Case Summary
| Citation | B. R. Kapur v. State of Tamil Nadu AIR 2001 SC 3435 |
| Keywords | |
| Facts | Jayalalitha, Chief Minister of Tamil Nadu, was being removed she was disqualified under article 191. In the case , it happened that the elections of the legislative assembly of the state were held at 2001 , in which J.Jayalalitha from All India Dravida Munnetra Kazhagam (AIADMK) secured a huge majority and was granted a campaign trail for the chief minister election , however she was refused permission to contest the elections . In 2000 , she was convicted and imprisoned in jail in cases under 1. section 409 of Indian Penal Code 1860 for 3 years 2. section 13 of prevention of corruption act , 1988 for 2 years for the unlawful act done during her earlier time as chief minister of Tamil Nadu between 1991-1996 . The Election Commission Of India (ECI) rejected the papers of nomination for disqualification and restricting her permission to take part in elections . Despite her disqualification, Jayalalitha was sworn in as the Chief Minister of Tamil Nadu. A writ petition was filed challenging the validity of her appointment. |
| Issues | Whether the governor’s decision under article 361 of the constitution fascinates judicial review ? Whether a non-elected member , whose nomination for taking part in elections in the legislative assembly stood rejected , could still be appointed as chief minister under article 164 in the Indian Constitution ? |
| Contentions | It was argued by the state of Tamil Nadu that there is absence of authorisation of qualification and disqualification for chief minister and minister under section 164(2) and said that the court does not have any power to purport the qualifications and disqualifications over the person as the constitution does not examine the qualification of a person . It was argued that the governor is not answerable to the court for any decision which is taken by him in duty of his office and use of the powers. So , the nomination of Jayalalitha by the governor cannot be challenged by the court. |
| Law Points | The Court reasoned that while the Governor is immune from legal action for acts done in the exercise of his or her official duties, this immunity does not extend to the appointment of a person who is constitutionally disqualified from holding office. Article 164 talks about the state of the appointment of a person as a minister and date of becoming a member of the legislative assembly within 6 months and read with article 191 and 173.Any act done which is against the laws of the constitution should be held unconstitutional . The supreme court held that the power confer upon the governor under article 356(1) is conditional . |
| Judgement | The court held that Jayalalitha should not be allowed to take part in elections as being disqualified under article 191 of the Indian Constitution. |
| Ratio Decidendi & Case Authority |
Full Case Details
LB-301-Constitutional Law-I |2022
(S.P.Bharucha, G.B.Pattanaik, Y.K.Sabharwal, Ruma Pal and Brijesh Kumar, JJ) [Conviction of a person for an offence – disqualified to be a member of the
state legislature. Can such a person be appointed as Chief Minister?]
Ms. Jayalilatha was the Chief Minister of Tamil Nadu between 1991 and 1996. She was convicted in two criminal cases in respect of offences she had committed during her tenure as Chief Minister. She was sentenced to undergo three years’ rigorous imprisonment and imposed fine of Rs. 10,000 in one case and two years’ rigorousimprisonment and fine of Rs. 5,000 in the other. The fine that was imposed in both cases was paid. Her appeals were pending at the time of filing of the petition. At her instance the High Court had suspended the sentences of imprisonment and directed her release on bail. However, her applications for stay of the operation of the judgments in both the criminal cases were rejected. In April, 2001, she filed nomination papers for four constituencies in respect of the general elections to the Tamil Nadu Legislative Assembly. Three of the said nominations were rejected on account of her disqualification under Section 8(3) of the Representation of People Act, 1951, by reason of her conviction. The fourth nomination was rejected because she had filed her nomination for more than two seats. Ms. Jayalalitha did not challenge those rejection orders. However, inthe election, her party (AIADMK) secured 132 out of the 234 seats in the Legislative Assembly and the party elected her as its leader. Consequently, she was sworn in as the Chief Minister of the State. This was challenged before the Supreme Court.
