Supreme Court Verdict on Ministers with Crime Record


In a landmark ruling, the Supreme Court today dismissed a petition seeking the removal of people with alleged criminal background from becoming ministers at the Centre or states. The Apex court said that “We leave it to the wisdom of the Prime Minister whether to appoint people with criminal background or not,” while dismissing the petition filed by Manoj Narula, who had sought direction against criminalisation of politics.

 

It was a unanimous ruling by a five-member bench headed by the Chief Justice of India RM Lodha, Dipak Misra, Madan B Lokur, Kurian Joseph and SA Bobde .

 

While all five judges stood by the verdict passed, two of them- Justice Kurian and Justice Lokur, strongly insisted that if a person with dubious integrity is barred from civil services, then politicians with criminal background should also be barred from the cabinet.

The five member bench was of the opinion that corrupt politicians should not be a part of the cabinet but left the responsibility of deciding the same on the Prime Minister.

 

Observing that it cannot add disqualification in article 75 (1) (appointment of PM and Council of Ministers), the bench, however, said that the PM and CMs should not consider people with criminal antecedents and against whom charges have been framed in serious offences, including corruption, for appointment as ministers.

 

The apex court said that the PM has been regarded repository of constitutional trust and he should act in national interest.

“We are saying nothing more, nothing less and it is left on the wisdom of the PM to decide,” the bench said, adding this is also applicable to CMs.

 

THE  JUDGMENT 

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 
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
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
2. We have commenced our judgment with the aforesaid
prologue as the present writ petition under Article 32 of the
Constitution was filed by the petitioner as pro bono publico
assailing the appointment of some of the original
respondents as Ministers to the Council of Ministers of
Union of India despite their involvement in serious and
heinous crimes. On 24.3.2006, when the matter was listed
before the Bench presided by the learned Chief Justice, the
following order came to be passed: –
“A point of great public importance has been
raised in this petition. Broadly, the point is
about the legality of the person with criminal
background and/or charged with offences
involving moral turpitude being appointed as
ministers in Central and State Governments.
We have heard in brief Mr. Rakesh Dwivedi,
learned senior counsel who was appointed as
amicus curiae to assist the Court, as also the
 learned Solicitor General, appearing for the Union
of India, and Mr. Gopal Subramaniam, learned
Additional Solicitor General appearing on behalf
of the Attorney General for India. Having regard
to the magnitude of the problem and its vital
importance, it is but proper that the petition is
heard by a Bench of five Judges.
We issue notice to Union of India. Formal
notice need not be issued since the Union of
India is represented by learned Solicitor General.
Notices shall also be issued to the Advocates
General of all the States. The notice shall state
that the State Governments and the Union of
India may file their affidavits along with relevant
material within four weeks of service of notice.
The Prime Minister and some of the
Ministers in Union Cabinet have been arrayed as
party respondents 2 to 7. It is not necessary to
implead individual ministers and/or Prime
Minister for deciding the question above-named.
Accordingly, respondent Nos. 2 to 7 are deleted
from the array of parties.
List the case after the Court reopens after
the summer vacation for directions as to fixing a
date for its being placed before the Constitution
Bench.”
In view of the aforesaid order and the subsequent
orders, the matter has been placed before us. Considering
the controversy raised, we are required to interpret the
scope and purpose of Articles 75 and 164 of the
Constitution, regard being had to the text, context, scheme
and spirit of the Constitution.

THE PURITY OF ELECTION
3. 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.”
4. 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
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.
5. 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 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 lawmakers.
Eventually, the Court directed the Election
Commission to exercise its power under Article 324 of the
Constitution requiring the candidate to furnish information
pertaining to the fact whether the candidate has been
convicted/ acquitted/discharged of any criminal offence in
the past, if any, and whether he has been punished with
imprisonment or fine; whether the candidate is accused in
any pending case of any offence punishable with
imprisonment for two years or more, and in which charge is
framed or cognizance is taken by the court of law; and
certain other information.
6. From the aforesaid authorities, it is perceivable that
while giving emphasis on the sanctity of election, the Court
has expressed its concern with regard to various facets of
the candidates who contest the election and seek votes.
CRIMINALISATION OF POLITICS
7. 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 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.
8. 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 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.
9. It is worth saying that systemic corruption and
sponsored criminalization can corrode the fundamental core
of elective democracy and, consequently, the constitutional
governance. The agonized concern expressed by this Court
on being moved by the conscious citizens, as is perceptible
from the authorities referred to hereinabove, clearly shows
that a democratic republic polity hopes and aspires to be
governed by a Government which is run by the elected
representatives who do not have any involvement in serious
criminal offences or offences relating to corruption,
casteism, societal problems, affecting the sovereignty of the
nation and many other offences. There are
recommendations given by different committees constituted
by various Governments for electoral reforms. Some of the
reports that have been highlighted at the bar are (i)
Goswami Committee on Electoral Reforms (1990), (ii) Vohra
Committee Report (1993), (iii) Indrajit Gupta Committee on
State Funding of Elections (1998), (iv) Law Commission
Report on Reforms of the Electoral Laws (1999), (v) National
Commission to Review the Working of the Constitution
(2001), (vi) Election Commission of India – Proposed
Electoral Reforms (2004), (vii) The Second Administrative
Reforms Commission (2008), (vii) Justice J.S. Verma
Committee Report on Amendments to Criminal Law (2013),
and (ix) Law Commission Report (2014).
10. Vohra Committee Report and other Reports have been
taken note of on various occasions by this Court. Justice
J.S. Verma Committee Report on Amendments to Criminal
Law has proposed insertion of Schedule 1 to the 1951 Act
enumerating offences under IPC befitting the category of
‘heinous’ offences. It recommended that Section 8(1) of the
1951 Act should be amended to cover, inter alia, the
offences listed in the proposed Schedule 1 and a provision
should be engrafted that a person in respect of whose acts
or omissions a court of competent jurisdiction has taken
cognizance under Section 190(1)(a), (b) or (c) of the Code of
Criminal Procedure or who has been convicted by a court of
competent jurisdiction with respect to the offences specified
in the proposed expanded list of offences under Section 8(1)
shall be disqualified from the date of taking cognizance or
conviction, as the case may be. It further proposed that
disqualification in case of conviction shall continue for a
further period of six years from the date of release upon
conviction and in case of acquittal, the disqualification shall
operate from the date of taking cognizance till the date of
acquittal.
11. The Law Commission, in its 244th Report, 2014, has
suggested amendment to the 1951 Act by insertion of
Section 8B after Section 8A, after having numerous
consultations and discussions, with the avowed purpose to
prevent criminalization of politics. It proposes to provide for
electoral reforms. Though it is a recommendation by the
Law Commission, yet to understand the existing scenario in
which the criminalization of politics has the effect
potentiality to create a concavity in the highly treasured
values of democracy, we think it apt to reproduce the
relevant part of the proposed amendment. It reads as
follows: –
“8B. Disqualification on framing of charge for
certain offences. – (1) A person against whom a
charge has been framed by a competent court for
an offence punishable by at least five years
imprisonment shall be disqualified from the date
of framing the charge for a period of six years, or
till the date of quashing of charge or acquittal,
whichever is earlier.
(2) Notwithstanding anything contained in this
Act, nothing in sub-section (1) shall apply to a
person:
(i) Who holds office as a Member of Parliament,
State Legislative Assembly or Legislative
Council at the date of enactment of this
provision, or
(ii) Against whom a charge has been framed for
an offence punishable by at least five years
imprisonment;
(a) Less than one year before the date of
scrutiny of nominations for an election
under Section 36, in relation to that
election;
(b) At a time when such person holds
office as a Member of Parliament, State
Legislative Assembly or Legislative
Council, and has been elected to such
office after the enactment of these
provisions;
(3) For Members of Parliament, State Legislative
Assembly or Legislative Council covered by clause
(ii) of sub-section (2), they shall be disqualified at
the expiry of one year from the date of framing of
charge or date of election, whichever is later,
unless they have been acquitted in the said
period or the relevant charge against them has
been quashed.”
12. The aforesaid vividly exposits concern at all quarters
about the criminalisation of politics. Criminalisation of
politics, it can be said with certitude, creates a dent in the
marrows of the nation.
CORRUPTION IN THE PRESENT SCENARIO
13. 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
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.”
14. 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
punishing such persons is a necessary mandate
of the PC Act, 1988. It is difficult to justify the
classification which has been made in Section 6-
A because the goal of law in the PC Act, 1988 is
to meet corruption cases with a very strong hand
and all public servants are warned through such
a legislative measure that corrupt public servants
have to face very serious consequences.”
And again:
“70. Office of public power cannot be the
workshop of personal gain. The probity in public
life is of great importance. How can two public
servants against whom there are allegations of
corruption of graft or bribe taking or criminal
misconduct under the PC Act, 1988 can be made
to be treated differently because one happens to
be a junior officer and the other, a senior decision
maker.
71. Corruption is an enemy of nation and
tracking down corrupt public servant, howsoever
high he may be, and punishing such person is a
necessary mandate under the PC Act, 1988. The
status or position of public servant does not
qualify such public servant from exemption from
equal treatment. The decision making power
does not segregate corrupt officers into two
classes as they are common crime doers and
have to be tracked down by the same process of
inquiry and investigation.”
From the aforesaid authorities, it is clear as noon day
that corruption has the potentiality to destroy many a
progressive aspect and it has acted as the formidable enemy
of the nation.
PROVISIONS RELATING TO QUALIFICATIONS AND
DISQUALIFICATION OF MPs AND MLAs/MLCs
15. 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.
16. Article 84 of the Constitution provides for
qualifications for membership of Parliament. The said
Article lays down that a person shall not be qualified to be
chosen to fill a seat in the Parliament unless he is a citizen
of India, and makes and subscribes before a person
authorised in that behalf by the Election Commission an
oath or affirmation according to the form set out for the
purpose in the Third Schedule; and further in the case of a
seat in the Council of States, not less than thirty years of
age and, in the case of a seat in the House of the People, not
less than twenty five years of age; and that apart, he must
possess such other qualifications as may be prescribed in
that behalf by or under any law made by Parliament.
17. 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.
18. Similarly, Article 173 provides for qualification for
membership of the State Legislature and Article 191
enumerates the disqualifications similar to Article 102.
19. The Parliament by the 1951 Act has prescribed further
qualifications and disqualifications to become a member of
Parliament or to become a member of Legislative Assembly.
Section 8 of the Act stipulates the disqualification on
conviction for certain offences. We need not state the
nature of the offences enumerated therein. Suffice it to
mention Section 8(1) covers a wide range of offences not
only under the Indian Penal Code but also under many
other enactments which have the potentiality to destroy the
core values of a healthy democracy, safety of the State,
economic stability, national security, and prevalence and
sustenance of peace and harmony amongst citizens, and
many others. Sub-sections 8(3) and 8(4), which have been a
matter of great debate, are reproduced below: –
“8(3) A person convicted of any offence and
sentenced to imprisonment for not less than
two years other than any offence referred to in
sub-section (1) or sub-section (2) shall be
disqualified from the date of such conviction
and shall continue to be disqualified for a
further period of six years since his release.
(4) Notwithstanding anything in sub-section (1),
Sub-section (2) or sub-section (3), a
disqualification under either sub-section shall
not, in the case of a person who on the date of
the conviction is a member of Parliament or the
Legislature of a State, take effect until three
months have elapse from that date or, if within
that period an appeal or application for revision
is brought in respect of the conviction or the
sentence, until that appeal or application is
disposed of by the court.”
20. 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
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
State Legislature, is beyond the powers conferred on
Parliament by the Constitution. Thereafter, dealing with
sitting members of the Parliament and State Legislature, the
two-Judge Bench ruled that if any sitting Member of
Parliament or a State Legislature is convicted of any of the
offences mentioned in sub-sections (1), (2) and (3) of Section
8 of the Act, and by virtue of such conviction and/or
sentence, suffers the disqualifications mentioned in subsections
(1), (2) and (3) of Section 8 of the Act, his
membership of Parliament or the State Legislature, as the
case may be, would not be saved by sub-section (4) of
Section 8 of the Act.
21. Thus, the scheme of disqualification upon conviction
laid down by the 1951 Act clearly upholds the principle that
a person who has been convicted for certain categories of
criminal activities is unfit to be a representative of the
people. Criminal activities that result in disqualification are
related to various spheres pertaining to the interest of the
nation, common citizenry interest, communal harmony, and
prevalence of good governance. It is clear that the 1951 Act
lays down that the commission of serious criminal offences
renders a person ineligible to contest in elections or
continue as a representative of the people. Such a
restriction does provide the salutary deterrent necessary to
prevent criminal elements from holding public office thereby
preserving the probity of representative government.
SUBMISSIONS OF THE COUNSEL
22. In this backdrop, the proponements put forth by Mr.
Dwivedi, learned senior counsel, who was appointed as
amicus curiae, are to be noted and considered. It is his
submission that under the constitutional scheme, it is the
right of a citizen to be governed by a Government which
does not have Ministers in the Council of Ministers with
criminal antecedents. Though qualifications and
disqualifications for the Members of Parliament and
Members of the State Legislative Assembly or the State
Legislative Council are provided under the Constitution, and
they basically relate to the election process and continuance
in the House and the further disqualifications which have
been enumerated under the 1951 Act have been legislated
by the Parliament being empowered under the specific
provisions of the Constitution, yet when the Ministers are
appointed who constitute the spectrum of collective
responsibility to run the Government, a stronger criteria has
to be provided for. A Minister is appointed by the President
on the advice of the Prime Minister as per Article 75(1) of
the Constitution and a Minister enters upon his Office after
the President administers him oath of office and secrecy
according to the form set out for the said purpose in the
Third Schedule and, therefore, submits Mr. Dwivedi, it is
the constitutional obligation on the part of the Prime
Minister not to recommend any person to be appointed as a
Minister of the Council of Ministers who has criminal
antecedents or at least who is facing a criminal charge in
respect of heinous or serious offences. The choice made by
the Prime Minister has to have its base on constitutional
choice, tradition and constitutional convention which must
reflect the conscience of the Constitution. It is propounded
by him that the same would serve the spirit and core values
of the Constitution, the values of constitutionalism and the
legitimate expectations of the citizens of this country. The
power conferred on any constitutional authority under any
of the Articles of the Constitution may not be circumscribed
by express or obvious prohibition but it cannot be said that
in the absence of use of any express phraseology in that
regard, it would confer an unfettered and absolute power or
unlimited discretion on the said constitutional authority.
Learned senior counsel would contend that the doctrine of
implied limitation has been accepted as a principle of
interpretation of our organic and living Constitution to meet
the requirements of the contemporaneous societal
metamorphosis and if it is not applied to the language of
Article 75(1), the élan vital of the Constitution would stand
extinguished. It is urged by him that judiciary, as the final
arbiter of the Constitution, is under the constitutional
obligation to inject life to the words of the Constitution so
that they do not become stagnate or sterile. In this context,
Mr. Dwivedi has commended us to the views of the learned
Judges in His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala and another14 to
highlight that the applicability of the doctrine of implied
limitation has been accepted by this Court.
14 (1973) 4 SCC 225
23. Relying on the said principle, it is contended by him
that the same has to be read into the language of Article
75(1) of the Constitution to state that the Prime Minister,
while giving advice to the President for appointment of a
person as Minister, is not constitutionally permitted to
suggest the name of a person who is facing a criminal trial
and in whose case charge/charges have been framed.
Learned senior counsel has further submitted that high
constitutional offices have to possess “institutional integrity”
so that the faith of the people at large is not shaken. He has
emphasised on the office of the President, the Governors,
Judges of the High Courts and of the Supreme Court of the
country and the Comptroller and Auditor General of India.
Such offices, as contended, are offices of high public trust
and, therefore, it is a natural necessity that in such
appointments, the incumbent should be of impeccable
integrity and character and it cannot be conceived that such
a person would be involved in any kind of criminal offence.
Mr. Dwivedi has made a distinction with regard to the
eligibility of a person for becoming a Member of Parliament
as that is controlled by qualifications and disqualifications
and the absence of disqualifications, but to be a Minister in
the Council of Ministers which is done solely on the advice
of the Prime Minister, absence of criminal antecedents has
to be a condition precedent. It is canvassed by him that
when parliamentary democracy is a basic feature of the
Constitution and the Council of Ministers exercise all the
powers as per the democratic conventions, it has to be
treated as an important constitutional institution of
governance of the nation and, therefore, it cannot be
allowed to be held by persons involved in criminal offences.
He has placed reliance upon the authorities in Centre for
PIL and another v. Union of India and 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.

