TaxTMI 
TaxTMI 
2001 (9) TMI 1122
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....imprisonment and pay a fine of Rs. 10,000 in the first case and to undergo 2 years rigorous imprisonment and pay a fine of Rs. 5000 in the second case. The fine that was imposed in both cases was paid. The second respondent preferred appeals against her conviction before the High Court at Madras. The appeals are pending. On applications filed by her in the two appeals, the High Court, by an order dated 3rd November, 2000, suspended the sentences of imprisonment under Section 389(3) of the Code of Criminal Procedure and directed the release of respondent No.2 on bail on the terms and conditions specified in that order. Thereafter, she filed petitions in the two appeals seeking the stay of the operation of the judgments in the two criminal cases. On 14th April, 2001 a learned Single Judge of the High Court at Madras, Mr.Justice Malai Subramanium, dismissed these petitions since the convictions were, inter alia, for offences under Section 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988. These orders were not challenged. In April, 2001 the second respondent filed nomination papers for four constituencies in respect of the general election to be held to the Tami....
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....nker, merchant or agent Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. For the purposes of answering the question formulated earlier, the following provisions of the Constitution of India are most relevant: 163(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. 164. Other provisions as to Ministers (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the State of Bihar, Madhya Pradesh a....
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....edule, other than an office declared by the Legislature of the State by law not to disqualify its holder; b) if he is of unsound mind and stands so declared by a competent court; c) if he is an undischarged insolvent; d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; e) if he is so disqualified by or under any law made by Parliament. Explanation For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. (2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule. Provisions of a similar nature with regard to Parliament are to be found in Articles 74, 75, 84, 88 and 102. The Representation of the People Act, 1951 was enacted to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legisl....
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....he provisions of section 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or (i) section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) or clause (a) of sub-section (2) of section 136 (offence of Fraudulently defacing or fraudulently destroying any nomination paper) of this Act; [or] [(j) section 6 (offence of conversion of a place or worship) of the Places of Worship (Special Provisions) Act 1991; [or] [(k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971);] shall be disqualified for a period of six years from the date of such conviction. (2) A person convicted for the contravention of (a) any law providing for the prevention of hoarding or profiteering; or (b) any law relating to the adulteration of food or drugs; or (c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961); or (d) any provisions ....
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.... it in the Essential Commodities Act, 1955 (10 of 1955); (d) food has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of 1954). Central to the controversy herein is Article 164, with special reference to sub-Article (4) thereof. This Court has considered its import in a number of decisions. In Har Sharan Verma Vs. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and Another [1971 (1) SCC 616], a Constitution Bench rendered the decision in connection with the appointment of the first respondent therein as Chief Minister of Uttar Pradesh at a time when he was not a member of either House of the Legislature of that State. The Court said : 3. It seems to us that clause (4) of Article 164 must be interpreted in the context of Articles 163 and 164 of the Constitution. Article 163(1) provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. Under clause (1) of Article 164, the Chief Minister has to be appointed by the Governor and ....
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....six months; though he would not have any right to vote, he would be entitled, by virtue of Article 88, to participate in the proceedings of Parliament. In S.P. Anand, Indore Vs. H.D. Deve Gowda and Others [1996 (6) SCC 734], the first respondent, who was not a member of Parliament, was sworn in as Prime Minister. This was challenged in a writ petition under Article 32. Reference was made to the earlier judgments. It was held, on a parity of reasoning if a person who is not a member of the State Legislature can be appointed a Chief Minister of a State under Article 164(4) for six months, a person who is not a member of either House of Parliament can be appointed Prime Minister for the same period. In S.R. Chaudhuri Vs. State of Punjab & Ors. [2001 (5) SCALE 269], one Tej Parkash Singh was appointed a Minister of the State of Punjab on the advice of the Chief Minister, Sardar Harcharan Singh Barar. At the time of his appointment as a Minister Tej Parkash Singh was not a member of the Punjab Legislative Assembly. He was not elected as a member of that Assembly within a period of six months and he submitted his resignation. During the same legislative term Sardar Harcharan Singh ....