Submissions of the Petitioner: Constitution did not envisage that a person disqualified from being (or is not qualified to be) a member of the Legislature can be appointed as a Minister under Article 164(4):
(a) ThepurposeofArticle164(4)istoenablethosepersonswhoareotherwisecompetent, but who are not members of the Legislature, to work as a Minister for a limited period. It is basically a good governance provision, which should not be so read as to allow those persons who are ineligible at the time of appointment to become Ministers.
(b) The provisions of Article 164(4) itself postulate that a person who has been appointed a Minister ceases to be one if such person does not become a member of the Legislaturewithin the short prescribed time. This necessarily means that such a person is eligible to be a member at the time of appointment as a Minister but is in fact not such a member.
(c) Article 164(4) has to be read in conjunction with Articles 163, 173 and 191 of the Constitution of India, as well as the Representation of the People Act, 1951 (“the RoP Act”).
(d) An appointment of any person as a Minister while such person is not a member of the Legislature is an exception to the normal rule that a Minister must be a member of the Legislature at the time of appointment.
(e) The appointment of a Minister under Article 164(4) should be read subject to the provisions of Article 164(2) which speak of the collective responsibility of the Council of Ministers. This means that each Minister is individually and collectively responsible to the House.
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S.P. BHARUCHA, J.: 15. Central to the controversy herein is Article 164, with special reference to sub-article (4) thereof. This Court has considered its import in a number of decisions. In Har Sharan Verma v. Tribhuvan Narain Singh, Chief Minister, U.P. [(1971) 1 SCC 616], a Constitution Bench rendered the decision in connection with the appointment of the first respondent therein as the 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 Governorin the exercise of his functions, except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion’. Under clause (1) of Article 164, the Chief Minister has to be appointed by the Governor and the other Ministers have to be appointed by him on the advice of the Chief Minister. They all hold office during the pleasure of the Governor. Clause (1) does not provide any qualification for the person to be selected by the Governor as the Chief Minister or Minister, but clause
(2) makes it essential that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. This is the only condition that the Constitution prescribes in this behalf.
6. It seems to us that in the context of the other provisions of the Constitution referred to above there is no reason why the plain words of clause (4) of Article 164 should be cut down in any manner and confined to a case where a Minister loses for some reason his seat in the Legislature of the State. We are assured that the meaning we have given to clause (4) of Article 164 is the correct one from the proceedings of the Constituent Assembly and the position as it obtains in England, Australia and South Africa.
The Court set out the position as it obtained in England, Australia and South Africa and observed that this showed that Article 164(4) had “an ancient lineage”.
19. In S.R. Chaudhuri v. State of Punjab [(2001) 7 SCC 126], one Tej Parkash Singh was appointed a Minister of the State of Punjab on the advice of the Chief Minister, Sardar Harcharan Singh Brar. 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 Brar was replaced as Chief Minister by Smt Rajinder Kaur Bhattal. On her advice, Tej Parkash Singh was appointed a Minister yet again. The appointment was challenged by a writ petition in the High Court seeking a writ of quo warranto. The writ petition was dismissed in limine and an appeal was filed by the writ petitioner in this Court. The judgments aforementioned were referred to by this Court and it was said:
17. The absence of the expression ‘from amongst members of the Legislature’ in Article 164(1) is indicative of the position that whereas under that provision a non-legislator can be appointed as a Chief Minister or a Minister but that appointment would be governed by Article 164(4), which places a restriction on such a non-member to continue as a Minister or the Chief Minister, as the case may be, unless he can get himself elected to the Legislature within the period of six consecutive months from the date of his appointment. Article 164(4) is, therefore, not a source of power or an enabling provision
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for appointment of a non-legislator as a Minister even for a short duration. It is actually in the nature of a disqualification or restriction for a non-member who has been appointed as a Chief Minister or a Minister, as the case may be, to continue in office without getting himself elected within a period of six consecutive months.
