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CASE NO.:

Appeal (civil) 661-662 of 2003

PETITIONER:

Pu Myllai Hlychho & Ors.

RESPONDENT:

State of Mizoram & Ors.

DATE OF JUDGMENT: 11/01/2005

BENCH:

CJI R.C. Lahoti, Shivaraj V. Patil, K.G. Balakrishnan, B.N. Srikrishna & G.P. Mathur.

JUDGMENT:

J U D G M E N T

K.G. BALAKRISHNAN, J.

The provisions of the Sixth Schedule to the Constitution have evolved

a separate scheme for the administration of the tribal areas in Assam,

Meghalaya, Mizoram and Tripura through the institution of District Councils

or Regional Councils. These councils are vested with legislative power on

specified subjects, allotted sources of taxation and given powers to set up

and administer their system of justice and maintain administrative and

welfare services in respect of land, revenue, forests, education, public health

etc.

The Mara Autonomous District Council, hereinafter to be referred as

"MADC" has thus been constituted as per the provisions of Paragraph 2(1)

read with Paragraph 20 of the Sixth Schedule to the Constitution of India.

The MADC consists of 19 elected members and the election is through adult

franchise and 4 members are nominated by the Governor of Mizoram by

virtue of the powers conferred on him under Paragraph 2(1) read with

Paragraph 20BB of the Sixth Schedule to the Constitution. The term of the

elected members is for a period of five years from the date appointed for the

first meeting of the Council after the General Election to the Council and the

four nominated members would hold office at the pleasure of the Governor.

The first sitting of the Council after the General Election was held on

9.2.2000 and on 8.8.2000 four members, namely, Mrs. Lalbiakluangi Sailo;

Mr. Myllai Hiychho, Mr. C. Lawbei and Mr. S. Lalremthanga were nominated

by the Governor of Mizoram as members of MADC in exercise of the powers

conferred under sub-para (1) of Paragraph 2 read with Paragraph 20BB of

the Sixth Schedule, and read with sub-rule (1) of Rule 7 of the Mizoram

Autonomous District Councils (Constitution and Conduct of Business of the

District Councils) Rules, 1974.

The Governor of Mizoram by a Notification issued on 5.12.2001

terminated the appointment/nomination of the four members who were

nominated on 8.8.2000. Thereafter, another Notification was issued on

6.12.2001 whereby four members were nominated to MADC. It may also be

pointed out that one member, namely, K. Chiama had submitted a No

Confidence Motion to the Secretary, MADC, against the Executive Committee

on 4.12.2001. The Chairman granted leave for the No Confidence Motion

and it was to be discussed and be voted on 6.12.2001. The date for

discussion and voting of the No Confidence Motion was postponed from

6.12.2001 to 7.12.2001. The termination of the membership of four

members and the nomination of new members were challenged in a Writ

Petition filed before the Aizawl Bench of the Gauhati High Court. The High

Court, by an interim order, suspended the Notification dated 6.12.2001

whereby new members were nominated to MADC. Aggrieved by the order

of suspension of the nomination to MADC, the State of Mizoram filed an

appeal before the Division Bench, being Writ Appeal No. 518 of 2001.

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Initially, the Division Bench granted an ex-parte stay of the order of

suspension of Notification granted by the learned Single Judge, but

thereafter directed that the Writ Petition be heard and disposed of by the

learned Single Judge.

The learned Single Judge by his order dated 18.4.2002 partly allowed

the Writ Petition. The nomination of three out of the four members was set

aside by the learned Single Judge. However, the Notification dated

5.12.2001 whereby the membership of the four members was terminated

was upheld by the learned Single Judge. In the Writ Appeal preferred by

the State, the quashing of the Notification dated 6.12.2001 was challenged

and the petitioners in the Writ Petition by a separate Writ Appeal challenged

the order of the learned Single Judge whereby the Notification dated

5.12.2001 was upheld. The Division Bench of the High Court of Gauhati

upheld the validity of both the Notifications and aggrieved by the same, the

present appeals have been filed.

When the matter came up for consideration before a Bench of two

Judges on 27.1.2003, the following order was passed :

"Leave granted.

