B.R. KAPUR v. STATE OF TAMIL NADU AND ANR

Citation: [2001] SUPP. 3 S.C.R. 191

Court: Supreme Court of India

Bench: S.P. BHARUCHA, G.B. PATTANAIK, Y.K. SABHARWAL, RUMA PAL, BRIJESH KUMAR

Judgment text

B. R. KAPUR v. STATE OF TAMIL NADU AND ANR. SEPTEMBER 21, 2001 - [S. P. BHARUCHA, G,B. PATTANAIK, Y. K. SABHARWAL, RUMA PAL AND BRIJESH KUMAR, JJ. ] Constit~ttion of India-Articles 164. :__Appointment of Chief Minister- Govemor's power-Person convicted and sentenced to more than two years' imprisonment-Her party winning large majofity in general election-Party electing her as their leader-Governor appointing her as the ChiefMinister- Held, a person convictedfor a criminal offence and sentenced to imprisonment for a period not less than two years cannot be appointed the ChiefMinister- Hence her appointment quashed-Representation of the People Act, 195I- Section 8(3). Constitution of India-Articles I64, 173 and 191-Chief Minister/ Minister-Qual{fications for appointment-Held, person appointed as Chief Minister/Minister should possess qualifications enumerated in Article 173 and should not. be disqualified. from seeking membership oflegislature under Article I91.

Constitution oflndia-,-Article 164(4)-Appointment ofMinisters for six months-Held, cannot be used to induct short term Ministers who do not. fulfil the requirements ofArticles 173 and 191-Person appointed as Chief Minister though convicted and sentenced for more than two years-Held, such appointment is illegal for being appointed under Article 164(4) the person should be qual(fied to be a member of the legislature under Article 173 and should not be disqual(fied under Article 191-Articles 173 and 191. Constitution ofIndia-Artie! ~ 164-Govemorspower under-Notobliged to appoint the nominee of the majority party as Chief Minister if the nominee is ineligible to be appointed as Chief Minister-Governor cannot do anything contrary to the Constitution and laws-Will ofthe People-Held, cannot prevail over the constitutional mandate.

Constitution of India-Article 361-Scope of Judicial Review-lllegal appointment made by Governor not protected-Appointment ofa person to the post ofChiefMinister/Minister made by the Governor can be challenged in quo warranto proceedings-Quo warranto proceeding lie against the appointee to show by what authority is he entitled to hold the office-Appointing authority may not be made party to such proceeding-Articles 226 and 32. Constitution of India-Articles 226 and 32-Writ of quo warranto- Meaning of. - Doctrines-De facto doctrine-Meaning o. f-Setting aside of the appointment o. fChiefMinister-Serious consequences resultingfrom-De facto doctrine used to validate the acts of the Chief Minister, cabinet and the govemmentfrom the date o. fappointment to the date ofjudgment. Code of Criminal Pro! edure, 1973: Section 389-Power of appellate court-Sentence cannot be stayed by appellate court-Appellate court can suspend only execution of sentence- Order ofsuspension o.

fexecution ofsentence does not alter the conviction o. fthe accused. Section 374-Appeal-Pendency-E. ffect o. f. Representation ofthe People Act, I95/-Section 8(3)-Held, Presumption of innocence comes to end on conviction by the trial court-Conviction and sentence operate against accused until set aside in appeal-Accused filed appeal against her conviction-Execution ofsentence suspe1uled by the appellate court-In the meanwhile she filed nomination for election-Her party wins Assembly elections and she was elected leader ofher party-She was sworn in by Governor as ChiefMinister-Held, as she was convictedfor an offence and sentenced to more than two years imprisonment she could not have been appointed Chief Minister/Minister. Respondent No. 2, who was the Chief Minister of the State of Tamil Nadu, was convicted of offences punishable under section 120B of the .... ..

Penal Code read with sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act and for offence punishable under section 409 of the Indian Penal Code. She was sentenced to undergo three years' rigorous imprisonment and a fine of Rs. 10,000 in the first case and to undergo two l years' rigorous imprisonment and a fine of Rs. 5000/- in the second case. , Against her conviction, respondent No. 2 filed appeals before the ' High Court. By order dated 3. 11. 2000, the High Court, under Section 389(2) of the Code of Criminal Procedure suspended the sentences of imprisonment pending the criminal appeals and directed the release of r . 1 i I J B. R. KAPUR v. STATE 193 respondent No. 2 on bail. As the High Court had only suspended the sentences ofimprisonment against respondent No. 2 without staying the order ofconviction, respondent .. No. 2 filed another application seeking stay ofthe operation of thejudgments of the trial court which was rejected by the High Court.

Respondent No. 2 did not challenge the order of the High Court. In the meanwhile the general elections to the Tamil Nadu Assembly were announced. Respondent No. 2 filed nomination papers in four constituencies. Her nomination papers were rejected in three constituencies on account of her disqualification under section 8(3) of the Representation of the People Act. The fourth nomination paper was rejected for the reason that she had filed her nomination for more than two seats. These orders rejecting her nominations were not challenged by respondent No. 2. The party of respondent No. 2 won by a large majority in the assembly elections and elected respondent No. 2 as its leader. On 14. 5. 2001, respondent No. 2 was sworn in as the Chief Minister of Tamil Nadu by the Governor of the State. The appointment of respondent No. 2 as the Chief Minister was challenged by the petitioner by way of a writ petition under Article 32 of the Constitution of India contending that respondent No.

2 could not have been sworn in as the Chief Minister as she was disqualified to be elected as a member of the State Legislature on account of her disqualification under section 8(3) of the Representation of the People Act read with Article 191 of the Constitution of India. Another writ petition filed before the High Court of Madras, raising the same contention, was dismissed by the High Court against which Special Leave Petition was filed in this court. A third writ petition pending before the High Court of Madras was transferred to this court to be heard along with the writ petition filed under Article 32 of the Constitution of India. The contentions raised by respondent No. 2 and the State of Tamil Nadu before this Court were :- 1. Article 164 of the Constitution of India does not provide any qualification or disqualification for being appointed as a Chief Minister or a Minister. It was not open to the Court to read into Article 164 of the Constitution of India the qualificati!

