 51(2) were somewhat similar to Article

164 of the Constitution, even the Joint Committee Report on

Indian Constitutional Reforms would indicate that a

disqualified person could not have been appointed as a

Minister, as is apparent from the following sentence:

It was, therefore, suggested to us that the

Governor ought not to be thus restricted in his

choice, and that he ought to be in a position, if the

need should arise, to select a Minister or Ministers

from persons otherwise qualified for appointment

but to whom the doubtful pleasures of

electioneering might make no appeal.

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Even in the Constituent Assembly Debates when Mohd.

Tahir, an M.P. suggested an amendment to Article 144(3) of

the Draft Constitution, which corresponds with Article

164(4) of the Constitution to the effect:

That a member shall, at the time of his

being chosen as such be a member of the

Legislative Assembly or the Legislative council of

the State, as the case may be.

and urged that it is wholly against the spirit of democracy

that a person who was not being chosen by the people of the

country, should be appointed as a Minister, Dr. Ambedkar

did not accept the amendment on the ground that tenure of a

minister must be subject to the condition of purity of

administration and confidence of the House. He further

stated:

It is perfectly possible to imagine that a person

who is otherwise competent to hold the post of a

Minister has been defeated in a constituency for

some reason which, although it may be perfectly

good, might have annoyed the constituency and

he might have incurred the displeasure of that

particular constituency.

If purity of administration and otherwise competence to hold

the post of Minister were the factors which weighed with the

founding fathers to allow a competent person to be appointed

as Chief Minister or a Minister for a limited period of six

months, who might have been defeated, it is difficult to

conceive that a person who is not an elected member, does

not possess even the minimum qualification for being chosen

as a member or has incurred the disqualification for being

chosen as a member could be appointed as a Chief Minister

or Minister, on the simple ground that Article 164 is quite

silent on the same and the Court cannot import anything into

the said Article. Thus on a pure construction of provisions of

Article 164 of the Constitution, the discussions made in the

Constituent Assembly, referred to earlier, the pre-existing

pari materia provision in the Government of India Act, 1935

as well as the discussion of the Joint Committee on Indian

Constitutional Reforms referred to earlier, make it explicitly

clear that notwithstanding the fact that no qualification or

disqualification is prescribed in Article 164(1) or Article

164(4) but such qualification or disqualification provided in

Articles 173 and 191 of the Constitution for being chosen as

a member will have to be read into Article 164 and so read,

respondent No. 2, who had incurred the disqualification

under Article 191(1)(e) read with Section 8(3) of the

Representation of the People Act, could not have been

appointed as the Chief Minister, whatever may be the

majority of her party members being elected to the legislative

assembly and they elected her as the leader of the party to

form the Government.

One ancillary argument raised by Mr. Venugopal, in this

connection requires some consideration. According to the

learned counsel, no adjudicatory machinery having been

provided for in Article 164, in the event the qualifications

and disqualifications prescribed for being chosen as a

member of the legislative assembly under Articles 173 and

191 are imported into Article 164, then it will be an

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impossible burden for the Governor at that stage to decide the

question if the opponent raises the question of any

disqualification and no Governor can adjudicate on each one

of the disqualifications, enumerated in Article 191 read with

Sections 8 to 11 of the Representation of the People Act.

According to the learned counsel, the constitution has

avowedly not prescribed any qualification or disqualification

with regard to a non-member minister or Chief minister and

the only limitation is that such minister or Chief minister

must get elected within six months or else would cease to

become a minister. In my considered opinion, the

appointment of a non-member as the Chief Minister or

Minister on the advice of a Chief Minister is made under

Article 164 on the Governors satisfaction. If any of the

disqualifications mentioned in Article 191(1)(e) are brought

to the notice of the Governor which can be accepted without

any requirement of adjudication or if the Governor is

satisfied that the person concerned does not possess the

minimum qualification for being chosen as a member, as

contained in Article 173, then in such a case, there is no

question of an impossible burden on the Governor at that

stage and on the other hand, it would be an act on the part of

the Governor in accordance with the constitutional mandate

not to appoint such person as the Chief Minister or Minister

notwithstanding the support of the majority of the elected

members of the legislative assembly. In a given case, if the

alleged disqualification is dependant upon the disputed

questions of fact and evidence, the Governor may choose not

to get into those disputed questions of fact and, therefore,

could appoint such person as the Chief Minister or Minister.

In such a case, Governor exercises his discretion under

Article 164 in the matter of appointment of the Chief

Minister or a Minister. But in a case where the

disqualification is one which is apparent as in the case in

hand namely the person concerned has been convicted and

has been sentenced to imprisonment for more than two years

and operation of the conviction has not been stayed and the

appeal is pending, thereby the disqualification under Article

191(1)(e) read with Section 8(3) of the Representation of the

People Act staring at the face, the Governor would be acting

beyond his jurisdiction and against the constitutional

inhibitions and norms in appointing such a disqualified

person as the Chief Minister on the sole reasoning that the

majority of the elected members to the legislative council

have elected the person concerned to be their leader. The

constitution does not permit brute force to impede the

constitution. The people of India and so also the elected

members to the legislative assembly are bound by the

constitutional provisions and it would be the solemn duty of

the peoples representatives who have been elected to the

legislative assembly to uphold the constitution. Therefore,

any act on their part, contrary to the constitution, ought not to

have weighed with the Governor in the matter of appointment

of the Chief Minister to form the Government. In my

considered opinion, therefore, the arguments of Mr.

Venugopal, on this score cannot be sustained.

One of the arguments advanced on behalf of the

respondents was the immunity of the Governor under Article

361 of the constitution. The genesis of the said arguments is

that the Governor of a State not being answerable to any

Court in exercise of performance of the powers and duty of

his office or for any act done or purported to be done by him

in the exercise and performance of those powers and duties

and respondent No. 2 having been appointed as Chief

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Minister in exercise of powers of the Governor under Article

164, the said appointment as well as the exercise of discretion

by the Governor is immune from being challenged and is not

open to judicial review. The arguments of the counsel for the

respondents is also based on the ground that any

consideration by the Court to the legality of such an

appointment is not permissible as it is a political thicket. The

decision of this Court in R.K. Jain vs. Union of India,

1993(4) SCC 119 has been relied upon. At the outset, it

may be stated that the immunity provided to the Governor

under Article 361 is certainly not extended to an appointee by

the Governor. In the present proceedings, what has been

prayed for is to issue a writ of quo warranto on the averments

that respondent No. 2 was constitutionally disqualified to

usurp the public office of the Chief Minister, who has been

usurping the said post unauthorisedly on being appointed by

the Governor. In fact the Governor has not been arrayed as a

party respondent to the proceedings. In the very case of R.K.

Jain, it has been held by this Court in paragraph 73 that

judicial review is concerned with whether the incumbent

possessed of qualification for appointment and the manner in

which the appointment came to be made or the procedure

adopted whether fair, just and reasonable. It has been further

stated in paragraph 70 of the said judgment that in a

democracy governed by rule of law surely the only

acceptable repository of absolute discretion should be the

courts. Judicial review is the basic and essential feature of

the Indian constitutional scheme entrusted to the judiciary.

It is the essence of the rule of law that the exercise of the

power by the State whether it be the legislature or the

executive or any other authority, should be within the

constitutional limitation and if any practice is adopted by the

executive, which is in violation of its constitutional

limitations, then the same could be examined by the Courts.

In S.R. Bommai vs. Union of India, 1994(3) SCC Page 1,

this Court held that a proclamation issued by the President on

the advice of the council of ministers headed by the Prime

Minister is amenable to judicial review. Even Justice

Ahmadi, as he then was, though was of the opinion that the

decision making of the President under Article 356 would not

be justiciable but was firmly of the view that a proclamation

issued by the President is amenable to judicial review.