24. Laying stress on the word “advice”, apart from referring
to the dictionary meaning, the learned senior counsel has
urged that the framers of the Constitution have used the
word “advice” as the Office of the Prime Minister is expected
to carry the burden of the constitutional trust. The advice
given by the Prime Minister to the President in the context
of Article 75(1) has to be a considered, deliberate and
informed one, especially taking note of the absence of
criminal antecedents and lack of integrity. A Minister,
though holds the office during the pleasure of the President,
yet as per the law laid down by this Court and the
convention, the advice of the Prime Minister binds the
President. However, the President, being the Executive
Head of the State, can refuse to follow the advice, if there is
constitutional prohibition or constitutional impropriety or
real exceptional situation that requires him to act to sustain
the very base of the Constitution. Learned senior counsel
would submit that the President, in exercise of his
constitutional prerogative, may refuse to accept the advice
of the Prime Minister, if he finds that the name of a Member
of Parliament is suggested to become a Minister who is
facing a criminal charge in respect of serious offences. To
buttress the said submission, he has drawn inspiration
from the decisions in Samsher Singh v. State of Punjab
and another21 and B. R. Kapur v. State of T.N. and
another22
25. 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
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”.
26. Mr. Anil Kumar Jha, learned counsel who has
preferred the writ petition on behalf of the petitioner,
supplementing the arguments of Mr. Dwivedi, contended
that though the choice of the Prime Minister relating to a
person being appointed as a Minister is his constitutional
prerogative, yet such choice cannot be exercised in an
arbitrary manner being oblivious of the honesty, integrity
and the criminal antecedents of a person who is involved in
serious criminal offences. The Prime Minister, while giving
advice to the President for appointment of a person as a
Minister, is required to be guided by certain principles
which may not be expressly stated in the Constitution but
he is bound by the unwritten code pertaining to morality
and philosophy encapsulated in the Preamble of the
Constitution. Learned counsel has emphasised on the
purposive interpretation of the Constitution which can
preserve, protect and defend the Constitution regardless of
the political impact. It is contended by him that if a
constitutional provision is silent on a particular subject,
this Court can necessarily issue directions or orders by
interpretative process to fill up the vacuum or void till the
law is suitably enacted. The broad purpose and the general
scheme of every provision of the Constitution has to be
interpreted, regard being had to the history, objects and
result which it seeks to achieve. Learned counsel has
placed reliance on S.P. Gupta v. Union of India and
another24 and M. Nagaraj and others v. Union of India
and others25.
27. Mr. T.R. Andhyarujina, learned senior counsel, who
was requested to assist the Court, has submitted that in the
absence of any express provision for qualification of a
Minister in the Union Cabinet under Article 75 of the
Constitution except that 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.
28. Mr. Andhyarujina has further submitted that Section
44(4)(ii) of the Australian Constitution puts a limitation on
the member of the House which travels beyond conviction in
a criminal case, for the said provision provides that any
person who has been convicted and is under sentence, or
subject to be sentenced, for any offence punishable under
the law of the Commonwealth or of a State by imprisonment
for one year or longer, would be incapable of being chosen
or of sitting as a senator or a member of the House of
Representatives. Learned counsel has commended us to
Lane’s Commentary on the Australian Constitution, 1986 to
highlight that this is an exceptional provision in a
Constitution which disqualifies a person from being a
Member of Parliament even if he is not convicted but likely
to be subject to a sentence for the prescribed offence, but in
the absence of such a provision in our Constitution or in
law made by the Parliament, the Court cannot introduce
such an aspect on the bedrock of propriety. Learned
counsel has also referred to the U.K. Representation of
Peoples Act, 1981 which provides that a person who is
sentenced or ordered to be imprisoned or detained
indefinitely or for more than one year is disqualified and his
election is rendered void and the seat of such a member is
vacated. Mr. Andhyarujina has also referred to the House of
Commons Library paper on disqualification for membership
of the House of Commons wherein the practice is that the
existence of a criminal record may not disqualify a person
from ministerial office, but convictions for offences involving
corruption, dishonesty, serious violence or serious sexual
misconduct would jeopardize a person’s prospect of a
ministerial career. Learned senior counsel has also drawn
our attention to a publication by Professor Rodney Brazier
“Is it a Constitutional issue: Fitness for ministerial office” in
Public Law 1994 wherein it has been stated that whether a
criminal record should disqualify a person from
membership of Government is unclear, however, conviction
for serious offences could impede a ministerial appointment.
He has also referred to a passage from Constitutional and
Administrative Law by Hilaire Barnett 4th Ed. P. 354, to
show that by an unwritten rule of constitutional propriety,
in United Kingdom, a person is unlikely to be made a
Minister if he has been convicted of a serious offence or
even if he is facing prosecution for a serious offence.
Submission of learned amicus curiae is that there is no
implied prohibition in our Constitution on appointment of a
Minister in case of a pending prosecution of a serious
offence except conviction and, therefore, the principle of
implied prohibition that a person who is not convicted but is
being prosecuted or charge sheeted for a criminal offence is
to be debarred from being a Member of the Legislature and,
consequently, a Minister would not be attracted. Learned
senior counsel would contend that the jurisprudence is
based on innocence of the accused until he is proved guilty
which is in tune with Article 14(2) of the International
Covenant on Civil and Political Rights and it cannot be
brushed aside. Learned amicus curiae contended that in
respect of certain constitutional officials like President of
India, Judges of courts including superior courts, Attorney
General of India, Comptroller and Auditor General of India
and Governor of a State, implied prohibition is implicit. It is
urged by him that this Court, while interpreting Article
75(1), cannot introduce the concept of rule of law to attract
the principle of implied prohibition as rule of law is an
elusive doctrine and it cannot form the basis of a
prohibition on the appointment of a Minister.