The Court said that in England the position was this:
In the Westminster system, it is an established convention that Parliament maintains its position as controller of the executive. By a well-settled convention, it is the person who can rely on support of a majority in the House of Commons, who forms a Government and is appointed as the Prime Minister. Generally speaking, he and his Ministers must invariably all be members of Parliament (House of Lords or House of Commons) and they are answerable to it for their actions and policies. Appointment of a non-member as a Minister is a rare exception and if it happens it is for a short duration. Either the individual concerned gets elected or is conferred life peerage.
The Court noted the constitutional scheme that provided for a democratic parliamentary form of government, which envisaged the representation of the people, responsible government and the accountability of the Council of Ministers to the Legislature. Thus was drawn a direct line of authority from the people through the Legislature to the Executive. The position in England, Australia and Canada showed that the essentials of a system of representative government, like the one in India, were that, invariably, all Ministers were chosen out of the members of the Legislature and only in rare cases was a non-member appointed a Minister and he had to get himself returned to the Legislature by direct or indirectelection within a short period. The framers of the Constitution had not visualised that a non- legislator could be repeatedly appointed a Minister, for a term of six months each, without getting elected because such a course struck at the very root of parliamentary democracy. It was accordingly held that the appointment of Tej Parkash Singh as a Minister for a second time was invalid and unconstitutional.
21. 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 ChiefMinister. Sub- article (2) provides, as is imperative in a representative democracy, that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. The political executive, namely, the Council of Ministers, is thus, through the Legislative Assembly, made representative of and accountable to the people of the State who have elected the Legislative Assembly. There is necessarily implicit in these provisions the requirement that a Minister must be a member of the Legislative Assembly and thus representative of and accountable to the people of the State. It is sub-article. (4) which makes the appointment of a person other than a member of the Legislature of the State as a Minister permissible, but it stipulates that a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister. Necessarily implicit in sub-article (4) read with sub-articles (1) and (2) is the requirement that a Minister who is not a member of the Legislature must seek election to the Legislature and, in the event of his failing to secure a seat in the Legislature within six
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months, he must cease to be a Minister. The requirement of sub-article (4) being such, it follows as the night the day that a person who is appointed a Minister though he is not a member of the Legislature shall be one who can stand for election to the Legislature and satisfy the requirement of sub-article (4). In other words, he must be one who satisfies the qualifications for membership of the Legislature contained in the Constitution (Article 173) and is not disqualified from seeking that membership by reason of any of the provisions therein (Article 191) on the date of his appointment.
22. The provision of sub-article (4) of Article 164 is meant to provide for a situation where, due to political exigencies or to avail of the services of an expert in some field, it is requisite to induct into the Council of Ministers a person who is not then in the Legislature. That he is not in the Legislature is not made an impassable barrier. To that extent we agree with Mr. Venugopal, but we cannot accept his submission that sub-article (4) must be so read as to permit the induction into the Council of Ministers of short-term Ministers whose term would not extend beyond six months and who, therefore, were not required to have the qualifications and be free of the disqualifications contained in Articles 173 and 191 respectively. What 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 ineligibleto stand for the Legislature.
23. 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.