The issue which has been raised in this appeal relates to the

interpretation of paragraph 2(1) and sub-paragraph (6A) of

Paragraph 2 read with paragraph 20-BB of the Sixth Schedule

to the Constitution. The dispute centres around the nature of

the discretion to be exercised by the Governor in nominating

and removing persons to the District Councils of Mizoram.

We are of the view that the issue raises a substantial question

of law as to the interpretation of the Constitutional provisions

having repercussions throughout the State of Mizoram. In

terms of Article 145(3), the matter must be placed before the

Hon'ble Chief Justice. The application for interim relief is also

referred alongwith the main appeal."

Thereafter, the matter came up before a Bench of three Judges and

on 28.7.2004, the Bench observed that in view of the order dated

27.1.2003, the matter needs to be heard by a Constitution Bench. Thus the

matter has come up before the Constitution Bench.

We heard learned counsel for the appellants and also the learned

counsel for the State of Mizoram.

The relevant provisions of the Sixth Schedule to the Constitution

regarding the administration of tribal areas in the State of Assam,

Meghalaya, Tripura and Mizoram are as follows:

"1. Autonomous district and autonomous regions\005..

2. Constitution of District Councils and Regional

Councils \026 (1) There shall be a District Council for each

autonomous district consisting of not more than thirty members

of whom not more than four persons shall be nominated by the

Governor and the rest shall be elected on the basis of adult

suffrage.

(2) \005\005\005\005\005\005\005\005..

(3) Each District Council and each Regional Council shall be a

body corporate by the name, respectively, of "the District

Council of (name of district)" and "the Regional council of (name

of region)", shall have perpetual succession and a common seal

and shall by the said name sue and be sued.

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(4) \005\005\005\005\005\005\005\005..

(5) \005\005\005\005\005\005\005\005..

(6) \005\005\005\005\005\005\005\005..

(6A) The elected members of the District Council shall hold

office for a term of five years from the date appointed for the

first meeting of the Council after the general elections to the

Council, unless the District Council is sooner dissolved under

paragraph 16 and a nominated member shall hold office at the

pleasure of the Governor:

Provided that the said period of five years may, while a

Proclamation of Emergency is in operation or if circumstances

exist which, in the opinion of the Governor, render the holding

of elections impracticable, be extended by the Governor for a

period not exceeding one year at a time and in any case where

a Proclamation of Emergency is in operation not extending

beyond a period of six months after the Proclamation has

ceased to operate.

Provided further that a member elected to fill a casual vacancy

shall hold office only for the remainder of the term of office of

the member whom he replaces.

(7) \005\005\005\005\005\005\005\005\005\005\005\005."

By virtue of an amendment carried out by the Constitution

Amendment Act, 1988 [67 of 1988] (Section 2), a new paragraph was

added as "20BB", which is to the following effect:

"20-BB: Exercise of discretionary powers by the Governor in

the discharge of his functions--- The Governor, in the discharge

of his functions under sub-paragraphs (2) and (3) of paragraph

1, sub-paragraphs (1) and (7) of paragraph 2, sub-paragraph

(3) of paragraph 3, sub-paragraph (4) of paragraph 4,

paragraph 5, sub-paragraph (1) of paragraph 6, sub-paragraph

(2) of paragraph 7, sub-paragraph (3) of paragraph 9, sub-

paragraph (1) of paragraph 14, sub-paragraph (1) of paragraph

15 and sub-paragraphs (1) and (2) of paragraph 16 of this

Schedule, shall after consulting the Council of Ministers and if he

thinks it necessary, the District Council or the Regional Council

concerned, take such action as he considers necessary in his

discretion."

The above provisions show that under sub-rule (1) of Paragraph 2,

the Governor of Mizoram is competent to nominate four members to MADC.

