TaxTMI 
TaxTMI 
2015 (4) TMI 154
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....j Narain AIR 1975 SC 2299, stated that 'democracy' as an essential feature of the Constitution is unassailable. The said principle was reiterated in T.N. Seshan, CEC of India v. Union of India and ors.(1995) 4 SCC 611. and Kuldip Nayar v. Union of India & Ors. AIR 2006 SC 3127 It was pronounced with asseveration that democracy is the basic and fundamental structure of the Constitution. There is no shadow of doubt that democracy in India is a product of the rule of law and aspires to establish an egalitarian social order. It is not only a political philosophy but also an embodiment of constitutional philosophy. In People's Union for Civil Liberties and another v. Union of India and another (2013) 10 SCC 1, while holding the voters' rights not to vote for any of the candidates, the Court observed that democracy and free elections are a part of the basic structure of the Constitution and, thereafter, proceeded to lay down that democracy being the basic feature of our constitutional set-up, there can be no two opinions that free and fair elections would alone guarantee the growth of a healthy democracy in the country. The term "fair" denotes equal opportunity to all peo....
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....e Judges. We issue notice to Union of India. Formal notice need not be issued since the Union of India is represented by learned Solicitor General. Notices shall also be issued to the Advocates General of all the States. The notice shall state that the State Governments and the Union of India may file their affidavits along with relevant material within four weeks of service of notice. The Prime Minister and some of the Ministers in Union Cabinet have been arrayed as party respondents 2 to 7. It is not necessary to implead individual ministers and/or Prime Minister for deciding the question above-named. Accordingly, respondent Nos. 2 to 7 are deleted from the array of parties. List the case after the Court reopens after the summer vacation for directions as to fixing a date for its being placed before the Constitution Bench." In view of the aforesaid order and the subsequent orders, the matter has been placed before us. Considering the controversy raised, we are required to interpret the scope and purpose of Articles 75 and 164 of the Constitution, regard being had to the text, context, scheme and spirit of the Constitution. THE PURITY OF ELECTION 3. In the beginning, we have....
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....ognised all throughout and it is a natural right flowing from the concept of democracy. Elaborating further, the Court opined that a voter has a right to know the antecedents including the criminal past of his candidate contesting election for MP or MLA as it is fundamental and basic for the survival of democracy, for he may think over before making his choice of electing law-breakers as lawmakers. Eventually, the Court directed the Election Commission to exercise its power under Article 324 of the Constitution requiring the candidate to furnish information pertaining to the fact whether the candidate has been convicted/ acquitted/discharged of any criminal offence in the past, if any, and whether he has been punished with imprisonment or fine; whether the candidate is accused in any pending case of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law; and certain other information. 6. From the aforesaid authorities, it is perceivable that while giving emphasis on the sanctity of election, the Court has expressed its concern with regard to various facets of the candidates who contest the election a....
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.... saying that systemic corruption and sponsored criminalization can corrode the fundamental core of elective democracy and, consequently, the constitutional governance. The agonized concern expressed by this Court on being moved by the conscious citizens, as is perceptible from the authorities referred to hereinabove, clearly shows that a democratic republic polity hopes and aspires to be governed by a Government which is run by the elected representatives who do not have any involvement in serious criminal offences or offences relating to corruption, casteism, societal problems, affecting the sovereignty of the nation and many other offences. There are recommendations given by different committees constituted by various Governments for electoral reforms. Some of the reports that have been highlighted at the bar are (i) Goswami Committee on Electoral Reforms (1990), (ii) Vohra Committee Report (1993), (iii) Indrajit Gupta Committee on State Funding of Elections (1998), (iv) Law Commission Report on Reforms of the Electoral Laws (1999), (v) National Commission to Review the Working of the Constitution (2001), (vi) Election Commission of India - Proposed Electoral Reforms (2004), (vii....
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.... Act, nothing in sub-section (1) shall apply to a person: (i) Who holds office as a Member of Parliament, State Legislative Assembly or Legislative Council at the date of enactment of this provision, or (ii) Against whom a charge has been framed for an offence punishable by at least five years imprisonment; (a) Less than one year before the date of scrutiny of nominations for an election under Section 36, in relation to that election; (b) At a time when such person holds office as a Member of Parliament, State Legislative Assembly or Legislative Council, and has been elected to such office after the enactment of these provisions; (3) For Members of Parliament, State Legislative Assembly or Legislative Council covered by clause (ii) of sub-section (2), they shall be disqualified at the expiry of one year from the date of framing of charge or date of election, whichever is later, unless they have been acquitted in the said period or the relevant charge against them has been quashed." 12. The aforesaid vividly exposits concern at all quarters about the criminalisation of politics. Criminalisation of politics, it can be said with certitude, creates a dent in the marrows of the na....
