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Saturday, September 6, 2014

Pro bono publico -Writ - not to appoint as Ministers who involved in serious & heinous crimes - apex court held that No doubt, it is not for the court to issue any direction to the Prime Minister or the Chief Minister, as the case may be, as to the manner in which they should exercise their power while selecting the colleagues in the Council of Ministers. That is the constitutional prerogative of those functionaries who are called upon to preserve, protect and defend the Constitution. But it is the prophetic duty of this Court to remind the key duty holders about their role in working the Constitution. Hence, I am of the firm view, that the Prime Minister and the Chief Minister of the State, who themselves have taken oath to bear true faith and allegiance to the Constitution of India and to discharge their duties faithfully and conscientiously, will be well advised to consider avoiding any person in the Council of Ministers, against whom charges have been framed by a criminal court in respect of offences involving moral turpitude and also offences specifically referred to in Chapter III of The Representation of the People Act, 1951.= WRIT PETITION (CIVIL) NO. 289 OF 2005 Manoj Narula ... Petitioner Versus Union of India ...Respondent = 2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41850

 Pro bono publico -Writ - not to appoint as Ministers who involved in serious & heinous crimes - apex court held that No doubt, it is not for the court  to  issue  any  direction  to  the  Prime
Minister or the Chief Minister, as the case may be,  as  to  the  manner  in which they should exercise their power while  selecting  the  colleagues  in the Council of Ministers. That is the constitutional  prerogative  of  those functionaries who are called  upon  to  preserve,  protect  and  defend  the Constitution. But it is the prophetic duty of this Court to remind  the  key duty holders about their role in working the Constitution. Hence,  I  am  of the firm view, that the Prime Minister and the Chief Minister of the  State, who themselves have taken oath to bear true  faith  and  allegiance  to  the Constitution  of  India  and  to  discharge  their  duties  faithfully   and
conscientiously, will be well advised to consider  avoiding  any  person  in the Council of Ministers,  against  whom  charges  have  been  framed  by  a criminal court in respect of offences involving  moral  turpitude  and  also offences specifically referred to in Chapter III of  The  Representation  of the People Act, 1951.=

writ petition under  Article  32  of  the  Constitution  was  filed  by  the
petitioner as pro bono publico assailing the  appointment  of  some  of  the
original respondents as Ministers to the Council of Ministers  of  Union  of
India  despite  their  involvement  in  serious  and  heinous  crimes. =        

    “CHAPTER IX

                   THE CREATION OF COUNCILLORS AND PRIESTS

NATIVE, born of high family, influential, well trained  in  arts,  possessed
of foresight, wise, of strong memory, bold, eloquent, skilful,  intelligent,
possessed of enthusiasm, dignity and endurance, pure in character,  affable,
firm in loyal devotion, endowed with  excellent  conduct,  strength,  health
and bravery, free from procrastination and  ficklemindedness,  affectionate,
and free from such qualities as  excite  hatred  and  enmity-these  are  the
qualifications of a ministerial officer.”
The attempt made by this court  in  the  above  background  history  of  our
country and Constitution is only to plug some of the bleeding points in  the
working of our Constitution so that the  high  constitutional  functionaries
may work it well and not wreck  it.  Beauty  of  democracy  depends  on  the
proper exercise of duty by those who work it.
No doubt, it is not for the court  to  issue  any  direction  to  the  Prime
Minister or the Chief Minister, as the case may be,  as  to  the  manner  in
which they should exercise their power while  selecting  the  colleagues  in
the Council of Ministers.
That is the constitutional  prerogative  of  those
functionaries who are called  upon  to  preserve,  protect  and  defend  the
Constitution.
But it is the prophetic duty of this Court to remind  the  key
duty holders about their role in working the Constitution. 
Hence,  I  am  of
the firm view, that the Prime Minister and the Chief Minister of the  State,
who themselves have taken oath to bear true  faith  and  allegiance  to  the
Constitution  of  India  and  to  discharge  their  duties  faithfully   and
conscientiously, will be well advised to consider  avoiding  any  person  in
the Council of Ministers,  against  whom  charges  have  been  framed  by  a
criminal court in respect of offences involving  moral  turpitude  and  also
offences specifically referred to in Chapter III of  The  Representation  of
the People Act, 1951.
2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41850
           IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                    WRIT PETITION (CIVIL) NO. 289 OF 2005

Manoj Narula                                       ... Petitioner

                                   Versus

Union of India                                      ...Respondent







                               J U D G M E N T


Dipak Misra, J.  [for himself, R.M. Lodha, C.J., and      S.A. Bobde, J.]

      A democratic polity, as understood in its  quintessential  purity,  is
conceptually abhorrent to corruption  and,  especially  corruption  at  high
places, and repulsive to the idea  of  criminalization  of  politics  as  it
corrodes the legitimacy of the collective ethos, frustrates  the  hopes  and
aspirations of the citizens and has the potentiality  to  obstruct,  if  not
derail, the rule of law.  Democracy, which has  been  best  defined  as  the
Government of the  People,  by  the  People  and  for  the  People,  expects
prevalence of genuine orderliness, positive propriety, dedicated  discipline
and sanguine sanctity by  constant  affirmance  of  constitutional  morality
which is the pillar stone  of  good  governance.   While  dealing  with  the
concept of democracy, the majority in Indira Nehru Gandhi v. Raj  Narain[1],
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.[2]. and Kuldip Nayar v. Union  of  India  &
Ors.[3]  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[4], 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 [pic]the growth of a healthy democracy in the  country.  The  term
“fair” denotes equal opportunity to all  people.  Universal  adult  suffrage
conferred on the citizens of India by the Constitution has made it  possible
for millions of individual voters to participate in the  governance  of  our
country.  For  democracy  to  survive,  it  is  fundamental  that  the  best
available men should be chosen  as  the  people’s  representatives  for  the
proper governance of the country and the same can be best  achieved  through
men of high moral and ethical values who win the  elections  on  a  positive
vote.  Emphasizing on a vibrant  democracy,  the  Court  observed  that  the
voter must be given an opportunity  to  choose  none  of  the  above  (NOTA)
button, which will indeed compel the political parties to nominate  a  sound
candidate.  Accordingly, the principle of the dire need of  negative  voting
was emphasised.   The  significance  of  free  and  fair  election  and  the
necessity of the electorate to have candidates of  high  moral  and  ethical
values was re-asserted.  In this regard, it may be stated  that  the  health
of democracy,  a  cherished  constitutional  value,  has  to  be  protected,
preserved and sustained, and for that purpose, instilment of  certain  norms
in the marrows of the collective is absolutely necessitous.

THE REFERENCE

We have commenced our judgment with the aforesaid prologue  as  the  present
writ petition under  Article  32  of  the  Constitution  was  filed  by  the
petitioner as pro bono publico assailing the  appointment  of  some  of  the
original respondents as Ministers to the Council of Ministers  of  Union  of
India  despite  their  involvement  in  serious  and  heinous  crimes.    On
24.3.2006, when the matter was listed  before  the  Bench  presided  by  the
learned Chief Justice, the following order came to be passed: -

      “A point of great public importance has been raised in this  petition.
 Broadly, the point is about  the  legality  of  the  person  with  criminal
background and/or charged with  offences  involving  moral  turpitude  being
appointed as ministers in Central and State Governments.

      We have heard in brief Mr. Rakesh Dwivedi, learned senior counsel  who
was appointed as amicus curiae to assist the  Court,  as  also  the  learned
Solicitor  General,  appearing  for  the  Union  of  India,  and  Mr.  Gopal
Subramaniam, learned Additional Solicitor General  appearing  on  behalf  of
the Attorney General for India.  Having  regard  to  the  magnitude  of  the
problem and its vital importance, it is but  proper  that  the  petition  is
heard by a Bench of five 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

In the beginning, we have emphasized on the concept of  democracy  which  is
the corner stone of the Constitution.  There are  certain  features  absence
of which can erode the  fundamental values of democracy.   One  of  them  is
holding of free and fair election by adult franchise in a periodical  manner
as has been held in Mohinder  Singh  Gill  and  another  v.  Chief  Election
Commissioner, New Delhi and others[5], for it is the heart and soul  of  the
parliamentary system.  In the  said  case,  Krishna  Iyer,  J.  quoted  with
approval the statement of Sir Winston Churchill which is as follows: -

“At the bottom of all tributes paid to democracy is the little man,  walking
into a little booth, with a little  pencil,  making  a  little  cross  on  a
little bit of paper – no amount of rhetoric  or  voluminous  discussion  can
possibly diminish the overwhelming importance of the point.”

In Raghbir Singh Gill v. S. Gurcharan Singh Tohra[6],  the  learned  Judges,
after referring to Mohinder Singh  Gill’s  case,  stated  that  nothing  can
diminish the overwhelming importance of the cross  or  preference  indicated
by the dumb sealed lip voter.  That is his right and the  trust  reposed  by
the Constitution in him is  that  he  will  act  as  a  responsible  citizen
choosing his masters for governing the country.

This Court has laid emphasis on the purity of elections in  Union  of  India
v. Association for Democratic Reforms and another[7] and, in  that  context,
has observed that elections in this country are  fought  with  the  help  of
money power which is gathered from black sources and once elected to  power,
it becomes easy to collect tons of black money which is used  for  retaining
power and for re-election.   The  Court  further  observed  that  if  on  an
affidavit a candidate is required to disclose the assets held by him at  the
time of election, the voter can decide  whether  he  should  be  re-elected.
Thereafter, as regards the purity of election, the Court  observed  that  to
maintain purity of elections and, in particular, to  bring  transparency  in
the process of election, the Commission can ask  the  candidates  about  the
expenditure incurred by the political parties, and  the  voters  would  have
basic elementary right to know full particulars of a  candidate  who  is  to
represent them in Parliament where laws to bind their liberty  and  property
may be enacted because the right  to  get  information  in  a  democracy  is
recognised 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  law-makers.   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.

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
and seek votes.

CRIMINALISATION OF POLITICS

Criminalisation of politics is an anathema to the sacredness  of  democracy.
 Commenting on criminalization of politics, the Court,  in  Dinesh  Trivedi,
M.P. and others v. Union of India and others[8],  lamented  the  faults  and
imperfections which have impeded the country in  reaching  the  expectations
which heralded  its  conception.   While  identifying  one  of  the  primary
causes, the Court referred to the report of N.N. Vohra  Committee  that  was
submitted on 5.10.1993.  The Court noted  that  the  growth  and  spread  of
crime syndicates in Indian society  has  been  pervasive  and  the  criminal
elements have developed an extensive network of contacts at many  a  sphere.
The Court, further referring to the report, found that  the  Report  reveals
several alarming [pic]and deeply disturbing trends  that  are  prevalent  in
our present society.  The Court  further  noticed  that  the  nexus  between
politicians, bureaucrats and criminal elements in our society  has  been  on
the rise, the adverse effects  of  which  are  increasingly  being  felt  on
various aspects of social life in India. Indeed, the situation has  worsened
to such an extent that the President of  our  country  felt  constrained  to
make references to the phenomenon in his addresses to the Nation on the  eve
of the Republic Day in 1996 as well as in 1997 and hence, it required to  be
handled with extreme care and circumspection.

In Anukul Chandra Pradhan, Advocate Supreme Court  v.  Union  of  India  and
others[9], the Court, in the context of the provisions made in the  election
law, observed that they have been made  to  exclude  persons  with  criminal
background of  the  kind  specified  therein  from  the  election  scene  as
candidates  and  voters  with  the  object  to  prevent  criminalization  of
politics and maintain propriety in elections.  Thereafter,  the  three-Judge
Bench opined that any provision enacted with a  view  to  promote  the  said
object  must  be  welcomed  and  upheld  as  subserving  the  constitutional
purpose.  In K. Prabhakaran v. P. Jayarajan[10], in the context of  enacting
disqualification under Section 8(3) of  the  Representation  of  the  People
Act, 1951 (for brevity “the 1951 Act”), it has been reiterated that  persons
with criminal background pollute the process of election  as  they  have  no
reservation from indulging in criminality to gain success at an election.

It is worth 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)  The  Second
Administrative  Reforms  Commission  (2008),  (vii)   Justice   J.S.   Verma
Committee Report  on  Amendments  to  Criminal  Law  (2013),  and  (ix)  Law
Commission Report (2014).

Vohra Committee Report and other Reports have been taken note of on  various
occasions by this Court.  Justice J.S. Verma Committee Report on  Amendments
to Criminal Law has proposed insertion  of   Schedule  1  to  the  1951  Act
enumerating  offences  under  IPC  befitting  the  category   of   ‘heinous’
offences.  It recommended that Section  8(1)  of  the  1951  Act  should  be
amended to cover, inter alia, the offences listed in the  proposed  Schedule
1 and a provision should be engrafted that a  person  in  respect  of  whose
acts or omissions a court of competent  jurisdiction  has  taken  cognizance
under Section 190(1)(a), (b) or (c) of the Code  of  Criminal  Procedure  or
who has been convicted by a court of competent jurisdiction with respect  to
the offences specified in the  proposed  expanded  list  of  offences  under
Section 8(1) shall be disqualified from the date  of  taking  cognizance  or
conviction, as the case may be.  It further proposed  that  disqualification
in case of conviction shall continue for a further period of six years  from
the  date  of  release  upon  conviction  and  in  case  of  acquittal,  the
disqualification shall operate from the date of taking cognizance  till  the
date of acquittal.

The Law Commission, in its 244th Report, 2014, has  suggested  amendment  to
the 1951 Act by insertion of Section  8B  after  Section  8A,  after  having
numerous consultations and discussions, with the avowed purpose  to  prevent
criminalization of politics.  It proposes to provide for electoral  reforms.
 Though it is a recommendation by the Law Commission, yet to understand  the
existing scenario in which the criminalization of politics  has  the  effect
potentiality to create  a  concavity  in  the  highly  treasured  values  of
democracy, we think it apt to reproduce the relevant part  of  the  proposed
amendment.  It reads as follows: -

“8B. Disqualification on framing of charge for certain  offences.  -  (1)  A
person against whom a charge has been framed by a  competent  court  for  an
offence  punishable  by  at  least  five   years   imprisonment   shall   be
disqualified from the date of framing the charge for a period of six  years,
or till the date of quashing of charge or acquittal, whichever  is  earlier.