-lns enumerated under Article 173 or the disqualifications enumerated under Article 191 of the Constitution of I India. 2. The people, who are the ultimate sovereign, had expressed their will through their elected representatives. The people's will should prevail .... for six months in a true parliamentary democracy especially when there is no provision for adjudicating the alleged disqualifications. The Governor does not have the power or the machinery for adjudicating alleged disqualifications. Therefore, the Governor cannot ignore the will of the people and is bound to call the leader of the majority party to be the Chief Minister irrespective of the fact that the said person does not possess the qualifications for being a member of the Legislature. The appointment is made by the Governor on the basis of conventions of the Constitution. By deciding that the Chief Minister appointed by the Governor should demit office, the Court would be entering in.

to political thicket, arrogating to itself a power never intended by the Constitution of India. 3. The Governor of a State, in view of Article 361 of the Constitution t- ,.. _ of India, is not answerable to any court for performance of the powers and duties of his office. As respondent No. 2 was appointed as Chief Minister by the Governor in exercise of powers of the Governor under A. -ticle 164 of the Constitution of India, the said appointment as well as the exercise of discretion by the Governor is immune from being challenged and is not open to judicial review. 4. The disqualification under section 8(3) of the Representation of the People Act would be attracted only when a person is convicted as well as sentenced to imprisonment for not less than two years. For the purpose of section 8(3) of the Representation of the People Act, sentence alone is relevant. As the High Court has suspended the sentences passed against respondent No. 2, her disqualification also stands suspended. 5.

Under section 8(3) of the Representation of the People Act the disqualification is attracted on the date on which a person was convicted of any offence and sentenced to imprisonment for not less than two years. Law contemplates that the conviction and the sentence could be on different dates. It is unworkable that the disqualification should operate from the date of conviction which could be separate from the date of sentence and therefore, the conviction referred to in Section 8(3) of the Representation of the People Act should be taken to be that confirmed by the appellate court because it was only in the appellate court that the date of conviction I i B. R. KAPUR v. STATE 195 and sentence would be the same. 6. Under Section 8(4) of the Representation of the People Act, the disqualification does not operate against a sitting member of Parliament ....

or the Legislature of the State until three months or, if an appeal, application or revision is filed until that appeal, application or revision is disposed of. The principle underlying Section 8(4) of the Representation of the People Act had to be extended to a non-legislator als~ as otherwise Article 14 of the Constitution of India would be violated for presumption of innocence would apply to the sitting member till the conviction was finally affirmed whereas in case of a non-legislator the disqualification would operate on conviction by the court of first instance. Setting aside the appointment of respondent No. 2 and making the writ petition absolute, the court HELD: Per S. P. Bharucha, 1. (for himself, Y. K. Sabharwal and Ruma Pal, JJ. ): 1. 1.

A non-legislator can be made Chief Minister or Minister under - Article 164 of the Constitution of India only if he has the qualifications for membership of the legislature prescribed by Article 173 of the Constitution oflndia and is not disqualified from the membership thereofby reason of the disqualifications set out in Article 191 of the Constitution oflndia. [222-A] 1. 2. The essential of a system of representative Government, like the one in India, is that, invariably, all Ministers are chosen out of the members of the legislature and only in rare cases is a non-member appointed a Minister and he has to get himself returned to the legislature by direct or indirect election with a short period.

It is sub-Article (4) of Article 164 of the Constitution of India 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 member of the Legislature of the State shall at the expiration of that period cease to be a Minister. Necessarily implicit in Article 164(4) read with sub-Articles (1) and (2) of Article 164 of the Constitution of India 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 the seat in the legislature within six months, he must cease to be a Minister.

The requirement of sub-Article (4) of Article 164 of the Constitution of India 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) of Article 164 of the Constitution of India, in other words, he must be one who satisfies the qualifications for membership of the legislature contained in Article 173 of the Constitution ofIndia and is not disqualified from seeking that membership by reason of any of the provisions in Article 191 of the Constitution of India on the date of his appointment. [217-B; H; 218-A-C] 1. 3. The provision ofsub-Article (4) ofArticle 164 of the Constitution ofIndia 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. However, it·cannot be accepted that sub-Article (4) of Article 164 of the Constitution of India 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 191of the Constitution of India respectively. What sub-Article (4) of Article 164 of the Con~titution oflndia does is to give a non-legislator appointed Minister six months to become a member of the legislature. Necessarily, theref~re, that non~legislator niust 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) ofArticle 164 of the Constitution of India is not intended for the inductio! l into the Council of Ministers of somemie for six months or less so that it is of no consequence that he is in~ligible to stand for the legislature. [218-D-F] Har Sharan. Verma v. Shri Tribhuvan Narain Singh, ChiefMinister, U. P. and Am:, [1971] 1 SCC 616; Har Sharan Verma v. State of U. P. and Am:, [1985] 2 SCC 48; Har Sharan Venna v. Union ofIndia andAm:, [1987] Supp; SCC 310; S. P. Anand, Indore v. H. D. Deve Gowda and Ors. , [1996] 6 SCC 734; S. R. Chaudhuri v. State of Pw~jab & Ors. , [2001] 5 SCALE 269; His Holiness Kesavananda Bharti Sripadagalavaru v. State of Kera/a, [1973] I I B. R. KAPUR v. STATE Supp. SCR 1 and Minerva Mills Ltd. & Ors. v. Union ofIndia & Ors. , [1981] 1 SCR 206, referred to. Constituent Assembly Debates, Vol. VII, referred to. 2. 1. The Constitution prevails over the will of the people as expressed through the majority party.

The will ofthe people as expressed through the majority party prevails only if it is in accord with the Constitution. The Governor is a functionary under the Constitution and is sworn to "preserve, protect and defend the Constitution and the laws" (Article 159). The Governor cannot, in the exercise of his discretion or otherwise, do anything that is contrary to the Constitution and the laws. If the Governor is asked by the majority party in the legislature to appoint as Chief Minister a person who is not qualified to be a member of the legislature or who is disqualified to be such, the Governor must, having due regard to the Constitution and the laws, to which he is subject, decline, and the exercise of discretion by him in this regard cannot be called in question. [231-E·G] 2. 2.

Ifperchance, 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 of India 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. Ifthe appointment is contrary to constitutional provisions it will be struck down. The appointm~nt ofa person to the office of Chief Minister who is not qualified to hold it should be struck down at the earliest. [231-H; 232-A-B; 233-E] Shri Kumar Padma Prasad v. Union ofIndia and Ors. , [1992] 2 SCC 428 arid State ofRajasthan and Ors. v. Union ofIndia and Ors. , [1977] 3 SCC 592, relied on. 3. 1.

