Supreme Court of India
CASE NO.: Writ Petition (civil) 242 of 2001
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
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.
I have my deferential oncsensus with a conclusions and directions in a visualisation of Brother Bharucha, J. we am unwavering of a fact that comparison of judgments should customarily be avoided. But, carrying courtesy to a significance of a doubt involved, and a concern of a consequences, if a contentions of Respondent No. 2 are accepted, we cruise it suitable to denote my thoughts on some aspects. It is not compulsory to echo a contribution that have been lucidly narrated in a visualisation of Brother Bharucha,J. The doubt that arises for caring is presumably a non inaugurated member, whose assignment for contesting a selecting to a Legislative Assembly stood rejected, and that sequence of rejecting became final, not being assailed, could still be allocated as a Chief Minister or a Minister underneath Article 164 of a Constitution, merely given a largest series of inaugurated members to a Legislative Assembly elects such chairman to be their leader. Be it be stated, that a assignment of such chairman had been rejected, on a belligerent of cessation incurred by such chairman underneath Section 8(3) of a Representation of People Act, 1951, a pronounced chairman carrying been convicted underneath a supplies of a Prevention of Corruption Act, and carrying been condemned to seizure for 3 years. The categorical basement of a arguments modernized by Mr. Venugopal, a schooled comparison counsel, appearing for respondent no. 2, and Mr. PP Rao, schooled comparison warn appearing for a State of Tamil Nadu, is that Article 164 of a Constitution consultation energy on a Governor to designate a chairman as Chief Minister, and afterwards designate Ministers on a recommendation of such Chief Minister, does not allot any gift for being allocated as Minister or Chief Minister, and on a other hand, Sub-Article (4) of Article 164 enables such a Minister to continue as a Minister for a era of 6 months and pronounced Minister ceases to be a Minister unless within that era of 6 months gets himself inaugurated as a member of a Legislaure of a State. As such, it would not be suitable to import a education enumerated for a members of a State Legislature underneath Article 173, or a dis- education enumerated in honour of a chairman for being comparison as or for being a member of a Legislative Assembly underneath Article 191 of a Constitution. According to a schooled comparison counsel, a Governor, while sportive energy underneath Article 164, is avocation firm to follow a good staid Parliamentary gathering and invites a chairman to be a Chief Minister, that chairman commands a certainty of a infancy of a House. In other words, if a domestic celebration gets inaugurated to a infancy of seats in a Legislative Assembly and such inaugurated legislatures inaugurated a chairman to be their leader, and that fact is intimated to a Governor afterwards a Governor is avocation firm to call that chairman to be a Chief Minister, irrespective of a fact presumably that chairman does not possess a education for being a member of a Legislative Assembly, enumerated underneath Article 173, or is differently unfit for being chosen, or being a member of a Legislative Assembly on criticism of any of a dis- education enumerated underneath Article 191. The aforesaid row is formed on dual reasonings. (1) The miss of medication of gift or dis-qualifications for a Chief Minister or Minister underneath Article 164, and (2) that in a Parliamentary democracy a Will of a people contingency prevail. Necessarily, therefore, a supplies of Article 164 of a Constitution requires an indepth examination, and serve a speculation that in a Parliamentary democracy, a Will of a people contingency overcome underneath any circumstance, as propounded by Mr. Venugopal and Mr. Rao, requires a deeper consideration. we would, therefore, concentration my courtesy on a aforesaid dual issues.
It is no doubt true, that Articles 164(1) and 164(4) do not yield any gift or disqualification, for being allocated as a Chief Minister or a Minister, whereas, Article 173 prescribes a gift for a chairman to be comparison to fill a chair in a Legislature of a State.Article 191 provides a cessation for a chairman for being comparison as or being a member of a Legislative Assembly or Legislative Council of a State. In a box in hand, a respondent no. 2 was unfit underneath Article 191(1)(e) hearing with Section 8(3) of a Representation of a People Act, 1951, in as many as a pronounced respondent no. 2 has been convicted underneath Section 13 of a Prevention of Corruption Act, and has been condemned to seizure for a era of 3 years, nonetheless a execution of that visualisation has been dangling by a Appellate Court while a seductiveness opposite a self-assurance and visualisation is indeterminate before a High Court of Madras.
According to Mr. Venugopal, underneath a Constitution of India, when no gift or cessation exists underneath Article 164(1) or 164(4), it indispensably postulates that in a area of elemental governance for a singular era of 6 months, any chairman could be allocated as a Chief Minister or Minister and it would not be open to a Court to import education and disqualifications, prescribed underneath a Constitution for being comparison as a member of a Legislative Assembly. According to a schooled counsel, a reasonable finish to be drawn from a aforesaid elemental sustenance is that a structure does not anticipate a inspection of a certification of a non-member Prime Minister or Chief Minister or Minister, as in elemental speculation it is a House, consisting of a infancy thereof that proposes him for this transient, proxy and singular era of 6 months. It is also contended by Mr. Venugopal that people who are a ultimate sovereign, denote their will by their inaugurated member for selecting a non-elected chairman as their personality and could be allocated as Chief Minister and Article 164(4) unquestionably provides a era of 6 months as area poenitentia that operates as an disproportion in esteem to a voice of a infancy of a inaugurated members, that in fact is a basement of a Parliamentary Democracy. Mr. Venugopal also urged that a cessation being in a inlet of a chastisement unless specifically found to be engrafted in a structure or in other words, in Article 164, it would not be suitable for a Court to incorporate that disqualification, that is supposing for being comparison as a member of a legislative open into Article 164 and pronounce a outcome of a appointment of respondent No. 2, that has utterly been finished on a strength of a voice of a infancy of a inaugurated members. we am incompetent to accept these contentions of a schooled counsel, as in my deliberate opinion, a contentions are formed on a wrong premise. In a Parliamentary complement of government, when domestic parties quarrel elections to a legislative open or to a Parliament for being comparison as a member after formula are declared, it would be a avocation of a President in box of Parliament and a Governor in box of Legislative Assembly of a State, to designate a Prime Minister or a Chief Minister, as a box cunning be. When a President appoints a Prime Minister underneath Article 75 or a Governor appoints a Chief Minister underneath Article 164, a doubt that weighs with a President or a Governor is, who will be means to yield a fast government.
Necessarily, therefore, it is a will of a infancy celebration that should customarily overcome and it is insincere that a inaugurated members belonging to a infancy domestic celebration would elect one among them to be their leader. Constitution, however does not forestall a inaugurated members belonging to a domestic celebration autocratic a infancy of seats in a legislative open or a Parliament to elect a chairman who never contested for being comparison as a member or a chairman who nonetheless contested, got degraded in a selecting for one reason or a other and it is in such a conditions that chairman on being inaugurated as a personality of a domestic celebration autocratic a infancy in a House, could be allocated as a Prime Minister or a Chief minister. But a structure positively does not postulate such inaugurated member of a people belonging to a domestic celebration autocratic a infancy in a Parliament or a Assembly to elect a chairman as their personality so as to be called by a President or a Governor to control a government, who does not possess a gift for being chosen, to fill a chair in a Parliament or in a legislative Assembly, as contained in Articles 84 and 173 respectively of a Constitution or who is unfit for being comparison as or for being a member of a House of Parliament or a legislative Assembly, as stipulated underneath Articles 102 and 191 of a Constitution respectively. At any rate, even if a chairman is inaugurated as a personality by a inaugurated members of a legislative Assembly, autocratic a infancy of seats in a Assembly and such chairman presumably does not possess a gift enumerated underneath Article 173 or incurs cessation for being comparison as, or for being a member of a legislative Assembly, enumerated underneath Article 191, afterwards a Governor would not be firm to honour that will of a inaugurated members of a domestic party, autocratic a infancy in a House, so as to designate that chairman as a Chief Minister underneath Article 164(1) of a Constitution. When Article 164(1) itself confers a option on a Governor to designate a Chief Minister during his pleasure and when a Governor has taken promise underneath Article 159 of a Constitution to preserve, strengthen and urge a Constitution and a law and shall persevere himself to a use and for a contentment of a people, it would be opposite such oath, if such a chairman who does not possess a gift of being comparison as a member or has incurred cessation for being comparison as a member is allocated as a Chief Minister, merely given Article 164 does not yield any gift or cessation for being allocated as a Chief Minister or Minister. It is indeed self-evident that a compulsory gift in Article 173 and a cessation in Article 191 proprio vigore relates to a chairman for being allocated as a Chief Minister or a Minister inasmuch as in a Parliamentary complement of government, a chairman is compulsory to be comparison as a member of a Legislative Assembly by a adults of a subdivision and afterwards would be entitled to be allocated as a Chief Minister or a Minister on a recommendation of a Chief Minister. Non-prescribing any gift or cessation underneath Article 164 for being comparison as a Chief Minister or Minister would customarily capacitate a Governor to designate a chairman as a Chief Minister or Minister for a singular era of 6 months, as contained in Article 164(4) of a Constitution, customarily if such chairman possesses a gift for being comparison as a member of a legislative Assembly, as compulsory underneath Article 173 and is not differently unfit on criticism of any of a disqualifications mentioned in Article 191. Any other interpretation by approach of consultation an unobstructed option on a Governor or consultation an unobstructed right on a inaugurated members of a domestic celebration autocratic a infancy in a legislative Assembly to elect a chairman who does not possess a qualifications, enumerated underneath Article 173 or who incurs a disqualifications enumerated in Article 191 would be rebellious of a structure and would be unfriendly to a speculation of good governance and would be discordant to a structure itself, that structure has been adopted, enacted and given to a people of India by a people of India.
In this tie it would be suitable to notice that even underneath a Government of India Act, 1935 where Sections 51(1) and 51(2) were rather identical to Article 164 of a Constitution, even a Joint Committee Report on Indian Constitutional Reforms would prove that a unfit chairman could not have been allocated as a Minister, as is apparent from a following sentence:
It was, therefore, suggested to us that a Governor ought not to be so singular in his choice, and that he ought to be in a position, if a need should arise, to name a Minister or Ministers from persons differently efficient for appointment nonetheless to whom a puzzled pleasures of electioneering cunning make no appeal.
Even in a Constituent Assembly Debates when Mohd. Tahir, an M.P. suggested an amendment to Article 144(3) of a Draft Constitution, that corresponds with Article 164(4)of a Constitution to a effect:
That a member shall, during a time of his being comparison as such be a member of a Legislative Assembly or a Legislative legislature of a State, as a box cunning be.
and urged that it is unconditionally opposite a thought of democracy that a chairman who was not being comparison by a people of a country, should be allocated as a Minister, Dr. Ambedkar did not accept a amendment on a belligerent that reign of a apportion contingency be thesis to a condition of virginity of administration and certainty of a House. He serve stated:
It is ideally probable to suppose that a chairman who is differently efficient to reason a post of a Minister has been degraded in a subdivision for some reason which, nonetheless it cunning be ideally good, cunning have angry a subdivision and he cunning have incurred a exasperation of that sold constituency.