(2) Notwithstanding anything contained in this 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.”


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 nation.

CORRUPTION IN THE PRESENT SCENARIO

Criminality and corruption go hand in hand.  From the date the  Constitution
was adopted, i.e., 26th January, 1950, a Red Letter Day in  the  history  of
India, the nation stood as a silent witness to corruption  at  high  places.
Corruption erodes the fundamental tenets of the rule of  law.   In  Niranjan
Hemchandra Sashittal and another v. State of Maharashtra[11] the  Court  has
observed: -
“It can be stated without any fear of contradiction that corruption  is  not
to be judged by degree, for corruption mothers disorder,  destroys  societal
will to progress, accelerates undeserved ambitions,  kills  the  conscience,
jettisons the glory of the institutions, paralyses the economic health of  a
[pic]country, corrodes the  sense  of  civility  and  mars  the  marrows  of
governance. It is worth noting that immoral acquisition of  wealth  destroys
the energy of the people believing in  honesty,  and  history  records  with
agony how they have suffered. The only redeeming  fact  is  that  collective
sensibility respects  such  suffering  as  it  is  in  consonance  with  the
constitutional morality.”

Recently,  in  Dr.  Subramanian  Swamy  v.  Director,  Central   Bureau   of
Investigation & Anr.[12], the  Constitution  Bench,  speaking  through  R.M.
Lodha, C.J.,  while  declaring  Section  6A  of  the  Delhi  Special  Police
Establishment  Act,  1946,  which  was  inserted  by  Act  45  of  2003,  as
unconstitutional, has opined that:-
“It seems to us that classification which is made  in  Section  6-A  on  the
basis of status in the Government service is not permissible  under  Article
14 as it  defeats  the  purpose  of  finding  prima  facie  truth  into  the
allegations of graft, which amount to an offence under  the  PC  Act,  1988.
Can there be sound differentiation between corrupt public servants based  on
their  status?   Surely  not,  because  irrespective  of  their  status   or
position, corrupt public servants  are  corrupters  of  public  power.   The
corrupt public servants, whether high or low, are birds of the same  feather
and must be  confronted  with  the  process  of  investigation  and  inquiry
equally.  Based on the position or status in service, no distinction can  be
made between public servants against whom there  are  allegations  amounting
to an offence under the PC Act, 1988.”

And thereafter, the larger Bench further said:-

“Corruption is an 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.

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 officers into  two  classes
as they are common crime doers and have to  be  tracked  down  by  the  same
process of inquiry and investigation.”

      From  the  aforesaid  authorities,  it  is  clear  as  noon  day  that
corruption has the potentiality to destroy many a progressive aspect and  it
has acted as the formidable enemy of the nation.

PROVISIONS RELATING  TO  QUALIFICATIONS  AND  DISQUALIFICATION  OF  MPs  AND
MLAs/MLCs

Having stated about the significance of  democracy  under  our  Constitution
and holding of free and  fair  elections  as  a  categorical  imperative  to
sustain and subserve the very base of democracy, and  the  concern  of  this
Court on being moved under various circumstances  about  criminalization  of
politics, presently we shall look at the constitutional  and  the  statutory
provisions  which  provide  for  qualifications  and  disqualifications   of
Members of Parliament and that of the State Legislature.

Article 84 of the Constitution provides for  qualifications  for  membership
of Parliament.  The said Article lays  down  that  a  person  shall  not  be
qualified to be chosen to fill a seat in  the  Parliament  unless  he  is  a
citizen of India, and makes and subscribes before  a  person  authorised  in
that behalf by the Election Commission an oath or affirmation  according  to
the form set out for the purpose in the Third Schedule; and further  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 in the House of the People, not less than  twenty
five  years  of  age;  and  that  apart,  he   must   possess   such   other
qualifications as may be prescribed in that behalf by or under any law  made
by Parliament.

Article 102 provides for  disqualifications  for  membership.   It  provides
that a person shall be disqualified for being chosen as, and  for  being,  a
member of either House of Parliament if he holds any office of profit  under
the Government of India or the  Government  of  any  State,  other  than  an
office declared by Parliament by law not to disqualify its holder; if he  is
of unsound mind and stands so declared by a competent court;  if  he  is  an
undischarged insolvent; 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; and if he  is
so disqualified by or under any law made  by  Parliament.   The  explanation
expressly states what would 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.

Similarly, Article 173 provides for  qualification  for  membership  of  the
State Legislature and Article 191 enumerates the  disqualifications  similar
to Article 102.

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 great debate, are reproduced below: -

“8(3) A person convicted of any offence and sentenced  to  imprisonment  for
not less than two years other than any offence referred  to  in  sub-section
(1) or  sub-section  (2)  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.

(4) Notwithstanding anything in sub-section (1),  Sub-section  (2)  or  sub-
section (3), a disqualification under either sub-section shall not,  in  the
case of a person  who  on  the  date  of  the  conviction  is  a  member  of
Parliament or the Legislature of a State, take  effect  until  three  months
have elapse  from  that  date  or,  if  within  that  period  an  appeal  or
application for revision is brought in respect  of  the  conviction  or  the
sentence, until that appeal or application is disposed of by the court.”

At this  juncture,  it  is  apposite  to  mention  that  the  constitutional
validity of sub-section (4) of Section 8 of  the  1951  Act  was  challenged
before this Court under Article 32 of the Constitution  in  Lily  Thomas  v.
Union of India and others[13] wherein the Court, referring to  the  decision
in K Prabhakaran  (supra)  and  Articles  102(1)(e)  and  191(1)(e)  of  the
Constitution, held that once a person who was a Member of  either  House  of
Parliament or House of the State  Legislature  becomes  disqualified  by  or
under any law made by Parliament under Articles 102(1)(e) and  191(1)(e)  of
the Constitution, his seat automatically falls vacant by virtue of  Articles
101(3)(a) and 190(3)(a) of the Constitution and  Parliament  cannot  make  a
provision as in sub-section (4) of Section 8 of the Act to  defer  the  date
on which the disqualification of a  sitting  Member  will  have  effect  and
prevent his seat becoming vacant on account of  the  disqualification  under
Article 102(1)(e) or Article 191(1)(e) of the Constitution. Eventually,  the
Court ruled that the  affirmative  words  used  in  Articles  102(1)(e)  and
191(1)(e) confer power on Parliament to make one law laying  down  the  same
disqualifications for a person who is to  be  chosen  as  Member  of  either
House  of  Parliament  or  as  a  Member  of  the  Legislative  Assembly  or
Legislative Council of a State and for a person who is a sitting  Member  of
a House of Parliament or a House of the State Legislature and the  words  in
Articles  101(3)(a)  and  190(3)(a)  of   the   Constitution   put   express
limitations on such power of the Parliament to defer the date on  which  the
disqualifications would have effect and, therefore, [pic]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  sub-sections
(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.

Thus, the scheme of disqualification upon conviction laid down by  the  1951
Act clearly upholds the principle that a person who has been  convicted  for
certain categories of criminal activities is unfit to  be  a  representative
of the people. Criminal  activities  that  result  in  disqualification  are
related to various spheres pertaining to the interest of the nation,  common
citizenry interest, communal harmony, and  prevalence  of  good  governance.
It is clear that the 1951 Act lays  down  that  the  commission  of  serious
criminal offences renders a person ineligible to  contest  in  elections  or
continue as a  representative  of  the  people.   Such  a  restriction  does
provide the salutary deterrent necessary to prevent criminal  elements  from
holding public office  thereby  preserving  the  probity  of  representative
government.

SUBMISSIONS OF THE COUNSEL

In this backdrop, the proponements put forth by Mr. Dwivedi, learned  senior
counsel,  who  was  appointed  as  amicus  curiae,  are  to  be  noted   and
considered.  It is his submission that under the constitutional  scheme,  it
is the right of a citizen to be governed by  a  Government  which  does  not
have Ministers in  the  Council  of  Ministers  with  criminal  antecedents.
Though qualifications and disqualifications for the  Members  of  Parliament
and Members of the State  Legislative  Assembly  or  the  State  Legislative
Council are provided under the Constitution, and they  basically  relate  to
the  election  process  and  continuance  in  the  House  and  the   further
disqualifications which have been enumerated under the 1951  Act  have  been
legislated by the Parliament being empowered under the  specific  provisions
of the Constitution, yet when the Ministers  are  appointed  who  constitute
the spectrum of collective responsibility to run the Government, a  stronger
criteria has to be provided for.  A Minister is appointed by  the  President
on  the  advice  of  the  Prime  Minister  as  per  Article  75(1)  of   the
Constitution and a Minister enters  upon  his  Office  after  the  President
administers him oath of office and secrecy according to  the  form  set  out
for the said purpose in the  Third  Schedule  and,  therefore,  submits  Mr.
Dwivedi, it is the constitutional  obligation  on  the  part  of  the  Prime
Minister not to recommend any person to be appointed as a  Minister  of  the
Council of Ministers who has criminal antecedents or at least who is  facing
a criminal charge in respect of heinous or  serious  offences.   The  choice
made by the Prime Minister has to have its base  on  constitutional  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 that  they  do
not become stagnate or sterile.  In this context, Mr. Dwivedi has  commended
us to the views of the learned Judges in His  Holiness  Kesavananda  Bharati
Sripadagalvaru v. State of Kerala and  another[14]  to  highlight  that  the
applicability of the doctrine of implied limitation  has  been  accepted  by
this Court.

Relying on the said principle, it is contended by him that the same  has  to
be read into the language of Article 75(1)  of  the  Constitution  to  state
that  the  Prime  Minister,  while  giving  advice  to  the  President   for
appointment of a person as Minister, is not  constitutionally  permitted  to
suggest the name of a person who is facing a criminal  trial  and  in  whose
case charge/charges have been framed.  Learned senior  counsel  has  further
submitted that high constitutional offices have  to  possess  “institutional
integrity” so that the faith of the people at large is not shaken.   He  has
emphasised on the office of the President,  the  Governors,  Judges  of  the
High Courts and of the Supreme Court of the country and the Comptroller  and
Auditor General of India.  Such offices, as contended, are offices  of  high
public trust and,  therefore,  it  is  a  natural  necessity  that  in  such
appointments, the incumbent should be of impeccable integrity and  character
and it cannot be conceived that such a person would be involved in any  kind
of criminal offence.  Mr. Dwivedi has made a distinction with regard to  the
eligibility of a person for becoming a  Member  of  Parliament  as  that  is
controlled by  qualifications  and  disqualifications  and  the  absence  of
disqualifications, but to be a Minister in the Council  of  Ministers  which
is done solely on the advice of the  Prime  Minister,  absence  of  criminal
antecedents has to be a condition precedent.  It is canvassed  by  him  that
when parliamentary democracy is a basic feature of the Constitution and  the
Council  of  Ministers  exercise  all  the  powers  as  per  the  democratic
conventions,  it  has  to  be  treated  as   an   important   constitutional
institution of governance  of  the  nation  and,  therefore,  it  cannot  be
allowed to be held by persons involved in criminal offences.  He has  placed
reliance upon the authorities in Centre for PIL  and  another  v.  Union  of
India  and  another[15],  N.  Kannadasan  v.  Ajoy  Khose  and   others[16],
Inderpreet Singh Kahlon v. State of Punjab[17], Arun Kumar Agarwal v.  Union
of India[18], State of Punjab v. Salil Sabhlok  and  others[19]  and  Centre
for  Public  Interest  Litigation  and  another  v.  Union  of   India   and
another[20].

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 President, in exercise of  his  constitutional  prerogative,
may refuse to accept the advice of the Prime Minister, if he finds that  the
name of a Member of Parliament is suggested to  become  a  Minister  who  is
facing a criminal charge in respect of serious offences.   To  buttress  the
said submission, he has drawn inspiration  from  the  decisions  in  Samsher
Singh v. State of Punjab and another[21] and B. R. Kapur v.  State  of  T.N.
and another[22]

Mr. Dwivedi has said that the situation “peril to democracy”, as  visualized
in Samsher Singh (supra, confers the discretion on the President and he  may
not accept the  advice.   Learned  senior  counsel  would  submit  that  the
decision in Samsher Singh (supra) has been followed in M.P.  Special  Police
Establishment v. State of M.P. and others[23] wherein  the  Governor  in  an
exceptional  circumstance  differed  with  the  advice  of  the  Council  of
Ministers and granted sanction for prosecution.  Emphasising on the  concept
of constitutional trust in the Prime  Minister  which  is  inherent  in  the
Constitution and which was a part of the Constituent Assembly  Debates,  Mr.
Dwivedi has referred to the Debates in  the  Constituent  Assembly.   It  is
argued that a constitutional convention has to be read  into  Article  75(1)
which would convey that a person  charged  with  serious  crimes  cannot  be
appointed as a Minister, for the individual responsibility  of  the  Cabinet
is always comprehended as a facet of  collective  responsibility.   For  the
aforesaid purpose, he has found the stimulus from  “Constitutional  Law”  by
Loveland, “Constitutional and Administrative Law”  by  David  Polland,  Neil
Parpworth David Hughs, “Constitutional and Administrative  Law”  by  Hilaire
Barnett (5th Edn.) and “Constitutional Practice”.

Mr. Anil Kumar Jha, learned counsel who has preferred the writ  petition  on
behalf of the  petitioner,  supplementing  the  arguments  of  Mr.  Dwivedi,
contended that though the choice of the Prime Minister relating to a  person
being appointed as a Minister is his constitutional  prerogative,  yet  such
choice cannot be exercised in an arbitrary manner  being  oblivious  of  the
honesty, integrity and the criminal antecedents of a person who is  involved
in serious criminal offences.  The Prime Minister, while  giving  advice  to
the President for appointment of a person as a Minister, is required  to  be
guided by certain principles 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[24] and M. Nagaraj and others v. Union  of  India
and others[25].