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. 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. 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 conviction and sentence by the lower court is obliterated until the conviction and sentence are set aside by an appellate court. The c'. >nviction and sentence stand pending the decision in the appeal and for the p~rposes of a provision such as Section 8 of the Representation of the People Act are determinative of the disqualifications provided for therein. [226-G-H; 228-G] 3. 2.

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 disposai of appeal. 1be 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 under the Representation of the People Act. The suspension of the sentence, as the High C~mrt erroneously called it, was in fact only the suspension of the execution of the sentences pending the disposal of the appeals filed by the respondent No. 2. The fact that she secured the suspension of the execution of the sentences against her did not alter or affect the convictions and sentences imposed on her and she remained disqualified from seeking legislative office under Section 8(3) of the Representation of the People Act.

[223-B-C] Raghbir Singh v. Surjit Singh, [1994) Supp. 3 SCC 162, referred to. Padam Singh v. State ofU. P. , (2000) 1 SCC 621; Maru Ram v. Union of India and Ors. , [1981) 1SCC107; Dilip Kumar Shanna and Ors. v. State of Madhya Pradesh, [1976) 1 SCC 560 and Vidya Charan Shukia v. Purshottam Lal Kaushik, [1981] 2 SCC 84, distinguished. 3. 3. In those cases where the sentence is imposed on a day later than the date of conviction, 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 than two years, which is cumulatively requisite to attract the disqualification under Section 8(3) of the Representation of the People Act. [225-H; 226-A] 3.

4, Section 8(4) of the Representation of the People Act opens with the words "notwithstanding any thing in sub-section (l), sub-section (2) and sub-section (3)", and it applies only to sitting members of legislatures. There is no challenge to it on the basis that it violates Article 14 of the B. R. KAPUR v. STATE 199 Constitution of India. In any case, if it were found to be violative of Article 14 of the Constitution of India, it would be struck down in its entirety. There would be, and is, no question of so reading it that its provisions apply to all, legislators and non-legislators, and that, therefore, in all cases the disqualification must await affirmation of the conviction and sentence by a final court. [226-D-E] 3. 5.

A person who is convicted for a criminal offence and sentenced to imprisonment for a period of not less than two years cannot be appointed the Chief Minister of a State under Article 164(1) read with Article 164(4) of the Constitution of India and cannot continue to function as such. On the date on which ~espondent No. 2 was sworn in as ChiefMinbter she was disqualified, by reason of 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. [234-B; 228-H; 229-A] 4. The finding that respondent No. 2 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 respondent No.

2 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 respondent No. 2. 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, the de facto doct,rine is invoked and it is declared that all acts, otherwise legal and valid, performed between 14th May, 2001 and the date of the present judgment by the respondent No. 2 as Chief Minister, by the members of the Council of Ministers and by the Government of t(le State shall not be adversely affected by reason only of this order. [233-F-H] Per G. B. Pattanaik, J. (concurring) : • I 5. 1.

Notwithstanding the fact that no qualification or disqualification is prescribed in Article 164(1) or Article 164(4) of the Constitution of India, Qualification or disqualification provided in Articles 173 and 191 of the Constitution of India for being chosen as a member will have to be read into Article 164 of the Constitution of India and so read, respondent No. 2, who had incurred the disqualification under Article 191(1)(e) of the Constitution of India read ~ith Section 8(3) of the Representation of the People Act, could not have been appointed as the Chief Minister, whatever maybe the majority of her party members being elected to the Legislative Assembly. [239-G-H] 5. 2.

The Constitution of India, does not prevent the elected members belonging to a political party commanding the majority of seats in the legislative assembly or the Parliament to elect a person who never contested for being chosen aa a member or a person who though contested, got defeated in the election for one reason or the other and it is in such a situation that person on being elected as a leader of the political party commanding the majority in the House, could be appointed as the Prime Minister or the Chief Minister.

But the Constitution certainly does not postulate such elected representatives of the people belonging to a political party commanding a majority in the Parliament or the Assembly to elect a person as their leader so as to be called by the President or the Governor to head the Government, who does not possess the qualification for being chosen, to fill a seat in the Parliament or in the Legislative Assembly, as contained in Articles 84 and 173 of the Constitution of India respectively or who is disqualified for being chosen as or for being a member of the House of Parliament or the Legislative Assembly, as stipulated under Articles 102 and 191 of the Constitution of India respectively.

Even if a person is elected as the leader by the elected members of the Legislative Assembly, commanding a majority of seats in the Assembly and such person either does not possess the qualification enumerated under Article 173 of the Constitution of India or incurs disqualification for being chosen p as, or for being a member of the Legtslative Assembly, enumerated under Article 191 of the Constitution of India, the Governor would not be bound to respect that will of the elected members ofthe political party, commanding the majority in the House, so as to appoint that person as the Chief Minister under Article 164(1) of the Constitution of India.

When Article 164(1) itself confers the discre_tion on the Governor to appoint a Chief Minister at his pleasure and when the Governor has taken oath under Article 159 of the Constitution of India to preserve, protect and defend the Constitution and the law, 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 of the Constitution of India B. R. KAPUR v. STATE 201 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 of the Constitution of India proprio vigore applies to a person for being appointed as the Chief Minister or a Minister in as much 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 of the Constitution of India for being chosen as the Chief Minister or Minister would only enable the governor to.

appoint a person as the Chief Minister or Minister for a limited period of six months, as contained in Article 164(4) of the Constitution ofIndia, only if such person possesses the qualification for being chosen as a member of the Legislative Assembly, as required under Article 173 and is not otherwise disqualified on account of any of the disqualifications mentioned in Article 191. Any other interpretation by way ofconferring an unfettered discretion on the Governor or conferring an unfettered right on the elected members of a political party commanding a majority in the legislative Assembly to elect a person who does not possess the qualifications, enumerated under Article 173 or incurs the disqualifications enumerated in Article 191 would be subversive of the Constitution and would be repugnant to the theory of good governance. [237-E-H; 238-A-E] Constituent Assembly Debates, referred to. 5. 3.