If virginity of administration and differently cunning to reason a post of Minister were a factors that weighed with a initial fathers to concede a efficient chairman to be allocated as Chief Minister or a Minister for a singular era of 6 months, who cunning have been defeated, it is formidable to detect that a chairman who is not an inaugurated member, does not possess even a smallest gift for being comparison as a member or has incurred a cessation for being comparison as a member could be allocated as a Chief Minister or Minister, on a elementary belligerent that Article 164 is utterly wordless on a same and a Court can't import anything into a pronounced Article. Thus on a pristine construction of supplies ofArticle 164 of a Constitution, a discussions finished in a Constituent Assembly, referred to earlier, a pre-existing pari materia sustenance in a Government of India Act, 1935 as good as a row of a Joint Committee on Indian Constitutional Reforms referred to earlier, make it definitely transparent that notwithstanding a fact that no gift or cessation is prescribed in Article 164(1) or Article 164(4) nonetheless such gift or cessation supposing in Articles 173 and 191 of a Constitution for being comparison as a member will have to be hearing into Article 164 and so read, respondent No. 2, who had incurred a cessation underneath Article 191(1)(e) hearing with Section 8(3) of a Representation of a People Act, could not have been allocated as a Chief Minister, whatever cunning be a infancy of her celebration members being inaugurated to a legislative open and they inaugurated her as a personality of a celebration to form a Government.
One subordinate justification lifted by Mr. Venugopal, in this tie requires some consideration. According to a schooled counsel, no adjudicatory machine carrying been supposing for in Article 164, in a eventuality a education and disqualifications prescribed for being comparison as a member of a legislative open underneath Articles 173 and 191 are alien into Article 164, afterwards it will be an unfit weight for a Governor during that theatre to confirm a doubt if a competition raises a doubt of any cessation and no Governor can arbitrate on any one of a disqualifications, enumerated in Article 191 hearing with Sections 8 to 11 of a Representation of a People Act. According to a schooled counsel, a structure has avowedly not prescribed any gift or cessation with courtesy to a non-member apportion or Chief apportion and a customarily reduction is that such apportion or Chief apportion contingency get inaugurated within 6 months or else would stop to turn a minister. In my deliberate opinion, a appointment of a non-member as a Chief Minister or Minister on a recommendation of a Chief Minister is finished underneath Article 164 on a Governors satisfaction. If any of a disqualifications mentioned in Article 191(1)(e) are brought to a notice of a Governor that can be supposed nonetheless any requirement of adjudication or if a Governor is confident that a chairman endangered does not possess a smallest gift for being comparison as a member, as contained in Article 173, afterwards in such a case, there is no doubt of an unfit weight on a Governor during that theatre and on a other hand, it would be an act on a partial of a Governor in suitability with a elemental assign not to designate such chairman as a Chief Minister or Minister notwithstanding a support of a infancy of a inaugurated members of a legislative assembly. In a given case, if a supposed cessation is dependant on a doubtful questions of fact and evidence, a Governor cunning select not to get into those doubtful questions of fact and, therefore, could designate such chairman as a Chief Minister or Minister. In such a case, Governor exercises his option underneath Article 164in a matter of appointment of a Chief Minister or a Minister. But in a box where a cessation is one that is apparent as in a box in palm namely a chairman endangered has been convicted and has been condemned to seizure for some-more than dual years and operation of a self-assurance has not been stayed and a seductiveness is pending, thereby a cessation underneath Article 191(1)(e) hearing with Section 8(3) of a Representation of a People Act staring during a face, a Governor would be behaving over his bureau and opposite a elemental inhibitions and norms in appointing such a unfit chairman as a Chief Minister on a solitary logic that a infancy of a inaugurated members to a legislative legislature have inaugurated a chairman endangered to be their leader. The structure does not assent beast force to block a constitution. The people of India and so also a inaugurated members to a legislative open are firm by a elemental supplies and it would be a honest avocation of a peoples member who have been inaugurated to a legislative open to urge a constitution. Therefore, any act on their part, discordant to a constitution, ought not to have weighed with a Governor in a matter of appointment of a Chief Minister to form a Government. In my deliberate opinion, therefore, a arguments of Mr. Venugopal, on this measure can't be sustained.
One of a arguments modernized on seductiveness of a respondents was a shield of a Governor underneath Article 361 of a constitution. The birth of a pronounced arguments is that a Governor of a State not being thankful to any Court in use of opening of a powers and avocation of his bureau or for any act finished or supposed to be finished by him in a use and opening of those powers and duties and respondent No. 2 carrying been allocated as Chief Minister in use of powers of a Governor underneath Article 164, a pronounced appointment as good as a use of option by a Governor is counterclaim from being challenged and is not open to certified review. The arguments of a warn for a respondents is also formed on a belligerent that any caring by a Court to a legality of such an appointment is not slight as it is a domestic thicket. The preference of this Court in R.K. Jain vs. Union of India, 1993(4) SCC 119 has been relied upon. At a outset, it cunning be staid that a shield supposing to a Governor underneath Article 361 is positively not extended to an hopeful by a Governor. In a benefaction proceedings, what has been prayed for is to emanate a management of quo warranto on a averments that respondent No. 2 was constitutionally unfit to adopt a open bureau of a Chief Minister, who has been usurping a pronounced post unauthorisedly on being allocated by a Governor. In fact a Governor has not been decorated as a celebration respondent to a proceedings. In a really box of R.K. Jain, it has been reason by this Court in divide 73 that certified hearing is endangered with presumably a obligatory hexed of gift for appointment and a demeanour in that a appointment came to be finished or a procession adopted presumably fair, customarily and reasonable. It has been serve staid in divide 70 of a pronounced visualisation that in a democracy governed by sequence of law positively a customarily excusable repository of comprehensive option should be a courts. Judicial hearing is a simple and essential underline of a Indian elemental intrigue entrusted to a judiciary. It is a hint of a sequence of law that a use of a energy by a State presumably it be a legislature or a executive or any other authority, should be within a elemental reduction and if any use is adopted by a executive, that is in defilement of a elemental limitations, afterwards a same could be examined by a Courts. In S.R. Bommai vs. Union of India, 1994(3) SCC Page 1, this Court reason that a commercial expelled by a President on a recommendation of a legislature of ministers headed by a Prime Minister is fair to certified review. Even Justice Ahmadi, as he afterwards was, nonetheless was of a opinion that a preference creation of a President underneath Article 356 would not be justiciable nonetheless was resolutely of a perspective that a commercial expelled by a President is fair to certified review. Justice Verma and Justice Yogeshwar Dayal reason that there is no brawl that a commercial expelled underneath Article 356 is thesis to certified review. So also was a perspective of Justice Sawant and Justice Kuldip Singh and Justice Pandian, where Their Lordships have staid that a use of energy by a President underneath Article 356(1) to emanate Proclamation is thesis to a Judicial hearing during slightest to a border of examining presumably a conditions fashion to a placement of a Proclamation have been confident or not. According to Justice Ramaswamy, a movement of a President underneath Article 356 is a elemental avocation and a same is thesis to certified hearing and according to a schooled Judge, a doubt relating to a extent, range and energy of a President underneath Article 356 nonetheless wrapped adult with domestic thicket, per se it does not get shield from certified review. According to Justice Jeevan Reddy and Agarwal, JJ, a energy underneath Article 356(1) is a redeeming energy and in use of a energy of certified review, a probity is entitled to inspect presumably a condition has been confident or not. But in a box in hand, when an concentration for placement of a management of quo warranto is being examined, it is not a Governor who is being finished fair to answer a Court. But it is a hopeful respondent No. 2, who is avocation firm to prove that there has been no bootleg appropriation of open office. Quo warranto protects open from bootleg appropriation of open bureau by an sold and a compulsory mixture to be confident by a Court before opening a management is that a bureau in doubt contingency be open combined by a structure and a chairman not legally efficient to reason a office, in transparent transgression of a supplies of a structure and a law viz. Representation of a People Act has been usurping a same. If this Court eventually comes to a finish that a respondent No. 2 is unfit underneath a structure to reason open bureau of a Chief Minister, as has already been held, afterwards a shield of Governor underneath Article 361 can't mount as a bar from opening a management of quo warranto. In a benefaction case, it is a State Government who has taken a certain mount that there has been no defilement of a elemental supplies or a defilement of law in a appointment of respondent No. 2, as Chief Minister, a exactness of that mount is a thesis matter of scrutiny.
I am tempted to quote some observations of a United States Supreme Court in a box of Lucas vs. Colorado General Assembly 377 US 713, 12 L ed 2d 632, 84 S Ct 1472. It has been reason in a aforesaid case: Manifestly, a fact that an dividend devise is adopted in a renouned referendum is deficient to means a constitutionality or to prove a Court of equity to exclude to act. It has been serve reason : The insurance of elemental rights is not to be approached presumably pragmatically or expediently, and nonetheless a fact of dramatization of a elemental sustenance by complicated opinion of a adults produces postponement and generates curb we can not, loyal to a oath, urge such legislation in a face of tangible transgression of rights. It is too transparent for justification that elemental law is not a matter of infancy vote. Indeed a whole truth of a Fourteenth Amendment teaches that it is personal rights that are to be fast opposite a will of a majority. What has been staid therein should some-more reasonably be germane to a box where a structure is a autarchic request that should connect people of India as good as all other elemental authorities, including a Governor, and, therefore if respondent No. 2 is found to have been allocated as a Chief Minister, discordant to a elemental crack and crack underneath a applicable law of a Representation of a People Act, there should be no predicament on a Court to emanate a management of quo warranto and a supposed shield of a Governor will not mount as a bar.