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....people through the legislature to the executive. The position in England, Australia and Canada showed that the essentials of a system of representative Government, like the one in India, were that, invariably, all Ministers were chosen out of the members of the legislature and only in rare cases was a non- member appointed a Minister and he had to get himself returned to the legislature by direct or indirect election within a short period. The framers of the Constitution had not visualised that a non-legislator could be repeatedly appointed a Minister, for a term of six months each, without getting elected because such a course struck at the very root of parliamentary democracy. It was accordingly held that the appointment of Tej Parkash Singh as a Minister for a second time was invalid and unconstitutional. Mr. K.K. Venugopal, learned counsel for the second respondent, was right when he submitted that the question that arises before us has not, heretofore, arisen before the courts. This is for the reason that, heretofore, so far as is known, no one who was ineligible to become a member of the legislature has been made a Minister. Certainly, no one who has earned a conviction an....
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....to avail of the services of an expert in some field, it is requisite to induct into the Council of Ministers a person who is not then in the legislature. That he is not in the legislature is not made an impassable barrier. To that extent we agree with Mr. Venugopal, but we cannot accept his submission that sub-Article (4) must be so read as to permit the induction into the Council of Ministers of short term Ministers whose term would not extend beyond six months and who, therefore, were not required to have the qualifications and be free of the disqualifications contained in Articles 173 and 191 respectively. What sub-Article (4) does is to give a non-legislator appointed Minister six months to become a member of the legislature. Necessarily, therefore, that non-legislator must be one who, when he is appointed, is not debarred from obtaining membership of the legislature : he must be one who is qualified to stand for the legislature and is not disqualified to do so. Sub-Article (4) is not intended for the induction into the Council of Ministers of someone for six months or less so that it is of no consequence that he is ineligible to stand for the legislature. It would be unreas....
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....Ministers would have to be elected to the legislature within six months and it proceeded on the basis that the Article as it read required this. The manner in which we have interpreted Article 164 is, thus, borne out. It was submitted on behalf of the respondents that it was not open to the Court to read into Article 164 the requirement that a non- legislator Minister must be elected to the legislature within six months. No qualifications or disqualifications could, it was submitted, be read into a constitutional provision. Reliance was placed upon passages from the some of the judgments in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, [1973 (Supp.) S.C.R. 1]. What we have done is to interpret Article 164 on its own language and to read sub-Article (4) thereof in the context of sub- Articles (1) and (2). In any event, it is permissible to read into sub- Article (4) limitations based on the language of sub-Articles (1) and (2). A Constitution Bench in Minerva Mills Ltd. & Ors. Vs. Union of India & Ors. [1981 (1) SCR 206], considered in some detail the judgment in Kesavananda Bharati. It was considering the validity of the clauses introduced into Artic....
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....tion. The newly introduced clause (5) demolished the very pillars on which the Preamble rested by empowering Parliament to exercise its constituent power without any limitation whatever. No constituent power could conceivably go higher than the power conferred by clause (5) for it empowered Parliament even to repeal the provisions of this Constitution, that is to say, to abrogate democracy and substitute for it a totally antithetical form of government. That could most effectively be achieved, without calling democracy by any other name, by denial of social, economic and political justice to the people, by emasculating liberty of thought, expression, belief, faith and worship and by abjuring commitment to the magnificient ideal of a society of equals. The power to destroy was not a power to amendment. Since the Constitution had conferred a limited amending power on Parliament, Parliament could not under the exercise of that limited power enlarge that very power into an absolute power. A limited amending power was one of the basic features of the Constitution and, therefore, the limitations on that power could not be destroyed. In other words, Parliament could not, under Article 368....
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.... appellant on bail (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. (Emphasis supplied) It is true that the order of the High Court at Madras on the application of the second respondent states, Pending criminal appeals the sentence of imprisonment alone is suspended and the petitioners shall be released on bail.., but this has to be read in the context of Section 389 under which the power was exercised. Under Section 389 an appellate court may order that the execution of the sentence or order appealed against be suspended... It is not within the power of the appellate court to suspend the sentence; it can only suspend the execution of the sentence pending the disposal of appeal. The suspension of the execution of the sentence does not alter or affect the fact that the offender has been convicted of a grave offence and has attracted the sentence of imprisonment of not less than two years. The suspension of the execution of the sentences, therefore, doe....
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....and (3) of Section 8 of the Representation of the People Act an argument similar to that which was raised and rejected in Raghbir Singh Vs. Surjit Singh [1994 Supp (3) SCC 162] was advanced. This Court there said : 5. Section 8 prescribes disqualification on conviction for certain offences. Sub-section (1) provides the disqualification for a period of six years from the date of conviction for the offences specified in clauses (a) to (i) thereof. In sub- section (1), the only reference is to conviction for the specified offences irrespective of the sentence awarded on such conviction. Sub-section (2) then prescribes that on conviction for the offences specified therein and sentence to imprisonment for not less than six months, that person shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. Thus, in case of conviction for the offences specified in sub- section (2), the disqualification is attracted only if the sentence is of imprisonment for not less than six months and in that event the disqualification is for a period of not merely six years from the date of such conviction but commenci....
