TMI Blog2001 (9) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... to undergo 2 years rigorous imprisonment and pay a fine of ₹ 5000 in the second case. The fine that was imposed in both cases was paid. The second respondent preferred appeals against her conviction before the High Court at Madras. The appeals are pending. On applications filed by her in the two appeals, the High Court, by an order dated 3rd November, 2000, suspended the sentences of imprisonment under Section 389(3) of the Code of Criminal Procedure and directed the release of respondent No.2 on bail on the terms and conditions specified in that order. Thereafter, she filed petitions in the two appeals seeking the stay of the operation of the judgments in the two criminal cases. On 14th April, 2001 a learned Single Judge of the High Court at Madras, Mr.Justice Malai Subramanium, dismissed these petitions since the convictions were, inter alia, for offences under Section 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988. These orders were not challenged. In April, 2001 the second respondent filed nomination papers for four constituencies in respect of the general election to be held to the Tamil Nadu Assembly. On 24th April, 2001 three nomination papers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. For the purposes of answering the question formulated earlier, the following provisions of the Constitution of India are most relevant: 163(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. 164. Other provisions as to Ministers (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the State of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State by law not to disqualify its holder; b) if he is of unsound mind and stands so declared by a competent court; c) if he is an undischarged insolvent; d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; e) if he is so disqualified by or under any law made by Parliament. Explanation For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. (2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule. Provisions of a similar nature with regard to Parliament are to be found in Articles 74, 75, 84, 88 and 102. The Representation of the People Act, 1951 was enacted to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns (Prevention of Misuse) Act, 1988 (41 of 1988); or (i) section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) or clause (a) of sub-section (2) of section 136 (offence of Fraudulently defacing or fraudulently destroying any nomination paper) of this Act; [or] [(j) section 6 (offence of conversion of a place or worship) of the Places of Worship (Special Provisions) Act 1991; [or] [(k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971);] shall be disqualified for a period of six years from the date of such conviction. (2) A person convicted for the contravention of (a) any law providing for the prevention of hoarding or profiteering; or (b) any law relating to the adulteration of food or drugs; or (c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961); or (d) any provisions of the Commission of Sati (Prevention) Act, 1987 (3 of 1988) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the first respondent therein as Chief Minister of Uttar Pradesh at a time when he was not a member of either House of the Legislature of that State. The Court said : 3. It seems to us that clause (4) of Article 164 must be interpreted in the context of Articles 163 and 164 of the Constitution. Article 163(1) provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. Under clause (1) of Article 164, the Chief Minister has to be appointed by the Governor and the other Ministers have to be appointed by him on the advice of the Chief Minister. They all hold office during the pleasure of the Governor. Clause (1) does not provide any qualification for the person to be selected by the Governor as the Chief Minister or Minister, but clause (2) makes it essential that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. This is the only condition that the Constitution prescribes in this behalf. 6. It seems to us that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be appointed a Chief Minister of a State under Article 164(4) for six months, a person who is not a member of either House of Parliament can be appointed Prime Minister for the same period. In S.R. Chaudhuri Vs. State of Punjab Ors. [2001 (5) SCALE 269], one Tej Parkash Singh was appointed a Minister of the State of Punjab on the advice of the Chief Minister, Sardar Harcharan Singh Barar. At the time of his appointment as a Minister Tej Parkash Singh was not a member of the Punjab Legislative Assembly. He was not elected as a member of that Assembly within a period of six months and he submitted his resignation. During the same legislative term Sardar Harcharan Singh Barar was replaced as Chief Minister by Smt. Rajinder Kaur Bhattal. On her advice, Tej Parkash Singh was appointed a Minister yet again. The appointment was challenged by a writ petition in the High Court seeking a writ of quo warranto. The writ petition was dismissed in limine and an appeal was filed by the writ petitioner in this Court. The judgments aforementioned were referred to by this Court and it was said : 17. The absence of the expression from amongst members of the legislature in Article 164 (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r could be repeatedly appointed a Minister, for a term of six months each, without getting elected because such a course struck at the very root of parliamentary democracy. It was accordingly held that the appointment of Tej Parkash Singh as a Minister for a second time was invalid and unconstitutional. Mr. K.K. Venugopal, learned counsel for the second respondent, was right when he submitted that the question that arises before us has not, heretofore, arisen before the courts. This is for the reason that, heretofore, so far as is known, no one who was ineligible to become a member of the legislature has been made a Minister. Certainly, no one who has earned a conviction and sentence covered by Section 8 of the Prevention of Corruption Act would appear to have been appointed Chief Minister. To answer the question before us, three sub-Articles of Article 164 need, in our view, to be read