According to Mr. P.P. Rao, schooled comparison warn appearing for a State of Tamil Nadu, Parliamentary Democracy is admittedly a simple underline of a Constitution. It would be a avocation of any functionary underneath a Constitution, including a Governor, and a law to give outcome to a will of a people as reflected in a selecting to a Legislative Assembly of a State. Once a adults has given a assign to a domestic celebration and a personality to run a Government of a State for a reign of 5 years, in a deficiency of any denote sustenance in a Constitution to a contrary, a Governor is firm to call on a personality of that Legislature Party, so inaugurated by a inaugurated members, to form a Government. According to Mr. Rao, there is no express, evident sustenance in a Constitution or in a supplies of Representation of People Act, dogmatic that a chairman convicted of an crime and condemned to seizure for a era not reduction than 2 years by a Trial Court shall not be allocated as Chief Minister during a pendency of a initial appeal. In such a situation, a Governor is not approaching to take a position of fight with a people of a State who voted a statute celebration to energy and thrust a State into a turmoil. In support of this contention, courtesy of this Court in a box of Shamsher Singh vs. State of Punjab (1974 (2) SCC
831), The control of a State should equivocate removing endangered in politics, was pulpy into service. we am incompetent to convince myself to settle with a aforesaid acquiescence of Mr. Rao, inasmuch as, in my deliberate opinion, a people of this nation as good as their voice reflected by their inaugurated member in a Legislative Assembly, electing a unfit chairman for being comparison as a member of a Legislative Assembly, to be their personality are as many debasing to a Constitution of India as a Governor himself. In a democracy, elemental law reflects a value that people insert to nurse tellurian relations, to sold leisure underneath a law and to institutions such as Parliament, domestic parties, giveaway elections and a giveaway press. Constitution is a request carrying a special certified sanctification that sets out a frame-work and a principal functions of a viscera of supervision within a State and declares a beliefs by that those viscera contingency operate. Constitution refers to a whole complement of a governance of a nation and a collection of manners that settle and umpire or oversee a government. In a country, we have a created constitution, that has been given by a people of India to themselves. The pronounced Constitution occupies a primary place. Notwithstanding a fact, we have a created Constitution, in march of time, a far-reaching accumulation of manners and practices have grown that adjust operation of a Constitution to changing conditions. No created structure would enclose all a minute manners on that a supervision depends. The manners for electing a legislature are customarily found not in a created Constitution nonetheless in a component enacted by a legislature within boundary laid down by a Constitution. A Constitution is a thing forerunner to a government, and a supervision or a good governance is a quadruped of a Constitution. A documentary Constitution reflects a beliefs and domestic aspirations of those who had framed it. One of a component of constitutionalism is what it had grown in a approved traditions. A primary avocation that is reserved to a created Constitution is that of determining a viscera of a Government. Constitutional law pre-supposes a existence of a State and includes those laws that umpire a structure and avocation of a principal viscera of supervision and their attribute to any other and to a citizens. Where there is a created Constitution, significance is placed on a manners that it contains and on a approach in that they have been interpreted by a top probity with elemental jurisdiction. Where there is a created Constitution a certified structure of Government cunning assume a far-reaching accumulation of forms. Within a emperor constitution, a tasks of supervision are divided into dual classes, those entrusted to a emperor viscera of government, and those entrusted to a several states, regions or provinces that make adult a federation. But a elemental boundary connect both a emperor and state viscera of government, that boundary are enforceable as a matter of law. Many critical manners of elemental behaviour, that are celebrated by a Prime Minister and Ministers, Members of a Legislature, Judges and Civil servants are contained conjunction in Acts nor in certified decisions. But such manners have been nomenclatured by a Constitutional Writers to be a sequence of a certain probity of a structure and some times a authors yield a name to be a unwirtten maxims of a constitution. Rules of elemental behaviour, that are deliberate to be contracting by and on those who work a Constitution nonetheless that are not enforced by a law courts nor by a presiding officers in a House of Parliament. Sir Ivor Jennings, in his book, Law and a Constitution had staid that elemental conventions are celebrated given of a domestic problems that arise if they are not. These manners umpire a control of those holding open bureau and nonetheless presumably a many strident domestic problem can arise for such a chairman is to be forced out of office. The Supreme Court of Canada staid that a categorical purpose of conventions is to safeguard that certified support work of a structure is operated in suitability with a prevalent elemental values of a period. (see (1982) 125 DLR(3d) 1, 84). But where a nation has a created structure that ranks as elemental law, legislative or executive acts that conflicts with a structure contingency be reason to be unconstitutional and so illegal. The primary complement of Government can't be explained usually in terms of certified and compulsory rules. It depends radically on a domestic bottom that underlies it, in sold on a celebration complement around that domestic life is organised. Given a benefaction domestic parties and a electoral system, it is supposed that following a ubiquitous election, a celebration with a infancy of seats in a State legislature or a Parliament will form a Government. This is what a Constitution postulates and permits. But in a matter of arrangement of Government if a pronounced infancy domestic celebration elects a chairman as their leader, whom a Constitution and a laws of a nation disqualifies for being comparison as a member of a Legislative Assembly, afterwards such an movement of a infancy inaugurated member would be a profanation to a electorates and to a Constitution to that they owe their existence. In such a case, a so called will of a people contingency be reason to be unconstitutional and, as such, could not be and would not be tolerated upon. When one speaks of legislative supermacy and a will of a people, a doctrine radically consists of a sequence that governs a certified attribute between a legislature and a court, nonetheless what is staid to be a legislative supermacy in a United Kingdom has no concentration in a nation with a created Constitution tying a border of such supermacy of a Legislature or Parliament. In other words, a people of a country, a viscera of a Government, legislature, executive and law are all firm by a Constitution that Hon. Justice Bhagwati, J. describes in Minerva Mills box (1980 (3) Supreme Court Cases, 625) to be suprema lex or a peerless law of a land and nobody is above or over a Constitution. When Court has been ascribed a avocation of interpreting a Constitution and when Court finds that manifestly there is an unapproved use of energy underneath a Constitution, it would be a honest avocation of a Court to intervene. The doctrine of legislative supermacy distinguishes a United Kingdom from those countries in that they have a created constitution, like India, that imposes boundary on a legislature and entrust a typical courts or a elemental probity with a avocation of determining presumably a acts of a legislature are in suitability with a Constitution. This being a position, a movement of a infancy of a inaugurated members of a domestic celebration in selecting their personality to control a Government, if found to be discordant to a Constitution and a laws of a land afterwards a Constitution and a laws contingency overcome over such unconstitutional decision, and a justification of Mr. Rao, that a will of a people would overcome contingency give way. In a approved multitude there are critical reasons for obeying a law, that do not exist in other forms of government. Our domestic complement still is not ideal and there are always a range for many legislative reforms to be made. But a upkeep of life in complicated multitude requires a eagerness from many adults for many of a time to observe laws, even when away they cunning not settle with them.
In a aforesaid premises, and in perspective of a conclusions already arrived at, with courtesy to a dis- education a respondent no. 2 had incurred, that prevents her for not being comparison as a member of a Legislative Assembly, it would be a blatant defilement of Constitutional laws to concede her to be continued as a Chief Minister of a State, howsoever brief a era cunning be, on a speculation that a infancy of a inaugurated members of a Legislative Assembly have inaugurated her as a personality and that is a countenance of a will of a people.
One other thing that we would like to notice, is a alertness of a people who brought such Public Interest Litigation to a Court. Mr. Diwan in march of his arguments, had lifted some submissions on a thesis – Criminalisation of Politics and appearance of criminals in a electoral routine as possibilities and in that connection, he had brought to a notice a sequence of a Election Commission of India antiquated 28th of August, 1997. But for responding a essential emanate before us, it was not compulsory to excavate into that matter and, therefore, we have not finished an in-depth exploration into a subject. In one of a speeches by a Prime Minister of India on a subject- Whither Accountability, published in a Pioneer, Shri Atal Bihari Vajpayee had called for a inhabitant discuss on all a probable alternatives for systematic changes to clean a approved statute complement of a benefaction mess. He has voiced his restlessness that conjunction Parliament nor a State Vidhan Sabhas are doing with any grade of cunning or joining what they are essentially meant to do: Legislative function. According to him, exclusive exceptions, those who get inaugurated to these approved institutions are conjunction trained, rigourously or informally, in law-making nor do they seem to have an desire to rise a compulsory believe and cunning in their profession. He has serve indicated that those people in multitude who are generally meddlesome in portion a adults and behaving legislative functions are anticipating it increasingly formidable to attain in todays electoral complement and a electoral complement has been roughly totally subverted by income power, flesh power, and opinion bank considerations of castes and communities. Shri Vajpayee also had indicated that a crime in a statute structures has, therefore, corroded a really core of elective democracy. According to him, a certainty of range of crime in a statute structure has hightened opportunism and unscrupulousness among domestic parties, causing them to marry and divorce one another during will, find opportunistic alliances and coalitions mostly nonetheless a renouned mandate. Yet they constraint and tarry in energy due to elemental systematic flaws. He serve staid casteism, crime and politicisation have eroded a firmness and efficiency of a polite use structure also. The manifestoes, policies, programmes of a domestic parties have mislaid definition in a benefaction complement of governance due to miss of accountability. Lot of arguments had been modernized both by Mr. Venugopal and Mr. Rao, on a belligerent that so distant as a offences underneath Section 8(3) of a Representation of a People Act are concerned, small self-assurance itself will not catch a disqualification, nonetheless self-assurance and visualisation for not reduction than dual years would invalidate a chairman and, therefore, in such a case, a chairman even being convicted of an crime underneath thePrevention of Corruption Act, will not be disqualified, if a perplexing Judge imposes a punishment of seizure for a reign of one year, that is a smallest underneath Section 13(2) of a snag of Corruption Act and so reduction than dual years, that is a smallest visualisation compulsory underneath Section 8(3) of a Representation of a People Act, to invalidate a chairman for being comparison as a member or stability as a member. As has been discussed in a Judgment of Brother Bharucha, J, a outcome of providing opposite punishments underneath opposite sub-sections of Section 8, has already been inspected by this Court in a box of Raghbir Singh vs. Surjit Singh, 1994 Supp.(3) S.C.C. 162. But carrying courtesy to a mass scale crime that has corroded a core of elective democracy, it is high time for a Parliament to cruise a doubt of bringing a self-assurance underneath a Prevention of Corruption Act, as a cessation underneath Section 8(1) of a Representation of a People Act, 1951, so that a chairman on being convicted of an offence, punishable underneath a supplies of Prevention of Corruption Act, could be unfit for being chosen, as a member or being stability as a member of a Legislative Assembly or a Parliament. we wish and trust, a member in a Parliament will uncover due suspicion over this issue.
These Writ Petitions, Special Leave Petition/Civil Appeal and Transferred box mount likely of in terms of a directions contained in a visualisation of Brother Bharucha,J.
………………………………J. (G.B. Pattanaik) Sep 21, 2001 Bharucha, J.
A doubt of good elemental significance arises in these matters, namely, presumably a chairman who has been convicted of a rapist crime and whose self-assurance has not been dangling indeterminate seductiveness can be sworn in and can continue to avocation as a Chief Minister of a State.
The second respondent, Ms. J. Jayalalitha, was Chief Minister of a State of Tamil Nadu between 1991 and 1996. In honour of that reign in bureau she was (in CC 4 of 1997 and CC 13 of 1997) convicted for offences punishable underneath Section 120B of a Indian Penal Code hearing with Sections 13(1)(c), 13(1)(d) and 13(2) of a Prevention of Corruption Act, 1988 and for a crime underneath Section 409 of a Indian Penal Code. She w as condemned to bear 3 years severe seizure and compensate a excellent of Rs.10,000 in a initial box and to bear 2 years severe seizure and compensate a excellent of Rs.5000 in a second case.
The excellent that was imposed in both cases was paid.
The second respondent elite appeals opposite her self-assurance before a High Court during Madras. The appeals are pending. On applications filed by her in a dual appeals, a High Court, by an sequence antiquated 3rd November, 2000, dangling a sentences of seizure underneath Section 389(3) of a Code of Criminal Procedure and destined a recover of respondent No.2 on bail on a terms and conditions specified in that order. Thereafter, she filed petitions in a dual appeals seeking a stay of a operation of a judgments in a dual rapist cases. On 14th April, 2001 a schooled Single Judge of a High Court during Madras, Mr.Justice Malai Subramanium, discharged these petitions given a philosophy were, inter alia, for offences underneath Section 13(1)(c) and 13(1)(d) of a Prevention of Corruption Act, 1988. These orders were not challenged.
In April, 2001 a second respondent filed assignment papers for 4 constituencies in honour of a ubiquitous selecting to be reason to a Tamil Nadu Assembly. On 24th April, 2001 3 assignment papers were deserted on criticism of her cessation underneath Section 8(3) of a Representation of a People Act, 1951, by reason of her self-assurance and visualisation in a dual rapist cases. The fourth assignment paper was deserted for a reason that she had filed her assignment for some-more than dual seats. The exactness of a orders of rejecting was not called in question.
On 13th May, 2001 a formula of a selecting to a Tamil Nadu Assembly were announced and a AIADMK party, that had projected a second respondent as a Chief Ministerial nominee, won by a immeasurable majority. On 14th May, 2001, accompanying on a outcome of a election, a AIADMK inaugurated a second respondent as a leader.
On 14th May, 2001 a second respondent was sworn in as Chief Minister of a State of Tamil Nadu.
These management petitions and seductiveness contend that a second respondent could not in law have been sworn in as Chief Minister and can't continue to avocation as such. They find directions in a inlet of quo warranto opposite her.