Sub paragraph 6A of Paragraph 2 further shows that the members

thus nominated shall hold office at the pleasure of the Governor. The

Governor is given powers to terminate the membership of the Council under

sub-paragraph 6A of Paragraph 2. The Governor is not given any discretion

under Paragraph 20BB, in respect of powers to be exercised under sub

paragraph (6A) of Paragraph 2. Under the discretionary powers of the

Governor in discharge of his functions, the power to be exercised under sub

paragraph (6A) of Paragraph 2 is not included, whereas it is specifically

mentioned that the power of the Governor to be exercised under sub

paragraph (1) of Paragraph 2 could be exercised in his discretion in the

mode prescribed under paragraph 20-BB of the Sixth Schedule. Thus,

these provisions would show that as regards the nomination of four

members to the MADC, the Governor can exercise the discretionary powers

whereas the power of termination of the members under sub paragraph

(6A) of Paragraph 2 is not left to the discretion of the Governor, but he shall

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exercise the same as envisaged under the Constitutional provisions in a

democratic form of Government which is explicitly made clear by various

provisions of the Constitution, especially Article 163, which is to the

following effect :

"163. Council of Ministers to aid and advise Governor \026 (1)

There shall be a Council of Ministers with the Chief Minister as

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.

(2) If any question arises whether any matter is or is not a

matter as respects which the Governor is by or under this

Constitution required to act in his discretion, the decision of the

Governor in his discretion shall be final, and the validity of

anything done by the Governor shall not be called in question on

the ground that he ought or ought not to have acted in his

discretion.

(3) The question whether any, and if so what, advice was

tendered by Ministers to the Governor shall not be inquired into

in any court."

There are several powers and duties for the Governor and some of

these powers are to be exercised in his discretion and some other powers

are to be exercised by him with the aid and advice of the Council of

Ministers. The executive powers of the State are vested in the Governor

under Article 154 (1). Article 163(1) states that there shall be a Council of

Ministers with the Chief Minister as 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.

Article 163(2) states that if any question arises whether any matter is

or is not a matter as respects which the Governor is by or under this

Constitution required to act in his discretion, the decision of the Governor in

his discretion shall be final and the validity of anything done by the Governor

shall not be called in question on the ground that he ought or ought not to

have acted in his discretion. Article 143 in the Draft Constitution became

Article 163 in the Constitution. The draft Constitution in Article 144(6) said

that the functions of the Governor under that Article with respect to the

appointment and dismissal of Ministers shall be exercised by him in his

discretion. This draft article was omitted when it became Article 164 in the

Constitution. There are certain powers and functions of the Governor which

speak of the special responsibilities of the Governor. These articles are

371A(1)(b), 371A(1)(d), 371A(2)(b) and 371A (2)(f). Similarly, there are

certain provisions in the Sixth Schedule, where the words "in his discretion"

are used in relation to certain powers to be exercised by the Governor.

Our Constitution envisages the Parliamentary or Cabinet system of

Government of the British model both for the Union and the States. Under

the Cabinet system of Government as embodied in our Constitution the

Governor is the constitutional or formal head of the State and he exercises

all his powers and functions conferred on him by or under the Constitution

on the aid and advice of the Council of Ministers save in spheres where the

Governor is required by or under the Constitution to exercise his functions in

his discretion.

The executive power also partakes the legislative or certain judicial

actions. Wherever the Constitution requires the satisfaction of the Governor

for the exercise of any power or function, the satisfaction required by the

Constitution is not personal satisfaction of the Governor but the satisfaction

in the constitutional sense under the Cabinet system of Government. The

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Governor exercises functions conferred on him by or under the Constitution

with the aid and advice of the Council of Ministers and he is competent to

make rules for convenient transaction of the business of the Government of

the State, by allocation of business among the Ministers, under Article

166(3) of the Constitution. It is a fundamental principle of English

Constitutional Law that Ministers must accept responsibility for every

executive act. It may also be noticed that in regard to the executive action

taken in the name of the Governor, he cannot be sued for any executive

action of the State and Article 300 specifically states that Government of a

State may sue or be sued in the name of the State subject to the restriction

placed therein. This Court has consistently taken the view that the powers

of the President and the powers of the Governor are similar to the powers of

the Crown under the British Parliamentary system. We followed this

principle in Ram Jawaya Kapur Vs. State of Punjab AIR 1955 SC 549, A.

Sanjeevi Naidu Vs. State of Madras (1970) 3 SCR 505, 511 and U.N.R.

Rao Vs. Indira Gandhi (1971) 2 SCC 63.