Justice Verma and Justice Yogeshwar Dayal held that there is

no dispute that the proclamation issued under Article 356 is

subject to judicial review. So also was the view of Justice

Sawant and Justice Kuldip Singh and Justice Pandian, where

Their Lordships have stated that the exercise of power by the

President under Article 356(1) to issue Proclamation is

subject to the Judicial review at least to the extent of

examining whether the conditions precedent to the issuance

of the Proclamation have been satisfied or not. According to

Justice Ramaswamy, the action of the President under Article

356 is a constitutional function and the same is subject to

judicial review and according to the learned Judge, the

question relating to the extent, scope and power of the

President under Article 356 though wrapped up with political

thicket, per se it does not get immunity from judicial review.

According to Justice Jeevan Reddy and Agarwal, JJ, the

power under Article 356(1) is a conditional power and in

exercise of the power of judicial review, the court is entitled

to examine whether the condition has been satisfied or not.

But in the case in hand, when an application for issuance of a

writ of quo warranto is being examined, it is not the

Governor who is being made amenable to answer the Court.

But it is the appointee respondent No. 2, who is duty bound

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to satisfy that there has been no illegal usurpation of public

office. Quo warranto protects public from illegal usurpation

of public office by an individual and the necessary

ingredients to be satisfied by the Court before issuing a writ

is that the office in question must be public created by the

constitution and a person not legally qualified to hold the

office, in clear infringement of the provisions of the

constitution and the law viz. Representation of the People

Act has been usurping the same. If this Court ultimately

comes to the conclusion that the respondent No. 2 is

disqualified under the constitution to hold public office of the

Chief Minister, as has already been held, then the immunity

of Governor under Article 361 cannot stand as a bar from

issuing a writ of quo warranto. In the present case, it is the

State Government who has taken the positive stand that there

has been no violation of the constitutional provisions or the

violation of law in the appointment of respondent No. 2, as

Chief Minister, the correctness of that stand is the subject

matter of scrutiny.

I am tempted to quote some observations of the United

States Supreme Court in the case of Lucas vs. Colorado

General Assembly 377 US 713, 12 L ed 2d 632, 84 S Ct

1472. It has been held in the aforesaid case: Manifestly,

the fact that an apportionment plan is adopted in a popular

referendum is insufficient to sustain its constitutionality or to

induce a Court of equity to refuse to act. It has been further

held : The protection of constitutional rights is not to be

approached either pragmatically or expediently, and though

the fact of enactment of a constitutional provision by heavy

vote of the electorate produces pause and generates restrain

we can not, true to our oath, uphold such legislation in the

face of palpable infringement of rights. It is too clear for

argument that constitutional law is not a matter of majority

vote. Indeed the entire philosophy of the Fourteenth

Amendment teaches that it is personal rights which are to be

protected against the will of the majority. What has been

stated therein should more appropriately be applicable to a

case where the constitution is the supreme document which

should bind people of India as well as all other constitutional

authorities, including the Governor, and, therefore if

respondent No. 2 is found to have been appointed as the

Chief Minister, contrary to the constitutional prohibition and

prohibition under the relevant law of the Representation of

the People Act, there should be no inhibition on the Court to

issue a writ of quo warranto and the so-called immunity of

the Governor will not stand as a bar.

According to Mr. P.P. Rao, learned senior counsel

appearing for the State of Tamil Nadu, Parliamentary

Democracy is admittedly a basic feature of the Constitution.

It would be the duty of every functionary under the

Constitution, including the Governor, and the judiciary to

give effect to the will of the people as reflected in the

election to the Legislative Assembly of a State. Once the

electorate has given its mandate to a political party and its

leader to run the Government of the State for a term of five

years, in the absence of any express provision in the

Constitution to the contrary, the Governor is bound to call

upon the leader of that Legislature Party, so elected by the

elected members, to form the Government. According to Mr.

Rao, there is no express, unambiguous provision in the

Constitution or in the provisions of Representation of People

Act, declaring that a person convicted of an offence and

sentenced to imprisonment for a period not less than 2 years

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by the Trial Court shall not be appointed as Chief Minister

during the pendency of the first appeal. In such a situation,

the Governor is not expected to take a position of

confrontation with the people of the State who voted the

ruling party to power and plunge the State into a turmoil. In

support of this contention, observation of this Court in the

case of Shamsher Singh vs. State of Punjab (1974 (2) SCC

831), The head of the State should avoid getting involved in

politics, was pressed into service. I am unable to persuade

myself to agree with the aforesaid submission of Mr. Rao,

inasmuch as, in my considered opinion, the people of this

country as well as their voice reflected through their elected

representatives in the Legislative Assembly, electing a

disqualified person for being chosen as a member of the

Legislative Assembly, to be their leader are as much

subservient to the Constitution of India as the Governor

himself. In a democracy, constitutional law reflects the value

that people attach to orderly human relations, to individual

freedom under the law and to institutions such as Parliament,

political parties, free elections and a free press. Constitution

is a document having a special legal sanctity which sets out

the frame-work and the principal functions of the organs of

government within the State and declares the principles by

which those organs must operate. Constitution refers to the

whole system of the governance of a country and the

collection of rules which establish and regulate or govern the

government. In our country, we have a written constitution,

which has been given by the people of India to themselves.

The said Constitution occupies the primary place.

Notwithstanding the fact, we have a written Constitution, in

course of time, a wide variety of rules and practices have

evolved which adjust operation of the Constitution to

changing conditions. No written constitution would contain

all the detailed rules upon which the government depends.

The rules for electing the legislature are usually found not in

the written Constitution but in the statutes enacted by the

legislature within limits laid down by the Constitution. A

Constitution is a thing antecedent to a government, and a

government or a good governance is a creature of the

Constitution. A documentary Constitution reflects the beliefs

and political aspirations of those who had framed it. One of

the principle of constitutionalism is what it had developed in

the democratic traditions. A primary function that is

assigned to the written Constitution is that of controlling the

organs of the Government. Constitutional law pre-supposes

the existence of a State and includes those laws which

regulate the structure and function of the principal organs of

government and their relationship to each other and to the

citizens. Where there is a written Constitution, emphasis is

placed on the rules which it contains and on the way in which

they have been interpreted by the highest court with

constitutional jurisdiction. Where there is a written

Constitution the legal structure of Government may assume a

wide variety of forms. Within a federal constitution, the

tasks of government are divided into two classes, those

entrusted to the federal organs of government, and those

entrusted to the various states, regions or provinces which

make up the federation. But the constitutional limits bind

both the federal and state organs of government, which limits

are enforceable as a matter of law. Many important rules of

constitutional behaviour, which are observed by the Prime

Minister and Ministers, Members of the Legislature, Judges

and Civil servants are contained neither in Acts nor in

judicial decisions. But such rules have been nomenclatured

by the Constitutional Writers to be the rule of the positive

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morality of the constitution and some times the authors

provide the name to be the unwirtten maxims of the

constitution. Rules of constitutional behaviour, which are

considered to be binding by and upon those who operate the

Constitution but which are not enforced by the law courts nor

by the presiding officers in the House of Parliament. Sir Ivor

Jennings, in his book, Law and the Constitution had stated

that constitutional conventions are observed because of the

political difficulties which arise if they are not. These rules

regulate the conduct of those holding public office and yet

possibly the most acute political difficulty can arise for such

a person is to be forced out of office. The Supreme Court of

Canada stated that the main purpose of conventions is to

ensure that legal frame work of the constitution is operated in

accordance with the prevailing constitutional values of the

period. (see (1982) 125 DLR(3d) 1, 84). But where the

country has a written constitution which ranks as

fundamental law, legislative or executive acts which conflicts

with the constitution must be held to be unconstitutional and

thus illegal. The primary system of Government cannot be

explained solely in terms of legal and conventional rules. It

depends essentially upon the political base which underlies it,

in particular on the party system around which political life is

organised. Given the present political parties and the

electoral system, it is accepted that following a general

election, the party with a majority of seats in the State

legislature or the Parliament will form the Government. This

is what the Constitution postulates and permits. But in the

matter of formation of Government if the said majority

political party elects a person as their leader, whom the

Constitution and the laws of the country disqualifies for

being chosen as a member of the Legislative Assembly, then

such an action of the majority elected member would be a

betrayal to the electorates and to the Constitution to which

they owe their existence. In such a case, the so called will of

the people must be held to be unconstitutional and, as such,

could not be and would not be tolerated upon. When one

speaks of legislative supermacy and the will of the people,

the doctrine essentially consists of a rule which governs the

legal relationship between the legislature and the court, but

what is stated to be the legislative supermacy in the United

Kingdom has no application in our country with a written

Constitution limiting the extent of such supermacy of the

Legislature or Parliament. In other words, the people of the

country, the organs of the Government, legislature, executive

and judiciary are all bound by the Constitution which Hon.