The supplies of a Prevention of Corruption Act, 1988, that are applicable to a second respondents self-assurance and visualisation hearing so :
13. Criminal bungle by a open menial (1) A open menial is pronounced to dedicate a crime of rapist misconduct, –
(c) if he dishonestly or fraudulently misappropriates or differently translates for his possess use any skill entrusted to him or underneath his control as a open menial or allows any other chairman to do so; or
(d) if he, –
i) by hurtful or bootleg means, obtains for himself or for any other chairman any profitable thing or financial advantage; or
ii) by abusing his position as a open servant, obtains for himself or for any other chairman any profitable thing or financial advantage; or
iii) while holding bureau as a open servant, obtains for any chairman any profitable thing or financial advantage nonetheless any open interest; or
(2) Any open menial who commits rapist bungle shall be punishable with seizure for a reign that shall be not reduction than one year nonetheless that cunning extend to 7 years and shall also be probable to fine.
Section 409 of a Indian Penal Code, also applicable to a self-assurance and sentence, reads so :
409. Criminal crack of trust by open servant, or by banker, businessman or deputy Whoever, being in any demeanour entrusted with property, or with any control over skill in his ability of a open menial or in a approach of his business as a banker, merchant, factor, broker, profession or agent, commits rapist crack of trust in honour of that property, shall be punished with [imprisonment for life], or with seizure of presumably outline for a reign that cunning extend to 10 years, and shall also be probable to fine.
For a functions of responding a doubt formulated earlier, a following supplies of a Constitution of India are many relevant: 163(1) There shall be a Council of Ministers with a Chief Minister during a control to assist and advise a Governor in a use of his functions, usually in so distant as he is by or underneath this Constitution compulsory to use his functions or any of them in his discretion.
164. Other supplies as to Ministers (1) The Chief Minister shall be allocated by a Governor and a other Ministers shall be allocated by a Governor on a recommendation of a Chief Minister, and a Ministers shall reason bureau during a pleasure of a Governor:
Provided that in a State of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in assign of genealogical gratification who cunning in serve be in assign of a gratification of a Scheduled Castes and behind classes or any other work.
(2) The Council of Ministers shall be collectively thankful to a Legislative Assembly of a State.
(3) Before a Minister enters on his office, a Governor shall liberate to him a oaths of bureau and of privacy according to a forms set out for a purpose in a Third Schedule.
(4) A apportion who for any era of 6 uninterrupted months is not a member of a Legislature of a State shall during a genocide of that era stop to be a Minister.
(5) The salaries and allowances of Ministers shall be such as a Legislature of a State cunning from time to time by law settle and, until a Legislature of a State so determines, shall be as specified in a Second Schedule.
173. Qualification for membership of a State Legislature A chairman shall not be efficient to be comparison to fill a chair in a Legislature of a State unless he
a) is a citizen of India, and creates and subscribes before some chairman certified in that seductiveness by a Election Commission an promise or confirmation according to a form set out for a purpose in a Third Schedule;
b) is, in a box of a chair in a Legislative Assembly, not reduction than twenty-five years of age and in a box of a chair in a Legislative Council, not reduction than thirty years of age; and
c) possesses such other education as cunning be prescribed in that seductiveness by or underneath any law finished by Parliament.
177. Rights of Ministers and Advocate-General as respects a Houses Every Minister and a Advocate-General for a State shall have a right to pronounce in, and differently to take partial in a record of, a Legislative Assembly of a State or, in a box of a State carrying a Legislative Council, both Houses, and to pronounce in, and differently to take partial in a record of, any cupboard of a Legislature of that he cunning be named a member, nonetheless shall not, by trait of this article, be entitled to vote.
191. Disqualifications for membership (1) A chairman shall be unfit for being comparison as, and for being, a member of a Legislative Assembly or Legislative Council of a State –
a) if he binds any bureau of distinction underneath a Government of India or a Government of any State specified in a First Schedule, other than an bureau announced by a Legislature of a State by law not to invalidate a holder;
b) if he is of shabby mind and stands so announced by a efficient court;
c) if he is an undischarged insolvent;
d) if he is not a citizen of India, or has willingly acquired a citizenship of a unfamiliar State, or is underneath any confirmation of devotion or confluence to a unfamiliar State;
e) if he is so unfit by or underneath any law finished by Parliament.
Explanation For a functions of this clause, a chairman shall not be deemed to reason an bureau of distinction underneath a Government of India or a Government of any State specified in a First Schedule by reason customarily that he is a Minister presumably for a Union or for such State.
(2) A chairman shall be unfit for being a member of a Legislative Assembly or Legislative Council of a State if he is so unfit underneath a Tenth Schedule.
Provisions of a identical inlet with courtesy to Parliament are to be found in Articles 74, 75, 84, 88 and 102.
The Representation of a People Act, 1951 was enacted to yield for a control of elections to a Houses of Parliament and to a House or Houses of a Legislature of any State, a education and disqualifications for membership of those Houses, a hurtful practices and other offences during or in tie with such elections and a preference of doubts and disputes opening out of or in tie with such elections. The applicable supplies of that Act for a functions are Sections 8, 8A, 9, 9A, 10 and 10A. They hearing thus:
8. Disqualification on self-assurance for certain offences (1) A chairman convicted of an crime punishable underneath –
(a) territory 153A (offence of compelling animosity between opposite groups on belligerent of religion, race, place of birth, residence, language, etc., and doing acts unfair to upkeep of harmony) or territory 171E (offence of bribery) or territory 171F (offence of undue change or personation during an election) or sub-section (1) or sub-section (2) of territory 376 or territory 376A or territory 376B or territory 376C or territory 376D (offences relating to rape) or territory 498A(offence of cruelty towards a lady by father or relative of a husband) or sub-section (2) or sub-section (3) of territory 505 (offence of creation matter formulating or compelling enmity, loathing or malignity between classes or crime relating to such matter in any place of ceremony or in any open intent in a opening of eremite ceremony or eremite ceremonies) or a Indian Penal Code (45 of 1860), or
(b) a Protection of Civil Rights Act, 1955 (22 of 1955), that provides for punishment for a priesthood and use of untouchability, and for a coercion of any incapacity opening therefrom; or
(c) territory 11 (offence of importing or exporting taboo goods) or a Customs Act, 1962 (52 of 1962); or
(d) sections 10 to 12 (offence of being a member of an organisation announced unlawful, crime relating to traffic with supports of an wrong organisation or crime relating to transgression of an sequence finished in honour of a told place) of a Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or
(e) a Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) a Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(g) territory 3 (offence of committing militant acts) or territory 4 (offence of committing disruptive activities) of a Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(h) territory 7 (offence of transgression of a supplies of territory 3 to 6) of a Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or
(i) territory 125 (offence of compelling animosity between classes in tie with a election) or territory 135 (offence of exclusion of list papers from polling stations) or territory 135A(offence of counter capturing) or portion (a) of sub-section (2) of territory 136 (offence of Fraudulently defacing or fraudulently destroying any assignment paper) of this Act; [or] [(j) territory 6 (offence of acclimatisation of a place or worship) of a Places of Worship (Special Provisions) Act 1991; [or] [(k) territory 2 (offence of scornful a Indian National Flag or a Constitution of India) or territory 3 (offence of preventing singing of National Anthem) of a Prevention of Insults to National Honour Act, 1971 (69 of 1971);] shall be unfit for a era of 6 years from a date of such conviction.
(2) A chairman convicted for a transgression of
(a) any law providing for a snag of hoarding or profiteering; or
(b) any law relating to a pollution of food or drugs; or
(c) any supplies of a Dowry Prohibition Act, 1961 (28 of 1961); or
(d) any supplies of a Commission of Sati (Prevention) Act, 1987 (3 of 1988), and condemned to seizure for not reduction than 6 months, shall be unfit from a date of such self-assurance and shall continue to be unfit for a serve era of 6 years given his release.
(3) A chairman convicted of any crime and condemned to seizure for not reduction than dual years [other than any crime referred to sub- territory (1) or sub-section (2)] shall be unfit from a date of such self-assurance and shall continue to be unfit for a serve era of 6 years given his release.] [(4) Notwithstanding anything [in sub-section (1), sub-section (2) and sub-section (3)] a cessation underneath presumably sub-section shall not, in a box of a chairman who on a date of a self-assurance is a member of Parliament or a Legislature of a State, take outcome until 3 months have elapsed from that date or, if within that era an seductiveness or concentration for rider is brought in honour of a self-assurance or a sentence, until that seductiveness or concentration is likely of by a court.
Explanation In this section
(a) law providing for a snag of hoarding or profiteering means any law, or any order, sequence or presentation carrying a force of law, providing for
(i) a law of prolongation or make of any essential commodity;
(ii) a control of cost during that any
essential commodity cunning be brought or
(iii) a law of acquisition, possession, storage,transport, distribution, disposal, use or expenditure of any essential commodity;
(iv) a crack of a self-denial from sale of any essential commodity customarily kept for sale;
(b) drug has a definition reserved to it in a Drugs and Cosmetics Act, 1940 (23 of 1940);
(c) essential commodity has a definition reserved to it in a Essential Commodities Act, 1955 (10 of 1955);
(d) food has a definition reserved to it in a Prevention of Food Adulteration Act, 1954 (37 of 1954).
Central to a debate herein is Article 164, with special anxiety to sub-Article (4)thereof. This Court has deliberate its import in a series 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 a preference in tie with a appointment of a initial respondent therein as Chief Minister of Uttar Pradesh during a time when he was not a member of presumably House of a Legislature of that State. The Court pronounced :
3. It seems to us that portion (4) of Article 164 contingency be interpreted in a context of Articles 163 and 164 of a Constitution. Article 163(1) provides that there shall be a Council of Ministers with a Chief Minister during a control to assist and advise a Governor in a use of his functions, usually in so distant as he is by or underneath this Constitution compulsory to use his functions or any of them in his discretion. Under portion (1) of Article 164, a Chief Minister has to be allocated by a Governor and a other Ministers have to be allocated by him on a recommendation of a Chief Minister. They all reason bureau during a pleasure of a Governor. Clause (1) does not yield any gift for a chairman to be comparison by a Governor as a Chief Minister or Minister, nonetheless portion (2) creates it essential that a Council of Ministers shall be collectively thankful to a Legislative Assembly of a State. This is a customarily condition that a Constitution prescribes in this behalf.
6. It seems to us that in a context of a other supplies of a Constitution referred to above there is no reason given a plain disproportion of portion (4) of Article 164 should be cut down in any demeanour and cramped to a box where a Minister loses for some reason his chair in a Legislature of a State. We are positive that a definition we have given to portion (4) of Article 164 is a scold one from a record of a Constituent Assembly and a position as it obtains is England, Australia and South Africa.
The Court set out a position as it achieved in England, Australia and South Africa and celebrated 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 dual Judge Bench of this Court deliberate a management petition for a placement of a management in a inlet of quo warranto to one K.P. Tewari, who had been allocated as a Minister of a Government of Uttar Pradesh even nonetheless he was not a member of presumably House of a State Legislature. Reliance was placed on a progressing visualisation in a box of Tribhuvan Narain Singh and it was reason that no component change had been brought about by reason of a amendment of Article 173(a) in a certified position that a chairman who was not a member of a State Legislature cunning be allocated a Minister, thesis to Article 164(4) that pronounced that a Minister who for any era of 6 uninterrupted months was not a member of a State Legislature would during a genocide of that era stop to be a Minister.
Another dual Judge Bench of this Court in Harsharan Verma Vs. Union of India and Another [1987 (Supp.) SCC 310] deliberate a doubt in a context of membership of Parliament and Article 75(5), that is identical in terms to Article 164(4). The Court pronounced that a chairman who was not a member of a presumably House of Parliament could be a Minister for not some-more than 6 months; nonetheless he would not have any right to vote, he would be entitled, by trait of Article 88, to attend in a record of Parliament.
