Judgment

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

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 Narain1, 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 another4, 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

1 AIR 1975 SC 2299

2 (1995) 4 SCC 611

3 AIR 2006 SC 3127

4 (2013) 10 SCC 1

structure of the Constitution and, thereafter, proceeded to lay down that democracy being the basic feature of our constitutional set-up, there can be no two opinions that free and fair elections would alone guarantee the growth of a healthy democracy in the country. The term “fair” denotes equal opportunity to all 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

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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

  1. 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

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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.

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THE PURITY OF ELECTION

  1. 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 others5, 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.”

  1. In Raghbir Singh Gill v. S. Gurcharan Singh Tohra6, the learned Judges, after referring to Mohinder Singh Gill’s case, stated that nothing can diminish the overwhelming importance of the cross or preference

5 (1978) 1 SCC 405

6 AIR 1980 SC 1362

7

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.

  1. This Court has laid emphasis on the purity of elections in Union of India v. Association for Democratic Reforms and another7 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

7 (2002) 5 SCC 294

8

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.

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  1. 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

  1. 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 others8, 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 and deeply disturbing trends that are prevalent in our

present society. The Court further noticed that the nexus

8 (1997) 4 SCC 306

10

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.

  1. In Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others9, 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.

9 (1997) 6 SCC 1

11

Jayarajan10, 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.

  1. 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

10 AIR 2005 SC 688

12

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).

  1. 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

13

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.

  1. 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

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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

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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.”

  1. 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

  1. 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 Maharashtra11 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 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

11 (2013) 4 SCC 642

16

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.”

  1. 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

12 Writ Petition (Civil) No. 38 of 1997 etc. pronounced on May 06, 2014

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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.

  1. 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.

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

  1. 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.
  2. 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

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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.

  1. 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.

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  1. Similarly, Article 173 provides for qualification for membership of the State Legislature and Article 191 enumerates the disqualifications similar to Article 102.
  2. 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

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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.”

  1. 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 others13 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

13 (2013) 7 SCC 653

22

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, 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

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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.

  1. 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

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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

  1. 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

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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

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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 another14 to highlight that the applicability of the doctrine of implied limitation has been accepted by this Court.

14 (1973) 4 SCC 225

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  1. 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

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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 another15, N. Kannadasan v. Ajoy Khose and others16, Inderpreet Singh Kahlon v. State of Punjab17, Arun Kumar Agarwal v. Union of India18, State of Punjab v. Salil Sabhlok and others19 and Centre for Public Interest Litigation and another v. Union of India and another20.

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

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  1. 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

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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 another21 and B. R. Kapur v. State of T.N. and another22

  1. 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 others23 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

21 (1974) 2 SCC 831

22 (2001) 7 SCC 231

23 (2004) 8 SCC 788

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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”.

  1. 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

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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 another24 and M. Nagaraj and others v. Union of India and others25.

  1. 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

24 1981 Supp SCC 87

25 (2006) 8 SCC 212

33

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.

  1. Mr. Andhyarujina has further submitted that Section 44(4)(ii) of the Australian Constitution puts a limitation on

34

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

35

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

36

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.

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  1. 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.
  2. 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

38

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.

  1. Mr. Parasaran, learned amicus curiae, has drawn a distinction between the two concepts, namely, constitutional morality and constitutional propriety on one hand and

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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.

  1. 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

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curtail the power of a high constitutional functionary like the Prime Minister.

  1. 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 Gandhi26. 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

26 (1971) 2 SCC 63

41

to the Constitution Bench decision in G. Narayanaswami v. G. Pannerselvam and others27 and a three-Judge Bench decision in Shrikant v. Vasantrao and others28. 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).

  1. 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 Maharashtra30, S.

27 (1972) 3 SCC 717

28 (2006) 2 SCC 682

29 (2004) 10 SCC 699

30 (2005) 5 SCC 294

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Ganesan v. Rama Ranghuraman31, State of U.P. v. Naresh32 and Kailash Gour & ors. v. State of Assam33. 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

  1. 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: –

31 (2011) 2 SCC 83

32 (2011) 4 SCC 324

33 (2012) 2 SCC 34

43

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.

  1. 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.

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(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.

  1. 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.

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(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.

  1. 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.”

  1. 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

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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.”

  1. 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.”

  1. 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

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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

  1. 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

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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 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.

  1. 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.
  2. 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.”
  3. Shelat and Grover, JJ., in their opinion, while speaking about the executive power of the President, have

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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.”