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....enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification which has been made in Section 6- A because the goal of law in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences." And again: "70. Office of public power cannot be the workshop of personal gain. The probity in public life is of great importance. How can two public servants against whom there are allegations of corruption of graft or bribe taking or criminal misconduct under the PC Act, 1988 can be made to be treated differently because one happens to be a junior officer and the other, a senior decision maker. 71. Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision making power does not segregate corrupt ....
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....ld be deemed not to be an office of profit under the Government of India or the Government of any State. That apart, the said Article prescribes that a person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule. 18. Similarly, Article 173 provides for qualification for membership of the State Legislature and Article 191 enumerates the disqualifications similar to Article 102. 19. The Parliament by the 1951 Act has prescribed further qualifications and disqualifications to become a member of Parliament or to become a member of Legislative Assembly. Section 8 of the Act stipulates the disqualification on conviction for certain offences. We need not state the nature of the offences enumerated therein. Suffice it to mention Section 8(1) covers a wide range of offences not only under the Indian Penal Code but also under many other enactments which have the potentiality to destroy the core values of a healthy democracy, safety of the State, economic stability, national security, and prevalence and sustenance of peace and harmony amongst citizens, and many others. Sub-sections 8(3) and 8(4), which have been a matter of....
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....s on such power of the Parliament to defer the date on which the disqualifications would have effect and, therefore, sub-section (4) of Section 8 of the Act, which carves out a saving in the case of sitting Members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting Member of Parliament or a State Legislature, is beyond the powers conferred on Parliament by the Constitution. Thereafter, dealing with sitting members of the Parliament and State Legislature, the two-Judge Bench ruled that if any sitting Member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act, and by virtue of such conviction and/or sentence, suffers the disqualifications mentioned in subsections (1), (2) and (3) of Section 8 of the Act, his membership of Parliament or the State Legislature, as the case may be, would not be saved by sub-section (4) of Section 8 of the Act. 21. Thus, the scheme of disqualification upon conviction laid down by the 1951 Act clearly up....
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....tutional choice, tradition and constitutional convention which must reflect the conscience of the Constitution. It is propounded by him that the same would serve the spirit and core values of the Constitution, the values of constitutionalism and the legitimate expectations of the citizens of this country. The power conferred on any constitutional authority under any of the Articles of the Constitution may not be circumscribed by express or obvious prohibition but it cannot be said that in the absence of use of any express phraseology in that regard, it would confer an unfettered and absolute power or unlimited discretion on the said constitutional authority. Learned senior counsel would contend that the doctrine of implied limitation has been accepted as a principle of interpretation of our organic and living Constitution to meet the requirements of the contemporaneous societal metamorphosis and if it is not applied to the language of Article 75(1), the élan vital of the Constitution would stand extinguished. It is urged by him that judiciary, as the final arbiter of the Constitution, is under the constitutional obligation to inject life to the words of the Constitution so t....
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....India (2014) 2 SCC 609, State of Punjab v. Salil Sabhlok and others (2013) 5 SCC 1 and Centre for Public Interest Litigation and another v. Union of India and another (2005) 8 SCC 202. 24. Laying stress on the word "advice", apart from referring to the dictionary meaning, the learned senior counsel has urged that the framers of the Constitution have used the word "advice" as the Office of the Prime Minister is expected to carry the burden of the constitutional trust. The advice given by the Prime Minister to the President in the context of Article 75(1) has to be a considered, deliberate and informed one, especially taking note of the absence of criminal antecedents and lack of integrity. A Minister, though holds the office during the pleasure of the President, yet as per the law laid down by this Court and the convention, the advice of the Prime Minister binds the President. However, the President, being the Executive Head of the State, can refuse to follow the advice, if there is constitutional prohibition or constitutional impropriety or real exceptional situation that requires him to act to sustain the very base of the Constitution. Learned senior counsel would submit that the....
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....es which may not be expressly stated in the Constitution but he is bound by the unwritten code pertaining to morality and philosophy encapsulated in the Preamble of the Constitution. Learned counsel has emphasised on the purposive interpretation of the Constitution which can preserve, protect and defend the Constitution regardless of the political impact. It is contended by him that if a constitutional provision is silent on a particular subject, this Court can necessarily issue directions or orders by interpretative process to fill up the vacuum or void till the law is suitably enacted. The broad purpose and the general scheme of every provision of the Constitution has to be interpreted, regard being had to the history, objects and result which it seeks to achieve. Learned counsel has placed reliance on S.P. Gupta v. Union of India and another 1981 Supp SCC 87 and M. Nagaraj and others v. Union of India and others (2006) 8 SCC 212. 27. Mr. T.R. Andhyarujina, learned senior counsel, who was requested to assist the Court, has submitted that in the absence of any express provision for qualification of a Minister in the Union Cabinet under Article 75 of the Constitution except that h....