In S.P. Anand, Indore Vs. H.D. Deve Gowda and Others [1996 (6) SCC 734], a initial respondent, who was not a member of Parliament, was sworn in as Prime Minister. This was challenged in a management petition underneath Article 32. Reference was finished to a progressing judgments. It was held, on a propinquity of logic if a chairman who is not a member of a State Legislature can be allocated a Chief Minister of a State underneath Article 164(4) for 6 months, a chairman who is not a member of presumably House of Parliament can be allocated Prime Minister for a same period.
In S.R. Chaudhuri Vs. State of Punjab & Ors. [2001 (5) SCALE 269], one Tej Parkash Singh was allocated a Minister of a State of Punjab on a recommendation of a Chief Minister, Sardar Harcharan Singh Barar. At a time of his appointment as a Minister Tej Parkash Singh was not a member of a Punjab Legislative Assembly. He was not inaugurated as a member of that Assembly within a era of 6 months and he submitted his resignation. During a same legislative reign Sardar Harcharan Singh Barar was transposed as Chief Minister by Smt. Rajinder Kaur Bhattal. On her advice, Tej Parkash Singh was allocated a Minister nonetheless again. The appointment was challenged by a management petition in a High Court seeking a management of quo warranto. The management petition was discharged in limine and an seductiveness was filed by a management postulant in this Court. The judgments aforementioned were referred to by this Court and it was pronounced :
17. The deficiency of a countenance from among members of a legislature in Article 164 (1)is demonstrative of a position that given underneath that provision a non-legislator can be allocated as a Chief Minister or a Minister nonetheless that appointment would be governed by Article 164(4), that places a reduction on such a non-member to continue as a Minister or a Chief Minister, as a box cunning be, unless he can get himself inaugurated to a Legislature within a era of 6 uninterrupted months from a date of his appointment. Article 164(4)is, therefore, not a source of energy or an enabling sustenance for appointment of a non- management as a Minister even for a brief duration. It is indeed in a inlet of a cessation or reduction for a non-member who has been allocated as a Chief Minister or a Minister, as a box cunning be, to continue in bureau nonetheless removing himself inaugurated within a era of 6 uninterrupted months.
The Court pronounced that in England a position was this : In a Westminster system, it is an dynamic gathering that Parliament maintains a position as controller of a executive. By a good staid convention, it is a chairman who can rest on support of a infancy in a House of Commons, who forms a supervision and is allocated as a Prime Minister. Generally vocalization he and his Ministers contingency constantly all be Members of Parliament (House of Lords or House of Commons) and they are thankful to it for their actions and policies. Appointment of a non- member as a Minister is a singular disproportion and if it happens it is for a brief duration. Either a sold endangered gets inaugurated or is conferred life peerage.
The Court remarkable a elemental intrigue that supposing for a approved parliamentary form of Government, that envisaged a illustration of a people, thankful Government and a burden of a Council of Ministers to a legislature. Thus was drawn a approach line of management from a people by a legislature to a executive. The position in England, Australia and Canada showed that a essentials of a complement of deputy Government, like a one in India, were that, invariably, all Ministers were comparison out of a members of a legislature and customarily in singular cases was a non- member allocated a Minister and he had to get himself returned to a legislature by approach or surreptitious selecting within a brief period. The framers of a Constitution had not visualised that a non-legislator could be regularly allocated a Minister, for a reign of 6 months each, nonetheless removing inaugurated given such a march struck during a really base of parliamentary democracy. It was accordingly reason that a appointment of Tej Parkash Singh as a Minister for a second time was shabby and unconstitutional.
Mr. K.K. Venugopal, schooled warn for a second respondent, was right when he submitted that a doubt that arises before us has not, heretofore, arisen before a courts. This is for a reason that, heretofore, so distant as is known, no one who was incompetent to turn a member of a legislature has been finished a Minister. Certainly, no one who has warranted a self-assurance and visualisation lonesome by Section 8 of a Prevention of Corruption Act would seem to have been allocated Chief Minister.
To answer a doubt before us, 3 sub-Articles of Article 164 need, in a view, to be hearing together, namely, sub-Articles (1),(2) and (4). By reason of sub-Article (1), a Governor is empowered to designate a Chief Minister; a Governor is also empowered to designate a other Ministers, but, in this regard, he contingency act on a recommendation of a Chief Minister. Sub-Article (2) provides, as is needed in a deputy democracy, that a Council of Ministers shall be collectively thankful to a Legislative Assembly of a State. The domestic executive, namely, a Council of Ministers, is thus, by a Legislative Assembly, finished deputy of and accountable to a people of a State who have inaugurated a Legislative Assembly. There is indispensably substantial in these supplies a requirement that a Minister contingency be a member of a Legislative Assembly and so deputy of and accountable to a people of a State. It is sub-Article (4) that creates a appointment of a chairman other than a member of a Legislature of a State as a Minister permissible, nonetheless it stipulates that a Minister who for any era of 6 uninterrupted months is not a member of a Legislature of a State shall during a genocide of that era stop to be a Minister. Necessarily substantial in sub-Article (4) hearing with sub- Articles (1) and (2) is a requirement that a Minister who is not a member of a legislature contingency find selecting to a legislature and, in a eventuality of his unwell to secure a chair in a legislature within 6 months, he contingency stop to be a Minister. The requirement of sub- Article (4) being such, it follows as a night a day that a chairman who is allocated a Minister nonetheless he is not a member of a legislature shall be one who can mount for selecting to a legislature and prove a requirement of sub-Article (4). In other words, he contingency be one who satisfies a education for membership of a legislature contained in a Constitution (Article 173) and is not unfit from seeking that membership by reason of any of a supplies therein (Article 191) on a date of his appointment.
The sustenance of sub-Article (4) of Article 164 is meant to yield for a conditions where, due to domestic exigencies or to service of a services of an consultant in some field, it is explain to install into a Council of Ministers a chairman who is not afterwards in a legislature. That he is not in a legislature is not finished an insurmountable barrier. To that border we settle with Mr. Venugopal, nonetheless we can't accept his acquiescence that sub-Article (4) contingency be so hearing as to assent a initiation into a Council of Ministers of brief reign Ministers whose reign would not extend over 6 months and who, therefore, were not compulsory to have a education and be giveaway of a disqualifications contained in Articles 173 and 191 respectively. What sub-Article (4) does is to give a non-legislator allocated Minister 6 months to turn a member of a legislature. Necessarily, therefore, that non-legislator contingency be one who, when he is appointed, is not debarred from receiving membership of a legislature : he contingency be one who is efficient to mount for a legislature and is not unfit to do so. Sub-Article (4) is not dictated for a initiation into a Council of Ministers of someone for 6 months or reduction so that it is of no outcome that he is incompetent to mount for a legislature.
It would be irrational and supernatural to interpretation that a Minister who is a member of a legislature is compulsory to accommodate a elemental standards of gift and cessation nonetheless that a Minister who is not a member of a legislature need not. Logically, a standards approaching of a Minister who is not a member should be a same as, if not larger than, those compulsory of a member.
The Constituent Assembly Debates (Volume VII) note that when a analogous Article relating to Members of Parliament was being discussed by a Constituent Assembly, Dr. B.R. Ambedkar said:
.. The initial amendment is by Mr. Mohd.
Tahir. His thought is that no chairman should be allocated a apportion unless during a time of his appointment he is an inaugurated member of a House. He does not acknowledge a probability of a cases lonesome in a proviso, namely, that nonetheless a chairman is not during a time of his appointment a member of a House, he cunning nonetheless be allocated as a apportion in a cupboard thesis to a condition that within 6 months he shall get himself inaugurated to a House. The second gift is by Prof. K.T. Shah. He pronounced that a apportion should go to a infancy celebration and his third gift is that he contingency have a certain educational status. Now, with courtesy to a initial point, namely, that no chairman shall be entitled to be allocated a Minister unless he is during a time of his appointment an inaugurated member of a House. we cruise it forgets to take into caring certain critical matters that can't be overlooked. First is this, – it is ideally probable to suppose that a chairman who is differently efficient to reason a post of a Minister has been degraded in a subdivision for some reason which, nonetheless it cunning be ideally good, cunning have angry a subdivision and he cunning have incurred a exasperation of that sold constituency. It is not a reason given a member of a Cabinet on a arrogance that he shall be means to get himself inaugurated presumably from a same subdivision or from another constituency. After all a payoff that is accessible is a payoff that extends customarily for 6 months. It does not consult a right to that sold to lay in a House nonetheless being inaugurated during all..
(Emphasis supplied) What was pronounced by Dr. B.R. Ambedkar is self-explanatory. It shows clearly that a Constituent Assembly envisaged that non- management Ministers would have to be inaugurated to a legislature within 6 months and it proceeded on a basement that a Article as it hearing compulsory this. The demeanour in that we have interpreted Article 164 is, thus, borne out.
It was submitted on seductiveness of a respondents that it was not open to a Court to hearing into Article 164 a requirement that a non- management Minister contingency be inaugurated to a legislature within 6 months. No education or disqualifications could, it was submitted, be hearing into a elemental provision. Reliance was placed on passages from a some of a judgments in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, [1973 (Supp.) S.C.R. 1].
What we have finished is to appreciate Article 164 on a possess denunciation and to hearing sub-Article (4)thereof in a context of sub- Articles (1) and (2). In any event, it is slight to hearing into sub- Article (4) stipulations formed on a denunciation of sub-Articles (1) and (2).
A Constitution Bench in Minerva Mills Ltd. & Ors. Vs. Union of India & Ors. [1981 (1) SCR 206], deliberate in some fact a visualisation in Kesavananda Bharati. It was deliberation a outcome of a clauses introduced into Article 368 by a Constitution (Forty- second Amendment) Act. They supposing :
(4) No amendment of this Constitution (including a supplies of Part III) finished or purporting to have been finished underneath this essay (whether before on after a derivation of territory 55 of a Constitution (Forty-second Amendment) Act, 1976) shall be called in doubt in any probity on any ground.
(5) For a exclusion of doubts, it is hereby announced that there shall be no reduction whatever on a simple energy of Parliament to rectify by approach of addition, movement or dissolution a supplies of this Constitution underneath this article.
Chandrachud, C.J. remarkable in his visualisation that a direct purpose thereof was a exclusion of doubts. He celebrated that after a preference in Kesavananda Bharti, there could be no doubt as regards a existence of stipulations on Parliaments energy to rectify a Constitution. In a context of a elemental story of Article 368, a loyal intent of a stipulation contained in portion (5) was a exclusion of those limitations. Clause (5) conferred on Parliament a immeasurable and uncertain energy to rectify a Constitution, even so as to crush it out of recognition. The thesis strain of a Court in a infancy preference in Kesavananda Bharti had been, Amend as we cunning even a honest request that a initial fathers have committed to your care, for we know best a needs of your generation. But, a Constitution is a changed heritage; therefore, we can't destroy a identity. The infancy visualisation in Kesavananda Bharti conceded to Parliament a right to make alterations in a Constitution so prolonged as they were within a simple framework. The Preamble positive a people of India of a nicely whose simple structure was described therein as a Sovereign Democratic Republic; Parliament could make any amendments to a Constitution as it deemed judicious so prolonged as they did not repairs or destroy Indias supervision and a democratic, republican character. Democracy was a suggestive visualisation whose essential attributes were shouted in a Preamble itself : Justice, social, mercantile and domestic : Liberty of thought, expression, belief, faith and worship; and Equality of standing and opportunity. Its aim, again as set out in a Preamble, was to foster among a people an abiding clarity of Fraternity assuring a grace of a sold and a togetherness of a Nation. The newly introduced portion (5) demolished a really pillars on that a Preamble complacent by lenient Parliament to use a simple energy nonetheless any reduction whatever. No simple energy could feasible go aloft than a energy conferred by portion (5) for it empowered Parliament even to dissolution a supplies of this Constitution, that is to say, to revoke democracy and surrogate for it a totally antithetical form of government. That could many effectively be achieved, nonetheless job democracy by any other name, by rejection of social, mercantile and domestic probity to a people, by emasculating autocracy of thought, expression, belief, faith and ceremony and by abjuring joining to a magnificient ideal of a multitude of equals. The energy to destroy was not a energy to amendment. Since a Constitution had conferred a singular amending energy on Parliament, Parliament could not underneath a use of that singular energy increase that really energy into an comprehensive power. A singular amending energy was one of a simple facilities of a Constitution and, therefore, a stipulations on that energy could not be destroyed. In other words, Parliament could not, underneath Article 368, enhance a amending energy so as to acquire for itself a right to dissolution or revoke a Constitution or to destroy a simple and essential features. The donee of a singular energy could not by a use of that energy modify a singular energy into an total one.