The appointment of a non-member of legislature as the Chief Minister or Minister on the advice of a Chief Minister is made under Article 164 of the Constitution of India on the Governor's satisfaction. If any ofthe disqualification mentioned in Article 191(1)(e) ofthe Constitution of India are brought to the notice of the Governor which can be accepted without any requirement of adjudication or if the Governor is satisfied that the person concerned does not possess the minimum qualification for being chosen as a member, as contained in Article 173 of the Constitution of India, then in such a case, 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 dependent 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, the Governor exercises· his discretion under Article 164 of the Constitution of India 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 ~o imprisonment for more than two years and operation of the conviction has not been stayed and the appeal is pending, there~y the disqualification under Article 191(1)(e) of the Constitution of India read with Section 8(3) of the Representation of the People Act staring at the face, the Governor would be acting beyond his jurisdiction and against the constitutional inhibitions and norms in appointing such a disqualified person as the Chief Minister on the sole reasoning that the majority of the elected members to the Legislative Council have elected the person concerned to be their leader. The· Constitution does not permit brute force to impede the Constitution.

The people of India and so also the elected members to the legislative assembly are bound by the constitutional provisions and it would be the solemn duty of the people's representatives who have been elected to the legislative assembly to uphold the Constitution. Therefore, any act on their part, contrary to the Constitution, ought not to have weighed with the Governor in the matter of appointment of the Chief Minister t? form the government. (240-D-H; 241-A-B] ' 6. 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, whic! t is in violation of its constitutional limitations, then the same could be examined by the Courts. But in the case in hand, when an application for issuance of a writ of quo warranto is being examined, it is not the Governor who is made amenable to answer the Court.

But it is the appointee respondent No. 2, who is duty bound to satisfy that there has been no illegal usurpation of public office. Quo warranto protects public from illegal usurpation of public office by an individual and the necessary ingredients to be satisfied by the Court before issuing a ·writ is that the office in question must be public, created by the Constitution and a person not legally qualified to hold the office, in clear infringement of the provisions of the Constitution and the law has been usurping the same. If respondent No. 2 is disqualified under the Constitution B. R. KAPUR v. STATE 203 to hold public office of the Chief Minister, then the immunity of Governor . under Article 361 of the Constitution of India cannot stand as a bar from issuing a writ of quo warranto. The immunity provided to the Governor under Article 361 of the Constitution of India is certainly not extended to an appointee by the Governor. [241-H; 242-A; F-G] S. R. Bommai, v.

Union ofIndia, [1994) 3 SCC 1, relied on. R. K. Jain v. Union ofIndia, [1993) 4, SCC 119, distinguished. 7. 1. H the majority political party elects a person as their leader, whom the Constitution and the laws of the country disqualify for being chosen as a member of the Legislative Assembly, then such an action of the majority elected member would be a betrayal to the electorates and the Constitution to which they owe their existence. In such a case, the so-called will of the people must be held to be unconstitutional and as such, could not be and would not be tolerated upon. [245-G-H] 7. 2. When one speaks of legislative supremacy and the will of the people, the doctrine essentially consists of a rule which governs the legal relationship between the legislature and the court, but what is stated to be legislative supremacy in the United Kingdom has no application in India with a written Constitution limiting the extent of such supremacy of the Legislature or Parliament.

The doctrine of legislative supremacy distinguishes the United Kingdom from those countries in which they have a written Constitution, like India, which imposes limits upon the legislatμre and entrust the ordinary courts or a constitutional court with the functjon of deciding whether the acts of the legislature are in accordance with the Constitution. In other words, the people of the country, the organs of the Government, legislature, executive and judiciary are all bound by the Constitution. [246-A; 246-C] 7. 3. When Court has been ascribed the duty of interpreting the Constitution and when Court finds that manifestly there is an unauthori$ed exercise of power under the Constitution, it would be the solemn duty of the Court to intervene. This being the position, the action of the majority of the electl'!

d members of a political party in choosing their leader to head the Government, if found to be contrary to the Constitution and the laws of the land then the Constitution and the laws must prevail over such unconstitutional decision. [246-B; D] 7. 4. It would be a blatant violation of constitutional laws to allow respondent No. 2 to be continued as the ChiefMinister 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 their leader and that is the expression of the will of the people. The people of this country as well as their voice reflected through. their elected representatives in the Legislative Assembly, electing a disqualified person for being chosen as a member to the Legislative Assembly, to be their leader are as much subservient to the Constitution of India as the Governor himself. (246-G; 244-C] Lucas v.

Colorado General Assembly, 377 US 713; 12 L Ed 632; 84 S Ct 1472 and Minerva Mills Ltd. & Ors. v. Union of India & Ors. , [1981) 1 SCR 206, referred to. Law and the Constitution, by . Sir Ivor Jennings, referred to. 8. Having regard to the mass scale corruption which has corroded · the court 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 so that a person on being convicted of an offence, punishable under the provisions of Prevention of Corruption Act, could be disqualified for being chosen, as a member or being continuing as a member of the Legislative Assembly or the Parliament. [248-CJ Raghbir Singh v. Surjit Singh, [1994) Supp. 3 SCC 162, referred to. Per Brijesh Kumar, J. (concurring): 9. 1.

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 fulfil the required qualifications or suffers from any disqualification, which debars the person to hol. d such office. [249-B] 9. 2. Article 361 of the Constitution of India would be no impediment in examining the question of entitlement of a person, appointed by the B. R. KAPUR v. STATE 205 Governor to hold a public office, who according to the relator is usurper to the office. Article 361 of the Constitution does not extend any protection or immunity, vicariously, to holder of an office, which under the law, he is not entitled to hold.

On being called upon to establish valid authority to hold a public office, if the person fails to do so, a writ of quo warranto shall be directed against such person. It shall be no defence to say that the appointment was made by the competent authority, who under the law is not answerable to any Court for anything done in performance of duties or his office. The question of fulfilling the legal requirements ~nd qualification$ necessary to hold a public office would be considered in the proceedings, independent of the fact as to who made the appointment and the manner in which appointment was made. [251-A; 250-G-H] Words and Phrases Permanent Edition, Volume 35 A page 647 and 648 and Halsbury's Laws of England, 4th Edition Reissue Volume-I, para 265, page 368, referred to. 10. The argument about implementing the will of the people is misconceived and misplaced.