together, namely, sub-Articles (1),(2) and (4). By reason of sub-Article (1), the Governor is empowered to appoint the Chief Minister; the Governor is also empowered to appoint the other Ministers, but, in this regard, he must act on the advice of the Chief Minister. Sub-Article (2) provides, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e qualifications and be free of the disqualifications contained in Articles 173 and 191 respectively. What sub-Article (4) does is to give a non-legislator appointed Minister six months to become a member of the legislature. Necessarily, therefore, that non-legislator must be one who, when he is appointed, is not debarred from obtaining membership of the legislature : he must be one who is qualified to stand for the legislature and is not disqualified to do so. Sub-Article (4) is not intended for the induction into the Council of Ministers of someone for six months or less so that it is of no consequence that he is ineligible to stand for the legislature. It would be unreasonable and anomalous to conclude that a Minister who is a member of the legislature is required to meet the constitutional standards of qualification and disqualification but that a Minister who is not a member of the legislature need not. Logically, the standards expected of a Minister who is not a member should be the same as, if not greater than, those required of a member. The Constituent Assembly Debates (Volume VII) note that when the corresponding Article relating to Members of Parliament was being d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional provision. Reliance was placed upon passages from the some of the judgments in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, [1973 (Supp.) S.C.R. 1]. What we have done is to interpret Article 164 on its own language and to read sub-Article (4) thereof in the context of sub- Articles (1) and (2). In any event, it is permissible to read into sub- Article (4) limitations based on the language of sub-Articles (1) and (2). A Constitution Bench in Minerva Mills Ltd. Ors. Vs. Union of India Ors. [1981 (1) SCR 206], considered in some detail the judgment in Kesavananda Bharati. It was considering the validity of the clauses introduced into Article 368 by the Constitution (Forty- second Amendment) Act. They provided : (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article (whether before on after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976) shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... democracy by any other name, by denial of social, economic and political justice to the people, by emasculating liberty of thought, expression, belief, faith and worship and by abjuring commitment to the magnificient ideal of a society of equals. The power to destroy was not a power to amendment. Since the Constitution had conferred a limited amending power on Parliament, Parliament could not under the exercise of that limited power enlarge that very power into an absolute power. A limited amending power was one of the basic features of the Constitution and, therefore, the limitations on that power could not be destroyed. In other words, Parliament could not, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power could not by the exercise of that power convert the limited power into an unlimited one. All this was said in relation to the Article 368(1) and (5). Sub- Article (1) read thus : 368. Power of Parliament to amend the Constitution and procedure therefor (1) Notwithstanding anything in this Constitution, Parliament may in exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners shall be released on bail.., but this has to be read in the context of Section 389 under which the power was exercised. Under Section 389 an appellate court may order that the execution of the sentence or order appealed against be suspended... It is not within the power of the appellate court to suspend the sentence; it can only suspend the execution of the sentence pending the disposal of appeal. The suspension of the execution of the sentence does not alter or affect the fact that the offender has been convicted of a grave offence and has attracted the sentence of imprisonment of not less than two years. The suspension of the execution of the sentences, therefore, does not remove the disqualification against the second respondent. The suspension of the sentence, as the Madras High Court erroneously called it, was in fact only the suspension of the execution of the sentences pending the disposal of the appeals filed by the second respondent. The fact that she secured the suspension of the execution of the sentences against her did not alter or affect the convictions and the sentences imposed on her and she remained disqualified from seeking legislative office under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he specified offences irrespective of the sentence awarded on such conviction. Sub-section (2) then prescribes that on conviction for the offences specified therein and sentence to imprisonment for not less than six months, that person shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. Thus, in case of conviction for the offences specified in sub- section (2), the disqualification is attracted only if the sentence is of imprisonment for not less than six months and in that event the disqualification is for a period of not merely six years from the date of such conviction but commencing from the date of such conviction it shall continue for a further period of six years since his release. Sub-section (3) then prescribes a similar longer period of disqualification from the date of such conviction to continue for a further period of six years since his release where a person is convicted of any offence and sentenced to imprisonment for not less than two years, other than any offence referred to in sub-section (1) or sub-section (2). The classification is clear. This classification is made wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the People Act the disqualification was attracted on the date on which a person was convicted of any offence and sentenced to imprisonment for not less than two years. It was pointed out, rightly, that the law contemplated that the conviction and the sentence could be on different