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....cated. Mr. Andhyarujina has also referred to the House of Commons Library paper on disqualification for membership of the House of Commons wherein the practice is that the existence of a criminal record may not disqualify a person from ministerial office, but convictions for offences involving corruption, dishonesty, serious violence or serious sexual misconduct would jeopardize a person's prospect of a ministerial career. Learned senior counsel has also drawn our attention to a publication by Professor Rodney Brazier "Is it a Constitutional issue: Fitness for ministerial office" in Public Law 1994 wherein it has been stated that whether a criminal record should disqualify a person from membership of Government is unclear, however, conviction for serious offences could impede a ministerial appointment. He has also referred to a passage from Constitutional and Administrative Law by Hilaire Barnett 4th Ed. P. 354, to show that by an unwritten rule of constitutional propriety, in United Kingdom, a person is unlikely to be made a Minister if he has been convicted of a serious offence or even if he is facing prosecution for a serious offence. Submission of learned amicus curiae is t....
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....tutory prohibition, would not come within the parameters of judicial review. It is his proponement that the Prime Minister, in certain circumstances, regard being had to the political situations, may have certain political compulsions to appoint a Minister so that the frequent elections are avoided. It is his submission that any kind of additional prohibition under Article 75(1) by way of judicial interpretation is impermissible as the Prime Minister is the sole repository of power under the Constitution to advise the President as to who should become a Minister if he is otherwise constitutionally eligible and there is no statutory impediment. Learned senior counsel would contend that the 1951 Act includes certain offences and specifies the stage, i.e., conviction and, therefore, if anything is added to it in respect of the stage, it would be travelling beyond the text which would be contrary to the principles of statutory interpretation. 31. Mr. Parasaran, learned amicus curiae, has drawn a distinction between the two concepts, namely, constitutional morality and constitutional propriety on one hand and ethical acceptability on the other and, in that regard, he has submitted that....
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....ao and others (2006) 2 SCC 682. The choice of the Prime Minister is binding on the President and a Minister holds the office till he enjoys the confidence of the House. Learned Additional Solicitor General, for the said purpose, has drawn inspiration from certain passages from Samsher Singh (supra). 34. It is his further submission that if the stage of framing of charge of any offence is introduced, it would frustrate and, eventually, defeat the established concept of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty and there is indeed a long distance between the accused "may have committed the offence" and "must have committed the offence" which must be traversed by the prosecution by adducing reliable and cogent evidence. In this regard, reliance has been placed on Narendra Singh v. State of M.P. (2004) 10 SCC 699, Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (2005) 5 SCC 294, S. Ganesan v. Rama Ranghuraman (2011) 2 SCC 83, State of U.P. v. Naresh (2011) 4 SCC 324 and Kailash Gour & ors. v. State of Assam (2012) 2 SCC 34. Learned counsel would suggest that the stage would affect the concept of democratic legitimacy and ....
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....the People. (4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. (5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister. (6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines, shall be as specified in the Second Schedule." From the aforesaid Articles, it is vivid that they deal with the Council of Ministers for the Union of India. 36. Article 163 pertains to the Council of Ministers of State who aid and advise the Governor. It reads as follows:- "163. (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constit....
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.... 40. The form of oath of secrecy for a Minister for the Union is as follows: - "I, A.B., do swear in the name of God/solemnly affirm that I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the Union except as may be required for the due discharge of my duties as such Minister." Similar is the oath of secrecy for a Minister for a State. We have reproduced the forms pertaining to oath as Mr. Dwivedi stressed on the concept of sanctity of oath that pertains to allegiance to the Constitution, performing of duties without fear or favour and maintenance of secrecy. It is urged by him that a person with criminal antecedents taking such an oath would violate the fundamental values enshrined in the Constitution. DOCTRINE OF IMPLIED LIMITATION 41. It has been highlighted before us by Mr. Dwivedi, as noted earlier, that regard being had to the nature of office a Minister holds in a democratic set-up under the Constitution, persons with criminal antecedents especially charged for heinous and serious offences cannot and should not hold the said office. He has ....
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....The learned Judges arrived at the said conclusion on the basis of the implications of the Cabinet System of Government so as to constitute an implied limitation on the power of the President and the Governors. Proceeding further as regards the amending power of the Constitution, as engrafted under Article 368 of the Constitution, said the learned Judges: - "583. The entire discussion from the point of view of the meaning of the expression "amendment" as employed in Article 368 and the limitations which arise by implications leads to the result that the amending power under Article 368 is neither narrow nor unlimited. On the footing on which we have proceeded the validity of the 24th Amendment can be sustained if Article 368, as it originally stood and after the amendment, is read in the way we have read it. The insertion of Articles 13(4) and 368(3) and the other amendments made will not affect the result, namely, that the power in Article 368 is wide enough to permit amendment of each and every article of the Constitution by way of addition, variation or repeal so long as its basic elements are not abrogated or denuded of their identity." 43. Hegde and Mukherjea, JJ., while disc....