Justice Bhagwati, J. describes in Minerva Mills case (1980

(3) Supreme Court Cases, 625) to be suprema lex or the

paramount law of the land and nobody is above or beyond

the Constitution. When Court has been ascribed the duty of

interpreting the Constitution and when Court finds that

manifestly there is an unauthorised exercise of power under

the Constitution, it would be the solemn duty of the Court to

intervene. The doctrine of legislative supermacy

distinguishes the United Kingdom from those countries in

which they have a written constitution, like India, which

imposes limits upon the legislature and entrust the ordinary

courts or a constitutional court with the function of deciding

whether the acts of the legislature are in accordance with the

Constitution. This being the position, the action of the

majority of the elected members of a political party in

choosing their leader to head the Government, if found to be

contrary to the Constitution and the laws of the land then the

Constitution and the laws must prevail over such

unconstitutional decision, and the argument of Mr. Rao, that

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the will of the people would prevail must give way. In a

democratic society there are important reasons for obeying

the law, which do not exist in other forms of government.

Our political system still is not perfect and there are always

the scope for many legislative reforms to be made. But the

maintenance of life in modern society requires a willingness

from most citizens for most of the time to observe laws, even

when individually they may not agree with them.

In the aforesaid premises, and in view of the

conclusions already arrived at, with regard to the dis-

qualifications the respondent no. 2 had incurred, which

prevents her for not being chosen as a member of the

Legislative Assembly, it would be a blatant violation of

Constitutional laws to allow her to be continued as the Chief

Minister of a State, howsoever short the period may be, on

the theory that the majority of the elected members of the

Legislative Assembly have elected her as the leader and that

is the expression of the will of the people.

One other thing which I would like to notice, is the

consciousness of the people who brought such Public Interest

Litigation to the Court. Mr. Diwan in course of his

arguments, had raised some submissions on the subject -

Criminalisation of Politics and participation of criminals in

the electoral process as candidates and in that connection, he

had brought to our notice the order of the Election

Commission of India dated 28th of August, 1997. But for

answering the essential issue before us, it was not necessary

to delve into that matter and, therefore, we have not made an

in-depth inquiry into the subject. In one of the speeches by

the Prime Minister of India on the subject- Whither

Accountability, published in the Pioneer, Shri Atal Bihari

Vajpayee had called for a national debate on all the possible

alternatives for systematic changes to cleanse our democratic

governing system of its present mess. He has expressed his

dissatisfaction that neither Parliament nor the State Vidhan

Sabhas are doing with any degree of competence or

commitment what they are primarily meant to do: Legislative

function. According to him, barring exceptions, those who

get elected to these democratic institutions are neither

trained, formally or informally, in law-making nor do they

seem to have an inclination to develop the necessary

knowledge and competence in their profession. He has

further indicated that those individuals in society who are

generally interested in serving the electorate and performing

legislative functions are finding it increasingly difficult to

succeed in todays electoral system and the electoral system

has been almost totally subverted by money power, muscle

power, and vote bank considerations of castes and

communities. Shri Vajpayee also had indicated that the

corruption in the governing structures has, therefore,

corroded the very core of elective democracy. According to

him, the certainty of scope of corruption in the governing

structure has hightened opportunism and unscrupulousness

among political parties, causing them to marry and divorce

one another at will, seek opportunistic alliances and

coalitions often without the popular mandate. Yet they

capture and survive in power due to inherent systematic

flaws. He further stated casteism, corruption and

politicisation have eroded the integrity and efficacy of our

civil service structure also. The manifestoes, policies,

programmes of the political parties have lost meaning in the

present system of governance due to lack of accountability.

Lot of arguments had been advanced both by Mr. Venugopal

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and Mr. Rao, on the ground that so far as the offences under

Section 8(3) of the Representation of the People Act are

concerned, mere conviction itself will not incur the

disqualification, but conviction and sentence for not less than

two years would disqualify a person and, therefore, in such a

case, a person even being convicted of an offence under the

Prevention of Corruption Act, will not be disqualified, if the

trying Judge imposes the punishment of imprisonment for a

term of one year, which is the minimum under Section 13(2)

of the prevention of Corruption Act and thus less than two

years, which is the minimum sentence required under Section

8(3) of the Representation of the People Act, to disqualify a

person for being chosen as a member or continuing as a

member. As has been discussed in the Judgment of Brother

Bharucha, J, the validity of providing different punishments

under different sub-sections of Section 8, has already been

upheld by this Court in the case of Raghbir Singh vs. Surjit

Singh, 1994 Supp.(3) S.C.C. 162. But having regard to the

mass scale corruption which has corroded the core of elective

democracy, it is high time for the Parliament to consider the

question of bringing the conviction under the Prevention of

Corruption Act, as a disqualification under Section 8(1) of

the Representation of the People Act, 1951, so that a person

on being convicted of an offence, punishable under the

provisions of Prevention of Corruption Act, could be

disqualified for being chosen, as a member or being

continuing as a member of the Legislative Assembly or the

Parliament. I hope and trust, our representatives in the

Parliament will bestow due thought over this issue.

These Writ Petitions, Special Leave Petition/Civil

Appeal and Transferred case stand disposed of in terms of the

directions contained in the judgment of Brother Bharucha,J.

....................................J.

(G.B. Pattanaik)

September 21, 2001

Bharucha, J.

Leave granted.

A question of great constitutional importance arises in these

matters, namely, whether a person who has been convicted of a

criminal offence and whose conviction has not been suspended

pending appeal can be sworn in and can continue to function as the

Chief Minister of a State.

The second respondent, Ms. J. Jayalalitha, was Chief Minister

of the State of Tamil Nadu between 1991 and 1996. In respect of that

tenure in office she was (in CC 4 of 1997 and CC 13 of 1997)

convicted for offences punishable under Section 120B of the Indian

Penal Code read with Sections 13(1)(c), 13(1)(d) and 13(2) of the

Prevention of Corruption Act, 1988 and for the offence under Section

409 of the Indian Penal Code. She w as sentenced to undergo 3

years rigorous imprisonment and pay a fine of Rs.10,000 in the first

case and to undergo 2 years rigorous imprisonment and pay a fine of

Rs.5000 in the second case.

The fine that was imposed in both cases was paid.

The second respondent preferred appeals against her conviction

before the High Court at Madras. The appeals are pending. On

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applications filed by her in the two appeals, the High Court, by an

order dated 3rd November, 2000, suspended the sentences of

imprisonment under Section 389(3) of the Code of Criminal Procedure

and directed the release of respondent No.2 on bail on the terms and

conditions specified in that order. Thereafter, she filed petitions in the

two appeals seeking the stay of the operation of the judgments in the

two criminal cases. On 14th April, 2001 a learned Single Judge of the

High Court at Madras, Mr.Justice Malai Subramanium, dismissed

these petitions since the convictions were, inter alia, for offences

under Section 13(1)(c) and 13(1)(d) of the Prevention of Corruption

Act, 1988. These orders were not challenged.

In April, 2001 the second respondent filed nomination papers

for four constituencies in respect of the general election to be held to

the Tamil Nadu Assembly. On 24th April, 2001 three nomination

papers were rejected on account of her disqualification under Section

8(3) of the Representation of the People Act, 1951, by reason of her

conviction and sentence in the two criminal cases. The fourth

nomination paper was rejected for the reason that she had filed her

nomination for more than two seats. The correctness of the orders of

rejection was not called in question.

On 13th May, 2001 the results of the election to the Tamil

Nadu Assembly were announced and the AIADMK party, which had

projected the second respondent as its Chief Ministerial nominee, won

by a large majority. On 14th May, 2001, consequent upon the result of

the election, the AIADMK elected the second respondent as its

leader.