All this was pronounced in propinquity to a Article 368(1) and (5). Sub- Article (1) hearing so :
368. Power of Parliament to rectify a Constitution and procession therefor (1) Notwithstanding anything in this Constitution, Parliament cunning in use of a simple energy rectify by approach of addition, movement or dissolution any sustenance of this Constitution in suitability with a procession laid down in this article.
Nothing can improved denote that is slight for a Court to hearing stipulations into a Constitution formed on a denunciation and intrigue and a simple structure.
We hold, therefore, that a non-legislator can be finished Chief Minister or Minister underneath Article 164 customarily if he has a education for membership of a legislature prescribed by Article 173 and is not unfit from a membership thereof by reason of a disqualifications set out in Article 191.
The subsequent doubt is : Was a second respondent efficient for membership of a legislature and not unfit therefor when she was allocated Chief Minister on 14th May, 2001.
It was submitted by schooled warn for a respondents that a cessation of a sentences inspected opposite a second respondent by a High Court during Madras was tantamount to a cessation of a philosophy opposite her. Our courtesy was afterwards drawn to Section 8(3) of a Representation of a People Act, that says that a chairman convicted of any crime and condemned to seizure for not reduction than dual years shall be disqualified.. In schooled counsels submission, for a functions of Section 8(3), it was a visualisation alone that was applicable and if there were a cessation of a sentence, there was a cessation of a disqualification. The sentences awarded to a second respondent carrying been suspended, a cessation underneath Section 8(3), in so distant as it practical to her, was also suspended.
Section 389 of a Code of Criminal Procedure on a basement of that a second respondent was expelled on bail by a Madras High Court reads, so distant as is relevant, as follows :
389. Suspension of visualisation indeterminate a appeal; recover of appellant on bail (1) Pending any seductiveness by a convicted person, a Appellate Court may, for reasons to be accessible by it in writing, sequence that a execution of a visualisation or sequence appealed opposite be dangling and, also, if he is in confinement, that he be expelled on bail, or on his possess bond.
(Emphasis supplied) It is loyal that a sequence of a High Court during Madras on a concentration of a second respondent states, Pending rapist appeals a visualisation of seizure alone is dangling and a petitioners shall be expelled on bail.., nonetheless this has to be hearing in a context of Section 389 underneath that a energy was exercised. Under Section 389 an appellate probity cunning sequence that a execution of a visualisation or sequence appealed opposite be suspended… It is not within a energy of a appellate probity to postpone a sentence; it can customarily postpone a execution of a visualisation indeterminate a ordering of appeal. The cessation of a execution of a visualisation does not change or impact a fact that a delinquent has been convicted of a grave crime and has captivated a visualisation of seizure of not reduction than dual years. The cessation of a execution of a sentences, therefore, does not mislay a cessation opposite a second respondent. The cessation of a sentence, as a Madras High Court erroneously called it, was in fact customarily a cessation of a execution of a sentences indeterminate a ordering of a appeals filed by a second respondent. The fact that she cumulative a cessation of a execution of a sentences opposite her did not change or impact a philosophy and a sentences imposed on her and she remained unfit from seeking legislative bureau underneath Section 8(3).
In a same connection, schooled warn for a respondents drew a courtesy to a visualisation of a schooled singular Judge of a High Court during Madras, Mr. Justice Malai Subramanium, on a concentration of a second respondent for stay of a execution of a orders of self-assurance opposite her. The schooled Judge analysed Section 8 of a Representation of a People Act and came to this conclusion:
In this case, visualisation of seizure has already been suspended. Under such circumstances, in my view, there cunning not be any cessation for a postulant to competition in a election.
Learned warn submitted that it was given of this finish that a schooled Judge had not stayed a execution of a orders, and his finish firm a Governor. In a initial place, a interpretation of a sustenance by a schooled Judge is, as shown above, erroneous. Secondly, a reason given he refused to stay a execution of a orders was given a second respondent had been found guilty of offences underneath a Prevention of Corruption Act. Thirdly, a schooled Judge was compulsory by a concentration to cruise presumably or not a execution of a orders opposite a second respondent should be stayed; a caring of and finish on a supplies of Section 8 of a Representation of a People Act was unconditionally unconnected to that issue. Fourthly, a finish was tentative, as indicated by a use of a word cunning in a thoroughfare quoted from his visualisation above. Lastly, as will be shown, we are not here endangered with what a Governor did or did not do; we are endangered with presumably a second respondent can uncover that she was, when she was allocated Chief Minister, efficient to be a management underneath Article 173 and not unfit underneath Article 191.
In propinquity to a disproportion in a durations of cessation in sub-sections (1), (2) and (3) of Section 8 of a Representation of a People Act an justification identical to that that was lifted and deserted in Raghbir Singh Vs. Surjit Singh [1994 Supp (3) SCC 162] was advanced. This Court there pronounced :
5. Section 8 prescribes cessation on self-assurance for certain offences. Sub-section (1) provides a cessation for a era of 6 years from a date of self-assurance for a offences specified in clauses (a) to (i) thereof. In sub- territory (1), a customarily anxiety is to self-assurance for a specified offences irrespective of a visualisation awarded on such conviction. Sub-section (2) afterwards prescribes that on self-assurance for a offences specified therein and visualisation to seizure for not reduction than 6 months, that chairman shall be unfit from a date of such self-assurance and shall continue to be unfit for a serve era of 6 years given his release. Thus, in box of self-assurance for a offences specified in sub- territory (2), a cessation is captivated customarily if a visualisation is of seizure for not reduction than 6 months and in that eventuality a cessation is for a era of not merely 6 years from a date of such self-assurance nonetheless commencing from a date of such self-assurance it shall continue for a serve era of 6 years given his release. Sub-section (3) afterwards prescribes a identical longer era of cessation from a date of such self-assurance to continue for a serve era of 6 years given his recover where a chairman is convicted of any crime and condemned to seizure for not reduction than dual years, other than any crime referred to in sub-section (1) or sub-section (2). The sequence is clear. This sequence is finished with anxiety to a offences and a sentences awarded on conviction. In sub-section (1) are specified a offences that are deliberate to be of one difficulty and a era of 6 years cessation from a date of self-assurance is supposing for them irrespective of one visualisation awarded on such conviction. In sub-section (2) are specified some other offences, a self-assurance for that is deliberate poignant for cessation customarily if a visualisation is of seizure for not reduction than 6 months and in that box a longer era of cessation has been deliberate appropriate. Then comes sub-section (3) that is a residuary sustenance of this kind wherein a cessation is prescribed customarily with anxiety to a era of visualisation of seizure of not reduction than dual years for that a longer era of cessation is deliberate appropriate. The legislature itself has personal a offences on a basement of their inlet and in a residuary sustenance contained in sub-section (3), a sequence is finished customarily with anxiety to a era of visualisation being not reduction than dual years.
6. In sub-section (3) of Section 8, all persons convicted of any crime and condemned to seizure for not reduction than dual years [other than any crime referred to in sub-section (1) or sub-section (2)] are personal together and a era of cessation prescribed for all of them is a same. All persons convicted of offences other than any crime referred to in sub-section (1) or sub-section (3) and condemned to seizure of not reduction than dual years consecrate one difficulty and are governed by sub-section (3) prescribing a same era of cessation for all of them. The difficulty of persons lonesome by sub-sections (1), (2) and (3) being opposite and distinct, a doubt of comparison inter se between any dual of these 3 graphic classes does not arise. Without such a comparison between persons governed by these opposite sub- sections being permissible, a really basement of conflict on a belligerent of taste is not available. Prescription of era of cessation for opposite classes of persons convicted of opposite offences is within a domain of legislative option and wisdom, that is not open to certified scrutiny.
It was forked out by schooled warn for a respondents that underneath Section 8(3) of a Representation of a People Act a cessation was captivated on a date on that a chairman was convicted of any crime and condemned to seizure for not reduction than dual years. It was forked out, rightly, that a law contemplated that a self-assurance and a visualisation could be on opposite dates. It was submitted that it was infeasible that a cessation should work from a date of self-assurance that could convey a date of sentence; therefore, a self-assurance referred to in Section 8(3) should be taken to be that reliable by a appellate probity given it was customarily in a appellate probity that self-assurance and visualisation would be on a same day. We find a justification unacceptable. In those cases where a visualisation is imposed on a day after that a date of self-assurance (which, incidentally, is not a box here) a cessation would be captivated on a date on that a visualisation was imposed given customarily afterwards would a chairman be both convicted of a crime and condemned to seizure for reduction not that dual years that is cumulatively explain to attract a cessation underneath Section 8(3).
The concentration was afterwards incited on Section 8(4) of a Representation of a People Act and it was submitted that all a disqualifications set down in Section 8 would not request until a final probity had endorsed a self-assurance and sentence. This was for a reason that a component underlying Section 8(4) had to be extended to a non management as, otherwise, Article 14 would mount disregarded for a hypothesis of ignorance would request to a sitting member compartment a self-assurance was finally endorsed nonetheless in a box of a non-legislator a cessation would work on self-assurance by a probity of initial instance. It was submitted that Section 8(4) had to be hearing down so that a supplies were not singular to sitting members and in all cases a cessation practical customarily when a self-assurance and visualisation was finally upheld.
Section 8(4) opens with a disproportion Notwithstanding anything in sub-section (1), sub-section (2) and sub-section (3), and it relates customarily to sitting members of legislatures. There is no plea to it on a basement that it violates Article 14. If there were, it cunning be defensible to contend that legislators mount in a difficulty detached from non legislators, nonetheless we need to denote no final opinion. In any case, if it were found to be violative of Article 14, it would be struck down in a entirety. There would be, and is no doubt of so reading it that a supplies request to all, legislators and non-legislators, and that, therefore, in all cases a cessation contingency wait confirmation of a self-assurance and visualisation by a final court. That would be reading adult a provision, not reading down, and that is not famous to a law.
In many a same vein, it was submitted that a hypothesis of ignorance continued until a final visualisation affirming a self-assurance and visualisation was inspected and, therefore, no cessation operated as of now opposite a second respondent. Before we advert to a 4 judgments relied on in support of this submission, let us transparent a air. When a reduce probity convicts an indicted and sentences him, a hypothesis that a indicted is trusting comes to an end. The self-assurance operates and a indicted has to bear a sentence. The execution of a visualisation can be stayed by an appellate probity and a indicted expelled on bail. In many cases, a indicted is expelled on bail so that a seductiveness is not rendered infructuous, during slightest in part, given a indicted has already undergone imprisonment. If a seductiveness of a indicted succeeds a self-assurance is wiped out as clean as if it had never existed and a visualisation is set aside. A successful seductiveness means that a tarnish of a crime is altogether erased. But that it is not to contend that a hypothesis of ignorance continues after a self-assurance by a hearing court. That self-assurance and a visualisation it carries work opposite a indicted in all their cold until set aside in appeal, and a cessation that attaches to a self-assurance and visualisation relates as well.