29. 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.
30. Mr. K. Parasaran, learned senior counsel, who was
also requested to render assistance, has submitted that the
area of election in a democratic set-up is governed by the
1951 Act and the rules framed thereunder and in the
present mosaic of democracy such a controversy, in the
absence of constitutional impediment or statutory
prohibition, would not come within the parameters of
judicial review. It is his proponement that the Prime
Minister, in certain circumstances, regard being had to the
political situations, may have certain political compulsions
to appoint a Minister so that the frequent elections are
avoided. It is his submission that any kind of additional
prohibition under Article 75(1) by way of judicial
interpretation is impermissible as the Prime Minister is the
sole repository of power under the Constitution to advise the
President as to who should become a Minister if he is
otherwise constitutionally eligible and there is no statutory
impediment. Learned senior counsel would contend that
the 1951 Act includes certain offences and specifies the
stage, i.e., conviction and, therefore, if anything is added to
it in respect of the stage, it would be travelling beyond the
text which would be contrary to the principles of statutory
interpretation.
31. Mr. Parasaran, learned amicus curiae, has drawn a
distinction between the two concepts, namely, constitutional
morality and constitutional propriety on one hand and
ethical acceptability on the other and, in that regard, he has
submitted that 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.
32. Mr. Paras Kuhad, learned Additional Solicitor General,
in his turn, has contended that the doctrine of implied
limitation has not been accepted in Kesavananda Bharati
case by the majority of Judges and, therefore, the
interpretation put forth by the learned friend of the Court
for the petitioner is impermissible. It is urged by him that
while interpreting Article 75(1) of the Constitution, the
principle of implied limitation cannot be read into it to
curtail the power of a high constitutional functionary like
the Prime Minister.
33. 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
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).
34. It is his further submission that if the stage of framing
of charge of any offence is introduced, it would frustrate
and, eventually, defeat the established concept of criminal
jurisprudence that an accused is presumed to be innocent
till he is proved to be guilty and there is indeed a long
distance between the accused “may have committed the
offence” and “must have committed the offence” which must
be traversed by the prosecution by adducing reliable and
cogent evidence. In this regard, reliance has been placed on
Narendra Singh v. State of M.P.29, Ranjitsing
Brahmajeetsing Sharma v. State of Maharashtra30, S
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
35. Having regard to the aforesaid submissions which have
been put forth from various perspectives, we shall proceed
to deal with the ambit and scope of the constitutional
provisions which are relevant in the present context and
how they are to be interpreted on the parameters of
constitutional interpretation and on the bedrock of the
precedents of this Court. We think it seemly to refer to the
relevant Articles of the Constitution which are centripodal to
the controversy. Articles 74 and 75 read as follows: –
“74. (1) There shall be a Council of Ministers with
the Prime Minister at the head to aid and advise
the President who shall, in the exercise of his
functions, act in accordance with such advice:
Provided that the President may require the
Council of Ministers to reconsider such advice,
either generally or otherwise, and the President
shall act in accordance with the advice tendered
after such reconsideration.
(2) The question whether any, and if so what,
advice was tendered by Ministers to the President
shall not be inquired into in any court.
75. (1) The Prime Minister shall be appointed by
the President and the other Ministers shall be
appointed by the President on the advice of the
Prime Minister.
(1A) The total number of Ministers, including the
Prime Minister, in the Council of Ministers shall
not exceed fifteen per cent of the total number of
members of the House of the People.
(1B) A member of either House of Parliament
belonging to any political party who is
disqualified for being a member of that House
under paragraph 2 of the Tenth Schedule shall
also be disqualified to be appointed as a Minister
under clause (1) for duration of the period
commencing from the date of his disqualification
till the date on which the term of his office as
such member would expire or where he contests
any election to either House of Parliament before
the expiry of such period, till the date on which
he is declared elected, whichever is earlier.
(2) The Ministers shall hold office during the
pleasure of the President.
(3) The Council of Ministers shall be collectively
responsible to the House of the People.
(4) Before a Minister enters upon his office, the
President shall administer to him the oaths of
office and of secrecy according to the forms set
out for the purpose in the Third Schedule.
(5) A Minister who for any period of six
consecutive months is not a member of either
House of Parliament shall at the expiration of
that period cease to be a Minister.
(6) The salaries and allowances of Ministers shall
be such as Parliament may from time to time by
law determine and, until Parliament so
determines, shall be as specified in the Second
Schedule.”
From the aforesaid Articles, it is vivid that they deal
with the Council of Ministers for the Union of India.
36. Article 163 pertains to the Council of Ministers of State
who aid and advise the Governor. It reads as follows:-
“163. (1) There shall be a Council of Ministers
with the Chief Minister at the head to aid and
advise the Governor in the exercise of his
functions, except in so far as he is by or under
this Constitution required to exercise his
functions or any of them in his discretion.
(2) If any question arises whether any matter is or
is not a matter as respects which the Governor is
by or under this Constitution required to act in
his discretion, the decision of the Governor in his
discretion shall be final, and the validity of
anything done by the Governor shall not be called
in question on the ground that he ought or ought
not to have acted in his discretion.
(3) The question whether any, and if so what,
advice was tendered by Ministers to the Governor
shall not be inquired into in any court.
37. 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.”
38. At this juncture, it is apt to refer to the nature of oath
which is meant for the office of a Minister. The Third
Schedule provides the forms of Oaths or Affirmations of the
Constitution: –
“Form of oath of office for a Minister for the
Union: –
“I, A.B., do swear in the name of God/
solemnly affirm that I will bear true faith and
allegiance to the Constitution of India as by law
established, that I will uphold the sovereignty
and integrity of India, that I will faithfully and
conscientiously discharge my duties as a Minister
for the Union and that I will do right to all
manner of people in accordance with the
Constitution and the law, without fear or favour,
affection or ill-will.”
39. 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.”
40. The form of oath of secrecy for a Minister for the Union
is as follows: –
“I, A.B., do swear in the name of God/solemnly
affirm that I will not directly or indirectly
communicate or reveal to any person or persons
any matter which shall be brought under my
consideration or shall become known to me as a
Minister for the Union except as may be required
for the due discharge of my duties as such
Minister.”
Similar is the oath of secrecy for a Minister for a State.
We have reproduced the forms pertaining to oath as Mr.
Dwivedi stressed on the concept of sanctity of oath that
pertains to allegiance to the Constitution, performing of
duties without fear or favour and maintenance of secrecy. It
is urged by him that a person with criminal antecedents
taking such an oath would violate the fundamental values
enshrined in the Constitution.
DOCTRINE OF IMPLIED LIMITATION
41. It has been highlighted before us by Mr. Dwivedi, as
noted earlier, that regard being had to the nature of office a
Minister holds in a democratic set-up under the
Constitution, persons with criminal antecedents especially
charged for heinous and serious offences cannot and should
not hold the said office. He has emphatically put forth that
apart from the prohibitions contained in Articles 102 and
179 of the Constitution and the conviction under the 1951
Act, the relevant stage in trial needs to be introduced to the
phraseology of Article 75(1) as well as Article 164(1) so that
the Prime Minister’s authority to give advice has to be
restricted to the extent not to advise a person with criminal
antecedents to become a Minister. To substantiate the said
view, he has taken aid of the doctrine of “implied limitation”.
In Kesavananda Bharati’s case, Sikri, CJ, while
expressing his view on the doctrine of implied limitation,
has observed that in a written Constitution, it is rarely that
everything is said expressly. Powers and limitations are
implied from necessity or the scheme of the Constitution.
He has further held: –
“282. It seems to me that reading the Preamble
the fundamental importance of the freedom of the
individual, indeed its inalienability, and the
importance of the economic, social and political
justice mentioned in the Preamble, the
importance of directive principles, the noninclusion
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.
283. It was the common understanding that
fundamental rights would remain in substance
as they are and they would not be amended out
of existence. It seems also to have been a
common understanding that the fundamental
features of the Constitution, namely, secularism,
democracy and the freedom of the individual
would always subsist in the welfare state.
284. In view of the above reasons, a necessary
implication arises that there are implied
limitations on the power of Parliament that the
expression “amendment of this Constitution” has
consequently a limited meaning in our
Constitution and not the meaning suggested by
the respondents.”
42. Shelat and Grover, JJ., in their opinion, while
speaking about the executive power of the President, have
observed that although the executive power of the President
is apparently expressed in unlimited terms, an implied
limitation has been placed on his power on the ground that
he is a formal or constitutional head of the executive and
that the real executive power vests in the Council of
Ministers. The learned Judges arrived at the said
conclusion on the basis of the implications of the Cabinet
System of Government so as to constitute an implied
limitation on the power of the President and the Governors.
Proceeding further as regards the amending power of the
Constitution, as engrafted under Article 368 of the
Constitution, said the learned Judges: –
“583. The entire discussion from the point of
view of the meaning of the expression
“amendment” as employed in Article 368 and the
limitations which arise by implications leads to
the result that the amending power under Article
368 is neither narrow nor unlimited. On the
footing on which we have proceeded the validity
of the 24th Amendment can be sustained if
Article 368, as it originally stood and after the
amendment, is read in the way we have read it.
The insertion of Articles 13(4) and 368(3) and the
other amendments made will not affect the
result, namely, that the power in Article 368 is
wide enough to permit amendment of each and
every article of the Constitution by way of
addition, variation or repeal so long as its basic
elements are not abrogated or denuded of their
identity.”