On 14th May, 2001 the second respondent was sworn in as

Chief Minister of the State of Tamil Nadu.

These writ petitions and appeal contend that the second

respondent could not in law have been sworn in as Chief Minister and

cannot continue to function as such. They seek directions in the

nature of quo warranto against her.

The provisions of the Prevention of Corruption Act, 1988, that

are relevant to the second respondents conviction and sentence read

thus :

13. Criminal misconduct by a public servant

(1) A public servant is said to commit the offence

of criminal misconduct, -

(a) ..

(b) ..

(c) if he dishonestly or fraudulently

misappropriates or otherwise converts for

his own use any property entrusted to him or

under his control as a public servant or

allows any other person to do so; or

(d) if he, -

i) by corrupt or illegal means, obtains for

himself or for any other person any valuable

thing or pecuniary advantage; or

ii) by abusing his position as a public servant,

obtains for himself or for any other person

any valuable thing or pecuniary advantage;

or

iii) while holding office as a public servant,

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obtains for any person any valuable thing or

pecuniary advantage without any public

interest; or

(e) ..

(2) Any public servant who commits criminal

misconduct shall be punishable with

imprisonment for a term which shall be not

less than one year but which may extend to

seven years and shall also be liable to fine.

Section 409 of the Indian Penal Code, also relevant to the

conviction and sentence, reads thus :

409. Criminal breach of trust by public servant, or

by banker, merchant or agent Whoever, being in

any manner entrusted with property, or with any

dominion over property in his capacity of a public

servant or in the way of his business as a banker,

merchant, factor, broker, attorney or agent,

commits criminal breach of trust in respect of that

property, shall be punished with [imprisonment for

life], or with imprisonment of either description for

a term which may extend to ten years, and shall

also be liable to fine.

For the purposes of answering the question formulated earlier,

the following provisions of the Constitution of India are most relevant:

163(1) There shall be a Council of Ministers with

the Chief Minister at the head to aid and advise the

Governor in the exercise of his functions, except in

so far as he is by or under this Constitution

required to exercise his functions or any of them in

his discretion.

164. Other provisions as to Ministers

(1) The Chief Minister shall be appointed by the

Governor and the other Ministers shall be

appointed by the Governor on the advice of the

Chief Minister, and the Ministers shall hold office

during the pleasure of the Governor:

Provided that in the State of Bihar, Madhya

Pradesh and Orissa, there shall be a Minister in

charge of tribal welfare who may in addition be in

charge of the welfare of the Scheduled Castes and

backward classes or any other work.

(2) The Council of Ministers shall be collectively

responsible to the Legislative Assembly of the

State.

(3) Before a Minister enters upon his office, the

Governor shall administer to him the oaths of

office and of secrecy according to the forms set out

for the purpose in the Third Schedule.

(4) A minister who for any period of six

consecutive months is not a member of the

Legislature of the State shall at the expiration of

that period cease to be a Minister.

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(5) The salaries and allowances of Ministers shall

be such as the Legislature of the State may from

time to time by law determine and, until the

Legislature of the State so determines, shall be as

specified in the Second Schedule.

173. Qualification for membership of the State

Legislature A person shall not be qualified to be

chosen to fill a seat in the Legislature of a State

unless he

a) is a citizen of India, and makes and subscribes

before some person authorised in that behalf

by the Election Commission an oath or

affirmation according to the form set out for

the purpose in the Third Schedule;

b) is, in the case of a seat in the Legislative

Assembly, not less than twenty-five years of

age and in the case of a seat in the Legislative

Council, not less than thirty years of age; and

c) possesses such other qualifications as may be

prescribed in that behalf by or under any law

made by Parliament.

177. Rights of Ministers and Advocate-General as

respects the Houses Every Minister and the

Advocate-General for a State shall have the right to

speak in, and otherwise to take part in the

proceedings of, the Legislative Assembly of the

State or, in the case of a State having a Legislative

Council, both Houses, and to speak in, and

otherwise to take part in the proceedings of, any

committee of the Legislature of which he may be

named a member, but shall not, by virtue of this

article, be entitled to vote.

191. Disqualifications for membership

(1) A person shall be disqualified for being chosen

as, and for being, a member of the Legislative

Assembly or Legislative Council of a State -

a) if he holds any office of profit under the

Government of India or the Government of any

State specified in the First Schedule, other than

an office declared by the Legislature of the

State by law not to disqualify its holder;

b) if he is of unsound mind and stands so declared

by a competent court;

c) if he is an undischarged insolvent;

d) if he is not a citizen of India, or has voluntarily

acquired the citizenship of a foreign State, or is

under any acknowledgement of allegiance or

adherence to a foreign State;

e) if he is so disqualified by or under any law

made by Parliament.

Explanation For the purposes of this clause, a

person shall not be deemed to hold an office of

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profit under the Government of India or the

Government of any State specified in the First

Schedule by reason only that he is a Minister either

for the Union or for such State.

(2) A person shall be disqualified for being a

member of the Legislative Assembly or Legislative

Council of a State if he is so disqualified under the

Tenth Schedule.

Provisions of a similar nature with regard to Parliament are to

be found in Articles 74, 75, 84, 88 and 102.

The Representation of the People Act, 1951 was enacted to

provide for the conduct of elections to the Houses of Parliament and to

the House or Houses of the Legislature of each State, the

qualifications and disqualifications for membership of those Houses,

the corrupt practices and other offences at or in connection with such

elections and the decision of doubts and disputes arising out of or in

connection with such elections. The relevant provisions of that Act

for our purposes are Sections 8, 8A, 9, 9A, 10 and 10A. They read

thus:

8. Disqualification on conviction for certain

offences

(1) A person convicted of an offence punishable

under -

(a) section 153A (offence of promoting enmity

between different groups on ground of

religion, race, place of birth, residence,

language, etc., and doing acts prejudicial to

maintenance of harmony) or section 171E

(offence of bribery) or section 171F (offence

of undue influence or personation at an

election) or sub-section (1) or sub-section (2)

of section 376 or section 376A or section 376B

or section 376C or section 376D (offences

relating to rape) or section 498A (offence of

cruelty towards a woman by husband or

relative of a husband) or sub-section (2) or

sub-section (3) of section 505 (offence of

making statement creating or promoting

enmity, hatred or ill-will between classes or

offence relating to such statement in any place

of worship or in any assembly engaged in the

performance of religious worship or religious

ceremonies) or the Indian Penal Code (45 of

1860), or

(b) the Protection of Civil Rights Act, 1955 (22 of

1955), which provides for punishment for the

preaching and practice of untouchability, and

for the enforcement of any disability arising

therefrom; or

(c) section 11 (offence of importing or exporting

prohibited goods) or the Customs Act, 1962

(52 of 1962); or

(d) sections 10 to 12 (offence of being a member

of an association declared unlawful, offence

relating to dealing with funds of an unlawful

association or offence relating to contravention

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of an order made in respect of a notified place)

of the Unlawful Activities (Prevention) Act,

1967 (37 of 1967); or

(e) the Foreign Exchange (Regulation) Act, 1973

(46 of 1973); or

(f) the Narcotic Drugs and Psychotropic

Substances Act, 1985 (61 of 1985); or

(g) section 3 (offence of committing terrorist acts)

or section 4 (offence of committing disruptive

activities) of the Terrorist and Disruptive

Activities (Prevention) Act, 1987 (28 of 1987);

or

(h) section 7 (offence of contravention of the

provisions of section 3 to 6) of the Religious

Institutions (Prevention of Misuse) Act, 1988

(41 of 1988); or

(i) section 125 (offence of promoting enmity

between classes in connection with the

election) or section 135 (offence of removal of

ballot papers from polling stations) or section

135A (offence of booth capturing) or clause (a)

of sub-section (2) of section 136 (offence of

Fraudulently defacing or fraudulently

destroying any nomination paper) of this Act;

[or]

[(j) section 6 (offence of conversion of a place or

worship) of the Places of Worship (Special

Provisions) Act 1991; [or]

[(k) section 2 (offence of insulting the Indian

National Flag or the Constitution of India)

or section 3 (offence of preventing singing

of National Anthem) of the Prevention

of Insults to National Honour Act, 1971

(69 of 1971);]

shall be disqualified for a period of six years from

the date of such conviction.