24. The Constituent Assembly Debates (Vol. VII) notes that when the corresponding article relating to members of Parliament was being discussed by the Constituent Assembly, Dr B.R. Ambedkar said: (Vol. 8, p. 521)
The first amendment is by Mr. Mohd. Tahir. His suggestion is that no person should be appointed a Minister unless at the time of his appointment he is an elected member of the House. He does not admit the possibility of the cases covered in the proviso, namely, that although a person is not at the time of his appointment a member of the House, he may nonetheless be appointed as a Minister in the Cabinet subject to the condition that within six months he shall get himself elected to the House. The second qualification is by Prof. K.T. Shah. He said that a Minister should belong to a majority party and his third qualification is that he must have a certain educational status. Now, with regard to the first point, namely, that no person shall be entitled to be appointed a Minister unless he is at the time of his appointment an elected member of the House. I think it forgets to take into consideration certain important matters which cannot be overlooked. First is this, it is perfectly possible to imagine that a person who is otherwise competent to hold the post of a Minister has been defeated in a constituency or for some reason which, although it may
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be perfectly good, might have annoyed the constituency and he might have incurred the displeasure of that particular constituency. It is not a reason why a member so competent as that should be not permitted to be appointed a member of the Cabinet on the assumption that he shall be able to get himself elected either from the same constituency or from another constituency. After all the privilege that is permitted – is a privilege that extends only for six months. It does not confer a right to that individual to sit in the House without being elected at all…. (emphasis supplied)
25. What was said by Dr B.R. Ambedkar is self-explanatory. It shows clearly that the Constituent Assembly envisaged that non-legislator Ministers would have to be elected to the Legislature within six months and it proceeded on the basis that the article as it read required this. The manner in which we have interpreted Article 164 is, thus, borne out.
27. 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). The majority judgment in Kesavananda Bharati conceded to Parliament the right to make alterations in the Constitution so long as they were within the basic framework. The Preambleassured the people of India of a polity whose basic structure was described therein as a sovereign democratic republic; Parliament could make any amendments to the Constitution asit deemed expedient so long as they did not damage or destroy India’s sovereignty and its democratic, republican character. Democracy was a meaningful concept whose essentialattributes were recited in the Preamble itself: justice, social, economic and political: liberty of thought, expression, belief, faith and worship; and equality of status and opportunity. Its aim, again as set out in the Preamble, was to promote among the people an abiding sense of “Fraternity assuring the dignity of the individual and the unity of the Nation.” The newly introduced clause (5) demolished the very pillars on which the Preamble rested by empowering Parliament to exercise its constituent power without any “limitation whatever”. No constituent power could conceivably go higher than the power conferred by clause (5) for it empowered Parliament even to “repeal the provisions of this Constitution”, that is to say, to abrogate democracy and substitute for it a totally antithetical form of government. That could most effectively be achieved, without calling democracy by any other name, by denial of social, economic and political justice to the people, by emasculating liberty of thought,expression, belief, faith and worship and by abjuring commitment to the magnificent ideal ofa 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 unlimitedone.
30. We hold, therefore, that a non-legislator can be made a Chief Minister or Minister under Article 164 only if he has the qualifications for membership of the Legislature
B. R. Kapur v. State of Tamil Nadu 111 prescribed by Article 173 and is not disqualified from the membership thereof by reason of the
disqualifications set out in Article 191.
31. The next question is: was the second respondent qualified for membership of the Legislature and not disqualified therefore when she was appointed Chief Minister on 14-5- 2001?
32. It was submitted by learned counsel for the respondents that the suspension of the sentences passed against the second respondent by the High Court at Madras was tantamount to the suspension of the convictions against her. Our attention was then drawn to Section 8(3) of the Representation of the People Act, which says that “a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified ….” In learned counsel’s submission, for the purposes of S. 8(3), it was the sentence alone which was relevant and if there were a suspension of the sentence, there was a suspension of thedisqualification. The sentences awarded to the second respondent having been suspended, the disqualification under Section 8(3), insofar as it applied to her, was also suspended.