43. 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: –
“…. 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.”
44. Jaganmohan Reddy, J., in his separate opinion,
concurred with the view expressed by Sikri, C.J.
45. 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: –
“None of the cases sheds any light on the
question with which we are concerned viz.
whether an unambiguous and plenary power to
amend the provisions of the Constitution, which
included the Preamble and the fundamental
rights, must be frightened by the fact that some
superior and transcendental character has been
ascribed to them.”
And eventually, ruled thus: –
“1318. On a consideration, therefore, of the
nature of the amending power, the unqualified
manner in which it is given in Article 368 of the
Constitution it is impossible to imply any
limitations on the power to amend the
fundamental rights. Since there are no
limitations express or implied on the amending
power, it must be conceded that all the
Amendments which are in question here must be
deemed to be valid. We cannot question their
policy or their wisdom.”
46. Chandrachud, J., has observed that: –
“2087. In considering the petitioner’s argument
on inherent limitations, it is well to bear in mind
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.”
47. Khanna, J., while speaking on implied limitation,
noted the submission of the learned counsel for the
petitioner in the following terms: –
“1444. Learned counsel for the petitioners has
addressed us at some length on the point that
even if there are no express limitations on the
power of amendment, the same is subject to
implied limitations, also described as inherent
limitations. So far as the concept of implied
limitations is concerned, it has two facets. Under
the first facet, they are limitations which flow by
necessary implications from express provisions of
the Constitution. The second facet postulates
limitations which must be read in the
Constitution irrespective of the fact whether they
flow from express provisions or not because they
are stated to be based upon certain higher values
which are very dear to the human heart and are
generally considered essential traits of civilized
existence. It is also stated that those higher
values constitute the spirit and provide the
scheme of the Constitution. This aspect of
implied limitations is linked with the existence of
natural rights and it is stated that such rights
being of paramount character, no amendment of
Constitution can result in their erosion.”
Dealing with the same, the learned Judge ruled: –
“1446. So far as the first facet is concerned
regarding a limitation which flows by necessary
implication from an express provision of the
Constitution, the concept derives its force and is
founded upon a principle of interpretation of
statutes. In the absence of any compelling reason
it may be said that a constitutional provision is
not exempt from the operation of such a
principle. I have applied this principle to Article
368 and despite that, I have not been able to
discern in the language of that article or other
relevant articles any implied limitation on the
power to make amendment contained in the said
article.”
48. Be it clarified, in subsequent paragraphs, the learned
Judge expressed the view that though the Parliament has
been conferred the power of amendment under Article 368
of the Constitution, yet it cannot be permitted to incorporate
an amendment which would destroy the basic structure or
essential feature of the Constitution.
49. 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
“amendment of the Constitution”, in spite of the
width of their sweep and in spite of their
amplitude, could not have the effect of
empowering the Parliament to destroy or abrogate
the basic structure or framework of the
Constitution.
12. The summary of the various judgments in
Kesavananda Bharati was signed by nine out of
the thirteen Judges. Paragraph 2 of the
summary reads to say that according to the
majority, “Article 368 does not enable Parliament
to alter the basic structure or framework of the
Constitution”. Whether or not the summary is a
legitimate part of the judgment, or is per
incuriam for the scholarly reasons cited by
authors, it is undeniable that it correctly reflects
the majority view.”
Thereafter, the learned Chief Justice proceeded to state
thus:-
“16. …The theme song of the majority decision in
Kesavananda Bharati is: “Amend as you may
even the solemn document which the founding
fathers have committed to your care, for you
know best the needs of your generation. But, the
Constitution is a precious heritage; therefore, you
cannot destroy its identity”.”
50. In B. R. Kapur (supra), the Constitution Bench, after
referring to the decision in Kesavananda Bharti (supra),
reproduced paragraph 16 from Minerva Mills case and
opined that since the Constitution had conferred a limited
amending power on Parliament, Parliament could not in the
exercise of that limited power, enlarge that very power into
an absolute power. A limited amending power was one of
the basic features of the Constitution and, therefore, the
limitations on that power could not be destroyed. In other
words, Parliament could not, under Article 368, expand its
amending power so as to acquire for itself the right to repeal
or abrogate the Constitution or to destroy its basic and
essential features. The donee of a limited power could not
by the exercise of that power convert the limited power into
an unlimited one.
51. 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                                                                                                               not part of basic structure. Khanna, J. however,