In the scheme of Constitutional provisions the Governor is to act with the aid and advice 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 Ministe""i 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 the element ofdiscretion in performance of duties of his office, if ever any such exigency may so demand its exercise. [251-C-D; E-H] CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 242 of 2001 Under Article 32 of the Constitution of India. WITH W. P. (C) Nos. 245, 246, 26112001, C. A. No. 6589/2001, and T. C. (C}No. 26/2001 Aris! ng from T. P. (C) No. 382/2001) ; Soli J. Sorabjee, Attorney General, Harish N. Salve, Solicitor General, ' . . Ashok H. Desai, Anil B. Divan, R. Mohan, F. S. Nariman, P. P. Rao, K. K. I ~ yenugopal and M. Rama jois, R. K. Kapoor, R. A. Mis~ra, B. R. Kapoor, Sumit Kumar, P. Varma, S. K. Srivastava; K. L. Vohra, Chander Shekhar Ashri, V. G~ Pragasaffi, Dinesh Kumar Garg, R. C. Kaushik, Dr. Fran~is Julian, B. V. Deepak, Ms. Roxna Swamy, R. N. Keshwani, Ms. Reyathy Raghavan, l\(s.

Shweta Garg, ter or Minister, on the simple ground that Article 164 is quite silent on the same and the Court cannot import anything into the said Article. Thus on a pure construction of provisions of Article 164 of the Constitution, the discussions made in the Constituent Assembly, referred to earlier, the pre-existing pari materia provision in the Government of India Act, 1935 as well as the discussion of the Joint Committee on Indian Constitutional Reforms referred to earlier, make it explicitly clear that notwithstanding the fact that no qualification or disqualification is prescribed in Article 164(1) or Article 164(4) but such qualification or disqualification provided in Articles 173 and 191 of the Constitution for being chosen as a member will have fo be read into Article 164 and so read, respondent No.

2, who had incurred the disqualification under Article 191(1)(e) read with Section 8(3) of the Representation of the People Act, could not have been appointed as the Chief Minister, whatever may be the majority of her party members being elected to the legislative assembly and they elected her as the leader of the ,party to form the Government. One ancillary argument raised by Mr. Venugopal, in this connection requires some consideration. According to the learned counsel, no adjudicatory machinery having been provided for in Article 164, in the event the qualifications and disqualifications prescribed for being chosen as a member of.

the legislative assembly under Articles 173 and 191 are imported into Article 164, then it will be an impossible burden for the Governor at that stage to decide the question if the oppon~nt raises the question of any disqualification and no Governor can adjudicate on each one of the disqualifications, enumerated in Article 191 read with Sections 8 to 11 of the Representation of the People Act. According to the learned counsel, the constitution has avowedly not prescribed any qualification or disqualification with regard to a non-member minister or Chief minister and the only limitation is that such minister or Chief Minister must get elected within six months or else . would cease to become a minister. In my ~onsidered opinion, the appoinunent of a non-member as the Chief Minister or Minister on the advice of a Chief Minister is made under Article 164 on the Governor's satisfaction.

If any of the disqualifications mentioned in Article 191(l)(e) are brought to the notice of the Governor which can be accepted without any requirement of adjudication or if the Governor is satisfied that the person concerned does not possess the minimum qualification for being chosen as a meinber, as contained in Article 173, then in such a case, there is no que,stion of an impossible burden on the Governor at that stage and on the other ~~nd, 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, G?

vernor exercises ~is discretion under Article 164 in the matter of appointment of the Chief Minist~r 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 ~d . operation of the conviction has not been stayed and the appeal is pending, thereby the disqualification under Article 191(1)(e) read with Section 8(3) of the Representation of the People Act staring at the face, the Governor would be acting beyond his jurisdiction and against the constitutional inhibitions and B. R. KAPUR v. STATE [PATTANAIK, J. ] 241 norms in appointing such a disqualified person as the Chief Minister on the sole reasoning that the majority of the elected members to the legislative council have elected the person concerned to be their leader. The constitution does not permit brute force to impede the constitution.

The people of India and so also the elected members to the legislative assembly are bound by the constitutional provisions and it would be the solemn duty of the people's representatives who have been elected to the legislative assembly to uphold the constitution. Therefore, any act on their part, contrary to the constitution, ought not to have weighed with the Governor in the matter of appointment of the Chief Minister to form the Government. In·my considered opinion, therefore, the arguments of Mr. Venugopal, on this score cannot be sustained. One of the arguments advanced on behalf of the respondents was the immunity of the Governor under Article 361 of the constitution. The genesis of the said arguments is that the Governor of a State not being answerable to any Court in exercise of performance of the powers and duty of his office or for any act done or purported to be done by him in the exercise and performance of those powers and duties and respondent No.

2 having been appointed as Chief Minister in exercise of powers of the Governor under Article 164, the said appointment as well as the exercise of discretion by the Governor is immune from being challenged and is not open tojudicial review. The arguments of the counsel for the respondents is also based on the ground that any consideration by the Court to the legality of such an appointment is not permissible as it is a political thicket. The decision of this Court in R. K. Jain v. Union ofIndia, [1993] 4 SCC 119 has been relied upon. At the outset, it may be stated that the immunity provided to the Governor under Article 361 is certainly not extended to an appointee by the Governor. In the present proceedings, what has been prayed for is to issue a writ of quo warranto on the averments that respondent No. 2 was constitutionally disqualified to usurp -/ the public office of the Chief Minister, who has been usurping the said post unauthorisedly on being appointed by the Governor.

In fact the Governor has not been arrayed as a party respondent to the proceedings. In the very case of R. K. Jain, it has been held by this Court in paragraph 73 that judicial review is concerned with whether the incumbent possessed of qualification for appointment and the manner in which the appointment came to be made or the procedure adopted whether fair, just and reasonable. It has been further stated in paragraph 70 of the said judgment that in a democracy governed by rule of law surely the only acceptable repository of absolute discretion should be the courts. Judicial review is the basic and essential feature of the Indian constitutional scheme entrusted to the judiciary.

It is the essence of tlie 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 . v. Union of India, [1994] 3 SCC Page 1, this Court held that a proclamation issued by the President on the advice of the council of ministers headed by the Prime Minister is amenable to judicial review. Even Justice Ahmadi, as he then was, though was of the opinion that the decision making of the President under Article 356. would not be justiciable but was firmly of the view that a proclamation issued by ·the President is amenable to judicial review. Justice Verma and Justice Yogeshwar Dayal held that there is no dispute that the proclamation issued under Article 356 is subject to judicial review.