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  1. 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 Australia34 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: –

34 1936 AC 578

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“…. 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.”

  1. Jaganmohan Reddy, J., in his separate opinion, concurred with the view expressed by Sikri, C.J.
  2. Palekar, J., has opined thus: –

“Some more cases like Ranasinghe’s case35 Taylor v. Attorney General of Queensland36; Mangal Singh v. Union of India37, 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: –

35 1965 AC 172

36 23 CLR 457

37 (1967) 2 SCR 109

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“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.”

  1. 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.”

  1. 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

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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.”

  1. Be it clarified, in subsequent paragraphs, the learned Judge expressed the view that though the Parliament has

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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.

  1. In Minerva Mills Ltd. And Others v. Union of India and Others38, 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

38 (1980) 3 SCC 625

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“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.

  1. 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”.”

  1. 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

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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.

  1. In I.R. Coelho (Dead) by Lrs. v. State of Tamil Nadu39, 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

39 (2007) 2 SCC 1

57

not part of basic structure. Khanna, J. however, does not so say in Kesavananda Bharati case.”

  1. 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

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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),

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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

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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.

  1. 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

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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

  1. 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

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safeguards in the matter of adoption of Indian children by foreigners in the case of Laxmi Kant Pandey v. Union of India40 or issuance of guidelines pertaining to arrest in the case of D.K. Basu v. State of West Bengal41 or directions issued in Vishakha and others v. State of Rajasthan and others42 are some of the instances.

  1. 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 others43 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

40 AIR 1987 SC 232

41 AIR 1997 SC 610

42 (1997) 6 SCC 241

43 (2010) 12 SCC 1

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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)

  1. 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)”

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  1. 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

  1. 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

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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.

  1. 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 others44, right to privacy has been inferred from Article 21. Similarly, in Joginder Kumar v. State of U.P. and others45, 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 Madras46, has observed that freedom of speech and expression includes freedom of propagation of ideas.

44 (1994) 6 SCC 632

45 AIR 1994 SC 1349

46 AIR 1950 SC 124

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  1. 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 Commonwealth47, Dixon, J opined that constitutional implication should be based on considerations which are compelling. Mason, CJ, in Political Advertising Case48, 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

47 (1974) 74 CLR 31

48 (1992) 177 CLR 106

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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.

  1. Dixon, J, in Australian National Airways Pty Ltd. v Commonwealth49, said: ‘I do not see why we should be fearful about making implications’. The said principle has been approved in Lamshed v Lake50, and thereafter, in Payroll Tax Case51. 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

49 (1945) 71 CLR 29, 85

50 (1958) 99 CLR 132, 144-5

51 (1971) 122 CLR 353, 401

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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: –

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“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.”

  1. 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

  1. 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.
  2. The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a Constitution

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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

  1. 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

52 Constituent Assembly Debates 1989: VII, 38.

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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

  1. 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.

53 James Madison as Publius, Federalist 51

54 Laurance H. Tribe, THE INVISIBLE CONSTITUTION 29 (2008)

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GOOD GOVERNANCE

  1. 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 others55, 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.
  2. 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.”

  1. In M.J. Shivani and others v. State of Karnataka and others57, 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

55 (2009) 15 SCC 351

56 (2001) 3 SCC 594

57 (1995) 6 SCC 289

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Maharashtra and others v. Jalgaon Municipal Corporation and others58, 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.

  1. 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

58 (2003) 9 SCC 731

59 AIR 2008 SC 693

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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

  1. 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

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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]

  1. 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 Punjab60, 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

60 AIR 1955 SC 549

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or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet.

  1. 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

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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.

  1. In Supreme Court Advocates-on-Record Association and another v. Union of India61, 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.

61 AIR 1994 SC 268

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  1. We have referred to these authorities singularly for the purpose that the Prime Minister has been conferred an extremely special status under the Constitution.
  2. 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 Law62, 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]

62 H.M. Seervai, Constitutional Law of India, vol. 2, 4th Ed. Pg. 2060

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  1. In Constitutional and Administrative Law63, 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.”

  1. In Constitutional & Administrative Law64, Hilaire Barnett, while dealing with the conduct of Ministers, referred to the Nolan Committee65 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”

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.

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  1. In Constitutional Practice66, 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.”

  1. 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.”

  1. 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

66 Constitutional Practice (Second Edition) (pg. 146-148)

67 AIR 1951 SC 332