(2) A person convicted for the contravention of

(a) any law providing for the prevention of

hoarding or profiteering; or

(b) any law relating to the adulteration of food or

drugs; or

(c) any provisions of the Dowry Prohibition Act,

1961 (28 of 1961); or

(d) any provisions of the Commission of Sati

(Prevention) Act, 1987 (3 of 1988),

and sentenced to imprisonment for not less than six

months, shall be disqualified from the date of such

conviction and shall continue to be disqualified for

a further period of six years since his release.

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(3) A person convicted of any offence and

sentenced to imprisonment for not less than two

years [other than any offence referred to sub-

section (1) or sub-section (2)] shall be disqualified

from the date of such conviction and shall continue

to be disqualified for a further period of six years

since his release.]

[(4) Notwithstanding anything [in sub-section (1),

sub-section (2) and sub-section (3)] a

disqualification under either sub-section shall not,

in the case of a person who on the date of the

conviction is a member of Parliament or the

Legislature of a State, take effect until three

months have elapsed from that date or, if within

that period an appeal or application for revision is

brought in respect of the conviction or the

sentence, until that appeal or application is

disposed of by the court.

Explanation In this section

(a) law providing for the prevention of hoarding

or profiteering means any law, or any order,

rule or notification having the force of law,

providing for

(i) the regulation of production or

manufacture of any essential

commodity;

(ii) the control of price at which any

essential commodity may be brought or

sold;

(iii) the regulation of acquisition, possession,

storage,transport, distribution, disposal,

use or consumption of any essential

commodity;

(iv) the prohibition of the withholding from

sale of any essential commodity

ordinarily kept for sale;

(b) drug has the meaning assigned to it in the

Drugs and Cosmetics Act, 1940 (23 of 1940);

(c) essential commodity has the meaning

assigned to it in the Essential Commodities

Act, 1955 (10 of 1955);

(d) food has the meaning assigned to it in the

Prevention of Food Adulteration Act, 1954

(37 of 1954).

Central to the controversy herein is Article 164, with special

reference to sub-Article (4) thereof. This Court has considered its

import in a number of decisions. In Har Sharan Verma Vs. Shri

Tribhuvan Narain Singh, Chief Minister, U.P. and Another [1971 (1)

SCC 616], a Constitution Bench rendered the decision in connection

with the appointment of the first respondent therein as Chief Minister

of Uttar Pradesh at a time when he was not a member of either House

of the Legislature of that State. The Court said :

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3. It seems to us that clause (4) of Article 164

must be interpreted in the context of Articles 163

and 164 of the Constitution. Article 163(1)

provides that there shall be a Council of Ministers

with the Chief Minister at the head to aid and

advise the Governor in the exercise of his

functions, except in so far as he is by or under this

Constitution required to exercise his functions or

any of them in his discretion. Under clause (1) of

Article 164, the Chief Minister has to be appointed

by the Governor and the other Ministers have to be

appointed by him on the advice of the Chief

Minister. They all hold office during the pleasure

of the Governor. Clause (1) does not provide any

qualification for the person to be selected by the

Governor as the Chief Minister or Minister, but

clause (2) makes it essential that the Council of

Ministers shall be collectively responsible to the

Legislative Assembly of the State. This is the only

condition that the Constitution prescribes in this

behalf.

6. It seems to us that in the context of the other

provisions of the Constitution referred to above

there is no reason why the plain words of clause

(4) of Article 164 should be cut down in any

manner and confined to a case where a Minister

loses for some reason his seat in the Legislature of

the State. We are assured that the meaning we

have given to clause (4) of Article 164 is the

correct one from the proceedings of the

Constituent Assembly and the position as it obtains

is England, Australia and South Africa.

The Court set out the position as it obtained in England, Australia and

South Africa and observed that this showed that Article 164(4) had

an ancient lineage.

In Har Sharan Verma Vs. State of U.P. and Another [ 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 cease to be a Minister.

Another two Judge Bench of this Court in Harsharan Verma Vs.

Union of India and Another [1987 (Supp.) SCC 310] considered the

question in the context of membership of Parliament and Article

75(5), which is similar in terms to Article 164(4). The Court said that

a person who was not a member of the either House of Parliament

could be a Minister for not more than six months; though he would

not have any right to vote, he would be entitled, by virtue of Article

88, to participate in the proceedings of Parliament.

In S.P. Anand, Indore Vs. H.D. Deve Gowda and Others [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 was made to the earlier

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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.

In S.R. Chaudhuri Vs. State of Punjab & Ors. [2001 (5) SCALE

269], one Tej Parkash Singh was appointed a Minister of the State of

Punjab on the advice of the Chief Minister, Sardar Harcharan Singh

Barar. At the time of his appointment as a Minister Tej Parkash Singh

was not a member of the Punjab Legislative Assembly. He was not

elected as a member of that Assembly within a period of six months

and he submitted his resignation. During the same legislative term

Sardar Harcharan Singh Barar was replaced as Chief Minister by Smt.

Rajinder Kaur Bhattal. On her advice, Tej Parkash Singh was

appointed a Minister yet again. The appointment was challenged by a

writ petition in the High Court seeking a writ of quo warranto. The

writ petition was dismissed in limine and an appeal was filed by the

writ petitioner in this Court. The judgments aforementioned were

referred to by this Court and it was said :

17. The absence of the expression from amongst

members of the legislature in Article 164 (1) is

indicative of the position that whereas under that

provision a non-legislator can be appointed as a

Chief Minister or a Minister but that appointment

would be governed by Article 164(4), which places

a restriction on such a non-member to continue as

a Minister or the Chief Minister, as the case may

be, unless he can get himself elected to the

Legislature within the period of six consecutive

months from the date of his appointment. Article

164(4) is, therefore, not a source of power or an

enabling provision for appointment of a non-

legislator as a Minister even for a short duration. It

is actually in the nature of a disqualification or

restriction for a non-member who has been

appointed as a Chief Minister or a Minister, as the

case may be, to continue in office without getting

himself elected within a period of six consecutive

months.

The Court said that in England the position was this :

In the Westminster system, it is an established

convention that Parliament maintains its position

as controller of the executive. By a well settled

convention, it is the person who can rely on

support of a majority in the House of Commons,

who forms a government and is appointed as the

Prime Minister. Generally speaking he and his

Ministers must invariably all be Members of

Parliament (House of Lords or House of

Commons) and they are answerable to it for their

actions and policies. Appointment of a non-

member as a Minister is a rare exception and if it

happens it is for a short duration. Either the

individual concerned gets elected or is conferred

life peerage.

The Court noted the constitutional scheme that provided for a

democratic parliamentary form of Government, which envisaged the

representation of the people, responsible Government and the

accountability of the Council of Ministers to the legislature. Thus was

drawn a direct line of authority from the people through the legislature

to the executive. The position in England, Australia and Canada

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showed that the essentials of a system of representative Government,

like the one in India, were that, invariably, all Ministers were chosen

out of the members of the legislature and only in rare cases was a non-

member appointed a Minister and he had to get himself returned to the

legislature by direct or indirect election within a short period. The

framers of the Constitution had not visualised that a non-legislator

could be repeatedly appointed a Minister, for a term of six months

each, without getting elected because such a course struck at the very

root of parliamentary democracy. It was accordingly held that the

appointment of Tej Parkash Singh as a Minister for a second time was

invalid and unconstitutional.

Mr. K.K. Venugopal, learned counsel for the second

respondent, was right when he submitted that the question that arises

before us has not, heretofore, arisen before the courts. This is for the

reason that, heretofore, so far as is known, no one who was ineligible

to become a member of the legislature has been made a Minister.

Certainly, no one who has earned a conviction and sentence covered

by Section 8 of the Prevention of Corruption Act would appear to have

been appointed Chief Minister.