So also was the view of Justice Sawant and Justice Kuldip Singh and Justice Pandian, where Their Lordships have stated that the exercise of power by the President under. Article 356(1) to issue Proclamation is subject to the Judicial review at least to the extent of examining whether the conditions precedent to the issuance of the Proclamation have been satisfied or not. According to Justice Ramaswamy, the action of the President under Article 356 is a constitutional function and the same is subject to judicial review and according to the learned Judge, the question relating to the extent, scope and power of the President under Article 356 though wrapped up with political thicket, per se it does not get immunity from judicial review. According to Justice Jeevan Reddy and Agarwal, JJ, the power under Article 356(1) is a conditional power and in exercise of the power of judicial review, the court is entitled to examine whether the condition has been satisfied o·r not.

But in the case iri hand, when an. application for issuance of a writ of quo warranto is being examined, it is not the Governor who is being ma~e amenable to answer the Court. But it is the appointee respondent No. 2, who is duty bound to satisfy that there has been no illegal usurpation of public office. Quo warranto protects public from illegal usurpation of public office by an individual and the necessary ingredients to be satisfied by the Court before issuing'a writ is that the office in question must be public created by the constitution and a person not legally qualified to hold the office, in clear infringement of the provisions of the constitution and the law viz. Representation of the People Act has been usurping the same. If this Court ultimately comes to the conclusion that the respondent No.

2 is disqualified under the constitution to hold public office of the Chief Minister, as has already been held, then the i~unity of Governor under Article 361 cannot stand as a bar from issuing a writ of quo warranto. In the present case, it is the State B. R. KAPUR v. STATE [PATTANAIK, J. ] 243 Government who has taken the positive stand that there has been no violation of the constitutional provisions or the violation of law in the appointment of respondent No. 2, as Chief Minister, the correctness of that stand is the subject matter of scrutiny. I am tempted to quote some observations of the United States Supreme Court in the case of Lucas v. Colorado General Assembly, 377 US 713, 12 L ed 2d 632, 84 S Ct 1472. It has been held in the aforesaid case: "Manifestly, the fact that an apportionment plan is adopted in a popular referendum is insufficient to sustain its constitutionality or to induce a Court of equity to refuse to act.

" It has been further held : "The protection of constitutional rights is not to be approached either pragmatically or expediently, and though the fact of enactment of a constitutional provision by heavy vote of the electorate produces pause and generates restrain we can not, true to our oath, uphold such legislation in the face of palpable infringement of rights. It is too clear for argument that constitutional law is not a matter of majority vote. Indeed the entire philosophy of the Fourteenth Amendment teaches that it is personal rights which are to be protected against the will of the majority. " What has been stated therein should more appropriately be applicable to a case where the constitution is the supreme document which should bind people of India as well as all other constitutional authorities, including the Governor, and, therefore if respondent No.

2 is found to have been appointed as the Chief Minister, contrary to the constitutional prohibition and prohibition under the relevant law of the Representation of the People Act, there should be no inhibition on the Court to issue a writ of quo warranto and the so-called immunity of the Governor will not stand as a bar. According to Mr. P. P. Rao, learned senior counsel appearing for the State of Tamil Nadu, Parliamentary Democracy is admittedly a basic feature of the Constitution. It would be the duty of every functionary under the Constitution, including the Governor, and the judiciary to give effect to the will of the people as reflected in the election to the Legislative Assembly of a State.

Once the electorate has given its mandate to a political party and its leader to run the Government of the State for a term of five years, in the absence of ;my express provision in the Constitution to the contrary, the Governor is bound to call upon the leader of that Legislature Party, so elected by the elected members, to form the Government. According to Mr. Rao, there is no express, unambiguous provision in the Constitution or in the provisions of Representation of People Act, declaring that a person convicted of an offence and sentenced to imprisonment for a period not less than 2 years by the Trial Court shall not be appointed as Chief Minister during the pendency of the first appeal. In such a situation, the Governor is not expected to take a position of confrontation with the people of the State who voted the ruling party to power and plunge the State into a turmoil. In support of this contention, observation of this Court in the case of Shainsher Singh v.

State ofPunjab, [1974] 2 SCC 831, 'The head of the State should avoid getting involved in politics', was pressed into service. I am unable to persuade myself to agree with the aforesaid submission· of Mr. Rao, inasmuch as, in my considered opinion, the people of this country as well aS'their voice reflected through their elected representatives in the Legislative Assembly, electing a disqualified person for being chosen as a member of the Legislative Assembly, to be theif leader are as much subservient to the Constitution of India as the Governor himself. In a democracy, constitutional law reflects the value that people attach to orderly human relations, to individual freedom under the law and to institutions such as Parliament, political parties, free elections and a free press.

Constitution is a document having a special legal sanctity which sets out the frame-work and the principal functions of the organs of government within the State and declares the principles by which those · organs must operate. Constitution refers to the whole system of the governance of a country and the collection of rules which establish and regulate or govern the government. In our country, we have a written constitution, which has been ·given by the people of India to themselves. The said Constitution occupies the primary place. Notwithstanding the fact, we have a written· Constitution, in course of time, a wide variety of rules and practices have evolved which adjust operation of the Constitution to changing conditions. No written constitution would contain all the detailed rules upon which the government depends. The rul.

es for electing the legislature are usually found not in the written Constitution p but in the statutes enacted by the legislature within limits laid down by the Constitution. A Constitution is a thing antecedent to a government, and a government or a good governance is a creature of the Constitution. A documentary Constitution reflects the beliefs and political aspirations of those who had framed it. One of the principle of constitutionalism is what it had developed in the democratic traditions. A primary function that is assigned to the written Constitution is that of controlling the organs of the Government. Constitutional law pre-supposes the existence of a State and inclu9es those ' laws which regulate the structure and function of the principal organs of government and their relationship to each other and to the citizens.

Where there is a written Constitution, emphasis is placed on the rules which it contains and on the way in which they have been interpreted by the highest court with I B. R. KAPUR v. STATE [PATTANAIK, J. ] 245 constitutional jurisdiction. Where there is a written Constitution the legal structure of Government may assume a wide variety of forms. Within a federal constitution, the tasks ofgovernment are divided into two classes, those entrusted to the federal organs of government, and those entrusted to the various states, regions or provinces which make up the federation. But the constitutional limits bind both the federal and state organs of government, which limits are enforceable as a matter of law. Many important rules of constitutional behaviour, which are observed by the Prime Minister and Ministers, Members of the Legislature, Judges and Civil servants are contained neither in Acts nor in judicial decisions.