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 he has to be  a  Member  of  either  House  of  the
Parliament and when the oath required  to  be  taken  by  a  Minister  under
Article 75(4) as given in the Third Schedule, does not give any  requirement
of his antecedent, there is no legal restriction under the Constitution  for
a person unless convicted of an offence as provided under Section 8A of  the
1951 Act to be appointed as a Minister.  It is his submission  that  Article
84 specifies certain qualifications for filling up the seats of  Parliament,
but it does not state anything as to the character and  qualification  of  a
person   qualified   to   sit   in   the   Parliament.    Apart   from   the
disqualifications prescribed under  Article  102(i)(e)  and  the  provisions
under the 1951 Act, there is no  other  disqualification  for  a  Member  of
Parliament to  hold  the  post  of  a  Minister.   Therefore,  the  criminal
antecedents or any disqualification that is going to be thought of  to  hold
the post of a Minister after the charge  is  framed,  as  contended  by  the
petitioner, may be in the realm of propriety but that cannot  be  read  into
the constitutional framework.

Mr. Andhyarujina  has  further  submitted  that  Section  44(4)(ii)  of  the
Australian Constitution puts a limitation on the member of the  House  which
travels beyond conviction  in  a  criminal  case,  for  the  said  provision
provides that any person who has been convicted and is  under  sentence,  or
subject to be sentenced, for any offence punishable under  the  law  of  the
Commonwealth or of a State by imprisonment for one year or longer, would  be
incapable of being chosen or of sitting as a senator  or  a  member  of  the
House of Representatives.   Learned  counsel  has  commended  us  to  Lane’s
Commentary on the Australian Constitution, 1986 to highlight  that  this  is
an exceptional provision in a Constitution which disqualifies a person  from
being a Member of Parliament even if he is not convicted but  likely  to  be
subject to a sentence for the prescribed offence,  but  in  the  absence  of
such a provision in our Constitution or in law made by the  Parliament,  the
Court cannot introduce such an aspect on the bedrock of propriety.   Learned
counsel has also referred to the U.K. Representation of  Peoples  Act,  1981
which provides that a person who is sentenced or ordered  to  be  imprisoned
or detained indefinitely or for more than one year is disqualified  and  his
election is rendered void and the seat of such a  member  is  vacated.   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 that there is no implied  prohibition
in our Constitution on appointment of  a  Minister  in  case  of  a  pending
prosecution of a serious  offence  except  conviction  and,  therefore,  the
principle of implied prohibition that a person who is not convicted  but  is
being prosecuted or charge sheeted for a criminal offence is to be  debarred
from being a Member of the Legislature and, consequently, a  Minister  would
not  be  attracted.   Learned  senior  counsel  would   contend   that   the
jurisprudence is based on innocence  of  the  accused  until  he  is  proved
guilty which is in tune with Article 14(2) of the International Covenant  on
Civil and Political Rights and it cannot be brushed aside.   Learned  amicus
curiae contended that in respect of certain  constitutional  officials  like
President of India, Judges of courts  including  superior  courts,  Attorney
General of India, Comptroller and Auditor General of India and  Governor  of
a State, implied prohibition is implicit.  It is  urged  by  him  that  this
Court, while interpreting Article 75(1), cannot  introduce  the  concept  of
rule of law to attract the principle of implied prohibition as rule  of  law
is an elusive doctrine and it cannot form the basis of a prohibition on  the
appointment of a Minister.

Mr.  Andhyarujina,  while  submitting  about  the  absence  of  an   express
constitutional prohibition or a statutory bar founded on the  basis  of  the
1951 Act  prescribing  conviction,  has  also  submitted  that  despite  the
absence of a legal  prohibition,  there  are  non-legal  requirements  of  a
constitutional behavior implicit in the character  of  an  appointment.   He
has referred to a passage from Constitutional and Administrative Law by  ECS
Wade and AW Bradley as well as the Constitutional Debates and urged  that  a
convention should be  developed  that  persons  facing  charge  for  serious
criminal offences should not be considered for appointment  as  a  Minister,
but the Court cannot form a legal basis for adding a prohibition for  making
such an appointment justiciable in the  court  of  law  unless  there  is  a
constitutional prohibition or a statutory bar.

Mr. K. Parasaran, learned senior counsel, who was also requested  to  render
assistance, has submitted that the area of election in a  democratic  set-up
is governed by the 1951 Act and the  rules  framed  thereunder  and  in  the
present  mosaic  of  democracy  such  a  controversy,  in  the  absence   of
constitutional impediment or statutory 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.

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 the advice of the Prime Minister, as has been  stated  by
the  framers  of  the  Constitution,  to  the  Head  of  the  Executive  for
appointment of a Minister should conform to the standards of  constitutional
morality, regard being had to the constitutional  norms,  democratic  polity
and the sanctity of democracy.  In essence, the submission of Mr.  Parasaran
is that the framers of the Constitution have bestowed immense trust  on  the
Prime Minister as would  be  seen  from  the  Constitutional  Debates,  and,
therefore, this Court  should  reiterate  the  principle  of  constitutional
trust and that would be a suggestive one in terms of Article  75(1)  of  the
Constitution.

Mr. Paras Kuhad, learned Additional Solicitor  General,  in  his  turn,  has
contended that the doctrine of implied limitation has not been  accepted  in
Kesavananda Bharati case by the  majority  of  Judges  and,  therefore,  the
interpretation put forth  by  the  learned  friend  of  the  Court  for  the
petitioner is impermissible.  It is urged by  him  that  while  interpreting
Article 75(1) of the  Constitution,  the  principle  of  implied  limitation
cannot be read into it  to  curtail  the  power  of  a  high  constitutional
functionary like the Prime Minister.

It is his further  submission  that  in  the  absence  of  a  constitutional
prohibition  or  restriction,  nothing  should  be  engrafted  into  it   or
implanted.  It is put forth by him that the  submission  of  learned  amicus
curiae to the effect that the President can exercise his discretion  by  not
accepting the recommendations of the Prime Minister or by not acting on  the
advice of the Prime Minister is contrary to  the  constitutional  norms  and
the parliamentary system prevalent in our country  under  the  Constitution.
For the aforesaid purpose, he has placed reliance on the decision in  U.N.R.
Rao v. Smt. Indira Gandhi[26].  It is urged  by  him  that  if  anything  is
added  to  Article  75(1),  that  would  tantamount   to   incorporating   a
disqualification which is not present and the principle of  judicial  review
does not conceptually so permit, for  such  a  disqualification  could  have
been easily imposed by the framers of the Constitution or by the  Parliament
by making a provision under the 1951 Act.  To bolster the  said  submission,
he has commended us to the Constitution Bench decision in  G.  Narayanaswami
v. G. Pannerselvam and  others[27]  and  a  three-Judge  Bench  decision  in
Shrikant v. Vasantrao and others[28].  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).

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.[29],  Ranjitsing  Brahmajeetsing
Sharma v. State of Maharashtra[30],  S.  Ganesan  v.  Rama  Ranghuraman[31],
State of U.P. v. Naresh[32] and Kailash Gour & ors. v. State  of  Assam[33].
Learned counsel would suggest that the stage would  affect  the  concept  of
democratic legitimacy and a person cannot become ineligible on the basis  of
perceived seriousness of the crime without providing  a  protection  despite
the person being otherwise eligible, efficient and capable of  being  chosen
as a Minister by the Prime Minister.

CONSTITUTIONAL PROVISIONS

Having regard to the aforesaid submissions which have been  put  forth  from
various perspectives, we shall proceed to deal with the ambit and  scope  of
the constitutional provisions which are relevant in the present context  and
how  they  are  to  be  interpreted  on  the  parameters  of  constitutional
interpretation and on the bedrock of  the  precedents  of  this  Court.   We
think it seemly to refer to the relevant Articles of the Constitution  which
are centripodal to the controversy.  Articles 74 and 75 read as follows: -

“74. (1) There shall be a Council of Ministers with the  Prime  Minister  at
the head to aid and advise the President who shall, in the exercise  of  his
functions, act in accordance with such advice:

Provided that  the  President  may  require  the  Council  of  Ministers  to
reconsider such advice, either generally or  otherwise,  and  the  President
shall  act   in   accordance   with   the   advice   tendered   after   such
reconsideration.

(2) The question whether any,  and  if  so  what,  advice  was  tendered  by
Ministers to the President shall not be inquired into in any court.

75. (1) The Prime Minister shall be  appointed  by  the  President  and  the
other Ministers shall be appointed by the President on  the  advice  of  the
Prime Minister.

(1A) The total number of Ministers, including the  Prime  Minister,  in  the
Council of Ministers shall not exceed fifteen per cent of the  total  number
of members of the House of the People.

(1B) A member of either House  of  Parliament  belonging  to  any  political
party who is disqualified for being a member of that House  under  paragraph
2 of the Tenth Schedule shall also be disqualified  to  be  appointed  as  a
Minister under clause (1) for duration of the  period  commencing  from  the
date of his disqualification till the date on which the term of  his  office
as such member would expire or where he  contests  any  election  to  either
House of Parliament before the expiry of  such  period,  till  the  date  on
which he is declared elected, whichever is earlier.

(2) The Ministers shall hold office during the pleasure of the President.

(3) The Council of Ministers shall be collectively responsible to the  House
of 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.

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  Constitution  required  to
act in his discretion, the decision of the Governor in his discretion  shall
be final, and the validity of anything done by the  Governor  shall  not  be
called in question on the ground that he ought or ought not  to  have  acted
in his discretion.

(3) The question whether any,  and  if  so  what,  advice  was  tendered  by
Ministers to the Governor shall not be inquired into in any court.

The relevant part of Article 164 is extracted below: -

“164. (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:

xxx              xxx              xxx

(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.”

At this juncture, it is apt to refer to the nature of oath  which  is  meant
for the office of a Minister.  The Third  Schedule  provides  the  forms  of
Oaths or Affirmations of the Constitution: -

“Form of oath of office for a Minister for the Union: -

      “I, A.B., do swear in the name of God/ solemnly  affirm  that  I  will
bear true faith and allegiance to  the  Constitution  of  India  as  by  law
established, that I will uphold the  sovereignty  and  integrity  of  India,
that I  will  faithfully  and  conscientiously  discharge  my  duties  as  a
Minister for the Union and that I will do right to all manner of  people  in
accordance with the Constitution  and  the  law,  without  fear  or  favour,
affection or ill-will.”

The Form of Oath for office of a Minister of State is as follows: -

      “I, A.B., do swear in the name of God/ solemnly  affirm  that  I  will
bear true faith and allegiance to  the  Constitution  of  India  as  by  law
established, that I will uphold the  sovereignty  and  integrity  of  India,
that I  will  faithfully  and  conscientiously  discharge  my  duties  as  a
Minister for the State of ....... and that I will do right to all manner  of
people in accordance with the Constitution  and  the  law  without  fear  or
favour, affection or ill-will.”

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

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  emphatically  put  forth  that   apart   from   the
prohibitions contained in Articles 102 and 179 of the Constitution  and  the
conviction under the 1951 Act, the relevant  stage  in  trial  needs  to  be
introduced to the phraseology of Article 75(1) as well as Article 164(1)  so
that the Prime Minister’s authority to give advice has to be  restricted  to
the extent not to advise a person with  criminal  antecedents  to  become  a
Minister.  To substantiate the said view, he has taken aid of  the  doctrine
of “implied limitation”.  In Kesavananda Bharati’s case,  Sikri,  CJ,  while
expressing his view on the doctrine  of  implied  limitation,  has  observed
that in a written  Constitution,  it  is  rarely  that  everything  is  said
expressly.  Powers and limitations are implied from necessity or the  scheme
of the Constitution.  He has further held: -
“282. It seems to me that reading the Preamble  the  fundamental  importance
of the freedom  of  the  individual,  indeed  its  inalienability,  and  the
importance of the economic, social and political justice  mentioned  in  the
Preamble, the importance  of  directive  principles,  the  non-inclusion  in
Article 368 of provisions like Articles 52, 53 and various other  provisions
to [pic]which reference has already been  made  an  irresistible  conclusion
emerges that it was not the intention to use the  word  “amendment”  in  the
widest sense.

283. It was the common understanding that fundamental  rights  would  remain
in substance as they are and they would not be amended out of existence.  It
seems also  to  have  been  a  common  understanding  that  the  fundamental
features of the Constitution, namely, secularism, democracy and the  freedom
of the individual would always subsist in the welfare state.

284. In view of the above  reasons,  a  necessary  implication  arises  that
there  are  implied  limitations  on  the  power  of  Parliament  that   the
expression “amendment of  this  Constitution”  has  consequently  a  limited
meaning  in  our  Constitution  and  not  the  meaning  suggested   by   the
respondents.”

Shelat  and  Grover,  JJ.,  in  their  opinion,  while  speaking  about  the
executive power of the President, have observed that although the  executive
power of the President  is  apparently  expressed  in  unlimited  terms,  an
implied limitation has been placed on his power on the ground that he  is  a
formal or constitutional head of the executive and that the  real  executive
power vests in the Council of Ministers.  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.”

Hegde and  Mukherjea,  JJ.,  while  discussing  about  implied  limitations,
opined thus: -
“655.  Implied  limitations  on  the  powers  conferred  under   a   statute
constitute a general  feature  of  all  statutes.  The  position  cannot  be
different in the case of powers conferred under a Constitution. A  grant  of
power in general terms or even in absolute terms may be qualified  by  other
express provisions in  the  same  enactment  or  may  be  qualified  by  the
implications of the context or even by considerations arising  out  of  what
appears to be the general scheme of the statute.”

And again: -
“656. Lord Wright in James v. Commonwealth of Australia[34] stated  the  law
thus:

“The question, then, is one of construction,  and  in  the  ultimate  resort
must be determined upon the actual words used, read  not  in  vacuo  but  as
occurring in a single complex instrument, in which one part may throw  light
on another. The Constitution has been described as the federal compact,  and
in the construction must hold a balance between all its parts.”

Thereafter, the learned Judges proceeded to state that: -

“657. Several of the powers conferred under our Constitution have been  held
to be subject to implied limitations though those powers  are  expressed  in
general terms or even in absolute terms.”