To answer the question before us, three sub-Articles of Article

164 need, in our view, to be read together, namely, sub-Articles

(1),(2) and (4). By reason of sub-Article (1), the Governor is

empowered to appoint the Chief Minister; the Governor is also

empowered to appoint the other Ministers, but, in this regard, he must

act on the advice of the Chief Minister. Sub-Article (2) provides, as is

imperative in a representative democracy, that the Council of

Ministers shall be collectively responsible to the Legislative Assembly

of the State. The political executive, namely, the Council of

Ministers, is thus, through the Legislative Assembly, made

representative of and accountable to the people of the State who have

elected the Legislative Assembly. There is necessarily implicit in

these provisions the requirement that a Minister must be a member of

the Legislative Assembly and thus representative of and accountable

to the people of the State. It is sub-Article (4) which makes the

appointment of a person other than a member of the Legislature of the

State as a Minister permissible, but it stipulates that a Minister who for

any period of six consecutive months is not a member of the

Legislature of the State shall at the expiration of that period cease to

be a Minister. Necessarily implicit in sub-Article (4) read with sub-

Articles (1) and (2) is the requirement that a Minister who is not a

member of the legislature must seek election to the legislature and, in

the event of his failing to secure a seat in the legislature within six

months, he must cease to be a Minister. The requirement of sub-

Article (4) being such, it follows as the night the day that a person

who is appointed a Minister though he is not a member of the

legislature shall be one who can stand for election to the legislature

and satisfy the requirement of sub-Article (4). In other words, he must

be one who satisfies the qualifications for membership of the

legislature contained in the Constitution (Article 173) and is not

disqualified from seeking that membership by reason of any of the

provisions therein (Article 191) on the date of his appointment.

The provision of sub-Article (4) of Article 164 is meant to

provide for a situation where, due to political exigencies or to avail of

the services of an expert in some field, it is requisite to induct into the

Council of Ministers a person who is not then in the legislature. That

he is not in the legislature is not made an impassable barrier. To that

extent we agree with Mr. Venugopal, but we cannot accept his

submission that sub-Article (4) must be so read as to permit the

induction into the Council of Ministers of short term Ministers whose

term would not extend beyond six months and who, therefore, were

not required to have the qualifications and be free of the

disqualifications contained in Articles 173 and 191 respectively. What

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sub-Article (4) does is to give a non-legislator appointed Minister six

months to become a member of the legislature. Necessarily, therefore,

that non-legislator must be one who, when he is appointed, is not

debarred from obtaining membership of the legislature : he must be

one who is qualified to stand for the legislature and is not disqualified

to do so. Sub-Article (4) is not intended for the induction into the

Council of Ministers of someone for six months or less so that it is of

no consequence that he is ineligible to stand for the legislature.

It would be unreasonable and anomalous to conclude that a

Minister who is a member of the legislature is required to meet the

constitutional standards of qualification and disqualification but that a

Minister who is not a member of the legislature need not. Logically,

the standards expected of a Minister who is not a member should be

the same as, if not greater than, those required of a member.

The Constituent Assembly Debates (Volume VII) note that

when the corresponding Article relating to Members of Parliament

was being discussed by the Constituent Assembly, Dr. B.R.

Ambedkar said:

.. 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 confer 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.

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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 the some of the judgments in His Holiness

Kesavananda Bharati Sripadagalavaru v. State of Kerala, [1973

(Supp.) S.C.R. 1].

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. Vs. Union

of India & Ors. [1981 (1) SCR 206], considered in some detail the

judgment in Kesavananda Bharati. It was considering the validity of

the clauses introduced into Article 368 by the Constitution (Forty-

second Amendment) Act. They provided :

(4) No amendment of this Constitution (including

the provisions of Part III) made or purporting to

have been made under this article (whether before

on after the commencement of section 55 of the

Constitution (Forty-second Amendment) Act,

1976) shall be called in question in any court on

any ground.

(5) For the removal of doubts, it is hereby declared

that there shall be no limitation whatever on the

constituent power of Parliament to amend by way

of addition, variation or repeal the provisions of

this Constitution under this article.

Chandrachud, C.J. noted in his judgment that the avowed purpose

thereof was the removal of doubts. He observed that after the

decision in Kesavananda Bharti, there could be no doubt as regards the

existence of limitations on Parliaments 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 assured the people of India of a polity whose basic structure

was described therein as a Sovereign Democratic Republic; Parliament

could make any amendments to the Constitution as it deemed

expedient so long as they did not damage or destroy Indias

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

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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 magnificient ideal of a

society of equals. The power to destroy was not a power to

amendment. Since the Constitution had conferred a limited amending

power on Parliament, Parliament could not under the exercise of that

limited power enlarge that very power into an absolute power. A

limited amending power was one of the basic features of the

Constitution and, therefore, the limitations on that power could not be

destroyed. In other words, Parliament could not, under Article 368,

expand its amending power so as to acquire for itself the right to

repeal or abrogate the Constitution or to destroy its basic and essential

features. The donee of a limited power could not by the exercise of

that power convert the limited power into an unlimited one.

All this was said in relation to the Article 368(1) and (5). 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 any

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.

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

Minister or Minister under Article 164 only if he has the qualifications

for membership of the legislature prescribed by Article 173 and is not

disqualified from the membership thereof by reason of the

disqualifications set out in Article 191.

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 Madras was tantamount to the suspension of the

convictions against her. Our attention was then drawn to Section 8(3)

of the Representation of the People Act, which says that a person

convicted of any offence and sentenced to imprisonment for not less

than two years shall be disqualified.. In learned

counsels 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 second respondent was released on bail by the Madras High

Court reads, so far as is relevant, as follows :

389. Suspension of sentence pending the appeal;

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release of appellant on bail

(1) Pending any appeal by a convicted person, the

Appellate Court may, for reasons to be recorded by

it in writing, order that the execution of the

sentence or order appealed against be suspended

and, also, if he is in confinement, that he be

released on bail, or on his own bond.

(Emphasis supplied)

It is true that the order of the High Court at Madras on the

application of the second respondent states, Pending criminal appeals

the sentence of imprisonment alone is suspended and the petitioners

shall be released on bail.., but this has to be read in the

context of Section 389 under which the power was exercised. Under

Section 389 an appellate court may order that the execution of the

sentence or order appealed against be suspended... It is

not within the power of the appellate court to suspend the sentence; it

can only suspend the execution of the sentence pending the disposal of

appeal. The suspension of the execution of the sentence does not alter

or affect the fact that the offender has been convicted of a grave

offence and has attracted the sentence of imprisonment of not less than

two years. The suspension of the execution of the sentences,

therefore, does not remove the disqualification against the second

respondent. The suspension of the sentence, as the Madras High

Court erroneously called it, was in fact only the suspension of the

execution of the sentences pending the disposal of the appeals filed by

the second respondent. The fact that she secured the suspension of the

execution of the sentences against her did not alter or affect the

convictions and the sentences imposed on her and she remained

disqualified from seeking legislative office under Section 8(3).

In the same connection, learned counsel for the respondents

drew our attention to the judgment of a learned single Judge of the

High Court at Madras, Mr. Justice Malai Subramanium, on the

application of the second respondent for stay of the execution of the

orders of conviction against her. The learned Judge analysed Section

8 of the Representation of the People Act and came to this conclusion:

In this case, sentence of imprisonment has already

been suspended. Under such circumstances, in my

view, there may not be any disqualification for the

petitioner to contest in the election.

Learned counsel submitted that it was because of this conclusion that

the learned Judge had not stayed the execution of the orders, and his

conclusion bound the Governor. In the first place, the interpretation of

the provision by the learned Judge is, as shown above, erroneous.

Secondly, the reason why he refused to stay the execution of the

orders was because the second respondent had been found guilty of

offences under the Prevention of Corruption Act. Thirdly, the learned

Judge was required by the application to consider whether or not the

execution of the orders against the second respondent should be

stayed; the consideration of and conclusion upon the provisions of

Section 8 of the Representation of the People Act was wholly

extraneous to that issue. Fourthly, the conclusion was tentative, as

indicated by the use of the word may in the passage quoted from his

judgment above. Lastly, as will be shown, we are not here concerned

with what the Governor did or did not do; we are concerned with

whether the second respondent can show that she was, when she was

appointed Chief Minister, qualified to be a legislator under Article 173

and not disqualified under Article 191.