Learned warn cited from a visualisation of this Court in Padam Singh Vs. State of U.P. [2000 (1) SCC 621] a thoroughfare that reads : It is a avocation of an appellate probity to demeanour into a justification adduced in a box and arrive during an eccentric finish as to presumably a pronounced justification can be relied on or not and even if it can be relied upon, afterwards presumably a charge can be pronounced to have been current over reasonable doubt on a pronounced evidence.
(Page 625 C) The thoroughfare is applicable to a avocation of an seductiveness court. It is a avocation of an seductiveness probity to demeanour during a justification new to see if a box opposite a indicted has been dynamic by a charge over reasonable doubt, uninfluenced by a preference of a hearing court; in other words, to demeanour during it as if a hypothesis of a ignorance of a indicted still applied. The thoroughfare does not support a tender canvassed.
In Maru Ram Vs. Union of India and Ors. [1981 (1) SCC 107] it was staid :
When a chairman is convicted in appeal, it follows that a appellate Court has exercised a energy in a place of a strange probity and a guilt, self-assurance and visualisation contingency be replaced for and shall have retroactive outcome from a date of visualisation of a hearing Court. The appellate self-assurance contingency describe behind to a date of a hearing Courts outcome and surrogate it.
There is no doubt of a exactness of what is set out above nonetheless it has no concentration to a emanate before us. What we are endangered with is whether, on a date on that a second respondent was sworn in as Chief Minister, she suffered from a cessation by reason of a philosophy and sentences opposite her.
In Dilip Kumar Sharma and Others Vs. State of Madhya Pradesh [1976 (1) SCC 560], this Court was endangered with Section 303 of a Indian Penal Code, that supposing : Whoever being underneath visualisation of seizure for life, commits murder shall be punished with death. Sarkaria, J., in his concurring judgment, held, on an interpretation of a section, that once it was dynamic that, during a time of committing a murder, a restrained was underneath a visualisation of life imprisonment, a probity had no option nonetheless to endowment a visualisation of death, notwithstanding mitigating circumstances. The sustenance was, therefore, Draconion in a severity. It was in these resources that he reason that a word being underneath visualisation of seizure for life had to be singular to a visualisation that was final, decisive and ultimate so distant as certified remedies were endangered for a other choice would lead to irrational and unfair results. The observations of a schooled Judge are applicable to a box before him; they do not have wider implications and do not meant that all philosophy by a hearing probity do not work until endorsed by a top Court.
Lastly, in this connection, a courtesy was drawn to a box of Vidya Charan Shukla Vs. Purshottam Lal Kaushik [ 1981 (2) SCC 84]. The Court reason that if a successful claimant was unfit for being chosen, during a date of his selecting or during any progressing theatre of any step in a selecting process, on criticism of his self-assurance and visualisation surpassing dual years imprisonment, nonetheless his self-assurance and visualisation was set aside and he was transparent on seductiveness before a attestation of a visualisation in a selecting petition indeterminate opposite him, his cessation was retrospectively annulled and a plea to his selecting on a belligerent that he was so unfit was no longer sustainable. This box dealt with an selecting petition and it contingency be supposed in that light. What it laid down does not have a temperament on a doubt before us: a construction of Article 164 was not in issue. There can be no doubt that in a rapist box exculpation in seductiveness takes outcome retrospectively and wipes out a visualisation awarded by a reduce court. This implies that a tarnish trustworthy to a self-assurance and a cold of a visualisation are totally obliterated, nonetheless that does not meant that a fact of a self-assurance and visualisation by a reduce probity is obliterated until a self-assurance and visualisation are set aside by an appellate court. The self-assurance and visualisation mount indeterminate a preference in a seductiveness and for a functions of a sustenance such as Section 8 of a Representation of a People Act are pliant of a disqualifications supposing for therein.
Our conclusion, therefore, is that on a date on that a second respondent was sworn in as Chief Minister she was disqualified, by reason of her philosophy underneath a Prevention of Corruption Act and a sentences of seizure of not reduction than dual years, for apropos a member of a legislature underneath Section 8(3) of a Representation of a People Act.
It was submitted by schooled warn for a respondents that, even so, a probity could do zero about it. It was submitted that in a box of a Chief Minister or Minister allocated underneath Article 164(1) hearing with (4) a people, who were a ultimate sovereign, had voiced their will by their inaugurated representatives. For a era of 6 months a area penitentiae operated as an exception, as a outcome of which, for that period, a peoples will prevailed in a loyal parliamentary democracy, generally as no sustenance was finished for adjudicating supposed disqualifications, like a holding of an bureau of distinction or a subsisting agreement for a supply of products or execution of works. In this area of elemental governance, for a singular era of 6 months, it was not open to a probity to import education and disqualifications for a apportion qua apportion when nothing existed in Article 164(4). The Governor, not being armed with a machine for adjudicating education or disqualifications, for example, on a existence of subsisting contracts or a holding of offices of profit, and carrying no energy to serve witnesses or to liberate an promise or to serve papers or to broach a reasoned judgment, a appointment finished by him on a basement of a conventions of a Constitution could not be challenged in quo warranto record so that an appointment that had been finished underneath Article 164 could not be rendered one nonetheless a management of law. If it did so, a probity would be entering a domestic thicket. When education and disqualifications were prescribed for a claimant or a member of a legislature and a machine was supposing for a adjudication thereof, a deficiency of a medication of any gift for a Minister or Chief Minister allocated underneath Article 164(1) hearing with (4) and for adjudication thereof meant that a Governor had to accept a will of a people in selecting a Chief Minister or Minister, a customarily caring being presumably a domestic celebration and a personality ordered a infancy in a legislature and could yield a fast government. Once a adults had given a assign to a domestic celebration and a personality to run a supervision of a State for a reign of 5 years, in a deficiency of any denote sustenance in a Constitution to a contrary, a Governor was firm to call a personality of that legislature celebration to form a government. There was no express, evident sustenance in a Constitution or in a Representation of a People Act or any preference of this Court or a High Court dogmatic that a chairman convicted of an crime and condemned to seizure for a era of not reduction than dual years by a hearing probity shall not be allocated Chief Minister during a pendency of his initial appeal. In such a situation, a Governor could not be approaching to take a position of fight with a people of a State who had voted a statute celebration to energy and thrust a State into turmoil. In a benefaction case, a Governor was entitled to ensue on a basement that a appeals of a second respondent carrying been directed, in October, 2000, to be listened within dual months, it would be open to a second respondent to have a appeals likely of within a time extent of 6 months and, in box of an acquittal, no doubt of ineligibility to competition an selecting within a era of 6 months would arise. If a Governor invited a personality of a celebration that had a infancy in a legislature to form a government, it would, if a personality was a non legislator, afterward not to be open to a probity in quo warranto record to confirm that a Chief Minister was disqualified. Otherwise, this would meant that when a Governor had invited, in suitability with conventions, a personality to be Chief Minister, in a subsequent second a personality would have to empty his bureau by reason of a quo warranto. The probity would afterwards be fixation itself in a position of inflection among a 3 viscera of a State, as a outcome of which, instead of a House determining presumably or not to mislay such a chairman by a fit of no confidence, a probity would take over a function, discordant to a will of a legislature that would meant a will of a people represented by a infancy in a legislature. In afterwards determining that a Chief Minister should demit office, a probity would be entering a domestic thicket, arrogating to itself a energy never dictated by a Constitution, a use of that would outcome in instability in a governance of a State.
We are, as we have said, not endangered here with a exactness or differently of a movement of a Governor in irreverence a second respondent in as Chief Minister in a use of a Governors discretion.
But submissions were finished by schooled warn for a respondents in honour of a Governors powers underneath Article 164 that call for comment. The submissions were that a Governor, sportive powers underneath Article 164(1) hearing with (4), was thankful to designate as Chief Minister whosoever a infancy celebration in a legislature nominated, regardless of presumably or not a chairman nominated was efficient to be a member of a legislature underArticle 173 or was unfit in that seductiveness underneath Article 191, and a customarily demeanour in that a Chief Minister who was not efficient or who was unfit could be private was by a opinion of no- certainty in a legislature or by a adults during a subsequent elections. To a specific query, schooled warn for a respondents submitted that a Governor was so thankful even when a chairman endorsed was, to a Governors knowledge, a non-citizen, under-age, a goofy or an undischarged insolvent, and a customarily approach in that a non-citizen or under-age or goofy or ruined Chief Minister could be private was by a opinion of no-confidence in a legislature or during a subsequent election.
The assignment to designate a chairman who is a non-citizen or under-age or a goofy or an ruined as Chief Minister carrying been finished by a infancy celebration in a legislature, it is frequency picturesque to design a legislature to pass a no-confidence fit opposite a Chief Minister; and a selecting would customarily come after a Chief Minister had finished his term.
To accept schooled counsels acquiescence is to entice disaster. As an example, a infancy celebration in a legislature could suggest a appointment of a citizen of a unfamiliar country, who would not be a member of a legislature and who would not be efficient to be a member thereof underneath Article 173, as Chief Minister underneath Article 164(1) hearing with (4) to a Governor; and a Governor would be thankful to comply; a legislature would be incompetent to pass a no- certainty fit opposite a immigrant Chief Minister given a infancy celebration would conflict it; and a immigrant Chief Minister would be ensconced in bureau until a subsequent election. Such a dangerous such an absurd interpretation of Article 164 has to be deserted out of hand. The Constitution prevails over a will of a people as voiced by a infancy party. The will of a people as voiced by a infancy celebration prevails customarily if it is in settle with a Constitution. The Governor is a functionary underneath a Constitution and is sworn to preserve, strengthen and urge a Constitution and a laws (Article 159). The Governor cannot, in a use of his option or otherwise, do anything that is discordant to a Constitution and a laws. It is another thing that by reason of a insurance a Governor enjoys underneath Article 361, a use of a Governors option can't be questioned. We are in no doubt during all that if a Governor is asked by a infancy celebration in a legislature to designate as Chief Minister a chairman who is not efficient to be a member of a legislature or who is unfit to be such, a Governor must, carrying due courtesy to a Constitution and a laws, to that he is subject, decline, and a use of option by him in this courtesy can't be called in question.
If perchance, for whatever reason, a Governor does designate as Chief Minister a chairman who is not efficient to be a member of a legislature or who is unfit to be such, a appointment is discordant to a supplies of Article 164 of a Constitution, as we have interpreted it, and a management of a hopeful to reason a appointment can be challenged in quo warranto proceedings. That a Governor has finished a appointment does not give a hopeful any aloft right to reason a appointment. If a appointment is discordant to elemental supplies it will be struck down. The acquiescence to a discordant unsupported by any management contingency be rejected.