And further proceeded to state thus: -
“.... though plenary powers  of  legislation  have  been  conferred  on  the
Parliament and the State Legislatures in respect of the  legislative  topics
allotted to them, yet this Court has opined that by  the  exercise  of  that
power neither Parliament nor the State Legislatures can  delegate  to  other
authorities their essential legislative functions nor could they  invade  on
the judicial power. These limitations were spelled out from  the  nature  of
the power conferred and from the scheme of the  Constitution.  But,  it  was
urged on behalf of the Union and the States  that,  though  there  might  be
implied limitations on other powers conferred under the Constitution,  there
cannot be any implied limitations on the amending power.  We  see  no  basis
for this distinction.”

Jaganmohan Reddy, J., in his  separate  opinion,  concurred  with  the  view
expressed by Sikri, C.J.

Palekar, J., has opined thus: -

“Some more cases like Ranasinghe’s case[35] Taylor v.  Attorney  General  of
Queensland[36]; Mangal Singh v. Union of India[37], were cited to show  that
constitutional  laws  permit  implications  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.”

Chandrachud, J., has observed that: -
“2087. In considering the petitioner’s argument on inherent limitations,  it
is well to bear in mind some of  the  basic  principles  of  interpretation.
Absence of an express prohibition still leaves scope for the  argument  that
there are implied or inherent limitations on a  power,  but  absence  of  an
express prohibition is highly  relevant  for  inferring  that  there  is  no
implied prohibition.”

Khanna, J., while speaking on implied limitation, noted  the  submission  of
the learned counsel for the petitioner in the following terms: -
“1444. Learned counsel for the petitioners has addressed us at  some  length
on the point that even if there are no express limitations on the  power  of
amendment, the same is subject to implied  limitations,  also  described  as
inherent limitations. So far  as  the  concept  of  implied  limitations  is
concerned, it has two facets. Under the first facet,  they  are  limitations
which  flow  by  necessary  implications  from  express  provisions  of  the
Constitution. The second facet postulates limitations which must be read  in
the Constitution irrespective of the fact whether  they  flow  from  express
provisions or not because they are stated to be based  upon  certain  higher
values which are very dear to the human heart and are  generally  considered
essential traits of civilized  existence.  It  is  also  stated  that  those
higher  values  constitute  the  spirit  and  provide  the  scheme  of   the
Constitution.  This  aspect  of  implied  limitations  is  linked  with  the
existence of natural rights and it is  stated  that  such  rights  being  of
paramount character, no  amendment  of  Constitution  can  result  in  their
erosion.”

      Dealing with the same, the learned Judge ruled: -
“1446. So far as the first facet is concerned regarding a  limitation  which
flows  by  necessary  implication  from  an   express   provision   of   the
Constitution, the concept derives its force and is founded upon a  principle
of interpretation of statutes. In the absence of any  compelling  reason  it
may be  said  that  a  constitutional  provision  is  not  exempt  from  the
operation of such a principle. I have applied this principle to Article  368
and despite that, I have not been able to discern in the  language  of  that
article or other relevant articles any implied limitation on  the  power  to
make amendment contained in the said article.”

Be it clarified, in subsequent paragraphs, the learned Judge  expressed  the
view that though the Parliament has been conferred the  power  of  amendment
under Article 368 of  the  Constitution,  yet  it  cannot  be  permitted  to
incorporate  an  amendment  which  would  destroy  the  basic  structure  or
essential feature of the Constitution.

In Minerva Mills Ltd. And Others v.  Union  of  India  and  Others[38],  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  institutional
pattern. Therefore, the words “amendment of the Constitution”, in  spite  of
the width of their sweep and in spite of their  amplitude,  could  not  have
the effect of empowering the Parliament to destroy  or  abrogate  the  basic
structure or framework of the Constitution.

12. The summary of the various judgments in Kesavananda Bharati  was  signed
by nine out of the thirteen Judges.  Paragraph 2 of  the  summary  reads  to
say that according to the majority, “Article 368 does not enable  Parliament
to alter the basic structure or framework of the Constitution”.  Whether  or
not the summary is a legitimate part of the judgment,  or  is  per  incuriam
for the scholarly reasons  cited  by  authors,  it  is  undeniable  that  it
correctly reflects the majority view.”

      Thereafter, the learned Chief Justice proceeded to state thus:-
“16. ...The theme song of the majority decision in Kesavananda  Bharati  is:
“Amend as you may even the solemn document which the founding  fathers  have
committed to your care, for you know best  the  needs  of  your  generation.
But, the Constitution is a precious heritage; therefore, you cannot  destroy
its identity”.”

 In B. R. Kapur (supra), the Constitution  Bench,  after  referring  to  the
decision  in  Kesavananda  Bharti  (supra),  reproduced  paragraph  16  from
Minerva Mills case and opined that since the Constitution  had  conferred  a
limited amending power on Parliament, Parliament could not in  the  exercise
of that limited power, enlarge that very power into an  absolute  power.   A
limited amending power was one of the basic  features  of  the  Constitution
and, therefore, the limitations on that power could not  be  destroyed.   In
other words, Parliament could not, under Article 368,  expand  its  amending
power so as to acquire for itself  the  right  to  repeal  or  abrogate  the
Constitution or to destroy its basic and essential features.  The  donee  of
a limited power could not by the exercise of that power convert the  limited
power into an unlimited one.

In I.R. Coelho (Dead) by Lrs. v. State of Tamil  Nadu[39],   the  Nine-Judge
Bench, while dealing with the doctrine of implied limitation,  ruled  thus:-


“96.....In  the  four   different   opinions   six   learned   Judges   came
substantially  to  the  same  conclusion.  These  Judges  read  an   implied
limitation on the power of Parliament to amend the Constitution. Khanna,  J.
also opined that there was implied limitation in  the  shape  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.”

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  such  an  implied  limitation  as  a   prohibition   would
tantamount to adding a disqualification at a particular stage of  the  trial
in relation of a person.  This is neither expressly stated nor is  impliedly
discernible from the provision.  The  doctrine  of  implied  limitation  was
applied to the amending power of the Constitution by the Parliament  on  the
fundamental foundation that the identity of the original Constitution  could
not be amended by taking recourse to the plenary power  of  amendment  under
Article 368 of  the  Constitution.   The  essential  feature  or  the  basic
structure of the doctrine  was  read  into  Article  368  to  say  that  the
identity or the framework of  the  Constitution  cannot  be  destroyed.   In
Minerva Mills case, giving example, the Court held that  by  amendment,  the
Parliament cannot damage the democratic republican  character  as  has  been
conceived in the Constitution.  Though in Article 368  of  the  Constitution
there was no express prohibition to  amend  the  constitutional  provisions,
yet the Court in the aforesaid two cases ruled that certain  features  which
are basic to the Constitution cannot be changed by way  of  amendment.   The
interpretative process pertained to the word  “amendment”.   Therefore,  the
concept of implied  limitation  was  read  into  Article  368  to  save  the
constitutional  integrity  and  identity.   In  B.R.   Kapur’s   case,   the
Constitution Bench ruled that a non-legislator can be made a Chief  Minister
or  Minister  under  Article  164(1)  only  if  he  has  qualifications  for
membership of the Legislature  prescribed  under  Article  173  and  is  not
disqualified from the membership thereof by reason of the  disqualifications
set out in Article 191.  Bharucha, J. (as his Lordship then  was),  speaking
for the majority, opined that as the  second  respondent  therein  had  been
convicted for offences punishable  under  Sections  13(1)(c),  13(1)(d)  and
13(2) of the Prevention of Corruption Act, 1988 and Sections 409  and  120-B
of the Indian Penal Code and sentenced to undergo rigorous  imprisonment  of
three years, she was disqualified under Section 8(4) of the 1951 Act as  the
said respondent was disqualified to  contest  the  election.   In  the  said
case, she was sworn in as the Chief Minister by the  Governor.   This  Court
was moved in by a writ of quo warranto that she was  not  eligible  to  hold
the post of the Chief Minister.  A submission was advanced that it  was  not
open to the Court to read 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  context,  read
the disqualification into Article 164(1) of the Constitution.

On a studied scrutiny of the ratio of the aforesaid  decisions,  we  are  of
the convinced opinion that when there is no disqualification  for  a  person
against whom charges have been framed  in  respect  of  heinous  or  serious
offences or offences relating to corruption  to  contest  the  election,  by
interpretative process,  it  is  difficult  to  read  the  prohibition  into
Article 75(1) or, for that matter, into Article 164(1) to the powers of  the
Prime Minister or the Chief Minister in such  a  manner.   That  would  come
within the criterion of eligibility  and  would  amount  to  prescribing  an
eligibility qualification and adding a disqualification which has  not  been
stipulated in the  Constitution.   In  the  absence  of  any  constitutional
prohibition or statutory embargo, such disqualification, in  our  considered
opinion, cannot be  read  into  Article  75(1)  or  Article  164(1)  of  the
Constitution.

PRINCIPLE OF CONSTITUTIONAL SILENCE OR ABEYANCE

The next principle that can be  thought  of  is  constitutional  silence  or
silence of the Constitution or constitutional abeyance.  The said  principle
is a progressive one and is applied as a recognized advanced  constitutional
practice.  It has been recognized by the  Court  to  fill  up  the  gaps  in
respect of certain areas in  the  interest  of  justice  and  larger  public
interest.  Liberalization of the concept of locus standi for the purpose  of
development of Public Interest Litigation to establish  the  rights  of  the
have-nots or  to  prevent  damages  and  protect  environment  is  one  such
feature.  Similarly, laying down guidelines as procedural safeguards in  the
matter of adoption of Indian children by foreigners in  the  case  of  Laxmi
Kant Pandey v. Union of India[40] or issuance of  guidelines  pertaining  to
arrest in the case of D.K. Basu v. State of West  Bengal[41]  or  directions
issued in Vishakha and others v. State of Rajasthan and others[42] are  some
of the instances.

In this context, it is profitable to refer to  the  authority  in  Bhanumati
and others v. State of Uttar Pradesh through  its  Principal  Secretary  and
others[43] wherein this Court was dealing with the  constitutional  validity
of the U.P. Panchayat Laws (Amendment) Act, 2007.  One of  the  grounds  for
challenge was that there is  no  concept  of  no-confidence  motion  in  the
detailed 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 (Routledge, London  and  New  York)
has argued that in a Constitution “abeyances are  valuable,  therefore,  not
in spite of their obscurity but because of it. They are significant for  the
attitudes and approaches to the Constitution that they  evoke,  rather  than
the content or substance of their strictures”. (P. 10)

50. The learned author elaborated this concept further by  saying,  “Despite
the absence of any documentary or material form, these  abeyances  are  real
and are an integral part of any Constitution.  What  remains  unwritten  and
indeterminate can be just as much responsible for the operational  character
and restraining quality of a Constitution as its more tangible and  codified
components.” (P. 82)”

The question that is to be posed here is whether  taking  recourse  to  this
doctrine for the purpose of advancing constitutional culture,  can  a  court
read a disqualification to the already expressed disqualifications  provided
under the Constitution and the 1951 Act.   The  answer  has  to  be  in  the
inevitable  negative,  for  there  are  express   provisions   stating   the
disqualifications  and  second,  it  would  tantamount   to   crossing   the
boundaries of judicial review.

DOCTRINE OF CONSTITUTIONAL IMPLICATIONS

The  next  principle  that  we  intend  to  discuss  is  the  principle   of
constitutional implication.  We are obliged to  discuss  this  principle  as
Mr. Dwivedi, learned amicus curiae, has put immense emphasis  on  the  words
“on the advice of the Prime Minister” occurring  in  Article  75(1)  of  the
Constitution.  It  is  his  submission  that  these  words  are  of  immense
significance and apposite meaning from the said  words  is  required  to  be
deduced to the effect  that  the  Prime  Minister  is  not  constitutionally
allowed to advise the President to make a person  against  whom  charge  has
been framed for heinous  or  serious  offences  or  offences  pertaining  to
corruption as Minister in the Council of Ministers, regard being had to  the
sacrosanctity of the office and the oath prescribed under the  Constitution.
 Learned senior counsel would submit that on many an  occasion,  this  Court
has expanded the horizon  inherent  in  various  Articles  by  applying  the
doctrine of implication based on the constitutional scheme and the  language
employed in other provisions of the Constitution.

In this regard, inclusion of many a facet within the ambit of Article 21  is
well established.  In R. Rajagopal alias R.R. Gopal and another v. State  of
T.N. and others[44], right to privacy has been  inferred  from  Article  21.
Similarly, in Joginder Kumar v.  State  of  U.P.  and  others[45],  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[46],  has  observed  that  freedom  of
speech and expression includes freedom of propagation of ideas.

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[47],  Dixon,  J  opined   that   constitutional
implication should be based on considerations which are compelling.   Mason,
CJ,  in  Political  Advertising  Case[48],  has  ruled  that  there  can  be
structural implications which are ‘logically or  practically  necessary  for
the preservation of the integrity  of  that  structure’.    Any  proposition
that is arrived at taking  this  route  of  interpretation  must  find  some
resting pillar or strength on the basis of certain words in the text or  the
scheme of the text.  In the absence of that, it may not be  permissible  for
a Court to deduce any proposition as that would  defeat  the  legitimacy  of
reasoning.  A proposition can be established by reading number  of  articles
cohesively, for that will be in the domain of substantive legitimacy.