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....ons to be drawn where necessary. Nobody disputes that proposition. Courts may have to do so where the implication is necessary to be drawn." After so stating, the learned Judge distinguished the cases by observing that: - "None of the cases sheds any light on the question with which we are concerned viz. whether an unambiguous and plenary power to amend the provisions of the Constitution, which included the Preamble and the fundamental rights, must be frightened by the fact that some superior and transcendental character has been ascribed to them." And eventually, ruled thus: - "1318. On a consideration, therefore, of the nature of the amending power, the unqualified manner in which it is given in Article 368 of the Constitution it is impossible to imply any limitations on the power to amend the fundamental rights. Since there are no limitations express or implied on the amending power, it must be conceded that all the Amendments which are in question here must be deemed to be valid. We cannot question their policy or their wisdom." 46. Chandrachud, J., has observed that: - "2087. In considering the petitioner's argument on inherent limitations, it is well to bear in mind....
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....cannot be permitted to incorporate an amendment which would destroy the basic structure or essential feature of the Constitution. 49. In Minerva Mills Ltd. And Others v. Union of India and Others (1980) 3 SCC 625, the Constitution Bench was dealing with the validity of Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976. Chandrachud, C.J., speaking for himself, Gupta, Untwalia and Kailasam, JJ., referred to the majority opinion in Kesavananda Bharati (supra) and referred to the opinion given by Sikri, C.J., Shelat and Grover, JJ., Hegde and Mukherjea, JJ., Jaganmohan Reddy, J. and Khanna, J. and opined thus:- "11. Khanna, J. broadly agreed with the aforesaid views of the six learned Judges and held that the word "amendment" postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. According to the learned Judge, although it was permissible to the Parliament, in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions, it was not permissible to touch the foundation or to alter the basic i....
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....pe of the basic structure doctrine that limits the power of Parliament to amend the Constitution but the learned Judge upheld the 29th Amendment and did not say, like the remaining six Judges, that the Twenty-ninth Amendment will have to be examined by a smaller Constitution Bench to find out whether the said amendment violated the basic structure theory or not. This gave rise to the argument that fundamental rights chapter is not part of basic structure. Khanna, J. however, does not so say in Kesavananda Bharati case." 52. From the aforesaid authorities, it is luminescent that the principle of implied limitation is attracted to the sphere of constitutional interpretation. The question that is required to be posed here is whether taking recourse to this principle of interpretation, this Court can read a categorical prohibition to the words contained in Article 75(1) of the Constitution so that the Prime Minister is constitutionally prohibited to give advice to the President in respect of a person for becoming a Minister of the Council of Ministers who is facing a criminal trial for a heinous and serious offence and charges have been framed against him by the trial Judge. Reading s....
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.... anything into Article 164, for a non-legislator could be sworn in as the Chief Minister, regardless of the qualifications or disqualifications. The Court placed reliance on Kesavananda Bharati's case and Minerva Mills' case and opined that if a non-legislator is made a Chief Minister under Article 164, then he must satisfy the qualification for membership of a legislator as prescribed under Article 173. A specific query was made by the Court that even when the person recommended, was, to the Governor's knowledge, a non-citizen or under-age or lunatic or discharged insolvent, could he be appointed as a Chief Minister. It was urged that he/she could only be removed by the vote of no-confidence in the Legislature or at the next election. Discarding the same, the Court opined that acceptance of such a submission would invite disaster. The Court further ruled that when a person is not qualified to become a Member in view of Article 173, he cannot be appointed as a Chief Minister under Article 164(1). Be it noted, there was disqualification in the Constitution and under the 1951 Act to become a Member of the State Legislature, and hence, the Court, appreciating the text and ....
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....tailed constitutional provision under Part IX of the Constitution and, therefore, the incorporation of the said provision in the statute militates against the principles of Panchayati Raj institutions. That apart, reduction of one year in place of two years in Sections 15 and 28 of the Amendment Act was sought to be struck down as the said provision diluted the principle of stability and continuity which is the main purpose behind the object and reason of the constitutional amendment in Part IX of the Constitution. The Court, after referring to Articles 243- A, 243-C(1), (5), 243-D(4), 243-D(6), 243-F(1), (6), 243-G, 243-H, 243-I(2), 243-J, 243-K(2) and (4) of the Constitution and further taking note of the amendment, came to hold that the statutory provision of no-confidence is contrary to Part-IX of the Constitution. In that context, it has been held as follows: - "49. Apart from the aforesaid reasons, the arguments by the appellants cannot be accepted in view of a very well-known constitutional doctrine, namely, the constitutional doctrine of silence. Michael Foley in his treatise on The Silence of Constitutions (Rout ledge, London and New York) has argued that in a Constitutio....