does not so say in Kesavananda Bharati case.”
52. From the aforesaid authorities, it is luminescent that
the principle of implied limitation is attracted to the sphere
of constitutional interpretation. The question that is
required to be posed here is whether taking recourse to this
principle of interpretation, this Court can read a categorical
prohibition to the words contained in Article 75(1) of the
Constitution so that the Prime Minister is constitutionally
prohibited to give advice to the President in respect of a
person for becoming a Minister of the Council of Ministers
who is facing a criminal trial for a heinous and serious
offence and charges have been framed against him by the
trial Judge. Reading such an implied limitation as a
prohibition would tantamount to adding a disqualification
at a particular stage of the trial in relation of a person. This
is neither expressly stated nor is impliedly discernible from
the provision. The doctrine of implied limitation was applied
to the amending power of the Constitution by the
Parliament on the fundamental foundation that the identity
of the original Constitution could not be amended by taking
recourse to the plenary power of amendment under Article
368 of the Constitution. The essential feature or the basic
structure of the doctrine was read into Article 368 to say
that the identity or the framework of the Constitution
cannot be destroyed. In Minerva Mills case, giving
example, the Court held that by amendment, the Parliament
cannot damage the democratic republican character as has
been conceived in the Constitution. Though in Article 368
of the Constitution there was no express prohibition to
amend the constitutional provisions, yet the Court in the
aforesaid two cases ruled that certain features which are
basic to the Constitution cannot be changed by way of
amendment. The interpretative process pertained to the
word “amendment”. Therefore, the concept of implied
limitation was read into Article 368 to save the
constitutional integrity and identity. In B.R. Kapur’s case,
the Constitution Bench ruled that a non-legislator can be
made a Chief Minister or Minister under Article 164(1) only
if he has qualifications for membership of the Legislature
prescribed under Article 173 and is not disqualified from the
membership thereof by reason of the disqualifications set
out in Article 191. Bharucha, J. (as his Lordship then was),
speaking for the majority, opined that as the second
respondent therein had been convicted for offences
punishable under Sections 13(1)(c), 13(1)(d) and 13(2) of the
Prevention of Corruption Act, 1988 and Sections 409 and
120-B of the Indian Penal Code and sentenced to undergo
rigorous imprisonment of three years, she was disqualified
under Section 8(4) of the 1951 Act as the said respondent
was disqualified to contest the election. In the said case,
she was sworn in as the Chief Minister by the Governor.
This Court was moved in by a writ of quo warranto that she
was not eligible to hold the post of the Chief Minister. A
submission was advanced that it was not open to the Court
to read anything into Article 164, for a non-legislator could
be sworn in as the Chief Minister, regardless of the
qualifications or disqualifications. The Court placed
reliance on Kesavananda Bharati’s case and Minerva
Mills’ case and opined that if a non-legislator is made a
Chief Minister under Article 164, then he must satisfy the
qualification for membership of a legislator as prescribed
under Article 173. A specific query was made by the Court
that even when the person recommended, was, to the
Governor’s knowledge, a non-citizen or under-age or lunatic
or discharged insolvent, could he be appointed as a Chief
Minister. It was urged that he/she could only be removed
by the vote of no-confidence in the Legislature or at the next
election. Discarding the same, the Court opined that
acceptance of such a submission would invite disaster. The
Court further ruled that when a person is not qualified to
become a Member in view of Article 173, he cannot be
appointed as a Chief Minister under Article 164(1). Be it
noted, there was disqualification in the Constitution and
under the 1951 Act to become a Member of the State
Legislature, and hence, the Court, appreciating the text and
context, read the disqualification into Article 164(1) of the
Constitution.
53. On a studied scrutiny of the ratio of the aforesaid
decisions, we are of the convinced opinion that when there
is no disqualification for a person against whom charges
have been framed in respect of heinous or serious offences
or offences relating to corruption to contest the election, by
interpretative process, it is difficult to read the prohibition
into Article 75(1) or, for that matter, into Article 164(1) to
the powers of the Prime Minister or the Chief Minister in
such a manner. That would come within the criterion of
eligibility and would amount to prescribing an eligibility
qualification and adding a disqualification which has not
been stipulated in the Constitution. In the absence of any
constitutional prohibition or statutory embargo, such
disqualification, in our considered opinion, cannot be read
into Article 75(1) or Article 164(1) of the Constitution.
PRINCIPLE OF CONSTITUTIONAL SILENCE OR
ABEYANCE
54. The next principle that can be thought of is
constitutional silence or silence of the Constitution or
constitutional abeyance. The said principle is a progressive
one and is applied as a recognized advanced constitutional
practice. It has been recognized by the Court to fill up the
gaps in respect of certain areas in the interest of justice and
larger public interest. Liberalization of the concept of locus
standi for the purpose of development of Public Interest
Litigation to establish the rights of the have-nots or to
prevent damages and protect environment is one such
feature. Similarly, laying down guidelines as procedural
safeguards in the matter of adoption of Indian children by
foreigners in the case of Laxmi Kant Pandey v. Union of
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.
55. 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 noconfidence
motion in the detailed constitutional provision
under Part IX of the Constitution and, therefore, the
incorporation of the said provision in the statute militates
against the principles of Panchayati Raj institutions. That
apart, reduction of one year in place of two years in Sections
15 and 28 of the Amendment Act was sought to be struck
down as the said provision diluted the principle of stability
and continuity which is the main purpose behind the object
and reason of the constitutional amendment in Part IX of
the Constitution. The Court, after referring to Articles 243-
A, 243-C(1), (5), 243-D(4), 243-D(6), 243-F(1), (6), 243-G,
243-H, 243-I(2), 243-J, 243-K(2) and (4) of the Constitution
and further taking note of the amendment, came to hold
that the statutory provision of no-confidence is contrary to
Part-IX of the Constitution. In that context, it has been held
as follows: –
“49. Apart from the aforesaid reasons, the
arguments by the appellants cannot be accepted
in view of a very well-known constitutional
doctrine, namely, the constitutional doctrine of
silence. Michael Foley in his treatise on The
Silence of Constitutions (Routledge, London and
New York) has argued that in a Constitution
“abeyances are valuable, therefore, not in spite of
their obscurity but because of it. They are
significant for the attitudes and approaches to
the Constitution that they evoke, rather than the
content or substance of their strictures”. (P. 10)
50. The learned author elaborated this concept
further by saying, “Despite the absence of any
documentary or material form, these abeyances
are real and are an integral part of any
Constitution. What remains unwritten and
indeterminate can be just as much responsible
for the operational character and restraining
quality of a Constitution as its more tangible and
codified components.” (P. 82)”
56. 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
57. The next principle that we intend to discuss is the
principle of constitutional implication. We are obliged to
discuss this principle as Mr. Dwivedi, learned amicus
curiae, has put immense emphasis on the words “on the
advice of the Prime Minister” occurring in Article 75(1) of the
Constitution. It is his submission that these words are of
immense significance and apposite meaning from the said
words is required to be deduced to the effect that the Prime
Minister is not constitutionally allowed to advise the
President to make a person against whom charge has been
framed for heinous or serious offences or offences pertaining
to corruption as Minister in the Council of Ministers, regard
being had to the sacrosanctity of the office and the oath
prescribed under the Constitution. Learned senior counsel
would submit that on many an occasion, this Court has
expanded the horizon inherent in various Articles by
applying the doctrine of implication based on the
constitutional scheme and the language employed in other
provisions of the Constitution.
58. 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.
59. There is no speck of doubt that the Court has applied
the doctrine of implication to expand the constitutional
concepts, but the context in which the horizon has been
expanded has to be borne in mind. What is suggested by
Mr. Dwivedi is that by taking recourse to the said principle,
the words employed in Article 75(1) are to be interpreted to
add a stage in the disqualification, i.e., framing of charges in
serious and heinous criminal offences or offences relating to
corruption. At this juncture, it is seemly to state that the
principle of implication is fundamentally founded on
rational inference of an idea from the words used in the
text. The concept of legitimate deduction is always
recognised. In Melbourne Corporation v
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
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.
60. 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
Constitution thought it fit to do so, it has itself provided for
elections by secret ballot e.g., in the case of election of the
President of India and the Vice-President of India.
Thereafter, the Court referred to Articles 55(3) and 66(1) of
the Constitution which provide for elections of the President
and the Vice-President respectively, referring to voting by
electoral colleges, consisting of elected Members of
Parliament and Legislative Assembly of each State for the
purposes of the former office and Members of both Houses
of Parliament for the latter office and in both cases, it was
felt necessary by the framers of the Constitution to provide
that the voting at such elections shall be by secret ballot
through inclusion of the words “and the voting at such
election shall be by secret ballot”. If the right to vote by
itself implies or postulates voting in secrecy, then Articles
55(3) and 66(1) would not have required the inclusion of
such words. The necessity for including the said condition
in the said articles shows that “secret ballot” is not always
implied. It is not incorporated in the concept of voting by
necessary implication. Thereafter, the Court opined: –
“421. It follows that for “secret ballot” to be
the norm, it must be expressly so provided. To
read into Article 80(4) the requirement of a secret
ballot would be to read the words “and the voting
at such election shall be by secret ballot” into the
provision. To do so would be against every
principle of constitutional and statutory
construction.”
61. Thus analysed, it is not possible to accept the
submission of Mr. Dwivedi that while interpreting the words
“advice of the Prime Minister” it can legitimately be inferred
that there is a prohibition to think of a person as a Minister
if charges have been framed against him in respect of
heinous and serious offences including corruption cases
under the criminal law.
OTHER RELEVANT CONSTITUTIONAL CONCEPTS –
CONSTITUTIONAL MORALITY, GOOD GOVERNANCE
AND CONSTITUTIONAL TRUST
62. 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.
63. The Constitution of India is a living instrument with
capabilities of enormous dynamism. It is a Constitution
made for a progressive society. Working of such a
Constitution depends upon the prevalent atmosphere and
conditions. Dr. Ambedkar had, throughout the Debate, felt
that the Constitution can live and grow on the bedrock of
constitutional morality. Speaking on the same, he said: –
“Constitutional morality is not a natural
sentiment. It has to be cultivated. We must
realize that our people are yet to learn it.
Democracy in India is only a top-dressing on an
Indian soil, which is essentially undemocratic.52”
64. 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.
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”
65. Regard being had to the aforesaid concept, it would not
be out of place to state that institutional respectability and
adoption of precautions for the sustenance of constitutional
values would include reverence for the constitutional
structure. It is always profitable to remember the famous
line of Laurence H. Tribe that a Constitution is “written in
blood, rather than ink”54.
53 James Madison as Publius, Federalist 51
54 Laurance H. Tribe, THE INVISIBLE CONSTITUTION 29 (2008)
GOOD GOVERNANCE
66. Having stated about the aspect of constitutional
morality, we presently proceed to deal with the doctrine of
good governance. In A. Abdul Farook v. Municipal
Council, Perambalur and 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.
67. 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.”
68. 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; nonarbitrariness
and absence of discrimination are hall marks
for good governance under the rule of law. In State of
Maharashtra and others v. Jalgaon Municipal
Corporation and 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.
69. In a democracy, the citizens legitimately expect that
the Government of the day would treat the public interest as
primary one and any other interest secondary. The maxim
Salus Populi Suprema Lex, has not only to be kept in view
but also has to be revered. The faith of the people is
embedded in the root of the idea of good governance which
means reverence for citizenry rights, respect for
Fundamental Rights and statutory rights in any
governmental action, deference for unwritten constitutional
values, veneration for institutional integrity, and inculcation
of accountability to the collective at large. It also conveys
that the decisions are taken by the decision making
authority with solemn sincerity and policies are framed
keeping in view the welfare of the people, and including all
in a homogeneous compartment. The concept of good
governance is not an Utopian conception or an abstraction.
It has been the demand of the polity wherever democracy is
nourished. The growth of democracy is dependant upon
good governance in reality and the aspiration of the people
basically is that the administration is carried out by people
with responsibility with service orientation.
CONSTITUTIONAL TRUST
70. Having stated about good governance, we shall proceed
to deal with the doctrine of “constitutional trust”. The issue
of constitutional trust arises in the context of the debate in
the Constituent Assembly that had taken place pertaining to
the recommendation for appointment of a Minister to the
Council of Ministers. Responding to the proposal for the
amendment suggested by Prof. K.T. Shah with regard to the
introduction of a disqualification of a convicted person
becoming a Minister, Dr. B.R. Ambedkar had replied: –
“His last proposition is that no person who is
convicted may be appointed a Minister of the
State. Well, so far as his intention is concerned,
it is no doubt very laudable and I do not think
any Member of this House would like to differ
from him on that proposition. But the whole
question is this whether we should introduce all
these qualifications and disqualifications in the
Constitution itself. Is it not desirable, is it not
sufficient that we should trust the Prime
Minister, the Legislature and the public at large
watching the actions of the Ministers and the
actions of the Legislature to see that no such
infamous thing is done by either of them? I think
this is a case which may eminently be left to the
good-sense of the Prime Minister and to the good
sense of the Legislature with the general public
holding a watching brief upon them. I therefore
say that these amendments are unnecessary.”
[Emphasis supplied]
71. 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
or constitutional head of the executive and the real
executive powers are vested in the Ministers or the Cabinet.
72. In Samsher Singh (supra), Ray, CJ, speaking for the
majority, opined that the President as well as the Governor
is the constitutional or the formal head and exercise the
power and functions conferred on them by or under the
Constitution on the aid and advice of the Council of
Ministers, save in spheres where the Governor is required
by or under the Constitution to exercise his functions in his
discretion. The learned Chief Justice further observed that
the satisfaction of the President or the Governor in the
constitutional sense in the Cabinet system of Government is
really the satisfaction of the Council of Ministers on whose
aid and advice the President or the Governor generally
exercises his powers and functions and, thereafter, it has
been held that they are required to act with the aid and
advice of the Council of Ministers and are not required by
the Constitution to act personally without the aid and
advice. Krishna Iyer, J., speaking for himself and
Bhagwati,J., opined that under the Constitution, the
President and Governor, custodian of all executive and other
powers under various Articles, are to exercise their formal
constitutional powers only upon and in accordance with the
due advice of their Ministers, save in few well-known
exceptional situations. The learned Judge has carved out
certain exceptions with which we are really presently not
concerned with.
73. 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.
74. We have referred to these authorities singularly for the
purpose that the Prime Minister has been conferred an
extremely special status under the Constitution.
75. As the Prime Minister is the effective head of the
Government, indubitably, he has enormous constitutional
responsibility. The decisions are taken by the Council of
Ministers headed by the Prime Minister and that is the
Cabinet form of Government and our Constitution has
adopted it. While discussing about the successful working
of the Cabinet form of Government, H.M. Seervai, the
eminent author of Constitutional 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