Dixon, J, in Australian National Airways Pty Ltd. v Commonwealth[49],  said:
‘I do not see why we should be  fearful  about  making  implications’.   The
said principle has been approved in Lamshed v Lake[50], and  thereafter,  in
Payroll Tax Case[51].  Thus, the said principle can be taken aid of for  the
purpose of interpreting constitutional provision  in  an  expansive  manner.
But, it has its own limitations.  The interpretation has to have a  base  in
the Constitution.  The Court cannot  re-write  a  constitutional  provision.
In this context, we may fruitfully refer to Kuldip Nayar’s case wherein  the
Court repelled the contention that a right to  vote  invariably  carries  an
implied term, i.e., the right to vote in secrecy.  The Court  observed  that
where the Constitution thought it fit to do so, it has itself  provided  for
elections by secret ballot e.g., in the case of election  of  the  President
of India and the Vice-President of India.  Thereafter,  the  Court  referred
to Articles 55(3) and 66(1) of the Constitution which provide for  elections
of the President and the Vice-President respectively,  referring  to  voting
by electoral colleges, consisting of  elected  Members   of  Parliament  and
Legislative Assembly of each State for the purposes  of  the  former  office
and Members of both Houses of Parliament for the latter office and  in  both
cases, it was felt necessary by the framers of the Constitution  to  provide
that the voting  at  such  elections  shall  be  by  secret  ballot  through
inclusion of the words “and the voting at such election shall be  by  secret
ballot”.  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.”

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 CONSTITUTIONAL TRUST

Though we have not accepted the inspired arguments of Mr. Dwivedi to  add  a
disqualification  pertaining  to  the  stage  into  Article  75(1)  of   the
Constitution, yet we cannot be oblivious  of  the  three  concepts,  namely,
constitutional morality, good governance and constitutional trust.

The Constitution of India  is  a  living  instrument  with  capabilities  of
enormous dynamism.  It is a Constitution made  for  a  progressive  society.
Working of such a Constitution depends upon  the  prevalent  atmosphere  and
conditions.   Dr.  Ambedkar  had,  throughout  the  Debate,  felt  that  the
Constitution can live and grow on the bedrock  of  constitutional  morality.
Speaking on the same, he said: -

“Constitutional  morality  is  not  a  natural  sentiment.   It  has  to  be
cultivated.   We  must  realize  that  our  people  are  yet  to  learn  it.
Democracy in India is only a  top-dressing  on  an  Indian  soil,  which  is
essentially undemocratic.[52]”



The principle of constitutional morality basically means to bow down to  the
norms of the Constitution and not to act in  a  manner  which  would  become
violative of the rule of law  or  reflectible  of  action  in  an  arbitrary
manner. It actually works at the fulcrum and  guides  as  a  laser  beam  in
institution building.  The  traditions  and  conventions  have  to  grow  to
sustain the value of such a morality.  The  democratic  values  survive  and
become successful where the people at large  and  the  persons-in-charge  of
the  institution  are  strictly  guided  by  the  constitutional  parameters
without paving the path of deviancy and reflecting  in  action  the  primary
concern   to   maintain   institutional   integrity   and   the    requisite
constitutional restraints.  Commitment to the Constitution  is  a  facet  of
constitutional morality.  In this context, the following  passage  would  be
apt to be reproduced: -

“If men were angels, no government would be necessary.  If  angels  were  to
govern men, neither external nor internal controls on  government  would  be
necessary.  In framing a government which is to be administered by men  over
men,  the  great  difficulty  lies  in  this:  you  must  first  enable  the
government to control the governed; and in  the  next  place  oblige  it  to
control itself.  A dependence on  the  people  is,  no  doubt,  the  primary
control on the government; but experience has taught mankind  the  necessity
of auxiliary precautions.[53]”


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”[54].

GOOD GOVERNANCE

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[55],  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.

In Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh and Ors.[56],  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  persons  of  competency  and
good character.”


In M.J. Shivani and others v. State of  Karnataka  and  others[57],  it  has
been held that fair play  and  natural  justice  are  part  of  fair  public
administration; non-arbitrariness and absence  of  discrimination  are  hall
marks for good governance under the rule of law.  In  State  of  Maharashtra
and others v. Jalgaon Municipal Corporation  and  others[58],  it  has  been
ruled that one of the principles of good governance in a democratic  society
is that smaller interest must always give way to larger public  interest  in
case of conflict.  In U.P. Power Corporation Ltd. and Anr. v. Sant Steels  &
Alloys (P) Ltd. and Ors.[59], the Court observed that in this 21st  century,
when there is global economy, the question of faith is very important.

In a democracy, the citizens legitimately expect that the Government of  the
day would treat the public interest as primary one and  any  other  interest
secondary.  The maxim Salus Populi Suprema Lex, has not only to be  kept  in
view but also has to be revered.  The faith of the  people  is  embedded  in
the root of the idea of good governance which means reverence for  citizenry
rights,  respect  for  Fundamental  Rights  and  statutory  rights  in   any
governmental  action,  deference  for   unwritten   constitutional   values,
veneration for institutional integrity, and  inculcation  of  accountability
to the collective at large.  It also conveys that the  decisions  are  taken
by the decision making authority with  solemn  sincerity  and  policies  are
framed keeping in view the welfare of the people, and  including  all  in  a
homogeneous compartment.  The concept of good governance is not  an  Utopian
conception or an  abstraction.   It  has  been  the  demand  of  the  polity
wherever democracy is nourished.  The growth of democracy is dependant  upon
good governance in reality and the aspiration of  the  people  basically  is
that the administration is carried out by people  with  responsibility  with
service orientation.

CONSTITUTIONAL TRUST

Having stated about good governance, we  shall  proceed  to  deal  with  the
doctrine of “constitutional  trust”.   The  issue  of  constitutional  trust
arises in the context of the debate in the  Constituent  Assembly  that  had
taken place pertaining to the recommendation for appointment of  a  Minister
to the Council of Ministers.  Responding to the proposal for  the  amendment
suggested  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]

The trust reposed in the Prime  Minister  is  based  on  his  constitutional
status.  In  Rai  Sahib  Ram  Jawaya  Kapur  and  others  v.  The  State  of
Punjab[60], B.K. Mukherjea, CJ, while referring to the scope of Article  74,
observed that under Article 53(1) of the Constitution, the  executive  power
of the Union is vested in the President but under Article 74,  there  is  to
be a Council of Ministers with the Prime Minister at the  head  to  aid  and
advise the President in the exercise of his functions.  The  President  has,
thus been, made a formal or constitutional head of  the  executive  and  the
real executive powers are vested in the Ministers or the Cabinet.

In Samsher Singh (supra), Ray, CJ, speaking for the  majority,  opined  that
the President as well as the Governor is the constitutional  or  the  formal
head and exercise the power and functions conferred on them by or under  the
Constitution on the aid and advice of the  Council  of  Ministers,  save  in
spheres where the Governor is required  by  or  under  the  Constitution  to
exercise his  functions  in  his  discretion.   The  learned  Chief  Justice
further observed that the satisfaction of the President or the  Governor  in
the constitutional sense in the Cabinet system of Government is  really  the
satisfaction of the Council  of  Ministers  on  whose  aid  and  advice  the
President or the Governor generally exercises his powers and functions  and,
thereafter, it has been held that they are required to act with the aid  and
advice of the Council of Ministers and are not required by the  Constitution
to act personally without the aid and advice.  Krishna  Iyer,  J.,  speaking
for himself  and  Bhagwati,J.,  opined  that  under  the  Constitution,  the
President and Governor, custodian of all executive and  other  powers  under
various Articles, are to exercise their formal  constitutional  powers  only
upon and in accordance with the due advice of their Ministers, save  in  few
well-known  exceptional  situations.   The  learned  Judge  has  carved  out
certain exceptions with which we are really presently not concerned with.

In Supreme Court Advocates-on-Record Association and  another  v.  Union  of
India[61],  while  discussing  about  constitutional  functions,  the  Court
observed that it is a constitutional requirement  that  the  person  who  is
appointed as Prime Minister by the President is the effective  head  of  the
Government and the other Ministers are appointed by  the  President  on  the
advice of the Prime Minister and both the Prime Minister and  the  Ministers
must  continuously  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.

We have referred to these authorities singularly for the  purpose  that  the
Prime Minister has been conferred an  extremely  special  status  under  the
Constitution.

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[62], 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 power, but it  does  not  guarantee  that
the power would be wisely  exercised.  It  can  be  said  equally  that  the
Constitution confers power but it gives no guarantee that it will be  worked
by men of high character, capacity and integrity.  If  the  Constitution  is
to be successfully worked, an attempt must be made to improve the  political
atmosphere and to lay down and enforce standards of conduct required  for  a
successful working of our Constitution.”

                                                            [Emphasis added]

In Constitutional and Administrative  Law[63],  the  learned  authors  while
dealing with individual responsibility of Ministers, have said:-

“3. THE INIDIVIDUAL RESPONSIBILITY OF MINISTERS

The individual responsibility of  ministers  illustrates  further  Professor
Munro’s  continuum  theory.   Ministers  are  individually  accountable  for
their own private conduct, the general  running  of  their  departments  and
acts done, or omitted to be done, by their  civil  servants;  responsibility
in the first two cases is clearer than in others.  A  minister  involved  in
sexual or financial scandals  particularly  those  having  implications  for
national security, is likely to have to resign because his  activities  will
so attract the attention of the press that he will  be  no  longer  able  to
carry out departmental duties.”

In Constitutional & Administrative Law[64], Hilaire Barnett,  while  dealing
with the conduct of Ministers, referred to the  Nolan  Committee[65]   which
had endorsed the view that:-

“public is  entitled  to  expect  very  high  standards  of  behaviour  from
ministers, as they have profound influence over the daily lives of us all”

In Constitutional Practice[66], Rodney Brazier  has opined:-

“...a higher standard of private conduct is required of  Ministers  than  of
others in public life, a major reason for this today being that the  popular
press and the investigative journalism of its more serious rivals will  make
a wayward Minister’s continuance in office impossible.”


Centuries back what Edmund Burke had said needs to be recapitulated: -

“All persons possessing a  position  of  power  ought  to  be  strongly  and
awfully impressed with an idea that they act in trust  and  are  to  account
for their conduct in that trust to the one great Master, Author and  Founder
of Society.”


This Court, in re Art.  143,  Constitution  of  India  and  Delhi  Laws  Act
(1912)[67], 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)

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, one of the meanings of the word “advice” is “the way  in
which a matter is looked  at;  opinion;  judgment”.   As  per  P.  Ramanatha
Aiyer’s Law Lexicon, 2nd Edition, one of the  meanings  given  to  the  word
“advice” is “counsel given or an opinion  expressed  as  to  the  wisdom  of
future conduct” (Abbot L.  Dict.).   In  Webster  Comprehensive  Dictionary,
International Edition, one of the meanings given to  the  word  “advice”  is
“encouragement  or  dissuasion;  counsel;  suggestion”.   Thus,   the   word
“advice” conveys formation of an opinion. The said formation of  an  opinion
by the Prime Minister in the context of Article 75(1) is  expressed  by  the
use of the said word because of the trust  reposed  in  the  Prime  Minister
under the Constitution.  To put it  differently,  it  is  a  “constitutional
advice”.  The repose of faith in the Prime Minister  by  the  entire  nation
under the Constitution has expectations of good governance which is  carried
on by Ministers of his choice.  It is also expected  that  the  persons  who
are chosen as Ministers do not have criminal antecedents, especially  facing
trial in respect  of  serious  or  heinous  criminal  offences  or  offences
pertaining to corruption.  There can be  no  dispute  over  the  proposition
that unless a person is convicted, he is presumed to  be  innocent  but  the
presumption of innocence in criminal jurisprudence is  something  altogether
different, and not to be considered for being chosen as a  Minister  to  the
Council of Ministers because  framing  of  charge  in  a  criminal  case  is
totally  another  thing.   Framing  of  charge  in  a  trial  has  its   own
significance and consequence.  Setting  the  criminal  law  into  motion  by
lodging of an FIR or charge sheet being filed by  the  investigating  agency
is in the sphere of investigation.  Framing of charge is a judicial  act  by
an experienced judicial mind.  As the Debates in  the  Constituent  Assembly
would show, after due deliberation, they thought it appropriate to leave  it
to the wisdom of the Prime Minister because of the intrinsic  faith  in  the
Prime Minister.  At the time of framing  of  the  Constitution,  the  debate
pertained to conviction. With the change of time, the entire  complexion  in
the political arena as well as in other areas has changed.  This  Court,  on
number of occasions, as pointed out hereinbefore,  has  taken  note  of  the
prevalence and continuous growth of  criminalization  in  politics  and  the
entrenchment of corruption at 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.”

I. Jennings, in The Law and the Constitution[68], stated that  a  convention
exists not only due to its non-enforceability but also because  there  is  a
reason for the rule.

I. Lovehead, in Constitutional Law – A Critical Introduction[69],  has  said
that the conventions provide a moral framework within which  the  government
ministers or the monarch should exercise non-justiciable  legal  powers  and
regulate  relations  between  the  government   and   other   constitutional
authorities.

In the Constituent Assembly Debates, Dr. Rajendra Prasad, in his  speech  as
President of the Constituent Assembly, while moving for the adoption of  the
Constitution of India, had observed: -

“Many things  which  cannot  be  written  in  a  Constitution  are  done  by
conventions.  Let me hope that we shall show those  capacities  and  develop
those conventions.”

CONCLUSION

From the aforesaid, it becomes graphically vivid  that  the  Prime  Minister
has been regarded as the repository of constitutional  trust.   The  use  of
the words “on the advice  of  the  Prime  Minister”  cannot  be  allowed  to
operate in a vacuum to lose their significance.  There can be  no  scintilla
of doubt that the Prime Minister’s advice is binding on  the  President  for
the appointment of a person as  a  Minister  to  the  Council  of  Ministers
unless the said person is disqualified under  the  Constitution  to  contest
the election or under the 1951 Act, as has been held in B.R.  Kapur’s  case.
That is in the realm of disqualification.  But, a pregnant  one,  the  trust
reposed in a high constitutional functionary like the Prime  Minister  under
the Constitution does not end there.   That  the  Prime  Minister  would  be
giving apposite advice to  the  President  is  a  legitimate  constitutional
expectation, for it is a paramount constitutional concern.  In a  controlled
Constitution  like  ours,  the  Prime  Minister  is  expected  to  act  with
constitutional responsibility  as  a  consequence  of  which  the  cherished
values of democracy and established norms of good governance  get  condignly
fructified.  The framers of the Constitution left many a thing unwritten  by
reposing  immense  trust  in  the  Prime  Minister.   The  scheme   of   the
Constitution suggests that there has to be an  emergence  of  constitutional
governance which  would  gradually  grow  to  give  rise  to  constitutional
renaissance.