A discordant note was struck in Sardari Lal Vs. Union of India

(1971) 3 SCR 461 wherein this Court held that the functions of the President

under Article 311(2) of the Constitution cannot be delegated to anyone else

in the case of a civil servant of the Union and the President has to be

satisfied personally that in the interest of the security of the State it is not

expedient to hold an inquiry prescribed under Article 311(2).

In Shamsher Singh Vs. State of Punjab (1974) 2 SCC 831, it was

held that the decisions in Sardari Lal's case did not lay down correct

principles of law as such decision was contrary to A. Sanjeevi Naidu's case

and U.N.R. Rao's case and those decisions were neither referred to nor

considered in Sardari Lal's case. In Shamsher Singh's case (supra), the

powers of the Governor were considered in detail.

The scope and ambit of the powers of the Governor came up for

consideration before a Seven Judge Bench in Shamsher Singh vs. State

of Punjab & Anr. (1974) 2 SCC 831. There, the two appellants were the

members of the Subordinate Judicial Service in Punjab. On the

recommendations of the High Court of Punjab & Haryana, the services of the

two appellant-Judicial Officers were terminated with immediate effect. The

appellants contended that the Governor as Constitutional or formal head of

the State can exercise powers and functions of appointment and remove the

members of Judicial Service only personally whereas the State contended

that the Governor exercises powers of appointment and removal conferred

on him by or under the Constitution, like executive powers of the State or

Government, only on the aid and advice of his Council of Ministers and not

personally. Speaking for the majority, Ray, C.J. held:

"Our Constitution embodies generally the Parliamentary or

Cabinet system of Government of the British model both for the

Union and the States. Under this system, the President is the

constitutional or formal head of the Union and he exercises his

powers and functions conferred on him by or under the

Constitution on the aid and advice of his Council of Ministers.

Article 103 is an exception to the aid and advice of the Council

of Ministers because it specifically provides that the President

acts only according to the opinion of the Election Commission.

This is when any question arises as to whether a Member of

either House of Parliament has become subject to any of the

disqualifications mentioned in clause (1) of Article 102.

Under the Cabinet system of Government as embodied in our

Constitution the Governor is the constitutional or formal head of

the State and he exercises all his powers and functions

conferred on him by or under the Constitution on the aid and

advice of his Council of Ministers, save in spheres where the

Governor is required by or under the Constitution to exercise his

functions in his discretion."

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In the instant case, the members held office during the pleasure of

the Governor and the Council of Ministers advised the Governor to terminate

the membership of these appellants and all relevant records were placed

before the Governor. The relevant papers show that the contents of all the

relevant files were brought to the knowledge of the Governor and he

accepted the advice of his Council of Ministers. As the Governor was not

left with any discretionary power, he was bound by the advice given by the

Council of Ministers. The termination of the members from Council has

rightly been upheld by the High Court.

The counsel for the appellants further contended that the Sixth

Schedule to the Constitution is a "Constitution within the constitution" and

that the Governor of Mizoram is not bound by the aid and advice of the

Council of Ministers and the power of the Governor of Mizoram is

independent of the rest of the Constitution itself. This plea was raised on

the basis of the opinion expressed by M. Hidayatullah, former Chief

Justice of India, as he then was, in his third Anundoram Barooah Law

Lectures at Gauhati in 1978. Hidayatullah, CJ, traced the history of the

formation of Mizoram State and also inclusion of the Sixth Schedule to the

Constitution. In his lecture, it was stated :

"\005\005..It is not compulsory for the Governor to consult the

Council of Ministers. He may do so, but he is not bound to do

so, nor is he bound to accept their advice. The entire history

of these areas, the thought that went into the enactment of

the Sixth Schedule as a Constitution independent of the rest of

the Constitution clearly establishes this."