In relation to the difference in the periods of disqualification in

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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 Vs. Surjit Singh [1994 Supp (3) SCC 162] was

advanced. This Court there said :

5. Section 8 prescribes disqualification on

conviction for certain offences. Sub-section (1)

provides the disqualification for a period of six

years from the date of conviction for the offences

specified in clauses (a) to (i) thereof. In sub-

section (1), the only reference is to conviction for

the specified offences irrespective of the sentence

awarded on such conviction. Sub-section (2) then

prescribes that on conviction for the offences

specified therein and sentence to imprisonment for

not less than six months, that person shall be

disqualified from the date of such conviction and

shall continue to be disqualified for a further

period of six years since his release. Thus, in case

of conviction for the offences specified in sub-

section (2), the disqualification is attracted only if

the sentence is of imprisonment for not less than

six months and in that event the disqualification is

for a period of not merely six years from the date

of such conviction but commencing from the date

of such conviction it shall continue for a further

period of six years since his release. Sub-section

(3) then prescribes a similar longer period of

disqualification from the date of such conviction to

continue for a further period of six years since his

release where a person is convicted of any offence

and sentenced to imprisonment for not less than

two years, other than any offence referred to in

sub-section (1) or sub-section (2). The

classification is clear. This classification is made

with reference to the offences and the sentences

awarded on conviction. In sub-section (1) are

specified the offences which are considered to be

of one category and the period of six years

disqualification from the date of conviction is

provided for them irrespective of one sentence

awarded on such conviction. In sub-section (2) are

specified some other offences, the conviction for

which is considered significant for disqualification

only if the sentence is of imprisonment for not less

than six months and in that case a longer period of

disqualification has been considered appropriate.

Then comes sub-section (3) which is the residuary

provision of this kind wherein the disqualification

is prescribed only with reference to the period of

sentence of imprisonment of not less than two

years for which the longer period of

disqualification is considered appropriate. The

legislature itself has classified the offences on the

basis of their nature and in the residuary provision

contained in sub-section (3), the classification is

made only with reference to the period of sentence

being not less than two years.

6. In sub-section (3) of Section 8, all persons

convicted of any offence and sentenced to

imprisonment for not less than two years [other

than any offence referred to in sub-section (1) or

sub-section (2)] are classified together and the

period of disqualification prescribed for all of them

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is the same. All persons convicted of offences

other than any 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 are governed by sub-section (3)

prescribing the same period of disqualification for

all of them. The category of persons covered by

sub-sections (1), (2) and (3) being different and

distinct, the question of comparison inter se

between any two of these three distinct classes

does not arise. Without such a comparison

between persons governed by these different sub-

sections being permissible, the very basis of attack

on the ground of discrimination is not available.

Prescription of period of disqualification for

different classes of persons convicted of different

offences is within the domain of legislative

discretion and wisdom, which is not open to

judicial scrutiny.

It was pointed out by learned counsel for the respondents that

under Section 8(3) of the Representation of the People Act the

disqualification was attracted on the date on which a person was

convicted of any offence and sentenced to imprisonment for not less

than two years. It was pointed out, rightly, that the law contemplated

that the conviction and the sentence could be on different dates. It was

submitted that it was unworkable that the disqualification should

operate from the date of conviction which could precede the date of

sentence; therefore, the conviction referred to in Section 8(3) should

be taken to be that confirmed by the appellate court because it was

only in the appellate court that conviction and sentence would be on

the same day. We find the argument unacceptable. In those cases

where the sentence is imposed on a day later that the date of

conviction (which, incidentally, is not the case here) the

disqualification would be attracted on the date on which the sentence

was imposed because only then would a person be both convicted of

the offence and sentenced to imprisonment for less not that two years

which is cumulatively requisite to attract the disqualification under

Section 8(3).

The focus was then turned upon Section 8(4) of the

Representation of the People Act and it was submitted that all the

disqualifications set down in Section 8 would not apply until a final

court had affirmed the conviction and sentence. This was for the

reason that the principle underlying Section 8(4) had to be extended to

a non legislator as, otherwise, Article 14 would stand violated for the

presumption of innocence would apply to a sitting member till the

conviction was finally affirmed but in the case of a non-legislator the

disqualification would operate on conviction by the court of first

instance. It was submitted that Section 8(4) had to be read down so

that its provisions were not restricted to sitting members and in all

cases the disqualification applied only when the conviction and

sentence 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 members of legislatures. There is no challenge to it on

the basis that it violates Article 14. If there were, it might be tenable

to contend that legislators stand in a class apart from non legislators,

but we need to express no final opinion. In any case, if it were found

to be violative of Article 14, it would be struck down in its entirety.

There would be, and is no question of so reading it that its provisions

apply to all, legislators and non-legislators, and that, therefore, in all

cases the disqualification must await affirmation of the conviction and

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sentence by a final court. That would be reading up the provision,

not reading down, and that is not known to the law.

In much the same vein, it was submitted that the presumption of

innocence continued until the final judgment affirming the conviction

and sentence was passed and, therefore, no disqualification operated

as of now against the second respondent. Before we advert to the four

judgments relied upon in support of this submission, let us clear the

air. When a lower court convicts an accused and sentences him, the

presumption that the accused is innocent comes to an end. The

conviction operates and the accused has to undergo the sentence. The

execution of the sentence can be stayed by an appellate court and the

accused released on bail. In many cases, the accused is released on

bail so that the appeal is not rendered infructuous, at least in part,

because the accused has already undergone imprisonment. If the

appeal of the accused succeeds the conviction is wiped out as cleanly

as if it had never existed and the sentence is set aside. A successful

appeal means that the stigma of the offence is altogether erased. But

that it is not to say that the presumption of innocence continues after

the conviction by the trial court. That conviction and the sentence it

carries operate against the accused in all their rigour until set aside in

appeal, and a disqualification that attaches to the conviction and

sentence applies as well.

Learned counsel cited from the judgment of this Court in Padam

Singh Vs. State of U.P. [2000 (1) SCC 621] the passage which reads :

It is the duty of an appellate court to look into the

evidence adduced in the case and arrive at an

independent conclusion as to whether the said

evidence can be relied upon or not and even if it

can be relied upon, then whether the prosecution

can be said to have been proved beyond reasonable

doubt on the said evidence.

(Page 625 C)

The passage is relevant to the duty of an appeal court. It is the duty of

an appeal court to look at the evidence afresh to see if the case against

the accused has been established by the prosecution beyond

reasonable doubt, uninfluenced by the decision of the trial court; in

other words, to look at it as if the presumption of the innocence of the

accused still applied. The passage does not support the proposition

canvassed.

In Maru Ram Vs. Union of India and Ors. [1981 (1) SCC 107] it

was stated :

When a person is convicted in appeal, it

follows that the appellate Court has exercised its

power in the place of the original court and the

guilt, conviction and sentence must be substituted

for and shall have retroactive effect from the date

of judgment of the trial Court. The appellate

conviction must relate back to the date of the trial

Courts 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.

In Dilip Kumar Sharma and Others Vs. State of Madhya

Pradesh [1976 (1) SCC 560], this Court was concerned with Section

303 of the Indian Penal Code, which provided : Whoever being

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under sentence of imprisonment for life, commits murder shall be

punished with death. Sarkaria, J., in his concurring judgment, held,

on an interpretation of the section, that once it was established that, at

the time of committing the murder, the prisoner was under a sentence

of life imprisonment, the court had no discretion but to award the

sentence of death, notwithstanding mitigating circumstances. The

provision was, therefore, Draconion in its severity. It was in these

circumstances that he held that the phrase being under sentence of

imprisonment for life had to be restricted to a sentence which was

final, conclusive and ultimate so far as judicial remedies were

concerned for the other alternative would lead to unreasonable and

unjust results. The observations of the learned Judge are relevant to

the case before him; they do not have wider implications and do not

mean that all convictions by a trial court do not operate until affirmed

by the highest Court.