87.   It is worthy to note that the Council of Ministers has the  collective
responsibility to sustain the integrity and  purity  of  the  constitutional
structure.  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.

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 framed  for  heinous  or
serious criminal offences or charges of corruption to become a  Minister  of
the Council of Ministers.  This is what the Constitution suggests  and  that
is the constitutional expectation from the Prime Minister.  Rest has  to  be
left to the wisdom of the Prime Minister.   We  say  nothing  more,  nothing
less.

At this stage, we must hasten to  add  what  we  have  said  for  the  Prime
Minister is wholly applicable to the Chief Minister,  regard  being  had  to
the language employed in Article 164(1) of the Constitution of India.

Before  parting  with  the  case,  we  must  express  our   unreserved   and
uninhibited appreciation for the assistance rendered by Mr. Rakesh  Dwivedi,
Mr. Andhyarjina and Mr. Parasaran, learned senior counsel.

The writ petition is disposed of accordingly without any order as to costs.


                              ........................................C.J.I.
                                                                [R.M. Lodha]


                             .............................................J.
                                                               [Dipak Misra]


                             .............................................J.
                                                                [S.A. Bobde]
New Delhi;
August 27, 2014

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                    WRIT PETITION (CIVIL) NO. 289 OF 2005

Manoj Narula                                     .……Petitioner

                                   versus

Union of India                               ……Respondent

                               J U D G M E N T

Madan B. Lokur, J.


1.    While I agree with the draft judgment of my  learned  brother  Justice
Dipak Misra, I find it necessary to express my view on the issues raised.
2.    The question in the amended writ petition filed under  Article  32  of
the Constitution is rather narrow, but the  submissions  were  quite  broad-
based.
3.    Two substantive reliefs have been claimed in the  writ  petition.  The
first relief is for a declaration that the appointment of Respondent Nos.  3
to 7 as Ministers in the Government of India is  unconstitutional.  This  is
based, inter alia, on the averment that  these  respondents  have  ‘criminal
antecedents’. Subsequently by an order passed  on  24th  March,  2006  these
respondents (along with respondent No. 2) were deleted  from  the  array  of
parties since the broad question before this Court was “about  the  legality
of the  persons  with  criminal  background  and/or  charged  with  offences
involving moral turpitude being appointed as ministers in Central and  State
Governments.”
4.    As far as the first substantive relief is concerned,  the  expressions
‘criminal  background’  and  ‘criminal  antecedents’  are  extremely  vague.
Nevertheless the  legal  position  on  the  appointment  of  a  Minister  is
discussed hereafter.
5.     The  second  substantive  relief  is  for  the  framing  of  possible
guidelines for the appointment  of  a  Minister  in  the  Central  or  State
Government. It is not  clear  who  should  frame  the  possible  guidelines,
perhaps this court.
6.    As far as this substantive relief is concerned,  it  is  entirely  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 in the House of  the  People,
not less than twenty-five years of age; and

(c) possesses such other qualifications as may be prescribed in that  behalf
by or under any law made by Parliament.”

9.    The qualifications postulated by clause (c) of  Article  84  have  not
yet been prescribed by law by Parliament.   In this  context,  it  is  worth
quoting the President of the Constituent Assembly Dr. Rajendra  Prasad,  who
said on 26th November, 1949, before formally putting  the  motion  moved  by
Dr. Ambedkar to vote, as follows:[70]
“There are only two regrets which I must share with the honourable  Members.
I would have liked to have some qualifications laid down for members of  the
Legislatures.  It  is  anomalous   that   we   should   insist   upon   high
qualifications for those who administer or help  in  administering  the  law
but none for those who made it except that they are  elected.  A  law  giver
requires intellectual equipment but even more than that capacity to  take  a
balanced view of things to act independently and above all  to  be  true  to
those fundamental things of life – in one word – to  have  character  (Hear,
hear). It is not possible to devise any yardstick for  measuring  the  moral
qualities of a man and so long as that is  not  possible,  our  Constitution
will remain defective. The other regret is that we have  not  been  able  to
draw up our first Constitution of a free Bharat in an Indian  language.  The
difficulties in both cases were practical  and  proved  insurmountable.  But
that does not make the regret any the less poignant.”

10.   Hopefully, Parliament may take action on the views  expressed  by  Dr.
Rajendra Prasad, the first President of our Republic.
11.   Article 102 provides the disqualifications for  membership  of  either
House of Parliament. This Article too is quite  simple  and  straightforward
and reads as follows:
“102.  Disqualifications  for  membership.  -  (1)   A   person   shall   be
disqualified for being chosen as, and for being, a member  of  either  House
of Parliament—

(a) if he holds any office of profit under the Government of  India  or  the
Government of any State, other than an office declared by Parliament 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 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[71] 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[72] and is mentioned here since one of  the  issues  raised
during  submissions  related  to  the  permissibility  of  reading   implied
limitations in the Constitution. It was submitted that  implied  limitations
can be read into the Constitution and this is an appropriate case  in  which
this Court should read  an  implied  limitation  in  the  appointment  of  a
Minister in the Government of India, the implied  limitation  being  that  a
person with criminal antecedents or a  criminal  background  should  not  be
appointed a Minister.
13.   In S.R. Chaudhuri this Court examined the law in England,  Canada  and
Australia and by reading an implied limitation,  answered  the  question  in
the negative. It was held that a non-elected 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 cannot again be appointed  as  a  Minister  unless
elected. It was said:
“32. Thus, we find from the positions prevailing in England,  Australia  and
Canada that the essentials of a system of  representative  government,  like
the one we have in our  country,  are  that  invariably  all  Ministers  are
chosen out of the members of the Legislature and only in rare cases, a  non-
member is appointed as a Minister, who must  get  himself  returned  to  the
Legislature by direct or indirect election within a short period. He  cannot
be permitted to continue in office indefinitely unless he  gets  elected  in
the meanwhile.  The  scheme  of  Article  164  of  the  Constitution  is  no
different, except that the period of grace during which the  non-member  may
get elected has been fixed as “six consecutive months”,  from  the  date  of
his appointment. (In Canada he must get elected quickly  and  in  Australia,
within three months.) The framers of  the  Constitution  did  not  visualise
that a non-legislator can be repeatedly appointed as a Minister for  a  term
of six months each time, without  getting  elected  because  such  a  course
strikes at the very root of parliamentary democracy.  According  to  learned
counsel for the respondent, there is no bar to this course being adopted  on
the “plain language of the article”, which  does  not  “expressly”  prohibit
reappointment of the  Minister,  without  being  elected,  even  repeatedly,
during the term  of  the  same  Legislative  Assembly.  We  cannot  persuade
ourselves to agree.

“33.  Constitutional  provisions  are  required   to   be   understood   and
interpreted with an object-oriented approach. A  Constitution  must  not  be
construed in a narrow and pedantic sense. The words used may be  general  in
terms but, their full  import  and  true  meaning,  has  to  be  appreciated
considering the true context in which the same  are  used  and  the  purpose
which they seek to achieve. Debates in the Constituent Assembly referred  to
in an earlier part of this judgment clearly  indicate  that  a  non-member’s
inclusion in the Cabinet was considered to be  a  “privilege”  that  extends
only for six months, during  which  period  the  member  must  get  elected,
otherwise he would cease to be a Minister. It is  a  settled  position  that
debates in the Constituent  Assembly  may  be  relied  upon  as  an  aid  to
interpret a constitutional provision because  it  is  the  function  of  the
court to find out the intention of the framers of the Constitution. 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.[73] 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  Chief  Minister  of  a
State. Reliance was placed on the plain  language  of  Article  164  of  the
Constitution.
15.   Answering the question in the negative, this Court held  in  paragraph
30 of the Report:
“We hold, therefore, that a non-legislator can be made a Chief  Minister  or
Minister under Article 164 only if he has the qualifications for  membership
of the Legislature prescribed by Article 173 and is  not  disqualified  from
the membership thereof  by  reason  of  the  disqualifications  set  out  in
Article 191.”

16.   This was reiterated by this Court in paragraph 45  of  the  Report  in
the following words:
“Our conclusion, therefore,  is  that  on  the  date  on  which  the  second
respondent was sworn in as Chief Minister she was  disqualified,  by  reason
of her convictions under the Prevention of Corruption Act and the  sentences
of imprisonment of not less than two years, for becoming  a  member  of  the
Legislature under Section 8(3) of the Representation of the People Act.”

17.   Finally, in paragraphs 50 and 51 of the Report, this Court held:
“We are in no doubt at all that if the Governor is  asked  by  the  majority
party in the Legislature to appoint as the Chief Minister a  person  who  is
not qualified to be a member of the Legislature or who  is  disqualified  to
be such, the Governor must, having due regard to the  Constitution  and  the
laws, to which he is subject, decline, and the  exercise  of  discretion  by
him in this regard cannot be called in question.

51. If perchance, for whatever reason, the Governor does  appoint  as  Chief
Minister a person who is not qualified to be a member of the Legislature  or
who is  disqualified  to  be  such,  the  appointment  is  contrary  to  the
provisions of Article 164 of the Constitution, as we  have  interpreted  it,
and  the  authority  of  the  appointee  to  hold  the  appointment  can  be
challenged in quo warranto proceedings.  That  the  Governor  has  made  the
appointment does not give  the  appointee  any  higher  right  to  hold  the
appointment. If the appointment is contrary to constitutional provisions  it
will be struck down. The submission to the contrary  -  unsupported  by  any
authority - must be rejected.”
18.   Therefore, two implied limitations were  read  into  the  Constitution
with regard to the  appointment  of  an  unelected  person  as  a  Minister.
Firstly, the Minister cannot continue as a Minister beyond a period  of  six
months without  getting  elected,  nor  can  such  a  person  be  repeatedly
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.[74] 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[75] integrity and competence were read  as
implied in the appointment of the Chairperson of the  State  Public  Service
Commission. It was held in paragraph 45 of the Report as follows:
“I have already held that it is for  the  Governor  who  is  the  appointing
authority under Article 316 of the Constitution to lay  down  the  procedure
for  appointment  of  the  Chairman  and  Members  of  the  Public   Service
Commission, but this is not to say that in  the  absence  of  any  procedure
laid down by the Governor for appointment of Chairman  and  Members  of  the
Public Service Commission under Article 316 of the Constitution,  the  State
Government would have absolute discretion in selecting  and  appointing  any
person as the Chairman of the State Public Service Commission. Even where  a
procedure has not  been  laid  down  by  the  Governor  for  appointment  of
Chairman and Members of the Public Service Commission, the State  Government
has to select only persons with integrity and competence for appointment  as
Chairman of the Public Service Commission, because the discretion vested  in
the State Government under Article 316  of  the  Constitution  is  impliedly
limited by the purposes for which the discretion is vested and the  purposes
are discernible  from  the  functions  of  the  Public  Service  Commissions
enumerated in Article 320 of the Constitution. Under clause (1)  of  Article
320 of the Constitution, the State Public Service Commission  has  the  duty
to conduct examinations for appointments  to  the  services  of  the  State.
Under clause (3) of Article 320, the State Public Service Commission has  to
be consulted by the State Government on matters relating to recruitment  and
appointment to  the  civil  services  and  civil  posts  in  the  State;  on
disciplinary matters affecting a person serving under the  Government  of  a
State in a civil capacity; on claims by and in respect of a  person  who  is
serving under the State  Government  towards  costs  of  defending  a  legal
proceeding; on claims for award of pension in respect of injuries  sustained
by a person while serving under the State Government and other  matters.  In
such matters, the State Public Service Commission is expected  to  act  with
independence  from  the  State  Government  and   with   fairness,   besides
competence and maturity acquired through knowledge and experience of  public
administration.”

21.   Thereafter in paragraph 99 of the Report, it was said:

“While it is difficult to summarise the indicators laid down by this  Court,
it is possible 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:
To  become  a  Member  of  Parliament,   a   person   should   possess   the
qualifications mentioned in Article 84 of the Constitution;

To become a Member of Parliament, a person should  not  suffer  any  of  the
disqualifications mentioned in Article 102 of the Constitution;

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;


One implied limitation read into the  Constitution  is  that  a  person  not
elected to Parliament can nevertheless be appointed  as  a  Minister  for  a
period of six months;


Another implied limitation read into the  Constitution   is  that  though  a
person can be appointed as a Minister for a period of six months, he or  she
cannot repeatedly be so appointed;

Yet another implied limitation read into the Constitution is that  a  person
otherwise not  qualified  to  be  elected  as  a  Member  of  Parliament  or
disqualified from being so elected cannot be appointed as a Minister;

In other words, any person, not subject  to  any  disqualification,  can  be
appointed a Minister in the Central Government.


Given this position in law, is  it  necessary  to  read  any  other  implied
limitation in the Constitution concerning the appointment of a person  as  a
Minister in the Government of India, particularly any implied limitation  on
the appointment of a person with a criminal background  or  having  criminal
antecedents?
Issue of criminal antecedents
23.   The expression ‘criminal  antecedents’  or  ‘criminal  background’  is
extremely vague and incapable of any precise definition. Does it refer to  a
person accused (but not charged or convicted) of  an  offence  or  a  person
charged (but not convicted) of an offence or only a person convicted  of  an
offence? No clear answer was made available to this  question,  particularly
in the context of the presumption  of  innocence  that  is  central  to  our
criminal jurisprudence. Therefore,  to  say  that  a  person  with  criminal
antecedents or a  criminal  background  ought  not  to  be  elected  to  the
Legislature or appointed a Minister in the Central Government is  really  to
convey an imprecise view.
24.   The law does not hold a person guilty or deem or brand a person  as  a
criminal only because an allegation is made against that  person  of  having
committed a criminal offence  –  be  it  in  the  form  of  an  off-the-cuff
allegation or an allegation in the form of a First Information Report  or  a
complaint or an accusation in a  final  report  under  Section  173  of  the
Criminal Procedure Code or even on  charges  being  framed  by  a  competent
Court. The reason for this is fundamental  to  criminal  jurisprudence,  the
rule of law  and  is  quite  simple,  although  it  is  often  forgotten  or
overlooked – a person is innocent until proven guilty. This would  apply  to
a person accused of one or multiple offences. At law, he or  she  is  not  a
criminal – that person may stand ‘condemned’ in the  public  eye,  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.[76]
The adequacy of the restrictions placed by this provision is  arguable.  For
example, a disqualification under this Section  is  attracted  only  if  the
sentence awarded to a convict  is  less  than  2  years  imprisonment.  This
raises an issue: What if the offence is heinous (say an  attempt  to  murder
punishable under Section 307 of the Indian Penal Code  (IPC)  or  kidnapping
punishable under Section 363 of the IPC or any  other  serious  offence  not
attracting a minimum punishment) and the sentence awarded by  the  Court  is
less than 2 years imprisonment.  Can  such  a  convict  be  a  member  of  a
Legislature? The answer is in the affirmative. Can this  Court  do  anything
about this, in the form of framing some guidelines?