Based on this, it was argued that the tribal areas are to be

administered as per the provisions of the Sixth Schedule only. This

contention of the appellants cannot be accepted for various reasons. The

Sixth Schedule to the Constitution is a part of the Constitution and cannot be

interpreted by forgetting the other provisions in the Constitution. It is

impossible to visualize complete segregation of the Sixth Schedule from the

rest of the Constitution. As regards the inclusion of the Sixth Schedule to

the Constitution, there is a legislative history, but that by itself is not

sufficient to hold that the Sixth Schedule is a "Constitution within the

Constitution." This aspect of the matter came up for consideration in

Edwingson Bareh vs. State of Assam & Ors. (infra). The majority in

that decision repelled this contention. This was a case in which the

appellants challenged the Notification of the Governor of Assam to create an

autonomous district to be called Jowai district excluding it from the United

Khasi-Jaintia Hills District with effect from 1.12.1964. A Commission was

appointed by the Governor and the Commission went into the question and

submitted a report and it was considered by the Council of Ministers and it

decided to accept the report of the Commission. A memorandum was drawn

up and the whole file was placed before the Governor, who after reading the

file recorded "Seen, thanks". The Assembly thereafter passed a resolution

approving the proposal of the Government and a Notification creating new

district was issued. This Notification was challenged in that case. The

appellants contended that the Governor acted outside his authority. The

plea of the appellants was rejected and it was held that the Governor

exercised his powers and acted on the advice of his Council of Ministers and

the affidavit filed by the respondents showed that the matter was considered

by the Council of Ministers and the proceedings were placed before the

Governor who read the proceedings and expressed his concurrence with

words "Seen, thanks", and the Court held that this was in accordance with

the conditions prescribed by para 14(2) of the Sixth Schedule. Therefore,

the contention that the Governor was not bound by the aid and advice of

the Council of Ministers is only to be rejected.

The termination of the membership of four members from the Council

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was also challenged on the ground that these members were not given any

notice and they were not heard and that there was a violation of the

principles of natural justice. It is pertinent to note that these members

held their office at the pleasure of the Governor.

Ordinarily, the "pleasure" doctrine comes into play when the

appointment of a Crown servant is terminated. Lord Diplock in Chelliah

Kodeeswaran vs. Attorney General of Ceylon 1970 AC 1111, at 1118

(PC) stated the English law as follows :

"It is now well established in British Constitutional theory, at

any rate as it has developed since the eighteenth century, that

any appointment as a Crown servant, however subordinate, is

terminable at will unless it is expressly otherwise provided by

legislation. "

The Constitutional protection and privileges available under Article

311 to a person who holds a civil post under the Union or States are not

applicable to a member of a Council who is nominated by the Governor.

This Court in Dr. Rash Lal Yadav vs. State of Bihar & Ors. (1994)

5 SCC 267 held that the principles of natural justice are not applicable in the

absence of express words. That was a case where the removal from the

Chairmanship of Bihar Schools Board was challenged. Relying on an earlier

decision in A.K. Kraipak vs. Union of India (1969) 2 SCC 262, it was held

that if the statute, expressly or by necessary implication omits the

application of the rule of natural justice, the statute will not be invalidated

for this omission on the ground of arbitrariness.

Therefore, the contention of the appellants that these members of the

Council were not heard before their nomination/appointment was terminated

and hence illegal, cannot be accepted, as they held their office at the

pleasure of the Governor.

The next point that was raised for consideration is whether the

Notification dated 6.12.2001 nominating four members to the Council by

virtue of the powers under sub paragraph (1) of Paragraph 2 was

constitutionally legal. As already noticed, the Governor of Mizoram has

been given discretionary powers to nominate four members to the Council.

Paragraph 20BB inserted in the Sixth Schedule to the Constitution by Act 67

of 1988 expressly gives this power. Paragraph 20BB also says that the

Governor shall consult the Council of Ministers and if he thinks it necessary,

the District Council or the Regional Council concerned, and take such action

as he considers necessary in his discretion. Therefore, it is clear that the

Governor shall consult the Council of Ministers, but the consultation with the

District Council or the Regional Council is optional. The learned Single

Judge found fault with the procedure adopted by the Government of

Mizoram in bringing the matter to the notice of the Governor to nominate

the four members to MADC.

The counsel for the appellants contended that in the case of

nomination of four members, the Governor accepted the advice of his

Council of Ministers and he did not exercise the discretionary powers vested

in him under Para 20BB of the Sixth Schedule. This contention was raised

on the basis that the initiation for issuing the Notification dated 6.12.2001

was from the Council of Ministers and the Governor acted upon the advice of

the Council of Ministers. We do not find any force in this contention.