76. 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.”
77. 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.
78. 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.”
79. 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.”
80. 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)
democracy, the doctrine of constitutional trust has to be
envisaged in every high constitutional functionary.
ANALYSIS OF THE TERM “ADVICE’ UNDER ARTICLE 75 (1)
81. Having dealt with the concepts of “constitutional
morality”, “good governance”, “constitutional trust” and the
special status enjoyed by the Prime Minister under the
scheme of the Constitution, we are required to appreciate
and interpret the words “on the advice of the Prime
Minister” in the backdrop of the aforestated concepts. As
per the New Shorter Oxford English Dictionary, one of the
meanings of the word “advice” is “the way in which a matter
is looked at; opinion; judgment”. As per P. Ramanatha
Aiyer’s Law Lexicon, 2nd Edition, one of the meanings given
to the word “advice” is “counsel given or an opinion
expressed as to the wisdom of future conduct” (Abbot L.
Dict.). In Webster Comprehensive Dictionary, International
Edition, one of the meanings given to the word “advice” is
“encouragement or dissuasion; counsel; suggestion”. Thus,
the word “advice” conveys formation of an opinion. The said
formation of an opinion by the Prime Minister in the context
of Article 75(1) is expressed by the use of the said word
because of the trust reposed in the Prime Minister under the
Constitution. To put it differently, it is a “constitutional
advice”. The repose of faith in the Prime Minister by the
entire nation under the Constitution has expectations of
good governance which is carried on by Ministers of his
choice. It is also expected that the persons who are chosen
as Ministers do not have criminal antecedents, especially
facing trial in respect of serious or heinous criminal offences
or offences pertaining to corruption. There can be no
dispute over the proposition that unless a person is
convicted, he is presumed to be innocent but the
presumption of innocence in criminal jurisprudence is
something altogether different, and not to be considered for
being chosen as a Minister to the Council of Ministers
because framing of charge in a criminal case is totally
another thing. Framing of charge in a trial has its own
significance and consequence. Setting the criminal law into
motion by lodging of an FIR or charge sheet being filed by
the investigating agency is in the sphere of investigation.
Framing of charge is a judicial act by an experienced
judicial mind. As the Debates in the Constituent Assembly
would show, after due deliberation, they thought it
appropriate to leave it to the wisdom of the Prime Minister
because of the intrinsic faith in the Prime Minister. At the
time of framing of the Constitution, the debate pertained to
conviction. With the change of time, the entire complexion
in the political arena as well as in other areas has changed.
This Court, on number of occasions, as pointed out
hereinbefore, has taken note of the prevalence and
continuous growth of criminalization in politics and the
entrenchment of corruption at many a level. In a
democracy, the people never intend to be governed by
persons who have criminal antecedents. This is not merely
a hope and aspiration of citizenry but the idea is also
engrained in apposite executive governance. It would be apt
to say that when a country is governed by a Constitution,
apart from constitutional provisions, and principles
constitutional morality and trust, certain conventions are
adopted and grown. In Supreme Court Advocates-on-
Record Association (supra), the Court reproduced a
passage from K.C. Wheare’s Book “The Statute of
Westminster and Dominion Status” (fourth edition) and we
quote: –
“The definition of conventions may thus be
amplified by saying that their purpose is to define
the use of constitutional discretion. To put this
in slightly different words, it may be said that
conventions are non-legal rules regulating the
way in which legal rules shall be applied.”
82. I. Jennings, in The Law and the Constitution68, stated
that a convention exists not only due to its nonenforceability
but also because there is a reason for the
rule.
83. I. Lovehead, in Constitutional Law – A Critical
Introduction69, has said that the conventions provide a moral
framework within which the government ministers or the
monarch should exercise non-justiciable legal powers and
regulate relations between the government and other
constitutional authorities.
84. In the Constituent Assembly Debates, Dr. Rajendra
Prasad, in his speech as President of the Constituent
68 I. Jennings, The law and the Constitution (5th Edn., ELBS: London, 1976) in his Chapter
“Conventions” at 247.
69 I. Lovehead, Constitutional Law-A Critical Introduction (2nd edn., Butterworths: London, 2000) at
Assembly, while moving for the adoption of the Constitution
of India, had observed: –
“Many things which cannot be written in a
Constitution are done by conventions. Let me
hope that we shall show those capacities and
develop those conventions.”
CONCLUSION
85. From the aforesaid, it becomes graphically vivid that
the Prime Minister has been regarded as the repository of
constitutional trust. The use of the words “on the advice of
the Prime Minister” cannot be allowed to operate in a
vacuum to lose their significance. There can be no scintilla
of doubt that the Prime Minister’s advice is binding on the
President for the appointment of a person as a Minister to
the Council of Ministers unless the said person is
disqualified under the Constitution to contest the election or
under the 1951 Act, as has been held in B.R. Kapur’s case.
That is in the realm of disqualification. But, a pregnant
one, the trust reposed in a high constitutional functionary
like the Prime Minister under the Constitution does not end
there. That the Prime Minister would be giving apposite
advice to the President is a legitimate constitutional
expectation, for it is a paramount constitutional concern. In
a controlled Constitution like ours, the Prime Minister is
expected to act with constitutional responsibility as a
consequence of which the cherished values of democracy
and established norms of good governance get condignly
fructified. The framers of the Constitution left many a thing
unwritten by reposing immense trust in the Prime Minister.
The scheme of the Constitution suggests that there has to
be an emergence of constitutional governance which would
gradually grow to give rise to constitutional renaissance.
87. It is worthy to note that the Council of Ministers has
the collective responsibility to sustain the integrity and
purity of the constitutional structure. That is why the
Prime Minister enjoys a great magnitude of constitutional
power. Therefore, the responsibility is more, regard being
had to the instillation of trust, a constitutional one. It is
also expected that the Prime Minster should act in the
interest of the national polity of the nation-state. He has to
bear in mind that unwarranted elements or persons who are
facing charge in certain category of offences may thwart or
hinder the canons of constitutional morality or principles of
good governance and eventually diminish the constitutional
trust. We have already held that prohibition cannot be
brought in within the province of ‘advice’ but indubitably,
the concepts, especially the constitutional trust, can be
allowed to be perceived in the act of such advice.
86. Thus, while interpreting Article 75(1), definitely a
disqualification cannot be added. However, it can always be
legitimately expected, regard being had to the role of a
Minister in the Council of Ministers and keeping in view the
sanctity of oath he takes, the Prime Minister, while living up
to the trust reposed in him, would consider not choosing a
person with criminal antecedents against whom charges
have been framed for heinous or serious criminal offences or
charges of corruption to become a Minister of the Council of
Ministers. This is what the Constitution suggests and that
is the constitutional expectation from the Prime Minister.
Rest has to be left to the wisdom of the Prime Minister. We
say nothing more, nothing less.
87. At this stage, we must hasten to add what we have
said for the Prime Minister is wholly applicable to the Chief
Minister, regard being had to the language employed in
Article 164(1) of the Constitution of India.
88. Before parting with the case, we must express our
unreserved and uninhibited appreciation for the assistance
rendered by Mr. Rakesh Dwivedi, Mr. Andhyarjina and Mr.
Parasaran, learned senior counsel.
89. The writ petition is disposed of accordingly without any
order as to costs.
………………………………….C.J.I.
[R.M. Lodha]
………………………………………J.
[Dipak Misra]
………………………………………J.
[S.A. Bobde]
New Delhi;
August 27, 2014
Writ Petition (Civil) No.289 of 2005 Page 1 of 27
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 289 OF 2005
Manoj Narula .……Petitioner
versus
Union of India ……Respondent
J U D G M E N T
Madan B. Lokur, J.
1. While I agree with the draft judgment of my learned brother
Justice Dipak Misra, I find it necessary to express my view on the
issues raised.
2. The question in the amended writ petition filed under Article
32 of the Constitution is rather narrow, but the submissions were
quite broad-based.
3. Two substantive reliefs have been claimed in the writ petition.
The first relief is for a declaration that the appointment of
Respondent Nos. 3 to 7 as Ministers in the Government of India is
Writ Petition (Civil) No.289 of 2005 Page 2 of 27
unconstitutional. This is based, inter alia, on the averment that
these respondents have ‘criminal antecedents’. Subsequently by an
order passed on 24th March, 2006 these respondents (along with
respondent No. 2) were deleted from the array of parties since the
broad question before this Court was “about the legality of the
persons with criminal background and/or charged with offences
involving moral turpitude being appointed as ministers in Central
and State Governments.”
4. As far as the first substantive relief is concerned, the
expressions ‘criminal background’ and ‘criminal antecedents’ are
extremely vague. Nevertheless the legal position on the appointment
of a Minister is discussed hereafter.
5. The second substantive relief is for the framing of possible
guidelines for the appointment of a Minister in the Central or State
Government. It is not clear who should frame the possible
guidelines, perhaps this court.
6. As far as this substantive relief is concerned, it is entirely for
the appropriate Legislature to decide whether guidelines are
necessary, as prayed for, and the frame of such guidelines. No
direction is required to be given on this subject.
Writ Petition (Civil) No.289 of 2005 Page 3 of 27
7. For the sake of convenience, reference is made only to the
relevant Articles of the Constitution and the law relating to the
appointment and continuance of a Minister in the Central
Government. The discussion, of course, would relate to both a
Minister in the Central Government and mutatis mutandis in the
State Government.
Qualifications and disqualifications for being a legislator
8. Article 84 of the Constitution negatively provides the
qualification for membership of Parliament. This Article is quite
simple and reads as follows:
“84. Qualification for membership of Parliament. – A person
shall not be qualified to be chosen to fill a seat in Parliament
unless he –
(a) is a citizen of India, and makes and subscribes before some
person authorized in that behalf by the Election Commission an
oath or affirmation according to the form set out for the purpose in
the Third Schedule;
(b) is, in the case of a seat in the Council of States, not less than
thirty years of age and, in the case of a seat in the House of the
People, not less than twenty-five years of age; and
(c) possesses such other qualifications as may be prescribed in that
behalf by or under any law made by Parliament.”
9. The qualifications postulated by clause (c) of Article 84 have
not yet been prescribed by law by Parliament. In this context, it is
worth quoting the President of the Constituent Assembly Dr.
Writ Petition (Civil) No.289 of 2005 Page 4 of 27
Rajendra Prasad, who said on 26th November, 1949, before formally
putting the motion moved by Dr. Ambedkar to vote, as follows:1
“There are only two regrets which I must share with the
honourable Members. I would have liked to have some
qualifications laid down for members of the Legislatures. It is
anomalous that we should insist upon high qualifications for those
who administer or help in administering the law but none for those
who made it except that they are elected. A law giver requires
intellectual equipment but even more than that capacity to take a
balanced view of things to act independently and above all to be
true to those fundamental things of life – in one word – to have
character (Hear, hear). It is not possible to devise any yardstick for
measuring the moral qualities of a man and so long as that is not
possible, our Constitution will remain defective. The other regret is
that we have not been able to draw up our first Constitution of a
free Bharat in an Indian language. The difficulties in both cases
were practical and proved insurmountable. But that does not make
the regret any the less poignant.”
10. Hopefully, Parliament may take action on the views expressed
by Dr. Rajendra Prasad, the first President of our Republic.
11. Article 102 provides the disqualifications for membership of
either House of Parliament. This Article too is quite simple and
straightforward and reads as follows:
“102. Disqualifications for membership. – (1) A person shall be
disqualified for being chosen as, and for being, a member of either
House of Parliament—
(a) if he holds any office of profit under the Government of India or
the Government of any State, other than an office declared by
Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent
court;