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....ses does not arise. Without such a comparison between persons governed by these different sub- sections being permissible, the very basis of attack on the ground of discrimination is not available. Prescription of period of disqualification for different classes of persons convicted of different offences is within the domain of legislative discretion and wisdom, which is not open to judicial scrutiny. It was pointed out by learned counsel for the respondents that under Section 8(3) of the Representation of the People Act the disqualification was attracted on the date on which a person was convicted of any offence and sentenced to imprisonment for not less than two years. It was pointed out, rightly, that the law contemplated that the conviction and the sentence could be on different dates. It was submitted that it was unworkable that the disqualification should operate from the date of conviction which could precede the date of sentence; therefore, the conviction referred to in Section 8(3) should be taken to be that confirmed by the appellate court because it was only in the appellate court that conviction and sentence would be on the same day. We find the argument unacceptable....
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....upport of this submission, let us clear the air. When a lower court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo the sentence. The execution of the sentence can be stayed by an appellate court and the accused released on bail. In many cases, the accused is released on bail so that the appeal is not rendered infructuous, at least in part, because the accused has already undergone imprisonment. If the appeal of the accused succeeds the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the stigma of the offence is altogether erased. But that it is not to say that the presumption of innocence continues after the conviction by the trial court. That conviction and the sentence it carries operate against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well. Learned counsel cited from the judgment of this Court in Padam Singh Vs. State of U.P. [2000 (1) SCC 621] the passage which reads : It is the duty of an appellat....
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....other alternative would lead to unreasonable and unjust results. The observations of the learned Judge are relevant to the case before him; they do not have wider implications and do not mean that all convictions by a trial court do not operate until affirmed by the highest Court. Lastly, in this connection, our attention was drawn to the case of Vidya Charan Shukla Vs. Purshottam Lal Kaushik [ 1981 (2) SCC 84]. The Court held that if a successful candidate was disqualified for being chosen, at the date of his election or at any earlier stage of any step in the election process, on account of his conviction and sentence exceeding two years imprisonment, but his conviction and sentence was set aside and he was acquitted on appeal before the pronouncement of the judgment in the election petition pending against him, his disqualification was retrospectively annulled and the challenge to his election on the ground that he was so disqualified was no longer sustainable. This case dealt with an election petition and it must be understood in that light. What it laid down does not have a bearing on the question before us: the construction of Article 164 was not in issue. There can be no ....
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....pointment that had been made under Article 164 could not be rendered one without the authority of law. If it did so, the court would be entering the political thicket. When qualifications and disqualifications were prescribed for a candidate or a member of the legislature and a machinery was provided for the adjudication thereof, the absence of the prescription of any qualification for a Minister or Chief Minister appointed under Article 164(1) read with (4) and for adjudication thereof meant that the Governor had to accept the will of the people in selecting the Chief Minister or Minister, the only consideration being whether the political party and its leader commanded a majority in the legislature and could provide a stable government. Once the electorate had given its mandate to a political party and its leader to run the government of a State for a term of five years, in the absence of any express provision in the Constitution to the contrary, the Governor was bound to call the leader of that legislature party to form the government. There was no express, unambiguous provision in the Constitution or in the Representation of the People Act or any decision of this Court or a Hig....
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....g powers under Article 164(1) read with (4), was obliged to appoint as Chief Minister whosoever the majority party in the legislature nominated, regardless of whether or not the person nominated was qualified to be a member of the legislature under Article 173 or was disqualified in that behalf under Article 191, and the only manner in which a Chief Minister who was not qualified or who was disqualified could be removed was by a vote of no- confidence in the legislature or by the electorate at the next elections. To a specific query, learned counsel for the respondents submitted that the Governor was so obliged even when the person recommended was, to the Governors knowledge, a non-citizen, under-age, a lunatic or an undischarged insolvent, and the only way in which a non-citizen or under-age or lunatic or insolvent Chief Minister could be removed was by a vote of no-confidence in the legislature or at the next election. The nomination to appoint a person who is a non-citizen or under-age or a lunatic or an insolvent as Chief Minister having been made by the majority party in the legislature, it is hardly realistic to expect the legislature to pass a no-confidence motion against....