33. Section 389 of the Code of Criminal Procedure on the basis of which the second respondent was released on bail by the Madras High Court reads, so far as is relevant, as follows:
389. Suspension of sentence pending the appeal; release of appellant on bail.—(1) Pending any appeal by a convicted person, the appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. (emphasis supplied)
34. It is true that the order of the High Court at Madras on the application of the second respondent states: “Pending criminal appeals the sentence of imprisonment alone is suspended and the petitioners shall be released on bail….”, but this has to be read in the context of Section 389 under which the power was exercised. Under Section 389 an appellate court may order that “the execution of the sentence or order appealed against be suspended …”. It is not within the power of the appellate court to suspend the sentence; it can only suspend the execution of the sentence pending the disposal of appeal. The suspension of the execution of the sentence does not alter or affect the fact that the offender has been convicted of a grave offence and has attracted the sentence of imprisonment of not less than two years. The suspension of the execution of the sentences, therefore, does not remove the disqualification against the second respondent. The suspension of the sentence, as the Madras High Court erroneously called it, was in fact only the suspension of the execution of the sentences pending the disposal of the appeals filed by the second respondent. The fact that she secured the suspension of the execution of the sentences against her did not alter or affect theconvictions and the sentences imposed on her and she remained disqualified from seeking legislative office under Section 8(3).
37. It was pointed out by learned counsel for the respondents that under Section 8(3) of the Representation of the People Act the disqualification was attracted on the date on which a person was convicted of any offence and sentenced to imprisonment for not less than two years. It was pointed out, rightly, that the law contemplated that the conviction and the
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sentence could be on different dates. It was submitted that it was unworkable that the disqualification should operate from the date of conviction which could precede the date of sentence; therefore, the conviction referred to in Section 8(3) should be taken to be that confirmed by the appellate court because it was only in the appellate court that conviction and sentence would be on the same day. We find the argument unacceptable. In those cases where the sentence is imposed on a day later than the date of conviction (which, incidentally, is not the case here) the disqualification would be attracted on the date on which the sentence was imposed because only then would a person be both convicted of the offence and sentenced to imprisonment for not less than two years which is cumulatively requisite to attract the disqualification under Section 8(3).
38. The focus was then turned upon Section 8(4) of the Representation of the People Act and it was submitted that all the disqualifications set down in Section 8 would not apply until a final court had affirmed the conviction and sentence. This was for the reason that the principle underlying Section 8(4) had to be extended to a non-legislator as, otherwise, Article 14 would stand violated for the presumption of innocence would apply to a sitting member tillthe conviction was finally affirmed but in the case of a non-legislator the disqualification would operate on conviction by the court of first instance. It was submitted that Section 8(4) had to be “read down” so that its provisions were not restricted to sitting members and in all cases the disqualification applied only when the conviction and sentence were finally upheld.
39. Section 8(4) opens with the words “notwithstanding anything in sub-section (1), sub- section (2) or sub-section (3)”, and it applies only to sitting members of Legislatures. There is no challenge to it on the basis that it violates Article 14. If there were, it might be tenable to contend that legislators stand in a class apart from non-legislators, but we need to express no final opinion. In any case, if it were found to be violative of Article 14, it would be struck down in its entirety. There would be, and is no question of so reading it that its provisions apply to all, legislators and non-legislators, and that, therefore, in all cases the disqualificationmust await affirmation of the conviction and sentence by a final court. That would be“reading up” the provision, not “reading down”, and that is not known to the law.
40. In much the same vein, it was submitted that the presumption of innocence continued until the final judgment affirming the conviction and sentence was passed and, therefore, no disqualification operated as of now against the second respondent. Before we advert to the four judgments relied upon in support of this submission, let us clear the air. When a lower court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo the sentence. The execution of the sentence can be stayed by an appellate court and the accused released on bail.In many cases, the accused is released on bail so that the appeal is not rendered infructuous, atleast in part, because the accused has already undergone imprisonment. If the appeal of the accused succeeds the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the stigma of the offence is altogether erased. But that 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.
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45. Our conclusion, therefore, is that on the date on which the second respondent was sworn in as Chief Minister she was disqualified, by reason of her convictions under the Prevention of Corruption Act and the sentences of imprisonment of not less than two years, for becoming a member of the Legislature under Section 8(3) of the Representation of the People Act.