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....t to privacy has been inferred from Article 21. Similarly, in Joginder Kumar v. State of U.P. and others AIR 1994 SC 1349, inherent rights under Articles 21 and 22 have been stated. Likewise, while dealing with freedom of speech and expression and freedom of press, the Court, in Romesh Thappar v. The State of Madras AIR 1950 SC 124, has observed that freedom of speech and expression includes freedom of propagation of ideas. 59. There is no speck of doubt that the Court has applied the doctrine of implication to expand the constitutional concepts, but the context in which the horizon has been expanded has to be borne in mind. What is suggested by Mr. Dwivedi is that by taking recourse to the said principle, the words employed in Article 75(1) are to be interpreted to add a stage in the disqualification, i.e., framing of charges in serious and heinous criminal offences or offences relating to corruption. At this juncture, it is seemly to state that the principle of implication is fundamentally founded on rational inference of an idea from the words used in the text. The concept of legitimate deduction is always recognised. In Melbourne Corporation v Commonwealth (1974) 74 CLR 31, Di....
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....t". If the right to vote by itself implies or postulates voting in secrecy, then Articles 55(3) and 66(1) would not have required the inclusion of such words. The necessity for including the said condition in the said articles shows that "secret ballot" is not always implied. It is not incorporated in the concept of voting by necessary implication. Thereafter, the Court opined: - "421. It follows that for "secret ballot" to be the norm, it must be expressly so provided. To read into Article 80(4) the requirement of a secret ballot would be to read the words "and the voting at such election shall be by secret ballot" into the provision. To do so would be against every principle of constitutional and statutory construction." 61. Thus analysed, it is not possible to accept the submission of Mr. Dwivedi that while interpreting the words "advice of the Prime Minister" it can legitimately be inferred that there is a prohibition to think of a person as a Minister if charges have been framed against him in respect of heinous and serious offences including corruption cases under the criminal law. OTHER RELEVANT CONSTITUTIONAL CONCEPTS - CONSTITUTIONAL MORALITY, GOOD GOVERNANCE AND CONSTI....
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....ius, Federalist 51" 65. Regard being had to the aforesaid concept, it would not be out of place to state that institutional respectability and adoption of precautions for the sustenance of constitutional values would include reverence for the constitutional structure. It is always profitable to remember the famous line of Laurence H. Tribe that a Constitution is "written in blood, rather than ink" Laurance H. Tribe, THE INVISIBLE CONSTITUTION 29 (2008). GOOD GOVERNANCE 66. Having stated about the aspect of constitutional morality, we presently proceed to deal with the doctrine of good governance. In A. Abdul Farook v. Municipal Council, Perambalur and others (2009) 15 SCC 351, the Court observed that the doctrine of good governance requires the Government to rise above their political interest and act only in the public interest and for the welfare of its people. 67. In Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh and Ors. (2001) 3 SCC 594, the Court, referring to the object of the provisions relating to corrupt practices, elucidated as follows: "Clean, efficient and benevolent administration are the essential features of good governance which in turn depends upon pe....
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....ted by Prof. K.T. Shah with regard to the introduction of a disqualification of a convicted person becoming a Minister, Dr. B.R. Ambedkar had replied: - "His last proposition is that no person who is convicted may be appointed a Minister of the State. Well, so far as his intention is concerned, it is no doubt very laudable and I do not think any Member of this House would like to differ from him on that proposition. But the whole question is this whether we should introduce all these qualifications and disqualifications in the Constitution itself. Is it not desirable, is it not sufficient that we should trust the Prime Minister, the Legislature and the public at large watching the actions of the Ministers and the actions of the Legislature to see that no such infamous thing is done by either of them? I think this is a case which may eminently be left to the good-sense of the Prime Minister and to the good sense of the Legislature with the general public holding a watching brief upon them. I therefore say that these amendments are unnecessary." [Emphasis supplied] 71. The trust reposed in the Prime Minister is based on his constitutional status. In Rai Sahib Ram Jawaya Kapur and ....
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....tinuously have the confidence of the House of the People, individually and collectively. The Court further observed that the powers of the President are exercised by him on the advice of the Prime Minister and the Council of Ministers which means that the said powers are effectively exercised by the Council of Ministers headed by the Prime Minister. 74. We have referred to these authorities singularly for the purpose that the Prime Minister has been conferred an extremely special status under the Constitution. 75. As the Prime Minister is the effective head of the Government, indubitably, he has enormous constitutional responsibility. The decisions are taken by the Council of Ministers headed by the Prime Minister and that is the Cabinet form of Government and our Constitution has adopted it. While discussing about the successful working of the Cabinet form of Government, H.M. Seervai, the eminent author of Constitutional Law H.M. Seervai, Constitutional Law of India, vol. 2, 4th Ed. Pg. 2060, observed: - "But as long as the political atmosphere remains what it is, the Constitution cannot be worked as it was intended to be worked. It has been said that the constitution confers p....