Lastly, in this connection, our attention was drawn to the case of

Vidya Charan Shukla Vs. Purshottam Lal Kaushik [ 1981 (2) SCC

84]. The Court held that if a successful candidate was disqualified for

being chosen, at the date of his election or at any earlier stage of any

step in the election process, on account of his conviction and sentence

exceeding two years imprisonment, but his conviction and sentence

was set aside and he was acquitted on appeal before the

pronouncement of the judgment in the election petition pending

against him, his disqualification was retrospectively annulled and the

challenge to his election on the ground that he was so disqualified was

no longer sustainable. This case dealt with an election petition and it

must be understood in that light. What it laid down does not have a

bearing on the question before us: the construction of Article 164 was

not in issue. There can be no doubt that in a criminal case acquittal

in appeal takes effect retrospectively and wipes out the sentence

awarded by the lower court. This implies that the stigma attached to

the conviction and the rigour of the sentence are completely

obliterated, but that does not mean that the fact of the conviction and

sentence by the lower court is obliterated until the conviction and

sentence are set aside by an appellate court. The conviction and

sentence stand pending the decision in the appeal and for the purposes

of a provision such as Section 8 of the Representation of the People

Act are determinative of the disqualifications provided for therein.

Our conclusion, therefore, is that on the date on which the

second respondent was sworn in as Chief Minister she was

disqualified, by reason of her convictions under the Prevention of

Corruption Act and the sentences of imprisonment of not less than two

years, for becoming a member of the legislature under Section 8(3) of

the Representation of the People Act.

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 people, 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 peoples 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

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judgment, the appointment made by him on the basis of the

conventions of the Constitution could not be challenged in quo

warranto proceedings so that an appointment that had been made

under Article 164 could not be rendered one without the authority of

law. If it did so, the court would be entering the political thicket.

When qualifications and disqualifications were prescribed for a

candidate or a member of the legislature and a machinery was

provided for the adjudication thereof, the absence of the prescription

of any qualification for a Minister or 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 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 to 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

Governors discretion.

But submissions were made by learned counsel for the

respondents in respect of the Governors 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

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who was disqualified could be removed was by a vote of no-

confidence in the legislature or by the electorate at the next elections.

To a specific query, learned counsel for the respondents submitted that

the Governor was so obliged even when the person recommended

was, to the Governors knowledge, a non-citizen, under-age, a lunatic

or an undischarged insolvent, and the only way in which a non-citizen

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 counsels submission is to invite disaster. As

an example, the majority party in the legislature could recommend the

appointment of a citizen of a foreign country, who would not be a

member of the legislature and who would not be qualified to be a

member thereof under Article 173, as Chief Minister under Article

164(1) read with (4) to the Governor; and the Governor would be

obliged to comply; the legislature would be unable to pass a no-

confidence motion against the foreigner Chief Minister because the

majority party would oppose it; and the foreigner Chief Minister

would be ensconced in office until the next election. Such a

dangerous such an absurd interpretation of Article 164 has to be

rejected out of hand. The Constitution prevails over the will of the

people as expressed through the majority party. The will of the people

as expressed through the majority party prevails only if it is in accord

with the Constitution. The Governor is a functionary under the

Constitution and is sworn to preserve, protect and defend the

Constitution and the 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 under Article 361, the exercise of the

Governors 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, 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

legislature or who is disqualified to be such, the appointment is

contrary to the provisions of Article 164 of the Constitution, as we

have interpreted it, and the authority of the appointee to hold the

appointment can be challenged in quo warranto proceedings. That the

Governor has made the appointment does not give the appointee any

higher right to hold the appointment. If the appointment is contrary to

constitutional provisions it will be struck down. The submission to the

contrary unsupported by any authority must be rejected.

The judgment of this Court in Shri Kumar Padma Prasad Vs.

Union of India and Others [1992(2) SCC 428] is a case on point. One

K.N. Srivastava was appointed a Judge of the Gauhati High Court by a

warrant of appointment signed by the President of India. Before the

oath of his office could be administered to him, quo warranto

proceedings were taken against him in that High Court. An interim

order was passed directing that the warrant of appointment should not

be given effect to until further orders. A transfer petition was then

filed in this Court and was allowed. This Court, on examination of the

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record and the material that it allowed to be placed before it, held that

Srivastava was not qualified to be appointed a High Court Judge and

his appointment was quashed. This case goes to show that even when

the President, or the Governor, has appointed a person to a

constitutional office, the qualification of that person to hold that office

can be examined in quo warranto proceedings and the appointment

can be quashed.

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 Others Vs. Union of India and Others [1977(3)

SCC 592], it was said by Bhagwati, J. , But merely because a

question has a political complexion, that by itself is no ground why the

Court should shrink from performing its duty under the Constitution,

if it raises an issue of constitutional determination. Every

constitutional question concerns the allocation and exercise of

governmental power and no constitutional question can, therefore, fail

to be political . So long as a question arises whether

an authority under the Constitution has acted within the limits of its

power or exceeded it, it can certainly be decided by the Court. Indeed

it would be its constitutional obligation to do so. It is necessary to

assert the clearest possible terms, particularly in the context of recent

history, that the Constitution is suprema lex, the paramount law of the

land and there is no department or branch of Government above or

beyond it.

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 of 2001). The writ petition which

was dismissed by the High Court and against which order an appeal is

pending in this Court was filed under Article 226, as was the

transferred writ petition. This Court, therefore, has jurisdiction to

issue a writ of quo warranto. We propose to pass the order in the lead

writ petition, and dispose of the other writ petitions, the appeal and the

transferred writ petition in the light thereof.

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

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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 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.

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 effected by reason only of this order.

Writ Petition (C) No.242 of 2001 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.

..J.

(S.P. Bharucha)

..J.

(Y.K. Sabharwal)

..J.

(Ruma Pal)

September 21, 2001

Brijesh Kumar, J.

Leave granted in SLP © 11763/2001.

I have the advantage of going through the judgment prepared

by Brother Bharucha, J. I am in respectful agreement with the same.

While doing so, I propose to record my views in addition, on a few

points only, in brief, since such points had been argued at some length

and with all vehemence. The points are also no doubt important.

Amongst other points, the learned counsel for the respondents

submitted 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

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submitted that in appointing the Chief Minister, the Governor

exercised 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 shall not be answerable to any Court for performance of

duties of his office as Governor, it may, at the very outset, be

indicated that we are considering the prayer for issue of 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 Assn, 24 P.277,278,84

Cal.114.

In the same Volume of Words and Phrases

Permanent Edition at page 647 we find as follows:-

The writ of quo warranto is not a

substitute for mandamus or injunction nor for an

appeal or writ of error, and is not to be used to

prevent an improper exercise of power lawfully

possessed, and its purpose is solely to prevent an

officer or corporation or persons purporting to act

as such from usurping a power which they do not

have. State ex inf.McKittrick v. Murphy,

148.S.W.2d 527,529,530,347 Mo.484. (emphasis

supplied)

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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 rightfully

entitled to exercise functions claimed. State ex inf.

Walsh v. Thatcher, 102 S.W.2d 937,938,340

Mo.865. (emphasis supplied)

In Halsburys 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 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 or franchise might

be determined. (Emphasis supplied)

Besides the above, many High Courts as well as this

Court have, taken the view that a writ of quo warranto lies

against a person, who is called upon to establish his legal

entitlement to hold the office in question. Reference:

AIR 1952 Trav. Cochin 66, (1944) 48 Cal.

W.N. 766, AIR 1977 Noc. 246, AIR 1952 Nag.

330, AIR 1945 Cal.249 and AIR 1965 S.C. 491.

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,

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 not answerable to

any Court for anything done in performance of duties of his

office. The question of fulfilling the legal requirements and

qualifications necessary to hold a public office would be

considered in the proceedings, independent of the fact as to who

made the appointment and the manner in which appointment

was made. Therefore, Article 361 of the Constitution would be

no impediment in examining the question of entitlement of a

person, appointed by the Governor to hold a public office, who

according to the petitioner/relator is usurper to the office.

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

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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 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 element of discretion in

performance of duties of his office, if ever any such exigency

may so demand its exercise. The argument about implementing

the will of the people in the context indicated above is

misconceived and misplaced.

----------------------J.

(Brijesh Kumar)

September 21 , 2001