46. It was submitted by learned counsel for the respondents that, even so, the court could do nothing about it. It was submitted that in the case of a Chief Minister or a Minister appointed under Article 164(1) read with (4) the people, who were the ultimate sovereign, hadexpressed their will through their elected representatives. For the period of six months the locus penitentiae operated as an exception, as a result of which, for that period, the people’s will prevailed in a true parliamentary democracy, especially as no provision was made for adjudicating alleged disqualifications, like the holding of an office of profit or a subsisting contract for the supply of goods or execution of works. In this area of constitutional governance, for the limited period of six months, it was not open to the court to import qualifications and disqualifications for a Minister qua Minister when none existed in Article 164(4). The Governor, not being armed with the machinery for adjudicating qualifications or disqualifications, for example, on the existence of subsisting contracts or the holding of offices of profit, and having no power to summon witnesses or to administer an oath or to summon documents or to deliver a reasoned judgment, the appointment made by him on the basis of the conventions of the Constitution could not be challenged in quo warranto proceedings so that an appointment that had been made under Article 164 could not be rendered one without the authority of law. If it did so, the court would be entering the politicalthicket. When qualifications and disqualifications were prescribed for a candidate or a member of the Legislature and a machinery was provided for the adjudication thereof, the absence of the prescription of any qualification for a Minister or a Chief Minister appointed under Article 164(1) read with (4) and for adjudication thereof meant that the Governor had toaccept the will of the people in selecting the Chief Minister or the 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 mandateto 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 Actor 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 presentcase, the Governor was entitled to proceed on the basis that the appeals of the secondrespondent having been directed, in October 2000, to be heard within two months, it would beopen to the second respondent to have the appeals disposed of within the time-limit of six months and, in the case of an acquittal, no question of ineligibility to contest an election within the period of six months would arise. If the Governor invited the leader of the party which had a majority in the Legislature to form a Government, it would, if the leader was a
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non-legislator, thereafter not be open to the court in quo warranto proceedings to decide that the Chief Minister was disqualified. Otherwise, this would mean that when the Governor had invited, in accordance with conventions, the leader to be the Chief Minister, in the next second the leader would have to vacate his office by reason of the quo warranto. The court would then be placing itself in a position of prominence among the three organs of the State, as a result of which, instead of the House deciding whether or not to remove such a person through a motion of no-confidence, the court would take over the function, contrary to thewill of the Legislature which would mean the will of the people represented by the majority inthe Legislature. In then deciding that the Chief Minister should demit office, the court would be entering the political thicket, arrogating to itself a power never intended by the Constitution, the exercise of which would result in instability in the governance of the State.
48. But submissions were made by learned counsel for the respondents in respect of the Governor’s powers under Article 164 which call for comment. The submissions were that the Governor, exercising powers under Article 164(1) read with (4), was obliged to appoint as Chief Minister whosoever the majority party in the Legislature nominated, regardless of whether or not the person nominated was qualified to be a member of the Legislature under Article 173 or was disqualified in that behalf under Article 191, and the only manner in whicha Chief Minister who was not qualified or who was disqualified could be removed was by a vote of no- confidence in the Legislature or by the electorate at the next elections. To aspecific query, learned counsel for the respondents submitted that the Governor was soobliged even when the person recommended was, to the Governor’s knowledge, a non- citizen, under age, a lunatic or an undischarged insolvent, and the only way in which a non- citizen or an underage or a lunatic or an insolvent Chief Minister could be removed was by a vote of no-confidence in the Legislature or at the next election.
49. 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.