But such rules have been nomenclatured by the Constitutional Writers to be the rule of 'the positive morality of the constitution' and some times the authors provide the name to be 'the unwirtten maxims of the constitution'. Rules of constitutional behaviour, which are considered to be binding by and upon those who operate the Constitution but which are not enforced by the law courts nor by the presiding officers in the House of Parliament. Sir Ivor Jennings, in his book, 'Law and the Constitution' had stated that constitutional conventions are observed because of the political difficulties which arise if they are not. These rules regulate the conduct of those holding public office and yet possibly the most acute political difficulty can arise for such a person is to be forced out of office.

The Supreme Court of Canada stated that the main purpose of conventions is to ensure that legal frame work of the constitution is operated in accordance with the prevailing constitutional values of the period. (see (1982) 125 DLR(3d) 1, 84). But where the country has a written constitution ,E 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 ofGovernment 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 mauer offormation ofGovernment if the said majority political party elects a person as their leader, whom the Constitution and the laws of the country disqualifies for being chosen as a member of the Legislative Assembly, then such an action of the majority elected member would be a betrayal to the electorates and to the Constitution to which they owe their existence. In such a case, the so called will of the people must be held to be unconstitutional and, as such, could not be and would not be tolerated upon. When one speaks of legislative supermacy and the will of the people, the doctrine essentially consists of a rule which governs the legal relationship between the legislature and the court, but what is stated to be the legislative supermacy in the United Kingdom has no application in our country with a written Constitution limiting the extent of such supermacy of the Legislature or Parliament.

In other words, the·people of the country, the organs of the Government, legislature, executive and judiciary are all bound by the Constitution which Hon. Justice Bhagwati, J. descrioes in Minerva Mills case [1980] 3 Supre~e Court Cases, 625, to be suprem'a lex or the paramount l~w of the land and nobody is above or beyond the Constitution. When Court has been ascribed the duty of interpreting the Constitution and when Court finds that manifestly there is an unauthorised exercise ofpower under the Constitution, it would be the solemn duty ofthe Court to intervene. The doctrine oflegislative supermacy distinguishes the United Kingdom from those countries in which they have a written constitution, like India, which imposes limits upon the legislature and entrust the ordinary courts or a constitutional court with the 1 function of deciding whether the acts of the legislature are in accordance with the Constitution.

This being the position, the action of the majority of the elected members of a political party in choosing their leader to head the Government, if found to be cQntrary to the Constitution and the laws of the land then the Constitution and the laws must prevail over such unconstitutional decision, and the argument of Mr. Rao, that the will of the people would prevail must give way. In a democratic society there are important reasons for obeying the law,_which do not exist in other forms of government. Our political system still is not perfect and there are always the scope for many legislative reforms to be made. :a·ut the maintenance oflife in modern society requires a willingness from most citizens for most of the time to observe laws, even when individually they may not agree with them. In the aforesai~ premises, and in view of the conclusions already arrived at, with regard to the disqualifications 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 el~cted 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 - B. R. KAPUR v. STATE [PATTANAIK, J. ] 247 "Criminalisation of Politics" and participation of criminals in the electoral process as candidates and in that connection, he had brought to our notice the order of the Election Commission of India dated 28th of August, 1997.

But for answering the essential issue before us, it was not necessary to delve into that matter and, therefore, we have not made an in-depth inquiry into the subject. In one of the speeches by the Prime Minister of India on the subject- "Whither Accountability'', published in the Pioneer, Shri Atal Bihari Vajpayee had called for a national debate on all the possible alternatives for systematic changes to cleanse our democratic governing system of its pr('. sent mess. He has expressed his dissatisfaction that neither Parliament nor the State Vidhan Sabhas are doing with any degree of competence or commitment what they are primarily meant to do: Legislative function. According to him, barring exceptions, those who get elected to these democratic institutions are neither trained, formally or informally, in law-making nor do they seem to have an inclination to develop the necessary knowledge and competence in their profession.

He has further indicated that those individuals in society who are generally interested in serving the electorate and performing legislative functions are finding it increasingly difficult to succeed in today's electoral system and the electoral system has been almost totally subverted by money power, muscle power, and vote bank considerations of castes and communities. Shri Vajpayee also had indicated that the corruption in the governing structures has, therefore, corroded the very core of elective democracy: According to him, the certainty of scope of corruption. in the governing structure has hightened opportunism and unscrupulousness among political parties, causing them to marry and divorce one another at will, seek opportunistic alliances and coalitions often without the popular mandate. Yet they capture and survive in power due to inherent systematic flaws.

He further stated casteism, corruption and politicisation have eroded the integrity and efficacy of our civil service structure also. The manifestoes, policies, programmes of the political parties have lost meaning in the present system ofgovernance due to lack ofaccountability. Lot ofarguments had been advanced both by Mr. Venugopal and Mr.

Rao, on the ground that so "far as the offences under Section 8(3) of the Representation of the People Act are concerned, mere conviction itself will not incur the disqualification, but CQ_nviction and sentence for not less than two years would disqualify a person and, therefore, in such a case, a person even being convicted of an offence under the Prevention of Corruption Act, will not be disqualified, if the trying Judge imposes the punishment of imprisonment for a term of one year, which is the minimum under Section 13(2) of the prevention of Corruption Act and thus Jess 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 ofproviding different punishments under different sub-sections of Section 8, has already been upheld by this Court in the case of Raghbir Singh v.