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....he appointment. If the appointment is contrary to constitutional provisions it will be struck down. The submission to the contrary unsupported by any authority must be rejected. The judgment of this Court in Shri Kumar Padma Prasad Vs. Union of India and Others [1992(2) SCC 428] is a case on point. One K.N. Srivastava was appointed a Judge of the Gauhati High Court by a warrant of appointment signed by the President of India. Before the oath of his office could be administered to him, quo warranto proceedings were taken against him in that High Court. An interim order was passed directing that the warrant of appointment should not be given effect to until further orders. A transfer petition was then filed in this Court and was allowed. This Court, on examination of the record and the material that it allowed to be placed before it, held that Srivastava was not qualified to be appointed a High Court Judge and his appointment was quashed. This case goes to show that even when the President, or the Governor, has appointed a person to a constitutional office, the qualification of that person to hold that office can be examined in quo warranto proceedings and the appointment can be q....
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....has jurisdiction to issue a writ of quo warranto. We propose to pass the order in the lead writ petition, and dispose of the other writ petitions, the appeal and the transferred writ petition in the light thereof. We are not impressed by the submission that we should not exercise our discretion to issue a writ of quo warranto because the period of six months allowed by Article 164(4) to the second respondent would expire in about two months from now and it was possible that the second respondent might succeed in the criminal appeals which she has filed. We take the view that the appointment of a person to the office of Chief Minister who is not qualified to hold it should be struck down at the earliest. We are aware that the finding that the second respondent could not have been sworn in as Chief Minister and cannot continue to function as such will have serious consequences. Not only will it mean that the State has had no validly appointed Chief Minister since 14th May, 2001, when the second respondent was sworn in, but also that it has had no validly appointed Council of Ministers, for the Council of Ministers was appointed on the recommendation of the second respondent. It....
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....ter 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 Court for performance of duties of his office as Governor, it may, at the very outset, be indicated that we are considering the prayer for issue of writ of Quo Warranto against the respondent No.2, who according to the petitioner suffers from disqualification to hold the public office of the Chief Minister of a State. A writ of Quo Warranto is a writ which lies against the person, who according to the relator is not entitled to hold an office of public nature and is only an....
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....fficial functions by any officer to whom it may run, since it is not directed to officer as such, but to person holding office or exercising franchise, and not for purpose of dictating or prescribing official duties, but only to ascertain whether he is rightfully entitled to exercise functions claimed. State ex inf. Walsh v. Thatcher, 102 S.W.2d 937,938,340 Mo.865. (emphasis supplied) In Halsburys Laws of England Fourth Edition Reissue Volume-I Para 265, Page 368 it is found as follows:- 266. In general. An information in the nature of a quo warranto took the place of the absolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, in order what the right to the office or franchise might be determined. (Emphasis supplied) Besides the above, many High Courts as well as this Court have, taken the view that a writ of quo warranto lies against a person, who is called upon to establish his legal entitlement to hold the office in question. Reference: AIR 1952 Trav. Cochin 66, (1944) 48 Cal. W.N. 766, AIR 1977 Noc. 246, AIR 1952 Nag. 330, AIR 1945 Cal.249 and AIR 1965 S.C.....
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....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.....
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.... be a Minister unless within that period of six months gets himself elected as a member of the Legislaure of the State. As such, it would not be appropriate to import the qualifications enumerated for the members of the State Legislature under Article 173, or the dis- qualifications enumerated in respect of a person for being chosen as or for being a member of the Legislative Assembly under Article 191 of the Constitution. According to the learned senior counsel, the Governor, while exercising power under Article 164, is duty bound to follow the well settled Parliamentary convention and invites a person to be the Chief Minister, which person commands the confidence of the majority of the House. In other words, if a political party gets elected to the majority of seats in a Legislative Assembly and such elected legislatures elected a person to be their leader, and that fact is intimated to the Governor then the Governor is duty bound to call that person to be the Chief Minister, irrespective of the fact whether that person does not possess the qualifications for being a member of the Legislative Assembly, enumerated under Article 173, or is otherwise disqualified for being chosen, o....
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....rime Minister or Chief Minister or Minister, as in constitutional theory it is the House, consisting of the majority thereof which proposes him for this transient, temporary and limited period of six months. It is also contended by Mr. Venugopal that people who are the ultimate sovereign, express their will through their elected representatives for selecting a non-elected person as their leader and could be appointed as Chief Minister and Article 164(4) unequivocally provides a period of six months as locus poenitentia which operates as an exception in deference to the voice of the majority of the elected members, which in fact is the basis of a Parliamentary Democracy. Mr. Venugopal also urged that a disqualification being in the nature of a penalty unless expressly found to be engrafted in the constitution or in other words, in Article 164, it would not be appropriate for the Court to incorporate that disqualification, which is provided for being chosen as a member of the legislative assembly into Article 164 and pronounce the validity of the appointment of respondent No. 2, which has purely been made on the strength of the voice of the majority of the elected members. I am unabl....