dates. It was submitted that it was unworkable that the disqualification should operate from the date of conviction which could precede the date of sentence; therefore, the conviction referred to in Section 8(3) should be taken to be that confirmed by the appellate court because it was only in the appellate court that conviction and sentence would be on the same day. We find the argument unacceptable. In those cases where the sentence is imposed on a day later that the date of conviction (which, incidentally, is not the case here) the disqualification would be attracted on the date on which the sentence was imposed because only then would a person be both convicted of the offence and sentenced to imprisonment for less not that two years which is cumulatively requisite to attract the disqualification under Section 8(3). The focus was then turned upon Section 8(4) of the Representation of the People Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal of the accused succeeds the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the stigma of the offence is altogether erased. But that it is not to say that the presumption of innocence continues after the conviction by the trial court. That conviction and the sentence it carries operate against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well. Learned counsel cited from the judgment of this Court in Padam Singh Vs. State of U.P. [2000 (1) SCC 621] the passage which reads : It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. (Page 625 C) The passage is relevant to the duty of an appeal court. It is the duty of an appeal court to look at the evidence afresh to see if the case against the accused has been established by the prosecution beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his election or at any earlier stage of any step in the election process, on account of his conviction and sentence exceeding two years imprisonment, but his conviction and sentence was set aside and he was acquitted on appeal before the pronouncement of the judgment in the election petition pending against him, his disqualification was retrospectively annulled and the challenge to his election on the ground that he was so disqualified was no longer sustainable. This case dealt with an election petition and it must be understood in that light. What it laid down does not have a bearing on the question before us: the construction of Article 164 was not in issue. There can be no doubt that in a criminal case acquittal in appeal takes effect retrospectively and wipes out the sentence awarded by the lower court. This implies that the stigma attached to the conviction and the rigour of the sentence are completely obliterated, but that does not mean that the fact of the conviction and sentence by the lower court is obliterated until the conviction and sentence are set aside by an appellate court. The conviction and sentence stand pending the decision in the appeal and for the purposes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had to accept the will of the people in selecting the Chief Minister or Minister, the only consideration being whether the political party and its leader commanded a majority in the legislature and could provide a stable government. Once the electorate had given its mandate to a political party and its leader to run the government of a State for a term of five years, in the absence of any express provision in the Constitution to the contrary, the Governor was bound to call the leader of that legislature party to form the government. There was no express, unambiguous provision in the Constitution or in the Representation of the People Act or any decision of this Court or a High Court declaring that a person convicted of an offence and sentenced to imprisonment for a period of not less than two years by the trial court shall not be appointed Chief Minister during the pendency of his first appeal. In such a situation, the Governor could not be expected to take a position of confrontation with the people of the State who had voted the ruling party to power and plunge the State into turmoil. In the present case, the Governor was entitled to proceed on the basis that the appeals of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. To a specific query, learned counsel for the respondents submitted that the Governor was so obliged even when the person recommended was, to the Governors knowledge, a non-citizen, under-age, a lunatic or an undischarged insolvent, and the only way in which a non-citizen or under-age or lunatic or insolvent Chief Minister could be removed was by a vote of no-confidence in the legislature or at the next election. The nomination to appoint a person who is a non-citizen or under-age or a lunatic or an insolvent as Chief Minister having been made by the majority party in the legislature, it is hardly realistic to expect the legislature to pass a no-confidence motion against the Chief Minister; and the election would ordinarily come after the Chief Minister had finished his term. To accept learned counsels submission is to invite disaster. As an example, the majority party in the legislature could recommend the appointment of a citizen of a foreign country, who would not be a member of the legislature and who would not be qualified to be a member thereof under Article 173, as Chief Minister under Article 164(1) read with (4) to the Governor; and the Governor would be obliged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs were taken against him in that High Court. An interim order was passed directing that the warrant of appointment should not be given effect to until further orders. A transfer petition was then filed in this Court and was allowed. This Court, on examination of the record and the material that it allowed to be placed before it, held that Srivastava was not qualified to be appointed a High Court Judge and his appointment was quashed. This case goes to show that even when the President, or the Governor, has appointed a person to a constitutional office, the qualification of that person to hold that office can be examined in quo warranto proceedings and the appointment can be quashed. It was submitted that we should not enter a political thicket by answering the question before us. The