Under the provisions of Paragraph 20BB, the Governor shall consult the

Council of Ministers. Merely because of the fact that the Governor made

consultation with the Council of Ministers for nominating four members, it

cannot be assumed that Governor failed to exercise the discretionary

powers. The Governor could have even consulted the District Council or the

Regional Council in this regard. There is nothing to show that the Governor

did not exercise his discretionary powers independently. Moreover, as

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noted above, Article 163(2) of the Constitution expressly prohibits

challenging the validity of the exercise of such discretionary power.

The counsel also contended that Paragraph 20-BB to the Sixth

Schedule was inserted by the Constitution (Amendment) Act, 1988 (Act 67

of 1988) with the object of giving more autonomous powers to

administrators of tribal areas and that is why the Governor was given more

discretionary powers and that is evident from the object and reasons given

in the Constitution (Amendment) Act, 1988 and it was submitted that the

Governor should have exercised the powers independently and any advice or

instruction on the part of the Council is objectionable and would make the

notification illegal.

The relevant portion of the objects and reasons of Act 67 of 1988 is

as follows:-

"1. \005\005\005\005\005\005\005\005\005\005\005\005\005

2. Over a period of time, the minority tribals of Mizoram

covered under the Sixth Schedule have come to feel that their

autonomy under the Sixth Schedule will be more meaningful and

they can achieve speedier progress if there is less overall control of

the State Government over them in matters like approval of the

rules made by the District Councils, nomination of their members,

appointment of Commission to inquire into their administration,

their dissolution, etc. They have, therefore, represented that the

Governor should exercise powers in his discretion in these matters.

In the Memorandum of Settlement on Mizoram, there is a

provision that the rights and privileges of the minorities in Mizoram

as envisaged in the Constitution shall continue to be preserved and

protected. Similarly, in the Memorandum of Settlement on

Tripura, there is a commitment to the protection of tribal interests.

3. In pursuance to the Memoranda and to meet the aspirations of

the minority tribals in Mizoram and Tripura it has been provided

that the Governor shall act in his discretion in the discharge of

certain of his functions. Opportunity has been availed of to bring

the language of the provisions relating to the application of the

Acts of Parliament and of the State Legislatures in line with the

language used in the corresponding provisions in relation to the

State of Assam. The Bill also provides for a time limit in making

over the share of royalties to the District Councils.

4. The Bill seeks to achieve the aforesaid objects."

Relying on the object and reasons of the Amendment Act, the counsel

for the appellant contended that the Governor had been given discretionary

power to nominate the members to the Council and the facts disclosed that

he nominated members with the aid and advice of the Council of Ministers

and this was not in accordance with the provisions of Paragraph 20BB and

the autonomy envisaged under the provisions of the Sixth Schedule is not

given its true and meaningful importance. The contention of the appellants

is that by inserting Paragraph 20-BB to the Sixth Schedule Governor is given

more discretionary powers to protect the autonomy of the tribal areas and if

Governor acts on the aid and advice of the Council of Ministers and does not

act independently, the purpose of the legislation is not achieved. Except

for the fact that the file for nominating new members initiated from the

Council of Ministers, there is nothing on record to show that the Governor

failed to exercise the discretionary power vested in him. The Governor

exercised his discretion after making proper consultations, as envisaged

under Paragraph 20BB of the Sixth Schedule and the nomination of the four

members had been validly made.

In the result, we hold that the Governor was bound by the aid and

advice of the Council of Ministers and the termination of the four members

from the MADC by order of the Governor on 5.12.2001 was perfectly in

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accordance with the Constitutional provisions and the Sixth Schedule to the

Constitution. The nomination of the four members to the Council by order

dated 6.12.2001 was legal and the Governor acted by virtue of the

discretionary power vested in him. The Governor was justified in making

consultation with the Council of Ministers and the Governor making such

incidental consultation with the Council of Ministers did not in any way affect

his discretionary power. No other authority interfered with the independent

exercise of the Governor's discretion in nominating the four members to the

MADC and the Notification issued by the Governor on 6.12.2001 was validly

made and the decision of the Division Bench of Gauhati High Court does not

call for any interference.

The appeals are without any merit and are dismissed accordingly.

There will be no order as to costs.