Writ Petition (Civil) No.289 of 2005 Page 5 of 27
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgement
of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
Explanation. – For the purposes of this clause a person shall not be
deemed to hold an office of profit under the Government of India or
the Government of any State by reason only that he is a Minister
either for the Union or for such State.
(2) A person shall be disqualified for being a member of either
House of Parliament if he is so disqualified under the Tenth
Schedule.”
12. In S.R. Chaudhuri2 the following question arose for
consideration: Can a non-member, who fails to get elected during
the period of six consecutive months, after he is appointed as a
Minister or while a Minister has ceased to be a legislator, be
reappointed as a Minister, without being elected to the Legislature
after the expiry of the period of six consecutive months? This
question arose in the context of Article 164 of the Constitution3 and
2 S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126
3 164. Other provisions as to Ministers.—(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor:
Provided that in the States of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work.
(1‐A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not
exceed fifteen per cent of the total number of members of the Legislative Assembly of that State:
Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than twelve:
Writ Petition (Civil) No.289 of 2005 Page 6 of 27
is mentioned here since one of the issues raised during
submissions related to the permissibility of reading implied
limitations in the Constitution. It was submitted that implied
limitations can be read into the Constitution and this is an
appropriate case in which this Court should read an implied
limitation in the appointment of a Minister in the Government of
India, the implied limitation being that a person with criminal
antecedents or a criminal background should not be appointed a
Minister.
13. In S.R. Chaudhuri this Court examined the law in England,
Canada and Australia and by reading an implied limitation,
Provided further that where the total number of Ministers, including the Chief Minister, in the Council of
Ministers in any State at the commencement of the Constitution (Ninety‐first Amendment) Act, 2003 exceeds
the said fifteen per cent or the number specified in the first proviso, as the case may be, then, the total
number of Ministers in that State shall be brought in conformity with the provisions of this clause within six
months from such date as the President may by public notification appoint.
(1‐B) A member of the Legislative Assembly of a State or either House of the Legislature of a State having
Legislative Council belonging to any political party who is disqualified for being a member of that House under
Paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for
duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.
(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.
(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.
(5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule.
Note: The Article is reproduced as it is today.
Writ Petition (Civil) No.289 of 2005 Page 7 of 27
answered the question in the negative. It was held that a nonelected
person may be appointed as a Minister, but only for a period
of six months. During that period the Minister would either have to
get elected to the Legislature or quit his or her position. That person
cannot again be appointed as a Minister unless elected. It was said:
“32. Thus, we find from the positions prevailing in England,
Australia and Canada that the essentials of a system of
representative government, like the one we have in our country,
are that invariably all Ministers are chosen out of the members of
the Legislature and only in rare cases, a non-member is appointed
as a Minister, who must get himself returned to the Legislature by
direct or indirect election within a short period. He cannot be
permitted to continue in office indefinitely unless he gets elected in
the meanwhile. The scheme of Article 164 of the Constitution is no
different, except that the period of grace during which the nonmember
may get elected has been fixed as “six consecutive
months”, from the date of his appointment. (In Canada he must get
elected quickly and in Australia, within three months.) The framers
of the Constitution did not visualise that a non-legislator can be
repeatedly appointed as a Minister for a term of six months each
time, without getting elected because such a course strikes at the
very root of parliamentary democracy. According to learned
counsel for the respondent, there is no bar to this course being
adopted on the “plain language of the article”, which does not
“expressly” prohibit reappointment of the Minister, without being
elected, even repeatedly, during the term of the same Legislative
Assembly. We cannot persuade ourselves to agree.
“33. Constitutional provisions are required to be understood and
interpreted with an object-oriented approach. A Constitution must
not be construed in a narrow and pedantic sense. The words used
may be general in terms but, their full import and true meaning,
has to be appreciated considering the true context in which the
same are used and the purpose which they seek to achieve.
Debates in the Constituent Assembly referred to in an earlier part
of this judgment clearly indicate that a non-member’s inclusion in
the Cabinet was considered to be a “privilege” that extends only for
six months, during which period the member must get elected,
otherwise he would cease to be a Minister. It is a settled position
Writ Petition (Civil) No.289 of 2005 Page 8 of 27
that debates in the Constituent Assembly may be relied upon as an
aid to interpret a constitutional provision because it is the function
of the court to find out the intention of the framers of the
Constitution. We must remember that a Constitution is not just a
document in solemn form, but a living framework for the
Government of the people exhibiting a sufficient degree of cohesion
and its successful working depends upon the democratic spirit
underlying it being respected in letter and in spirit. The debates
clearly indicate the “privilege” to extend “only” for six months.”
14. An implied limitation in the Constitution was also read in B.
R. Kapur.4 In that case, the second respondent was not even
eligible to become a legislator (having earned a disqualification
under Section 8 of the Representation of the People Act, 1951) and
therefore the question of getting elected to the State Legislature did
not arise. Nevertheless, having been projected as the Chief
Ministerial nominee of the political party that obtained a majority in
the elections, she was elected as its leader and appointed as the
Chief Minister of the State. The question before this Court was:
Whether a person who has been convicted of a criminal offence and
whose conviction has not been suspended pending appeal can be
sworn in and can continue to function as the Chief Minister of a
State. Reliance was placed on the plain language of Article 164 of
the Constitution.
15. Answering the question in the negative, this Court held in
4 B.R. Kapur v. State of Tamil Nadu, (2001) 7 SCC 231
Writ Petition (Civil) No.289 of 2005 Page 9 of 27
paragraph 30 of the Report:
“We hold, therefore, that a non-legislator can be made a Chief
Minister or Minister under Article 164 only if he has the
qualifications for membership of the Legislature prescribed by
Article 173 and is not disqualified from the membership thereof by
reason of the disqualifications set out in Article 191.”
16. This was reiterated by this Court in paragraph 45 of the
Report in the following words:
“Our conclusion, therefore, is that on the date on which the second
respondent was sworn in as Chief Minister she was disqualified, by
reason of her convictions under the Prevention of Corruption Act
and the sentences of imprisonment of not less than two years, for
becoming a member of the Legislature under Section 8(3) of the
Representation of the People Act.”
17. Finally, in paragraphs 50 and 51 of the Report, this Court
held:
“We are in no doubt at all that if the Governor is asked by the
majority party in the Legislature to appoint as the Chief Minister a
person who is not qualified to be a member of the Legislature or
who is disqualified to be such, the Governor must, having due
regard to the Constitution and the laws, to which he is subject,
decline, and the exercise of discretion by him in this regard cannot
be called in question.
51. If perchance, for whatever reason, the Governor does appoint
as Chief Minister a person who is not qualified to be a member of
the Legislature or who is disqualified to be such, the appointment
is contrary to the provisions of Article 164 of the Constitution, as
we have interpreted it, and the authority of the appointee to hold
the appointment can be challenged in quo warranto proceedings.
That the Governor has made the appointment does not give the
appointee any higher right to hold the appointment. If the
appointment is contrary to constitutional provisions it will be
struck down. The submission to the contrary – unsupported by any
authority – must be rejected.”
Writ Petition (Civil) No.289 of 2005 Page 10 of 27
18. Therefore, two implied limitations were read into the
Constitution with regard to the appointment of an unelected person
as a Minister. Firstly, the Minister cannot continue as a Minister
beyond a period of six months without getting elected, nor can such
a person be repeatedly appointed as a Minister. Secondly, the
person should not be under any disqualification for being appointed
as a legislator. If a person is disqualified from being a legislator, he
or she cannot be appointed as a Minister.
19. Implied limitations to the Constitution were also read in B.P.
Singhal.5 In that case, an implied limitation was read into the
pleasure doctrine concerning the removal of the Governor of a State
by the President in terms of Article 156 of the Constitution. It was
held that the pleasure doctrine as originally envisaged in England
gave unfettered power to the authority at whose pleasure a person
held an office. However, where the rule of law prevails, the
“fundamentals of constitutionalism” cannot be ignored, meaning
thereby that the pleasure doctrine does not enable an unfettered
discretion to act arbitrarily, whimsically, or capriciously. It does not
dispense with the need for a cause for withdrawal of the pleasure,
5 B.P. Singhal v. Union of India, (2010) 6 SCC 331
Writ Petition (Civil) No.289 of 2005 Page 11 of 27
which can only be for valid reasons.
20. Similarly, in Salil Sabhlok6 integrity and competence were
read as implied in the appointment of the Chairperson of the State
Public Service Commission. It was held in paragraph 45 of the
Report as follows:
“I have already held that it is for the Governor who is the
appointing authority under Article 316 of the Constitution to lay
down the procedure for appointment of the Chairman and
Members of the Public Service Commission, but this is not to say
that in the absence of any procedure laid down by the Governor for
appointment of Chairman and Members of the Public Service
Commission under Article 316 of the Constitution, the State
Government would have absolute discretion in selecting and
appointing any person as the Chairman of the State Public Service
Commission. Even where a procedure has not been laid down by
the Governor for appointment of Chairman and Members of the
Public Service Commission, the State Government has to select
only persons with integrity and competence for appointment as
Chairman of the Public Service Commission, because the
discretion vested in the State Government under Article 316 of the
Constitution is impliedly limited by the purposes for which the
discretion is vested and the purposes are discernible from the
functions of the Public Service Commissions enumerated in Article
320 of the Constitution. Under clause (1) of Article 320 of the
Constitution, the State Public Service Commission has the duty to
conduct examinations for appointments to the services of the
State. Under clause (3) of Article 320, the State Public Service