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(1k4:if--tnf"Representation of the People Act, 1951, so that a person on being convicted of an offence, punishable under the provisions of Prevention of Corruption Act, could be disqualified for being chosen, as a member or being continuing as a member of the Legislative Assembly or the Parliament. I hope and trust, our representatives in the Parliament will bestow due thought over this issue. These Writ Petitions, Special Leave Petition/Civil Appeal and Transferred case stand disposed of in terms of the directions contained in the judgment of Brother Bharucha, J. BRUESH KUMAR, J. Leave granted in SLP No. 11763/2001. I have the advantage of going through the judgment prepared.

by Brother Bharucha, J. I am in respectful agreement with the same. While doing so, I propose to record my views in addition, on a few points only, in brief, since such points had been argued at some length and with all vehemence. The, points are also no doubt important. Amongst other points, the learned counsel for the respondents submitted that the appointment of respondent No. 2 as Chief Minister by the Governor, could not be challenged, in view of the provisions under Article 361 of the , Constitution, providing that the Governor shall not be answerable to any Court for the exercise and performance of the powers and duties of his office. It was also submitted that in appointing the Chief Minister, the Governor exercised his discretionary powers, therefore, his action is not justiciable. Yet another submission is that the Governor had only implemented the decision of the majority party, in appointing the respondent No. 2 as a Chief Minister i. e.

he had only given effect to the will of the people. In so far it relates to Article 361 of the Constitution, that the Governor shall not be answerable to any ~ourt for performance of duties of his office B. R. KAPUR v. STATE [BRIJESH KUMAR, J. ] 249 as Governor, it may, at the very outset, be indicated that we are considering the prayer for issue of writ of Quo Warranto against the respondent No. 2, who according to the petitioner suffers from disqualification to hold the public office of the Chief Minister of a State. A writ of Quo Warranto is a writ which lies against the person, who according to the relator is not entitled to hold an office of public nature and is only an usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show, by what authority that person is entitled to hold the office.

The challenge can be made on various grounds, including on the grounds that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars the person to hold such office. So as to have an idea about the nature of action in a proceedings for writ of quo warranto and its original form, as it used to be, it would be beneficial to quote from Words and Phrases Permanent Edition, Volume 35A page 648. It reads as follows:- "The original common-law writ of "quo warranto" was a civil writ at the suit of the crown, and not a criminal prosecution. It was in the nature of a writ of right by the King against one who usurped or claimed franchises or liabilities, to inquire by what right he claimed them.

This writ, however, fell into disuse in England centuries ago, and its place was supplied by an information in the nature of a quo warranto, which in its origin was a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him or seize it for the crown. Long before our Revolution, however, it lost its character as a criminal proceeding in everything except form, and was applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only; and such, without any special legislation to that effect, has always been its character in many of the states of the Union, and it is therefore a civil remedy only. Ames v. State of Kansas, 4 S. Ct. 437, 442,111 U. S. 449,28 L. Ed. 482; People v. Dashaway Ass'n, 24 P. 277,278,84 Cal. 114.

" In the same Volume of Words and Phrases Permanent Edition at page 647 we find as follows:- "The writ of "quo warranto is not a substitute for mandamus or injunction nor. for an appeal or writ oferror, and is not to be used to prevent an improper exercise of power lawfully possessed, and its purpose is solely to prevent an, officer or corporation or persons purporting to act as such from usurping a power which they do not have. State ex in/McKittrick v. Murphy, 148. S. W. 2d 527,529,530,347 Mo. 484. (emphasis. supplied) Information in nature of "quo warranto'; does not command performance of official functions by any officer to whom it may run, since it is not directed to officer as such, but to person holding office orexercising. franchise, and not. for purpose ofdictating orprescribing official duties, but only to ascertain whether he is right. full/entitled to exercise functions claimed. State ex inf. ITT-tlsh v. Thatcher, 102 . ' S. W. 2d 937,938,340 Mo. 865.

" (emphasis supplied) In Halsbury's Laws of England Fourth Edition Reissue Volume-I Para 265, Page 368 it is found as follows:- "266. In general. An information in the nature ofa 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 of franchise might' be d~termined. '", . (Emphasis supplied) Besides the above, niany High Courts as well as this Court have, taken the view that a· writ of quo warranto lies against a person, who is1called upon to establish his legal entitlement to hold the office in question. Reference: AIR (1~52) 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. 49~. In view ofthe legal position as indicated above it would not be necessary to implead the appointing authority as respondent in the proceedings.

In the case in hand, the Governor need not be made answerable to Court. Article 361 of the Constitution however does not extend any protection or immunity, vicariously, to holder of an office, which under the law, he is not entitled to hold. On being called upon to establish valid authority to hold a public office, if the person fails to do so, a writ of quo warranto shall be directed against such person. It shall be no defence to s~y that the appointment was made by the competent authority, who under the law is not answerable to any Court for anything done in performance of duties of his office. The question of fulfilling the legal requirements and qualifications necessary to hold a public office B. R. KAPUR v. STATE [BRIJESH KUMAR, J. ] 251 would be considered in the proceedings, independent of the fact as to who made the appointment and the manner in which appointment was made.

Therefore, Article 361 of the Constitution would be no impediment in examining the question of entitlement of a person, appointed by the Governor to hol~ public office, who according to the petitioner/relator is usurper to the office. The other point which was pressed, with no less vehemence was that in making the appointment of the Chief Minister, the Governor acts in exercise of his discretionary powers. In this connection, learned counsel for the respondents referred to Article 163 of the Constitution to indicate that there shall be a Council of Ministers headed by the Chief Minister to aid and advise the Governor in exercise of his functions except where, under the Constitution the Governor has to discharge his functions in his discretion. Thereafter, Article 164 of the Constitution has been referred to indicate that Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advise of the Chief Minister.

It is submitted that the Governor appoints the Chief Minister at a time, when there is no Council of Ministers to aid or advise him. The Governor makes the appointment in his own discretion. Learned counsel for the respondent No. 2 submitted that the party in majority by means of a resolution had chosen respondent No. 2 as their leader. Accordingly, the respondent No. 2 was appointed as the Chief Minister. It has been very categorically submitted, without any ambiguity, that the Governor is bound to appoint any person whosoever is chosen by majority party, as the Chief Minister. This argument cuts against his own submission made earlier that the Governor appoints the Chief Minister in exercise of his discretionary powers. If it is right, that the Governor is bound by the decision of the majority party, the element of discretion of Governor, in the matter, disappears.

In the scheme of Constitutional provisions the Governor is to act with the aid and advise of the Council of Ministers headed by the Chief Minister. He is bound to act accordingly. The other functions which the Governor performs in which aid and advice of the Council of Ministers is not necessary, he acts in his own discretion. He is not bound by decision/advice of any other agency. It is no doubt true that even in the written Constitution it is not possible to provide each and every detail. Practices and conventions do develop for certain matters. This is how democracy becomes workable. It is also true that the choice of the majority party regarding its leader for appointment as Chief Minister is normally accepted, and rightly. But the contention that in all eventualities whatsoever the Governor is bound by the decision of the majority party is not a correct proposition.

The Governor I { A 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 a,bove is misconceived and misplaced. B. K. M. Writ Petitions/Appealffransferred writ petition disposed of. ,- '-