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....nder Article 173 or incurs disqualification for being chosen as, or for being a member of the legislative Assembly, enumerated under Article 191, then the Governor would not be bound to respect that will of the elected members of the 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. When Article 164(1) itself confers the discretion on the Governor to appoint a Chief Minister at his pleasure and when the Governor has taken oath under Article 159 of the Constitution to preserve, protect and defend the Constitution and the law and shall devote himself to the service and for the well-being of the people, it would be against such oath, if such a person who does not possess the qualification of being chosen as a member or has incurred disqualification for being chosen as a member is appointed as a Chief Minister, merely because Article 164 does not provide any qualification or disqualification for being appointed as a Chief Minister or Minister. It is indeed axiomatic that the necessary qualification in Article 173 and the disqualification in Article 191 proprio vigore applies to a person fo....
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.... effect: That a member shall, at the time of his being chosen as such be a member of the Legislative Assembly or the Legislative council of the State, as the case may be. and urged that it is wholly against the spirit of democracy that a person who was not being chosen by the people of the country, should be appointed as a Minister, Dr. Ambedkar did not accept the amendment on the ground that tenure of a minister must be subject to the condition of purity of administration and confidence of the House. He further stated: It is perfectly possible to imagine that a person who is otherwise competent to hold the post of a Minister has been defeated in a constituency for some reason which, although it may be perfectly good, might have annoyed the constituency and he might have incurred the displeasure of that particular constituency. If purity of administration and otherwise competence to hold the post of Minister were the factors which weighed with the founding fathers to allow a competent person to be appointed as Chief Minister or a Minister for a limited period of six months, who might have been defeated, it is difficult to conceive that a person who is not an elected mem....
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....ber as the Chief Minister or Minister on the advice of a Chief Minister is made under Article 164 on the Governors satisfaction. If any of the disqualifications mentioned in Article 191(1)(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 member, as contained in Article 173, then in such a case, there is no question of an impossible burden on the Governor at that stage and on the other hand, it would be an act on the part of the Governor in accordance with the constitutional mandate not to appoint such person as the Chief Minister or Minister notwithstanding the support of the majority of the elected members of the legislative assembly. In a given case, if the alleged disqualification is dependant upon the disputed questions of fact and evidence, the Governor may choose not to get into those disputed questions of fact and, therefore, could appoint such person as the Chief Minister or Minister. In such a case, Governor exercises his discretion under Article 164 in the matter of appointment of the Chief Min....
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....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 the rule of law that the exercise of the power by the State whether it be the legislature or the exe....
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.... 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 immunity 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 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 vs. Colorado General Assembly 377 US 713, 12 L ed 2d 632, 84 S Ct 1472. It has been held in the aforesaid case: Manifestly, the fact that an apportionment plan is adopted in a popular referendum is insufficient to sustain its constitutionality or to induce a Court of equity to refuse to act. It has been further held : The protection of constit....
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....o a turmoil. In support of this contention, observation of this Court in the case of Shamsher Singh vs. State of Punjab (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 their leader are as much subservient to the Constitution of India as the Governor himself. In a democracy, constitutional law reflects the value that people attach to orderly human relations, to individual freedom under the law and to institutions such as Parliament, political parties, free elections and a free press. Constitution is a document having a special legal sanctity which sets out the frame-work and the principal functions of the organs of government within the State and declares the principles by which those organs must operate. Constitution refers to the whole system of the governance of a country and th....
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.... 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 which ranks as fundamental law, legislative or executive acts which conflicts with the constitution must be held to be unconstitutional and thus illegal. The primary system of Government cannot be explained solely in terms of legal and conventional rules. It ....
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....rnment, 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, 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. But the maintenance of life 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 aforesaid premises, and in view of the conclusions already arrived at, with regard to the dis- qualifications the respondent no. 2 had incurred, which prevents her for not being chosen as a member of the Legislative Assembly, it would be a blatant violation of Constitutional laws to allow her to be continued as the Chief Minister of a State, howsoever short the period may be, on the theory that the majority of the elected members of the Legislative Assembly have elected her as the leader and that is the expression of the ....