question before us relates to the interpretation of the Constitution. It is the duty of this Court to interpret the Constitution. It must perform that duty regardless of the fact that the answer to the question would have a political effect. In State of Rajasthan and Others Vs. Union of India and Others [1977(3) SCC 592], it was said by Bhagwati, J. , But merely because a question has a political c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the criminal appeals which she has filed. We take the view that the appointment of a person to the office of Chief Minister who is not qualified to hold it should be struck down at the earliest. We are aware that the finding that the second respondent could not have been sworn in as Chief Minister and cannot continue to function as such will have serious consequences. Not only will it mean that the State has had no validly appointed Chief Minister since 14th May, 2001, when the second respondent was sworn in, but also that it has had no validly appointed Council of Ministers, for the Council of Ministers was appointed on the recommendation of the second respondent. It would also mean that all acts of the Government of Tamil Nadu since 14th May, 2001 would become questionable. To alleviate these consequences and in the interest of the administration of the State and its people, who would have acted on the premise that the appointments were legal and valid, we propose to invoke the de facto doctrine and declare that all acts, otherwise legal and valid, performed between 14th May, 2001 and today by the second respondent as Chief Minister, by the members of the Council of Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent No.2 as a Chief Minister i.e. he had only given effect to the will of the people. In so far it relates to Article 361 of the Constitution, that the Governor shall not be answerable to any Court for performance of duties of his office as Governor, it may, at the very outset, be indicated that we are considering the prayer for issue of writ of Quo Warranto against the respondent No.2, who according to the petitioner suffers from disqualification to hold the public office of the Chief Minister of a State. A writ of Quo Warranto is a writ which lies against the person, who according to the relator is not entitled to hold an office of public nature and is only an usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show, by what authority that person is entitled to hold the office. The challenge can be made on various grounds, including on the grounds that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars the person to hold such office. So as to have an idea about the nature of action in a proceedings for writ of quo warranto and its origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation in the nature of a quo warranto took the place of the absolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, in order what the right to the office or franchise might be determined. (Emphasis supplied) Besides the above, many High Courts as well as this Court have, taken the view that a writ of quo warranto lies against a person, who is called upon to establish his legal entitlement to hold the office in question. Reference: AIR 1952 Trav. Cochin 66, (1944) 48 Cal. W.N. 766, AIR 1977 Noc. 246, AIR 1952 Nag. 330, AIR 1945 Cal.249 and AIR 1965 S.C. 491. In view of the legal position as indicated above it would not be necessary to implead the appointing authority as respondent in the proceedings. In the case in hand, the Governor need not be made answerable to Court. Article 361 of the Constitution however does not extend any protection or immunity, vicariously, to holder of an office, which under the law, he is not entitled to hold. On being called upon to establish valid authority to hold a public office, if the person fails to do so, a writ of quo wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is to act with the aid and advise of the Council of Ministers headed by the Chief Minister. He is bound to act accordingly. The other functions which the Governor performs in which aid and advice of the Council of Ministers is not necessary, he acts in his own discretion. He is not bound by decision/advice of any other agency. It is no doubt true that even in the written Constitution it is not possible to provide each and every detail. Practices and conventions do develop for certain matters. This is how democracy becomes workable. It is also true that the choice of the majority party regarding its leader for appointment as Chief Minister is normally accepted, and rightly. But the contention that in all eventualities whatsoever the Governor is bound by the decision of the majority party is not a correct proposition. The Governor cannot be totally deprived of element of discretion in performance of duties of his office, if ever any such exigency may so demand its exercise. The argument about implementing the will of the people in the context indicated above is misconceived and misplaced PATTANAIK, J. Leave granted. I have my respectful concurrence with the conclusions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 164, is duty bound to follow the well settled Parliamentary convention and invites a person to be the Chief Minister, which person commands the confidence of the majority of the House. In other words, if a political party gets elected to the majority of seats in a Legislative Assembly and such elected legislatures elected a person to be their leader, and that fact is intimated to the Governor then the Governor is duty bound to call that person to be the Chief Minister, irrespective of the fact whether that person does not possess the qualifications for being a member of the Legislative Assembly, enumerated under Article 173, or is otherwise disqualified for being chosen, or being a member of the Legislative Assembly on account of any of the dis- qualifications enumerated under Article 191. The aforesaid contention is based upon two reasonings. (1) The lack of prescription of qualification or dis-qualifications for a Chief Minister or Minister under Article 164, and (2) that in a Parliamentary democracy the Will of the people must prevail. Necessarily, therefore, the provisions of Article 164 of the Constitution requires an