The visualisation of this Court in Shri Kumar Padma Prasad Vs. Union of India and Others [1992(2) SCC 428] is a box on point. One K.N. Srivastava was allocated a Judge of a Gauhati High Court by a aver of appointment sealed by a President of India. Before a promise of his bureau could be administered to him, quo warranto record were taken opposite him in that High Court. An halt sequence was inspected directing that a aver of appointment should not be given outcome to until serve orders. A send petition was afterwards filed in this Court and was allowed. This Court, on hearing of a record and a component that it authorised to be placed before it, reason that Srivastava was not efficient to be allocated a High Court Judge and his appointment was quashed. This box goes to uncover that even when a President, or a Governor, has allocated a chairman to a elemental office, a gift of that chairman to reason that bureau can be examined in quo warranto record and a appointment can be quashed.
It was submitted that we should not enter a domestic underbrush by responding a doubt before us. The doubt before us relates to a interpretation of a Constitution. It is a avocation of this Court to appreciate a Constitution. It contingency perform that avocation regardless of a fact that a answer to a doubt would have a domestic effect. In State of Rajasthan and Others Vs. Union of India and Others [1977(3) SCC 592], it was pronounced by Bhagwati, J. , But merely given a doubt has a domestic complexion, that by itself is no belligerent given a Court should cringe from behaving a avocation underneath a Constitution, if it raises an emanate of elemental determination. Every elemental doubt concerns a allocation and use of bureaucratic energy and no elemental doubt can, therefore, destroy to be domestic . So prolonged as a doubt arises presumably an management underneath a Constitution has acted within a boundary of a energy or exceeded it, it can positively be motionless by a Court. Indeed it would be a elemental requirement to do so. It is compulsory to explain a clearest probable terms, quite in a context of new history, that a Constitution is suprema lex, a peerless law of a land and there is no dialect or bend of Government above or over it.
We are confident that in a appointment of a second respondent as Chief Minister there has been a transparent transgression of a elemental sustenance and that a management of quo warranto contingency issue.
We are not tender by a submissions that a management petitions for quo warranto filed in this Court are outward a bureau given no crack of elemental rights has been pleaded therein; that a seductiveness opposite a preference of a Madras High Court in a management petition for identical service filed before it was righteously deserted given a same emanate was indeterminate here; and that a eliminated management petition for identical service should, in a light of a exclusion of a management petitions filed in this Court, be sent behind to a High Court for being heard. Breach of Article 14 is averred in during slightest a lead management petition filed in this Court (W.P.(C) No.242 of 2001). The management petition that was discharged by a High Court and opposite that sequence an seductiveness is indeterminate in this Court was filed underneath Article 226, as was a eliminated management petition. This Court, therefore, has bureau to emanate a management of quo warranto. We introduce to pass a sequence in a lead management petition, and dispose of a other management petitions, a seductiveness and a eliminated management petition in a light thereof.
We are not tender by a acquiescence that we should not use a option to emanate a management of quo warranto given a era of 6 months authorised by Article 164(4) to a second respondent would end in about dual months from now and it was probable that a second respondent cunning attain in a rapist appeals that she has filed. We take a perspective that a appointment of a chairman to a bureau of Chief Minister who is not efficient to reason it should be struck down during a earliest.
We are wakeful that a anticipating that a second respondent could not have been sworn in as Chief Minister and can't continue to avocation as such will have critical consequences. Not customarily will it meant that a State has had no validly allocated Chief Minister given 14th May, 2001, when a second respondent was sworn in, nonetheless also that it has had no validly allocated Council of Ministers, for a Council of Ministers was allocated on a recommendation of a second respondent. It would also meant that all acts of a Government of Tamil Nadu given 14th May, 2001 would turn questionable. To assuage these consequences and in a seductiveness of a administration of a State and a people, who would have acted on a drift that a appointments were certified and valid, we introduce to plead a de facto doctrine and announce that all acts, differently certified and valid, achieved between 14th May, 2001 and currently by a second respondent as Chief Minister, by a members of a Council of Ministers and by a Government of a State shall not be adversely influenced by reason customarily of a sequence that we now introduce to pass.
We are of a perspective that a chairman who is convicted for a rapist crime and condemned to seizure for a era of not reduction than dual years can't be allocated a Chief Minister of a State underneath Article 164(1) hearing with (4) and can't continue to avocation as such.
We, accordingly, sequence and announce that a appointment of a second respondent as Chief Minister of a State of Tamil Nadu on 14th May, 2001 was not certified and current and that she can't continue to avocation as such. The appointment of a second respondent as Chief Minister of a State of Tamil Nadu is quashed and set aside.
All acts, differently certified and valid, achieved between 14th May, 2001 and currently by a second respondent behaving as Chief Minister of a State of Tamil Nadu, by a members of a Council of Ministers of that State and by a Government of that State shall not be adversely effected by reason customarily of this order.
Writ Petition (C) No.242 of 2001 is finished comprehensive in a aforesaid terms.
In a light of this order, a other management petitions, a seductiveness and a eliminated management petition mount likely of.
No sequence as to costs.
(Ruma Pal) Sep 21, 2001 Brijesh Kumar, J.
Leave postulated in SLP © 11763/2001.
I have a advantage of going by a visualisation prepared by Brother Bharucha, J. we am in deferential agreement with a same. While doing so, we introduce to record my views in addition, on a few points only, in brief, given such points had been argued during some length and with all vehemence. The points are also no doubt important.
Amongst other points, a schooled warn for a respondents submitted that a appointment of respondent No.2 as Chief Minister by a Governor, could not be challenged, in perspective of a supplies underneath Article 361 of a Constitution, providing that a Governor shall not be thankful to any Court for a use and opening of a powers and duties of his office. It was also submitted that in appointing a Chief Minister, a Governor exercised his discretionary powers, therefore, his movement is not justiciable. Yet another acquiescence is that a Governor had customarily implemented a preference of a infancy party, in appointing a respondent No.2 as a Chief Minister i.e. he had customarily given outcome to a will of a people.
In so distant it relates to Article 361 of a Constitution, that a Governor shall not be thankful to any Court for opening of duties of his bureau as Governor, it may, during a really outset, be indicated that we are deliberation a request for emanate of management of Quo Warranto opposite a respondent No.2, who according to a postulant suffers from cessation to reason a open bureau of a Chief Minister of a State. A management of Quo Warranto is a management that lies opposite a person, who according to a relator is not entitled to reason an bureau of open inlet and is customarily an usurper of a office. It is a person, opposite whom a management of quo warranto is directed, who is compulsory to show, by what management that chairman is entitled to reason a office. The plea can be finished on several grounds, including on a drift that a resident of a bureau does not perform a compulsory education or suffers from any disqualification, that debars a chairman to reason such office. So as to have an thought about a inlet of movement in a record for management of quo warranto and a strange form, as it used to be, it would be profitable to quote from Words and Phrases Permanent Edition, Volume 35A page 648. It reads as follows:-
The strange common-law management of quo warranto was a polite management during a fit of a crown, and not a rapist prosecution. It was in a inlet of a management of right by a King opposite one who usurped or claimed franchises or liabilities, to scrutinise by what right he claimed them. This writ, however, fell into neglect in England centuries ago, and a place was postulated by an information in a inlet of a quo warranto, that in a start was a rapist process of prosecution, as good to retaliate a usurper by a excellent for a appropriation of a franchise, as to reject him or seize it for a crown. Long before a Revolution, however, it mislaid a impression as a rapist move in all usually form, and was practical to a small functions of perplexing a polite right, seizing a franchise, or ousting a prejudicial possessor, a excellent being favoured only; and such, nonetheless any special legislation to that effect, has always been a impression in many of a states of a Union, and it is therefore a polite pill 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 a same Volume of Words and Phrases Permanent Edition during page 647 we find as follows:-
The management of quo warranto is not a surrogate for mandamus or explain nor for an seductiveness or management of error, and is not to be used to forestall an crude use of energy righteously possessed, and a purpose is usually to forestall an officer or house or persons purporting to act as such from usurping a energy that they do not have. State ex inf.McKittrick v. Murphy,
148.S.W.2d 527,529,530,347 Mo.484. (emphasis supplied) Information in inlet of quo warranto does not management opening of central functions by any officer to whom it cunning run, given it is not destined to officer as such, nonetheless to chairman holding bureau or sportive franchise, and not for purpose of dictating or prescribing central duties, nonetheless customarily to discern presumably he is justly entitled to use 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 a inlet of a quo warranto took a place of a absolete management of quo warranto that lay opposite a chairman who claimed or usurped an office, franchise, or liberty, to scrutinise by what management he upheld his claim, in sequence what a right to a bureau or authorization cunning be determined. (Emphasis supplied) Besides a above, many High Courts as good as this Court have, taken a perspective that a management of quo warranto lies opposite a person, who is called on to settle his certified desert to reason a bureau in question. Reference:
In perspective of a certified position as indicated above it would not be compulsory to implead a appointing management as respondent in a proceedings. In a box in hand, a Governor need not be finished thankful to Court. Article 361 of a Constitution however does not extend any insurance or immunity, vicariously, to hilt of an office, that underneath a law, he is not entitled to hold. On being called on to settle current management to reason a open office, if a chairman fails to do so, a management of quo warranto shall be destined opposite such person. It shall be no counterclaim to contend that a appointment was finished by a efficient authority, who underneath a law is not thankful to any Court for anything finished in opening of duties of his office. The doubt of fulfilling a certified mandate and education compulsory to reason a open bureau would be deliberate in a proceedings, eccentric of a fact as to who finished a appointment and a demeanour in that appointment was made. Therefore, Article 361 of a Constitution would be no snag in examining a doubt of desert of a person, allocated by a Governor to reason a open office, who according to a petitioner/relator is usurper to a office.
The other prove that was pressed, with no reduction vehemence was that in creation a appointment of a Chief Minister, a Governor acts in use of his discretionary powers. In this connection, schooled warn for a respondents referred to Article 163 of a Constitution to prove that there shall be a Council of Ministers headed by a Chief Minister to assist and advise a Governor in use of his functions usually where, underneath a Constitution a Governor has to liberate his functions in his discretion. Thereafter, Article 164 of a Constitution has been referred to prove that Chief Minister shall be allocated by a Governor and a other Ministers shall be allocated by a Governor on a advise of a Chief Minister. It is submitted that a Governor appoints a Chief Minister during a time, when there is no Council of Ministers to assist or advise him. The Governor creates a appointment in his possess discretion. Learned warn for a respondent No.2 submitted that a celebration in infancy by means of a fortitude had comparison respondent No.2 as their leader. Accordingly, a respondent No.2 was allocated as a Chief Minister. It has been really definitely submitted, nonetheless any ambiguity, that a Governor is firm to designate any chairman whosoever is comparison by infancy party, as a Chief Minister. This justification cuts opposite his possess acquiescence finished progressing that a Governor appoints a Chief Minister in use of his discretionary powers. If it is right, that a Governor is firm by a preference of a infancy party, a component of option of Governor, in a matter, disappears. In a intrigue of Constitutional supplies a Governor is to act with a assist and advise of a Council of Ministers headed by a Chief Minister. He is firm to act accordingly. The other functions that a Governor performs in that assist and recommendation of a Council of Ministers is not necessary, he acts in his possess discretion. He is not firm by decision/advice of any other agency. It is no doubt loyal that even in a created Constitution it is not probable to yield any and any detail. Practices and conventions do rise for certain matters. This is how democracy becomes workable. It is also loyal that a choice of a infancy celebration per a personality for appointment as Chief Minister is routinely accepted, and rightly. But a row that in all eventualities whatsoever a Governor is firm by a preference of a infancy celebration is not a scold proposition. The Governor can't be totally deprived of component of option in opening of duties of his office, if ever any such exigency cunning so direct a exercise. The justification about implementing a will of a people in a context indicated above is misconceived and misplaced.
(Brijesh Kumar) Sep 21 , 2001