27.   In Municipal Committee, Patiala[77] this Court referred to  Parent  of
a student of Medical College[78] 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[79] 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, nor has it any competence to issue  directions  to  the
legislature to enact the law in a particular manner.”

 29.  However, a discordant note was struck in Gainda Ram[80]  wherein  this
Court issued a direction to the Legislature to enact  legislation  before  a
particular date. It was so directed in paragraphs 70 and 78  of  the  Report
in the following words:
“70. This Court, therefore, disposes of this writ petition and all  the  IAs
filed with a direction that the problem of hawking and  street  vending  may
be regulated by the present schemes framed by NDMC and MCD up to  30-6-2011.
Within that time, the appropriate Government is to legislate and  bring  out
the law to regulate hawking and hawkers’ fundamental right. Till  such  time
the grievances of the hawkers/vendors  may  be  redressed  by  the  internal
dispute redressal mechanisms provided in the schemes.

“78. However, before 30-6-2011, the appropriate Government  is  to  enact  a
law on the basis of the  Bill  mentioned  above  or  on  the  basis  of  any
amendment thereof so that the hawkers may precisely  know  the  contours  of
their rights. This Court  is  giving  this  direction  in  exercise  of  its
jurisdiction to protect the fundamental rights of the citizens.”[81]

30.   The law having been laid down by a larger Bench than in Gainda Ram  it
is quite  clear  that  the  decision,  whether  or  not  Section  8  of  the
Representation of the People Act, 1951 is to be amended, rests  solely  with
Parliament.
31.    Assuming  Parliament  does  decide  to  amend  Section   8   of   the
Representation of the People Act, 1951 the content of  the  amended  Section
cannot be decided easily. Apart from the difficulty in  fixing  the  quantum
of sentence (adverted to above), there are several other imponderables,  one
of them being the nature of the offence. It has been pointed out  by  Rodney
Brazier in “Is it a constitutional issue: fitness for ministerial office  in
the 1990s”[82] that there are  four  categories  of  offences.  The  learned
author says:
“But four types of crime may  be  distinguished.  First,  minor  convictions
would not count against a politician's worthiness for office. Minor  driving
offences, for example, are 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 like to debate and consider, if  at  all  it  is
felt necessary. Until then, we must trust the watchful eye of the people  of
the country that the elected representative  of  the  people  is  worthy  of
being a legislator. Thereafter  we  must  trust  the  wisdom  of  the  Prime
Minister and Parliament that the elected representative is worthy  of  being
a Minister in the Central Government. In this context, it is appropriate  to
recall the words of  Dr.  Ambedkar  in  the  Constituent  Assembly  on  30th
December, 1948. He said:
“His [Hon’ble  K.T.  Shah]  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.”[83]

33.   That a discussion is needed is evident from  the  material  placed  by
the learned Additional Solicitor General. He referred  to  the  18th  Report
presented to the Rajya Sabha on 15th March, 2007 by  the  Department-Related
Parliamentary Standing Committee On Personnel, Public  Grievances,  Law  And
Justice on Electoral Reforms (Disqualification Of  Persons  From  Contesting
Elections On Framing Of Charges Against  Them  For  Certain  Offences).  The
Report acknowledges the criminalization of our polity and the  necessity  of
cleansing the political climate and had this to say:
“At the same time, the Committee is deeply conscious of the  criminalization
of our polity and the fast erosion of confidence of the people at  large  in
our political process of the day. This will certainly weaken  our  democracy
and  will  render  the  democratic  institutions  sterile.   The   Committee
therefore  feels  that  politics  should  be  cleansed   of   persons   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 does give some  interesting  statistics  about
the elected representatives of the people in the following words:
“In the current Lok Sabha, 30%  or  162  sitting  MPs  have  criminal  cases
pending against them, of which about half  i.e.  76  have  serious  criminal
cases. Further, the prevalence  of  MPs  with  criminal  cases  pending  has
increased over time. In 2004, 24%  of  Lok  Sabha  MPs  had  criminal  cases
pending, which increased to 30% in the 2009 elections.

The situation is similar across states  with  31%  or  1,258  out  of  4,032
sitting MLAs with pending cases, with again about half being serious  cases.
Some states have a much higher percentage of MLAs with criminal records:  in
Uttar Pradesh, 47% of MLAs have criminal cases pending. A number of MPs  and
MLAs have been  accused  of  multiple  counts  of  criminal  charges.  In  a
constituency of Uttar Pradesh, for example, the MLA has  36  criminal  cases
pending including 14 cases related to murder.

From this data it is clear that about one-third  of  elected  candidates  at
the Parliament and  State  Assembly  levels  in  India  have  some  form  of
criminal taint. Data elsewhere suggests that one-fifth of MLAs have  pending
cases which have proceeded to the stage  of  charges  being  framed  against
them by a court at the time of their election. Even more disturbing  is  the
finding that the percentage  of  winners  with  criminal  cases  pending  is
higher than the percentage of candidates  without  such  backgrounds.  While
only 12% of candidates  with  a  “clean”  record  win  on  average,  23%  of
candidates  with  some  kind  of  criminal  record  win.  This  means   that
candidates charged with a crime  actually  fare  better  at  elections  than
‘clean’ candidates. Probably as a result,  candidates  with  criminal  cases
against them tend to be given tickets a second time. Not only  do  political
parties select candidates with criminal backgrounds, there  is  evidence  to
suggest that untainted representatives later  become  involved  in  criminal
activities. The incidence of criminalisation of politics is  thus  pervasive
making its remediation an urgent need.”

While it may be necessary, due to the  criminalization  of  our  polity  and
consequently of our politics, to ensure that certain persons do  not  become
Ministers, this is not possible through guidelines issued by this Court.  It
is for the electorate to ensure that suitable (not merely eligible)  persons
are elected to the Legislature and it is for the  Legislature  to  enact  or
not enact a more restrictive law.
Conclusions on the second relief
35.   The discussion leads to the following conclusions:

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;

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;

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;

That there is some degree of criminalization of politics is quite evident;

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  those,  who  may  be  appointed  a  Minister  in  the  Central
Government is also very wide, as mentioned above.  Any  legislator  or  non-
legislator can be appointed as a Minister but must quit as  soon  as  he  or
she earns a disqualification either under the Constitution or under  Section
8 of the Representation of the People Act, 1951.[84] In  B.P.  Singhal  this
Court  observed  that  “a  Minister  is  hand-picked  member  of  the  Prime
Minister's team. The relationship between the Prime Minister and a  Minister
is purely political.”
37.   In addition to the above, how  long  a  Minister  should  continue  in
office is best answered by the response to a question  put  to  the  British
Prime Minister John Major who was asked to  “list  the  circumstances  which
render Ministers unsuitable to retain office.” His written  reply  given  to
the House of Commons on 25th January, 1994 was: “There can be a  variety  of
circumstances but the main criterion should  be  whether  the  Minister  can
continue to perform the duties of office effectively.”[85]
38.   This being the position, the burden of appointing  a  suitable  person
as a Minister in the Central Government lies entirely on  the  shoulders  of
the Prime Minister and may eminently be left to his or her good sense.  This
is  what  our  Constitution  makers  intended,  notwithstanding   the   view
expressed by Shri H.V. Kamath in the  debate  on  30th  December,  1948.  He
said:

“My Friend, Prof. Shah, has just moved  amendment  No.1300  comprising  five
sub-clauses. I dare say neither Dr. Ambedkar nor any of my other  honourable
Friends in this House will question the principle  which  is  sought  to  be
embodied in Clause (2E) of amendment No. 1300 moved by Prof.  Shah.  I  have
suggested my amendment No. 46 seeking to  delete  all  the  words  occurring
after  the  words  "moral  turpitude"  because  I  think  that  bribery  and
corruption are offences which involve moral turpitude. I  think  that  moral
turpitude covers bribery, corruption and  many  other  cognate  offences  as
well. Sir, my friends here will, I am sure,  agree  with  me  that  it  will
hardly redound to the credit of any government if that  government  includes
in its fold any minister who has had a shady past or about  whose  character
or integrity there is any widespread suspicion. I hope 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."[86]




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  Constituent
Assembly on 25th November, 1949. He had this to say  about  the  working  of
our Constitution:
“As much defence as could be offered to the Constitution  has  been  offered
by my friends Sir Alladi Krishnaswami Ayyar and Mr. T.T.  Krishnamachari.  I
shall not therefore enter into the merits of  the  Constitution.  Because  I
feel, however good a Constitution may  be,  it  is  sure  to  turn  out  bad
because those who are called to work it, happen to be  a  bad  lot.  However
bad a Constitution may be, it may turn out to  be  good  if  those  who  are
called to work it, happen to be a good lot. The working  of  a  Constitution
does  not  depend  wholly  upon  the  nature  of   the   Constitution.   The
Constitution can provide only the organs of State such as  the  Legislature,
the Executive and the Judiciary. The factors on which the working  of  those
organs of the State depend are the people and  the  political  parties  they
will set up as their  instruments  to  carry  out  their  wishes  and  their
politics. Who can say how the people of India and  their  purposes  or  will
they prefer revolutionary methods of  achieving  them?  If  they  adopt  the
revolutionary methods, however good the Constitution may be, it requires  no
prophet to say that it will fail. It  is,  therefore,  futile  to  pass  any
judgement upon the Constitution without reference  to  the  part  which  the
people and their parties are likely to play.”[87]

41.   This sentiment was echoed  in  the  equally  memorable  words  of  Dr.
Rajendra Prasad on 26th November, 1949. He had this to say:
“Whatever the Constitution may or  may  not  provide,  the  welfare  of  the
country will depend upon the way in which the country is administered.  That
will depend upon the men who administer it. It is  a  trite  saying  that  a
country can have only the  Government  it  deserves.  Our  Constitution  has
provision in it which appear to some to be objectionable from one  point  or
another. We must admit that the defects are inherent  in  the  situation  in
the country and the people at large. If  the  people  who  are  elected  are
capable and men of character and integrity, they would be able to  make  the
best even of a defective Constitution. If they are  lacking  in  these,  the
Constitution cannot help the country.  After  all,  a  Constitution  like  a
machine is a lifeless thing.  It  acquires  life  because  of  the  men  who
control it and operate it, and India needs today nothing more than a set  of
honest men who will have the interest of the country before them.”[88]


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.

                                                              ...……………………..J
                                                   (Madan B. Lokur)
New Delhi;
August 27, 2014
                        IN THE SUPREME COURT OF INDIA

                       CIVIL  APPELLATE  JURISDICTION


                    WRIT PETITION (CIVIL) NO. 289 OF 2005

MANOJ NARULA                      …  PETITIONER (S)

                                   VERSUS

UNION OF INDIA                    …  RESPONDENT (S)



KURIAN, J.:



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!
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 perseverance  and  protection  of  the
Constitution of India in both letters and spirit.”



Court      is      the      conscience       of       the       Constitution
   of India. Conscience is the moral sense of right and wrong  of  a  person
(Ref.: Oxford English Dictionary). Right or wrong, for  court,  not  in  the
ethical sense of morality but in the constitutional sense.  Conscience  does
not speak to endorse one’s good  conduct;  but  when  things  go  wrong,  it
always speaks; whether you listen or not. It is a gentle and sweet  reminder
for rectitude. That is the function of  conscience.  When  things  go  wrong
constitutionally, unless the conscience speaks, it is not  good  conscience;
it will be accused of as numb conscience.

One cannot think  of  the  Constitution  of  India  without  the  preambular
principle of democracy and good governance.  Governance  is  mainly  in  the
hands of the Executive. The executive power of the Union  under  Article  53
and that of the States under Article 154 vests in  the  President  of  India
and the Governor of the State, respectively. Article 74  for  the  Union  of
India and Article 163 for  the  State  have  provided  for  the  Council  of
Ministers to aid and advise the President or the Governor, as the  case  may
be. The executive power extends to the respective legislative competence.

Before entering office, a Minister has  to  take  oath  of  office  (Article
75/164). In form, except for the change in the words ‘Union’  or  particular
‘State’, there is no difference in the form of oath. Ministers take oath  to
… “faithfully and conscientiously discharge  …”  their  duties  and  ….  “do
right to all manner of people in accordance with Constitution and  the  law,
without fear or favour, affection or ill-will”.

Allegiance  to  the  Constitution  of  India,  faithful  and   conscientious
discharge of the duties, doing right to people and all  these  without  fear
or favour, affection or ill-will, carry heavy weight. ‘Conscientious’  means
“wishing to do what is right, relating  to  a  person’s  conscience”  (Ref.:
Concise Oxford English  Dictionary).  The  simple  question  is,  whether  a
person who has come in conflict with law and,  in  particular,  in  conflict
with law on offences involving moral turpitude and  laws  specified  by  the
Parliament under Chapter III of The Representation of the People Act,  1951,
would be in a position  to  conscientiously  and  faithfully  discharge  his
duties as Minister and that too, without any fear or favour?

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?