indepth examination, and further the theory that in a Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itentia which operates as an exception in deference to the voice of the majority of the elected members, which in fact is the basis of a Parliamentary Democracy. Mr. Venugopal also urged that a disqualification being in the nature of a penalty unless expressly found to be engrafted in the constitution or in other words, in Article 164, it would not be appropriate for the Court to incorporate that disqualification, which is provided for being chosen as a member of the legislative assembly into Article 164 and pronounce the validity of the appointment of respondent No. 2, which has purely been made on the strength of the voice of the majority of the elected members. I am unable to accept these contentions of the learned counsel, as in my considered opinion, the contentions are based on a wrong premise. In a Parliamentary system of government, when political parties fight elections to the legislative assembly or to the Parliament for being chosen as a member after results are declared, it would be the duty of the President in case of Parliament and the Governor in case of Legislative Assembly of the State, to appoint the Prime Minister or the Chief Minister, as the case may be. When t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken oath under Article 159 of the Constitution to preserve, protect and defend the Constitution and the law and shall devote himself to the service and for the well-being of the people, it would be against such oath, if such a person who does not possess the qualification of being chosen as a member or has incurred disqualification for being chosen as a member is appointed as a Chief Minister, merely because Article 164 does not provide any qualification or disqualification for being appointed as a Chief Minister or Minister. It is indeed axiomatic that the necessary qualification in Article 173 and the disqualification in Article 191 proprio vigore applies to a person for being appointed as the Chief Minister or a Minister inasmuch as in a Parliamentary system of government, a person is required to be chosen as a member of the Legislative Assembly by the electorate of a constituency and then would be entitled to be appointed as the Chief Minister or a Minister on the advice of the Chief Minister. Non-prescribing any qualification or disqualification under Article 164 for being chosen as the Chief Minister or Minister would only enable the Governor to appoint a person as the Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther stated: It is perfectly possible to imagine that a person who is otherwise competent to hold the post of a Minister has been defeated in a constituency for some reason which, although it may be perfectly good, might have annoyed the constituency and he might have incurred the displeasure of that particular constituency. If purity of administration and otherwise competence to hold the post of Minister were the factors which weighed with the founding fathers to allow a competent person to be appointed as Chief Minister or a Minister for a limited period of six months, who might have been defeated, it is difficult to conceive that a person who is not an elected member, does not possess even the minimum qualification for being chosen as a member or has incurred the disqualification for being chosen as a member could be appointed as a Chief Minister or Minister, on the simple ground that Article 164 is quite silent on the same and the Court cannot import anything into the said Article. Thus on a pure construction of provisions of Article 164 of the Constitution, the discussions made in the Constituent Assembly, referred to earlier, the pre-existing pari materia provision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rden on the Governor at that stage and on the other hand, it would be an act on the part of the Governor in accordance with the constitutional mandate not to appoint such person as the Chief Minister or Minister notwithstanding the support of the majority of the elected members of the legislative assembly. In a given case, if the alleged disqualification is dependant upon the disputed questions of fact and evidence, the Governor may choose not to get into those disputed questions of fact and, therefore, could appoint such person as the Chief Minister or Minister. In such a case, Governor exercises his discretion under Article 164 in the matter of appointment of the Chief Minister or a Minister. But in a case where the disqualification is one which is apparent as in the case in hand namely the person concerned has been convicted and has been sentenced to imprisonment for more than two years and operation of the conviction has not been stayed and the appeal is pending, thereby the disqualification under Article 191(1)(e) read with Section 8(3) of the Representation of the People Act staring at the face, the Governor would be acting beyond his jurisdiction and against the constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by this Court in paragraph 73 that judicial review is concerned with whether the incumbent possessed of qualification for appointment and the manner in which the appointment came to be made or the procedure adopted whether fair, just and reasonable. It has been further stated in paragraph 70 of the said judgment that in a democracy governed by rule of law surely the only acceptable repository of absolute discretion should be the courts. Judicial review is the basic and essential feature of the Indian constitutional scheme entrusted to the judiciary. It is the essence of the rule of law that the exercise of the power by the State whether it be the legislature or the executive or any other authority, should be within the constitutional limitation and if any practice is adopted by the executive, which is in violation of its constitutional limitations, then the same could be examined by the Courts. In S.R. Bommai vs. Union of India, 1994(3) SCC Page 1, this Court held that a proclamation issued by the President on the advice of the council of ministers headed by the Prime Minister is amenable to judicial review. Even Justice Ahmadi, as he then was, though was of the opinion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken the positive stand that there has been no violation of the constitutional provisions or the violation of law in the appointment of respondent No. 2, as Chief Minister, the correctness of that stand is the subject matter of scrutiny. I am tempted to quote some observations of the United States Supreme Court in the case of Lucas vs. Colorado General Assembly 377 US 713, 12 L ed 2d 632, 84 S Ct 1472. It has been held in the aforesaid case: Manifestly, the fact that an apportionment plan is adopted in a popular referendum is insufficient to sustain its constitutionality or to induce a Court of equity to refuse to act. It has been further held : The protection of constitutional rights is not to be approached either pragmatically or expediently, and though the fact of enactment of a constitutional provision by heavy vote of the electorate produces pause and generates restrain we can not, true to our oath, uphold such legislation in the face of palpable infringement of rights. It is too clear for argument that constitutional law is not a matter of majority vote. Indeed the entire philosophy of the Fourteenth Amendment teaches that it is personal rights which are to be protected a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being chosen as a member of the Legislative Assembly, to be their leader are as much subservient to the Constitution of India as the Governor himself. In a democracy, constitutional law reflects the value that people attach to orderly human relations, to individual freedom under the law and to institutions such as Parliament, political parties, free elections and a free press. Constitution is a document having a special legal sanctity which sets out the frame-work and the principal functions of the organs of government within the State and declares the principles by which those organs must operate. Constitution refers to the whole system of the governance of a country and the collection of rules which establish and regulate or govern the government. In our country, we have a written constitution, which has been given by the people of India to themselves. The said Constitution occupies the primary place. Notwithstanding the fact, we have a written Constitution, in course of time, a wide variety of rules and practices have evolved which adjust operation of the Constitution to changing conditions. No written constitution would contain all the detailed rules upon which the government d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding public office and yet possibly the most acute political difficulty can arise for such a person is to be forced out of office. The Supreme Court of Canada stated that the main purpose of conventions is to ensure that legal frame work of the constitution is operated in accordance with the prevailing constitutional values of the period. (see (1982) 125 DLR(3d) 1, 84). But where the country has a written constitution which ranks as fundamental law, legislative or executive acts which conflicts with the constitution must be held to be unconstitutional and thus illegal. The primary system of Government cannot be explained solely in terms of legal and conventional rules. It depends essentially upon the political base which underlies it, in particular on the party system around which political life is organised. Given the present political parties and the electoral system, it is accepted that following a general election, the party with a majority of seats in the State legislature or the Parliament will form the Government. This is what the Constitution postulates and permits. But in the matter of formation of Government if the said majority political party elects a person as their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dern society requires a willingness from most citizens for most of the time to observe laws, even when individually they may not agree with them. In the aforesaid premises, and in view of the conclusions already arrived at, with regard to the dis- qualifications the respondent no. 2 had incurred, which prevents her for not being chosen as a member of the Legislative Assembly, it would be a blatant violation of Constitutional laws to allow her to be continued as the Chief Minister of a State, howsoever short the period may be, on the theory that the majority of the elected members of the Legislative Assembly have elected her as the leader and that is the expression of the will of the people. One other thing which I would like to notice, is the consciousness of the people who brought such Public Interest Litigation to the Court. Mr. Diwan in course of his arguments, had raised some submissions on the subject - Criminalisation of Politics and participation of criminals in the electoral process as candidates and in that connection, he had brought to our notice the order of the Election Commission of India dated 28th of August, 1997. But for answering the essential issue before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person even being convicted of an offence under the Prevention of Corruption Act, will not be disqualified, if the trying Judge imposes the punishment of imprisonment for a term of one year, which is the minimum under Section 13(2) of the prevention of Corruption Act and thus less than two years, which is the minimum sentence required under Section 8(3) of the Representation of the People Act, to disqualify a person for being chosen as a member or continuing as a member. As has been discussed in the Judgment of Brother Bharucha, J, the validity of providing different punishments under different sub-sections of Section 8, has already been upheld by this Court in the case of Raghbir Singh vs. Surjit Singh, 1994 Supp.(3) S.C.C. 162. But having regard to the mass scale corruption which has corroded the core of elective democracy, it is high time for the Parliament to consider the question of bringing the conviction under the Prevention of Corruption Act, as a disqualification under Section 8(1) of the Representation of the People Act, 1951, so that a person on being convicted of an offence, punishable under the provisions of Prevention of Corruption Act, could be disqualified for be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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