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....rust and are to account for their conduct in that trust to the one great Master, Author and Founder of Society." 80. This Court, in re Art. 143, Constitution of India and Delhi Laws Act (1912) (AIR 1951 SC 332), opined that the doctrine of constitutional trust is applicable to our Constitution since it lays the foundation of representative democracy. The Court further ruled that accordingly, the Legislature cannot be permitted to abdicate its primary duty, viz. to determine what the law shall be. Though it was stated in the context of exercise of legislative power, yet the same has signification in the present context, for in a representative democracy, the doctrine of constitutional trust has to be envisaged in every high constitutional functionary. ANALYSIS OF THE TERM "ADVICE" UNDER ARTICLE 75 (1) 81. Having dealt with the concepts of "constitutional morality", "good governance", "constitutional trust" and the special status enjoyed by the Prime Minister under the scheme of the Constitution, we are required to appreciate and interpret the words "on the advice of the Prime Minister" in the backdrop of the aforestated concepts. As per the New Shorter Oxford English Dictionary, ....
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.... many a level. In a democracy, the people never intend to be governed by persons who have criminal antecedents. This is not merely a hope and aspiration of citizenry but the idea is also engrained in apposite executive governance. It would be apt to say that when a country is governed by a Constitution, apart from constitutional provisions, and principles constitutional morality and trust, certain conventions are adopted and grown. In Supreme Court Advocates-on- Record Association (supra), the Court reproduced a passage from K.C. Wheare's Book "The Statute of Westminster and Dominion Status" (fourth edition) and we quote: - "The definition of conventions may thus be amplified by saying that their purpose is to define the use of constitutional discretion. To put this in slightly different words, it may be said that conventions are non-legal rules regulating the way in which legal rules shall be applied." 82. I. Jennings, in The Law and the Constitution (I. Jennings, The law and the Constitution (5th Edn., ELBS: London, 1976) in his Chapter "Conventions" at 247.), stated that a convention exists not only due to its nonenforceability but also because there is a reason for the ru....
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....e. That is why the Prime Minister enjoys a great magnitude of constitutional power. Therefore, the responsibility is more, regard being had to the instillation of trust, a constitutional one. It is also expected that the Prime Minster should act in the interest of the national polity of the nation-state. He has to bear in mind that unwarranted elements or persons who are facing charge in certain category of offences may thwart or hinder the canons of constitutional morality or principles of good governance and eventually diminish the constitutional trust. We have already held that prohibition cannot be brought in within the province of "advice" but indubitably, the concepts, especially the constitutional trust, can be allowed to be perceived in the act of such advice. 86. Thus, while interpreting Article 75(1), definitely a disqualification cannot be added. However, it can always be legitimately expected, regard being had to the role of a Minister in the Council of Ministers and keeping in view the sanctity of oath he takes, the Prime Minister, while living up to the trust reposed in him, would consider not choosing a person with criminal antecedents against whom charges have been....
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....ely for the appropriate Legislature to decide whether guidelines are necessary, as prayed for, and the frame of such guidelines. No direction is required to be given on this subject. 7. For the sake of convenience, reference is made only to the relevant Articles of the Constitution and the law relating to the appointment and continuance of a Minister in the Central Government. The discussion, of course, would relate to both a Minister in the Central Government and mutatis mutandis in the State Government. Qualifications and disqualifications for being a legislator 8. Article 84 of the Constitution negatively provides the qualification for membership of Parliament. This Article is quite simple and reads as follows: "84. Qualification for membership of Parliament. - A person shall not be qualified to be chosen to fill a seat in Parliament unless he. (a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a seat i....
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....ship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. Explanation. - For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State. (2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule." 12. In S.R. Chaudhuri (S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126) the following question arose for consideration: Can a non-member, who fails to get elected during the period of six consecutive months, after he is appointed as a Minister or while a Minister has ceased to be a legislator, be reappointed as a Minister, without being elected to the Legislature after the expiry of the period of six consecutive months? This question arose in the context of Article 164 of the Constitution and (164. Other provisions as to Ministers..(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by....
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....of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier. (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. (3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. (4) 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. (5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule. Note: The Article is reproduced as it is today. answered the question in the negative. It was held that a nonelected person may be appointed as a Minister, but only for a period of six months. During that period the Minister would either have to get elected to the Legislature or quit his or her position. That person ....
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....tion. We must remember that a Constitution is not just a document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit. The debates clearly indicate the "privilege" to extend "only" for six months." 14. An implied limitation in the Constitution was also read in B. R. Kapur. (B.R. Kapur v. State of Tamil Nadu, (2001) 7 SCC 231) In that case, the second respondent was not even eligible to become a legislator (having earned a disqualification under Section 8 of the Representation of the People Act, 1951) and therefore the question of getting elected to the State Legislature did not arise. Nevertheless, having been projected as the Chief Ministerial nominee of the political party that obtained a majority in the elections, she was elected as its leader and appointed as the Chief Minister of the State. The question before this Court was: Whether a person who has been convicted of a criminal offence and whose conviction has not been suspended pending appeal can be sworn in and can continue to function as the Chie....