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 keys of his chest with a  servant  whose
integrity is doubted? It may not be altogether irrelevant  to  note  that  a
person even of doubtful integrity is not appointed in  the  important  organ
of the State which interprets law  and  administers  justice;  then  why  to
speak of questioned integrity! What to say more,  a  candidate  involved  in
any criminal case and facing trial, is not appointed in  any  civil  service
because of the alleged criminal antecedents, until acquitted.

Good governance is only in the hands of good men. No doubt, what is good  or
bad is not for the court to decide: but the court can  always  indicate  the
constitutional  ethos  on  goodness,   good   governance   and   purity   in
administration and remind  the  constitutional  functionaries  to  preserve,
protect and promote the same.  Those ethos are the unwritten  words  in  our
Constitution. However,  as  the  Constitution  makers  stated,  there  is  a
presumption that the Prime Minister/Chief Minister  would  be  well  advised
and  guided  by  such  unwritten  yet  constitutional  principles  as  well.
According to Dr. B. R. Ambedkar, as specifically referred to by  my  learned
brother at pargraph-70 of the leading judgment, such things were only to  be
left to the good sense of the Prime  Minister,  and  for  that  matter,  the
Chief  Minister  of  State,  since  it  was  expected  that  the  two  great
constitutional functionaries would not dare to  do  any  infamous  thing  by
inducting an  otherwise  unfit  person  to  the  Council  of  Ministers.  It
appears, over a period of time, at least in some cases, it was only a  story
of great expectations. Some  of  the  instances  pointed  out  in  the  writ
petition indicate that Dr. Ambedkar  and  other  great  visionaries  in  the
Constituent Assembly have been bailed out. Qualification  has  been  wrongly
understood as the mere absence of  prescribed  disqualification.  Hence,  it
has become the bounden duty of the court to remind the  Prime  Minister  and
the Chief Minister of the State of their duty to act in accordance with  the
constitutional aspirations. To quote Dr. Ambedkar:

“However, good a Constitution may be, it is sure to  turn  out  bad  because
those who are called to work it happen to be  a  bad  lot.  However,  bad  a
Constitution may be, it may turn out to be good if those who are  called  to
work it happen to be a good lot. The working  of  a  Constitution  does  not
depend wholly upon the nature of the Constitution.”



Fortunately for us, our Constitution has stood  the  test  of  time  and  is
acclaimed to be one of the best in the world.  Problem  has  been  with  the
other  part,  though  sporadically.  Kautilya,  one  of  the  great   Indian
exponents of art of government, has dealt with  qualification  of  king  and
his councillors at Chapter IX in Arthasastra, said to  be  compiled  between
BC 321-296. To quote relevant portion:

                                 “CHAPTER IX

                   THE CREATION OF COUNCILLORS AND PRIESTS

NATIVE, born of high family, influential, well trained  in  arts,  possessed
of foresight, wise, of strong memory, bold, eloquent, skilful,  intelligent,
possessed of enthusiasm, dignity and endurance, pure in character,  affable,
firm in loyal devotion, endowed with  excellent  conduct,  strength,  health
and bravery, free from procrastination and  ficklemindedness,  affectionate,
and free from such qualities as  excite  hatred  and  enmity-these  are  the
qualifications of a ministerial officer.”



The attempt made by this court  in  the  above  background  history  of  our
country and Constitution is only to plug some of the bleeding points in  the
working of our Constitution so that the  high  constitutional  functionaries
may work it well and not wreck  it.  Beauty  of  democracy  depends  on  the
proper exercise of duty by those who work it.

No doubt, it is not for the court  to  issue  any  direction  to  the  Prime
Minister or the Chief Minister, as the case may be,  as  to  the  manner  in
which they should exercise their power while  selecting  the  colleagues  in
the Council of Ministers. That is the constitutional  prerogative  of  those
functionaries who are called  upon  to  preserve,  protect  and  defend  the
Constitution. But it is the prophetic duty of this Court to remind  the  key
duty holders about their role in working the Constitution. Hence,  I  am  of
the firm view, that the Prime Minister and the Chief Minister of the  State,
who themselves have taken oath to bear true  faith  and  allegiance  to  the
Constitution  of  India  and  to  discharge  their  duties  faithfully   and
conscientiously, will be well advised to consider  avoiding  any  person  in
the Council of Ministers,  against  whom  charges  have  been  framed  by  a
criminal court in respect of offences involving  moral  turpitude  and  also
offences specifically referred to in Chapter III of  The  Representation  of
the People Act, 1951.


                                                               ...……………………J.
           (KURIAN JOSEPH)
New Delhi;
August 27, 2014.


-----------------------
[1]

       AIR 1975 SC 2299
[2]    (1995) 4 SCC 611
[3]    AIR 2006 SC 3127
[4]    (2013) 10 SCC 1
[5]    (1978) 1 SCC 405
[6]    AIR 1980 SC 1362
[7]    (2002) 5 SCC 294
[8]    (1997) 4 SCC 306
[9]    (1997) 6 SCC 1
[10]   AIR 2005 SC 688
[11]   (2013) 4 SCC 642
[12]   Writ Petition (Civil) No. 38 of 1997 etc. pronounced on May 06, 2014
[13]   (2013) 7 SCC 653
[14]   (1973) 4 SCC 225
[15]   (2011) 4 SCC 1
[16]   (2009) 7 SCC 1
[17]   (2006) 11 SCC 356
[18]   (2014) 2 SCC 609
[19]   (2013) 5 SCC 1
[20]   (2005) 8 SCC 202
[21]   (1974) 2 SCC 831
[22]   (2001) 7 SCC 231
[23]   (2004) 8 SCC 788
[24]   1981 Supp SCC 87
[25]   (2006) 8 SCC 212
[26]   (1971) 2 SCC 63
[27]   (1972) 3 SCC 717
[28]   (2006) 2 SCC 682
[29]   (2004) 10 SCC 699
[30]   (2005) 5 SCC 294
[31]   (2011) 2 SCC 83
[32]   (2011) 4 SCC 324
[33]   (2012) 2 SCC 34
[34]   1936 AC 578
[35]   1965 AC 172
[36]   23 CLR 457
[37]   (1967) 2 SCR 109
[38]   (1980) 3 SCC 625
[39]   (2007) 2 SCC 1
[40]   AIR 1987 SC 232
[41]   AIR 1997 SC 610
[42]   (1997) 6 SCC 241
[43]   (2010) 12 SCC 1
[44]   (1994) 6 SCC 632
[45]   AIR 1994 SC 1349
[46]   AIR 1950 SC 124
[47]   (1974) 74 CLR 31
[48]   (1992) 177 CLR 106
[49]   (1945) 71 CLR 29, 85
[50]   (1958) 99 CLR 132, 144-5
[51]   (1971) 122 CLR 353, 401
[52]   Constituent Assembly Debates 1989: VII, 38.
[53]   James Madison as Publius, Federalist 51
[54]   Laurance H. Tribe, THE INVISIBLE CONSTITUTION 29 (2008)
[55]   (2009) 15 SCC 351
[56]   (2001) 3 SCC 594
[57]   (1995) 6 SCC 289
[58]   (2003) 9 SCC 731
[59]   AIR 2008 SC 693
[60]   AIR 1955 SC 549
[61]   AIR 1994 SC 268
[62]   H.M. Seervai, Constitutional Law of India, vol. 2, 4th Ed.  Pg. 2060
[63]   Constitutional and Administrative Law, 2nd Ed. Pg 368-370, David
Polland, Neil Parpworth David Hughs
[64]   5th Edition, pg 297-305
[65]   Nolan Report, Standards in Public Life, Cm 2850-I, 1995, Lodon HMSO,
Chapter 3, para 4.
[66]   Constitutional Practice (Second Edition) (pg. 146-148)
[67]   AIR 1951 SC 332
[68]   I. Jennings, The law and the Constitution (5th Edn., ELBS: London,
1976) in his Chapter “Conventions” at 247.
[69]   I. Lovehead, Constitutional Law-A Critical Introduction (2nd edn.,
Butterworths: London, 2000) at 247
[70]


      [71]http://parliamentofindia.nic.in/ls/debates/vol11p12.htm
[72]
      [73] S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126
[74]
      [75] 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  States  of  Chhattisgarh,  Jharkhand,  Madhya
Pradesh and Odisha, there shall be a Minister in charge  of  tribal  welfare
who may in addition be in charge of the welfare of the Scheduled Castes  and
backward classes or any other work.
      (1-A) The total number of Ministers, including the Chief Minister,  in
the Council of Ministers in a State shall not exceed  fifteen  per  cent  of
the total number of members of the Legislative Assembly of that State:
      Provided that the number of Ministers, including the  Chief  Minister,
in a State shall not be less than twelve:
      Provided further that where the total number of  Ministers,  including
the Chief Minister, in  the  Council  of  Ministers  in  any  State  at  the
commencement of the Constitution (Ninety-first Amendment) Act, 2003  exceeds
the said fifteen per cent or the number specified in the first  proviso,  as
the case may be, then, the total number of Ministers in that State shall  be
brought in conformity with the provisions of this clause within  six  months
from such date as the President may by public notification appoint.
      (1-B) A member of the Legislative Assembly of a State or either  House
of the Legislature of a State having Legislative Council  belonging  to  any
political party who is disqualified for being a member of that  House  under
Paragraph 2  of  the  Tenth  Schedule  shall  also  be  disqualified  to  be
appointed as a  Minister  under  clause  (1)  for  duration  of  the  period
commencing from the date of his disqualification till the date on which  the
term of his office as such member would expire  or  where  he  contests  any
election to the Legislative Assembly of a  State  or  either  House  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.
[76]
      [77] B.R. Kapur v. State of Tamil Nadu, (2001) 7 SCC 231
[78]
      [79] B.P. Singhal v. Union of India, (2010) 6 SCC 331
[80]
      [81] State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1
[82]
      [83] 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
maintenance of harmony) or Section 171-E (offence  of  bribery)  or  Section
171-F (offence of undue influence or personation at  an  election)  or  sub-
section (1) or sub-section (2) of Section 376 or Section  376-A  or  Section
376-B or Section 376-C or Section  376-D  (offences  relating  to  rape)  or
Section 498-A (offence of cruelty towards a woman by husband or relative  of
a husband) or sub-section (2) or sub-section (3) of Section 505 (offence  of
making statement creating or promoting enmity, hatred  or  ill-will  between
classes or offence relating to such statement in any place of worship or  in
any assembly engaged in the performance of religious  worship  or  religious
ceremonies) of the Indian Penal Code (45 of 1860); or
      (b) the Protection of Civil Rights  Act,  1955  (22  of  1955),  which
provides for punishment for the preaching and practice of  “untouchability”,
and for the enforcement of any disability arising therefrom; or
      (c) Section 11 (offence of importing or  exporting  prohibited  goods)
of the Customs Act, 1962 (52 of 1962); or
      (d) Sections 10 to 12 (offence of being a  member  of  an  association
declared unlawful, offence relating to dealing with  funds  of  an  unlawful
association or offence  relating  to  contravention  of  an  order  made  in
respect of a notified place) of the Unlawful  Activities  (Prevention)  Act,
1967 (37 of 1967); or
      (e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
      (f) the Narcotic Drugs and Psychotropic Substances Act,  1985  (61  of
1985); or
      (g) Section 3 (offence of committing  terrorist  acts)  or  Section  4
(offence  of  committing  disruptive  activities)  of  the   Terrorist   and
Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
      (h) Section 7 (offence of contravention of the provisions of  Sections
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 135-A (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  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 for not less than six months,  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.
      (3) A person convicted of any offence and  sentenced  to  imprisonment
for not less than two years other than  any  offence  referred  to  in  sub-
section (1) or sub-section (2) 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.
      (4) Held unconstitutional in Lily Thomas v. Union of India,  (2013)  7
SCC 653 Notwithstanding anything in sub-section (1), sub-section (2) or sub-
section (3) a disqualification under either sub-section shall  not,  in  the
case of a person  who  on  the  date  of  the  conviction  is  a  member  of
Parliament or the Legislature of a State, take  effect  until  three  months
have elapsed from  that  date  or,  if  within  that  period  an  appeal  or
application for revision is brought in respect  of  the  conviction  or  the
sentence, until that appeal or application is disposed of by the court.
      Explanation.—In this section—
      (a) “law providing for the prevention  of  hoarding  or  profiteering”
means any law, or any order, rule or notification having the force  of  law,
providing for—
      (i) the regulation of  production  or  manufacture  of  any  essential
commodity;
      (ii) the control of price at which  any  essential  commodity  may  be
bought or sold;
      (iii) the regulation of acquisition, possession,  storage,  transport,
distribution, disposal, use or consumption of any essential commodity;
      (iv) the prohibition of the withholding from  sale  of  any  essential
commodity ordinarily kept for sale;
      (b) “drug” has the meaning assigned to it in the Drugs  and  Cosmetics
Act, 1940 (23 of 1940);
      (c) “essential commodity” has  the  meaning  assigned  to  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).
[84]
       [85]  Municipal  Committee,   Patiala   v.   Model   Town   Residents
Association, (2007) 8 SCC 669
[86]
      [87] 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.
[88]
      [89] V.K. Naswa v. Union of India, (2012) 2 SCC 542
[90]
      [91] Gainda Ram v. MCD,  (2010)  10  SCC  715.  This  was  a  judgment
delivered by a Bench of two learned Judges.
[92]
      [93] The Street Vendors (Protection of Livelihood  and  Regulation  of
Street Vending) Bill was eventually passed and notified as an Act in 2014.
[94]
      [95] Public Law 1994, Aut, 431-45
[96]
      [97] Constituent Assembly Debates, Volume VII
[98]
      [99] Lily Thomas v. Union of India, (2013) 7 SCC 653
[100]

[101]http://hansard.millbanksystems.com/written_answers/1994/jan/25/minister
s-unsuitability-for office#S6CV0236P0_19940125_CWA_172
[102]
      [103] Constituent Assembly Debates, Volume VII
[104]

      [105] http://parliamentofindia.nic.in/ls/debates/vol11p11.htm

[106]
      [107] http://parliamentofindia.nic.in/ls/debates/vol11p12.htm

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