50. To accept learned counsel’s submission is to invite disaster. As an example, the majority party in the Legislature could recommend the appointment of a citizen of a foreign country, who would not be a member of the Legislature and who would not be qualified to be a member thereof under Article 173, as Chief Minister under Article 164(1) read with (4) to the Governor; and the Governor would be obliged to comply; the Legislature would be unableto pass a no-confidence motion against the foreigner Chief Minister because the majority party would oppose it; and the foreigner Chief Minister would be ensconced in office until the next election. Such a dangerous — such an absurd interpretation of Article 164 has to be rejected out of hand. The Constitution prevails over the will of the people as expressed through the majority party. The will of the people as expressed through the majority party prevails only if it is in accord with the Constitution. The Governor is a functionary under the Constitution and is sworn to “preserve, protect and defend the Constitution and the law” (Article 159). The Governor cannot, in the exercise of his discretion or otherwise, do anythingthat is contrary to the Constitution and the laws. It is another thing that by reason of the
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protection the Governor enjoys under Article 361, the exercise of the Governor’s discretion cannot be questioned. We are in no doubt at all that if the Governor is asked by the majority party in the Legislature to appoint as the Chief Minister a person who is not qualified to be a member of the Legislature or who is disqualified to be such, the Governor must, having due regard to the Constitution and the laws, to which he is subject, decline, and the exercise of discretion by him in this regard cannot be called in question.
51. If perchance, for whatever reason, the Governor does appoint as Chief Minister a person who is not qualified to be a member of the Legislature or who is disqualified to be such, the appointment is contrary to the provisions of Article 164 of the Constitution, as we have interpreted it, and the authority of the appointee to hold the appointment can be challenged in quo warranto proceedings. That the Governor has made the appointment does not give the appointee any higher right to hold the appointment. If the appointment is contraryto constitutional provisions it will be struck down. The submission to the contrary – unsupported by any authority – must be rejected.
52. The judgment of this Court in Kumar Padma Prasad v. Union of India [(1992) 2 SCC 428] is a case in point. One K.N. Srivastava was appointed a Judge of the Gauhati High Court by a warrant of appointment signed by the President of India. Before the oath of office could be administered to him, quo warranto proceedings were taken against him in that High Court. An interim order was passed directing that the warrant of appointment should not be given effect to until further orders. A transfer petition was then filed in this Court and was allowed. This Court, on examination of the record and the material that it allowed to be placedbefore 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.
53. 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 v. Union of India [(1977) 3 SCC 592], it was said by Bhagwati, J.:
But merely because a question has a political complexion, that by itself is no ground why the court should shirk from performing its duty under the Constitution if it raises an issue of constitutional determination. Every constitutional question concerns the allocation and exercise of governmental power and no constitutional question can, therefore, fail to be political So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court. Indeed it would be its constitutional obligation to do so. It is necessary to assert in the clearest possible terms, particularly in the context of recent history, that the Constitution is suprema lex, the paramount law of the land, and there is no department or branch of Government above or beyond it.
116 B. R. Kapur v. State of Tamil Nadu
54. We are satisfied that in the appointment of the second respondent as the ChiefMinister there has been a clear infringement of a constitutional provision and that a writ ofquo warranto must issue.
56. We are not impressed by the submission that we should not exercise our discretion to issue a writ of quo warranto because the period of six months allowed by Article 164(4) to the second respondent would expire in about two months from now and it was possible that the second respondent might succeed in the criminal appeals which she has filed. We take the view that the appointment of a person to the office of Chief Minister who is not qualified to hold it should be struck down at the earliest.
58. We are of the view that a person who is convicted for a criminal offence andsentenced to imprisonment for a period of not less than two years cannot be appointed the Chief Minister of a State under Article 164(1) read with (4) and cannot continue to function assuch.
59. We, accordingly, order and declare that the appointment of the second respondent as the Chief Minister of the State of Tamil Nadu on 14-5-2001 was not legal and valid and that she cannot continue to function as such. The appointment of the second respondent as the Chief Minister of the State of Tamil Nadu is quashed and set aside.
60. All acts, otherwise legal and valid, performed between 14-5-2001 and today by the second respondent acting as the Chief Minister of the State of Tamil Nadu, by the members of the Council of Ministers of that State and by the Government of that State shall not be adversely affected by reason only of this order.
62. In the light of this order, the other writ petitions, the appeal and the transferred writ petition stand disposed of.