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....epeatedly appointed as a Minister. Secondly, the person should not be under any disqualification for being appointed as a legislator. If a person is disqualified from being a legislator, he or she cannot be appointed as a Minister. 19. Implied limitations to the Constitution were also read in B.P. Singhal. (B.P. Singhal v. Union of India, (2010) 6 SCC 331) In that case, an implied limitation was read into the pleasure doctrine concerning the removal of the Governor of a State by the President in terms of Article 156 of the Constitution. It was held that the pleasure doctrine as originally envisaged in England gave unfettered power to the authority at whose pleasure a person held an office. However, where the rule of law prevails, the "fundamentals of constitutionalism" cannot be ignored, meaning thereby that the pleasure doctrine does not enable an unfettered discretion to act arbitrarily, whimsically, or capriciously. It does not dispense with the need for a cause for withdrawal of the pleasure, which can only be for valid reasons. 20. Similarly, in Salil Sabhlok (State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1) integrity and competence were read as implied in the appointment o....
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....to say that the two most important requirements are that personally the Chairperson of the Public Service Commission should be beyond reproach and his or her appointment should inspire confidence among the people in the institution. The first "quality" can be ascertained through a meaningful deliberative process, while the second "quality" can be determined by taking into account the constitutional, functional and institutional requirements necessary for the appointment." Conclusions on the first relief 22. Therefore, the position as it stands today is this: (i) To become a Member of Parliament, a person should possess the qualifications mentioned in Article 84 of the Constitution; (ii) To become a Member of Parliament, a person should not suffer any of the disqualifications mentioned in Article 102 of the Constitution; (iii) The Constitution does not provide for any limitation in a Member of Parliament becoming a Minister, but certain implied limitations have been read into the Constitution by decisions rendered by this Court regarding an unelected person becoming a Minister; (iv) One implied limitation read into the Constitution is that a person not elected to Parliament ca....
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....ye, but even that does not entitle anyone to brand him or her a criminal. 25. Consequently, merely because a First Information Report is lodged against a person or a criminal complaint is filed against him or her or even if charges are framed against that person, there is no bar to that person being elected as a Member of Parliament or being appointed as a Minister in the Central Government. 26. Parliament has, therefore, in its wisdom, made a distinction between an accused person and a convict. For the purposes of the election law, an accused person is as much entitled to be elected to the Legislature as a person not accused of any offence. But, Parliament has taken steps to ensure that at least some categories of convicted persons are disqualified from being elected to the Legislature. A statutory disqualification is to be found in Section 8 of the Representation of the People Act, 1951.(8. Disqualification on conviction for certain offences..(1) A person convicted of an offence punishable under. (a) Section 153-A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenan....
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....f fraudulently defacing or fraudulently destroying any nomination paper) of this Act, or (j) Section 6 (offence of conversion of a place of worship) of the Places of Worship (Special Provisions) Act, 1991, or (k) Section 2 (offence of insulting the Indian National Flag or the Constitution of India) or Section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971) or, (l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or (m) the Prevention of Corruption Act, 1988 (49 of 1988); or (n) the Prevention of Terrorism Act, 2002 (15 of 2002); shall be disqualified, where the convicted person is sentenced to. (i) only fine, for a period of six years from the date of such conviction; (ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. (2) A person convicted for the contravention of. (a) any law providing for the prevention of hoarding or profiteering; or (b) any law relating to the adulteration of food or drugs; or (c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961); and sentenced to imprisonment f....
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....ommittee, Patiala (Municipal Committee, Patiala v. Model Town Residents Association, (2007) 8 SCC 669) this Court referred to Parent of a student of Medical College (State of Himachal Pradesh v. Parent of a student of Medical College, (1985) 3 SCC 169. This was a judgment delivered by a Bench of three learned Judges.) and held that legislation is in the domain of the Legislature. It was said: "It is so well settled and needs no restatement at our hands that the legislature is supreme in its own sphere under the Constitution subject to the limitations provided for in the Constitution itself. It is for the legislature to decide as to when and in what respect and of what subject-matter the laws are to be made. It is for the legislature to decide as to the nature of operation of the statutes." 28. More recently, V.K. Naswa (V.K. Naswa v. Union of India, (2012) 2 SCC 542) referred to a large number of decisions of this Court and held that the Court cannot legislate or direct the Legislature to enact a law. It was said: "Thus, it is crystal clear that the court has a very limited role and in exercise of that, it is not open to have judicial legislation. Neither the court can legislate....
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....e neither here nor there. Secondly, and at the other extreme, convictions for offences involving moral turpitude would dash any ministerial career. No one could remain in the Government who had been convicted of any offence of corruption, dishonesty, serious violence, or sexual misconduct. Thirdly, and most difficult, are offences the seriousness of which turn on the facts. A conviction for (say) assault, or driving with excess alcohol in the blood, could present a marginal case which would turn on its own facts. Fourthly, offences committed from a political motive might be condoned. Possibly a person who had refused to pay the poll tax might be considered fit." 32. Therefore, not only is the quantum of sentence relevant but the nature of the offence that might disqualify a person from becoming a legislator is equally important. Perhaps it is possible to make out an exhaustive list of offences which, if committed and the accused having been found guilty of committing that offence, can be disqualified from contesting an election. The offences and the sentence to be awarded for the purpose of disqualifying a person from being elected to a Legislature are matters that Parliament may ....
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....ns with established criminal background. The objective is to prevent criminalisation of politics and maintain probity in elections. Criminalization of politics is the bane of society and negation of democracy. But the arguments against the proposal of the Election Commission are overwhelming. As stated in the foregoing paras the Courts frame charges even when they are conscious that the case is ultimately bound to fail. Appreciation of evidence at the stage of framing charges being more or less prohibited, charges are still framed even when the court is convinced that the prosecution will never succeed. There are many glaring illustrations which are of common knowledge and any criminal lawyer can multiply instances of such nature. Hence the proposal can not be accepted in its present form as the country has witnessed in the past misuse of MISA, TADA, POTA etc." 34. On the issue of criminalization of politics, the learned Additional Solicitor General also referred to the 244th Report of the Law Commission of India on "Electoral Disqualifications" presented in February, 2014. Though the Report concerns itself primarily with the disqualification to be a member of a Legislature, it do....
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.... the Legislature to enact or not enact a more restrictive law. Conclusions on the second relief 35. The discussion leads to the following conclusions: (i) To become a legislator and to continue as a legislator, a person should not suffer any of the disqualifications mentioned in Section 8 of the Representation of the People Act, 1951; (ii) There does seem to be a gap in Section 8 of the Representation of the People Act, 1951 inasmuch as a person convicted of a heinous or a serious offence but awarded a sentence of less than two years imprisonment may still be eligible for being elected as a Member of Parliament; (iii) While a debate is necessary for bringing about a suitable legislation disqualifying a person from becoming a legislator, there are various factors that need to be taken into consideration; (iv) That there is some degree of criminalization of politics is quite evident; (v) It is not for this Court to lay down any guidelines relating to who should or should not be entitled to become a legislator or who should or should not be appointed a Minister in the Central Government; 36. The range of persons who may be elected to a Legislature is very wide and amongst thos....
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....pe that no such event or occurrence will take place in our country, but some of the recent events have created a little doubt in my mind. I refer, Sir, to a little comment, a little article, which appeared in the Free Press Journal of Bombay dated the 8th September 1948 relating to the **** Ministry. The relevant portion of the article runs thus: "The Cabinet (the * * * * Cabinet) includes one person who is a convicted black marketeer, and although it is said that his disabilities, resulting from his conviction in a Court of Law, which constituted a formidable hurdle in the way of his inclusion in the interim Government, were graciously removed by the Maharaja."(Constituent Assembly Debates, Volume VII) 39. In this respect, the Prime Minister is, of course, answerable to Parliament and is under the gaze of the watchful eye of the people of the country. Despite the fact that certain limitations can be read into the Constitution and have been read in the past, the issue of the appointment of a suitable person as a Minister is not one which enables this Court to read implied limitations in the Constitution. Epilogue 40. It is wise to remember the words of Dr. Ambedkar in the Consti....
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....oday nothing more than a set of honest men who will have the interest of the country before them."(http://parliamentofindia.nic.in/ls/debates/vol11p12.htm) 42. The writ petition is disposed of but with no order as to costs. It must, however, be stated that all learned counsels appearing in the case have rendered very useful and able assistance on an issue troubling our polity. (Madan B. Lokur), J JUDGMENT KURIAN, J: 1. I agree with the beautiful and erudite exposition of law made by my esteemed brother. Yet why to pen something more, one may naturally ask. The only answer is: in Kerala, there is a saying: when you make a special tea, even if you add a little more milk, don"t reduce even a bit of sugar! 2. The surviving prayer in the public interest litigation reads as follows: "(c) Issue appropriate writ/writs, order/orders, direction/directions, including the writ of mandamus and frame possible guidelines, for appointment of Minister for the UOI as well as for the State, especially, in view of the provisions, terms of schedule III, Article 75(4), 164(3), basic features, aims and objects of the Constitution etc. as the Hon'ble Court may deem fit and proper for the persev....
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....our? 7. When does a person come in conflict with law? No quarrel, under criminal jurisprudence, a person is presumed to be innocent until he is convicted. But is there not a stage when a person is presumed to be culpable and hence called upon to face trial, on the court framing charges? 8. Under Section 228 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.PC"), charge is framed by the court only if the Judge (the Magistrate . under Section 240 Cr.PC) is of the opinion that there is ground for presumption that the accused has committed an offence, after consideration of opinion given by the police under Section 173(2) Cr.PC (challan/police charge-sheet) and the record of the case and documents. It may be noted that the prosecutor and the accused person are heard by the court in the process. Is there not a cloud on his innocence at that stage? Is it not a stage where his integrity is questioned? If so, is it not a stage where the person has come in conflict with law, and if so, is it desirable in a country governed by rule of law to entrust the executive power with such a person who is already in conflict with law? Will any reasonably prudent master leave the....