Commission has to be consulted by the State Government on
matters relating to recruitment and appointment to the civil
services and civil posts in the State; on disciplinary matters
affecting a person serving under the Government of a State in a
civil capacity; on claims by and in respect of a person who is
serving under the State Government towards costs of defending a
legal proceeding; on claims for award of pension in respect of
injuries sustained by a person while serving under the State
Government and other matters. In such matters, the State Public
Service Commission is expected to act with independence from the
6 State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1
Writ Petition (Civil) No.289 of 2005 Page 12 of 27
State Government and with fairness, besides competence and
maturity acquired through knowledge and experience of public
administration.”
21. Thereafter in paragraph 99 of the Report, it was said:
“While it is difficult to summarise the indicators laid down by this
Court, it is possible to say that the two most important
requirements are that personally the Chairperson of the Public
Service Commission should be beyond reproach and his or her
appointment should inspire confidence among the people in the
institution. The first “quality” can be ascertained through a
meaningful deliberative process, while the second “quality” can be
determined by taking into account the constitutional, functional
and institutional requirements necessary for the appointment.”
Conclusions on the first relief
22. Therefore, the position as it stands today is this:
(i) To become a Member of Parliament, a person
should possess the qualifications mentioned in
Article 84 of the Constitution;
(ii) To become a Member of Parliament, a person
should not suffer any of the disqualifications
mentioned in Article 102 of the Constitution;
(iii) The Constitution does not provide for any limitation
in a Member of Parliament becoming a Minister, but
certain implied limitations have been read into the
Constitution by decisions rendered by this Court
regarding an unelected person becoming a Minister;
(iv) One implied limitation read into the Constitution is
that a person not elected to Parliament can
nevertheless be appointed as a Minister for a period
of six months;
(v) Another implied limitation read into the
Constitution is that though a person can be
Writ Petition (Civil) No.289 of 2005 Page 13 of 27
appointed as a Minister for a period of six months,
he or she cannot repeatedly be so appointed;
(vi) Yet another implied limitation read into the
Constitution is that a person otherwise not qualified
to be elected as a Member of Parliament or
disqualified from being so elected cannot be
appointed as a Minister;
(vii) In other words, any person, not subject to any
disqualification, can be appointed a Minister in the
Central Government.
Given this position in law, is it necessary to read any other
implied limitation in the Constitution concerning the appointment
of a person as a Minister in the Government of India, particularly
any implied limitation on the appointment of a person with a
criminal background or having criminal antecedents?
Issue of criminal antecedents
23. The expression ‘criminal antecedents’ or ‘criminal background’
is extremely vague and incapable of any precise definition. Does it
refer to a person accused (but not charged or convicted) of an
offence or a person charged (but not convicted) of an offence or only
a person convicted of an offence? No clear answer was made
available to this question, particularly in the context of the
presumption of innocence that is central to our criminal
Writ Petition (Civil) No.289 of 2005 Page 14 of 27
jurisprudence. Therefore, to say that a person with criminal
antecedents or a criminal background ought not to be elected to the
Legislature or appointed a Minister in the Central Government is
really to convey an imprecise view.
24. The law does not hold a person guilty or deem or brand a
person as a criminal only because an allegation is made against
that person of having committed a criminal offence – be it in the
form of an off-the-cuff allegation or an allegation in the form of a
First Information Report or a complaint or an accusation in a final
report under Section 173 of the Criminal Procedure Code or even on
charges being framed by a competent Court. The reason for this is
fundamental to criminal jurisprudence, the rule of law and is quite
simple, although it is often forgotten or overlooked – a person is
innocent until proven guilty. This would apply to a person accused
of one or multiple offences. At law, he or she is not a criminal – that
person may stand ‘condemned’ in the public eye, but even that does
not entitle anyone to brand him or her a criminal.
25. Consequently, merely because a First Information Report is
lodged against a person or a criminal complaint is filed against him
or her or even if charges are framed against that person, there is no
Writ Petition (Civil) No.289 of 2005 Page 15 of 27
bar to that person being elected as a Member of Parliament or being
appointed as a Minister in the Central Government.
26. Parliament has, therefore, in its wisdom, made a distinction
between an accused person and a convict. For the purposes of the
election law, an accused person is as much entitled to be elected to
the Legislature as a person not accused of any offence. But,
Parliament has taken steps to ensure that at least some categories
of convicted persons are disqualified from being elected to the
Legislature. A statutory disqualification is to be found in Section 8
of the Representation of the People Act, 1951.7 The adequacy of the
7 8. Disqualification on conviction for certain offences.—(1) A person convicted of an offence punishable under—
(a) Section 153‐A (offence of promoting enmity between different groups on ground of religion, race, place of
birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or Section 171‐E (offence of
bribery) or Section 171‐F (offence of undue influence or personation at an election) or sub‐section (1) or subsection
(2) of Section 376 or Section 376‐A or Section 376‐B or Section 376‐C or Section 376‐D (offences relating to
rape) or Section 498‐A (offence of cruelty towards a woman by husband or relative of a husband) or sub‐section (2)
or sub‐section (3) of Section 505 (offence of making statement creating or promoting enmity, hatred or ill‐will
between classes or offence relating to such statement in any place of worship or in any assembly engaged in the
performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860); or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for the preaching and
practice of “untouchability”, and for the enforcement of any disability arising therefrom; or
(c) Section 11 (offence of importing or exporting prohibited goods) of the Customs Act, 1962 (52 of 1962); or
(d) Sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(g) Section 3 (offence of committing terrorist acts) or Section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(h) Section 7 (offence of contravention of the provisions of Sections 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or
(i) Section 125 (offence of promoting enmity between classes in connection with the election) or Section 135
(offence of removal of ballot papers from polling stations) or Section 135‐A (offence of booth capturing) or clause Writ Petition (Civil) No.289 of 2005 Page 16 of 27
restrictions placed by this provision is arguable. For example, a
disqualification under this Section is attracted only if the sentence
awarded to a convict is less than 2 years imprisonment. This raises
an issue: What if the offence is heinous (say an attempt to murder
(a) of sub‐section (2) of Section 136 (offence of fraudulently defacing or fraudulently destroying any nomination
paper) of this Act, or (j) Section 6 (offence of conversion of a place of worship) of the Places of Worship (Special Provisions) Act, 1991, or (k) Section 2 (offence of insulting the Indian National Flag or the Constitution of India) or Section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971) or,
(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or
(m) the Prevention of Corruption Act, 1988 (49 of 1988); or
(n) the Prevention of Terrorism Act, 2002 (15 of 2002);
shall be disqualified, where the convicted person is sentenced to—
(i) only fine, for a period of six years from the date of such conviction;
(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
(2) A person convicted for the contravention of—
(a) any law providing for the prevention of hoarding or profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961);
and sentenced to imprisonment for not less than six months, shall be disqualified from the date of such conviction
and shall continue to be disqualified for a further period of six years since his release.
(3) A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub‐section (1) or sub‐section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
(4) Held unconstitutional in Lily Thomas v. Union of India, (2013) 7 SCC 653 Notwithstanding anything in subsection
(1), sub‐section (2) or sub‐section (3) a disqualification under either sub‐section shall not, in the case of a
person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.
Explanation.—In this section—
(a) “law providing for the prevention of hoarding or profiteering” means any law, or any order, rule or notification having the force of law, providing for—
(i) the regulation of production or manufacture of any essential commodity;
(ii) the control of price at which any essential commodity may be bought or sold;
(iii) the regulation of acquisition, possession, storage, transport, distribution, disposal, use or consumption of any essential commodity;
(iv) the prohibition of the withholding from sale of any essential commodity ordinarily kept for sale;
(b) “drug” has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23 of 1940);
(c) “essential commodity” has the meaning assigned to it in the Essential Commodities Act, 1955 (10 of 1955);
(d) “food” has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of 1954).
Writ Petition (Civil) No.289 of 2005 Page 17 of 27
punishable under Section 307 of the Indian Penal Code (IPC) or
kidnapping punishable under Section 363 of the IPC or any other
serious offence not attracting a minimum punishment) and the
sentence awarded by the Court is less than 2 years imprisonment.
Can such a convict be a member of a Legislature? The answer is in
the affirmative. Can this Court do anything about this, in the form
of framing some guidelines?
27. In Municipal Committee, Patiala8 this Court referred to
Parent of a student of Medical College9 and held that legislation
is in the domain of the Legislature. It was said:
“It is so well settled and needs no restatement at our hands that
the legislature is supreme in its own sphere under the Constitution
subject to the limitations provided for in the Constitution itself. It
is for the legislature to decide as to when and in what respect and
of what subject-matter the laws are to be made. It is for the
legislature to decide as to the nature of operation of the statutes.”
28. More recently, V.K. Naswa10 referred to a large number of
decisions of this Court and held that the Court cannot legislate or
direct the Legislature to enact a law. It was said:
“Thus, it is crystal clear that the court has a very limited role and
in exercise of that, it is not open to have judicial legislation.
Neither the court can legislate, nor has it any competence to issue
8 Municipal Committee, Patiala v. Model Town Residents Association, (2007) 8 SCC 669
9 State of Himachal Pradesh v. Parent of a student of Medical College, (1985) 3 SCC 169. This was a judgment
delivered by a Bench of three learned Judges.
10 V.K. Naswa v. Union of India, (2012) 2 SCC 542
Writ Petition (Civil) No.289 of 2005 Page 18 of 27
directions to the legislature to enact the law in a particular
manner.”
29. However, a discordant note was struck in Gainda Ram11
wherein this Court issued a direction to the Legislature to enact
legislation before a particular date. It was so directed in paragraphs
70 and 78 of the Report in the following words:
“70. This Court, therefore, disposes of this writ petition and all the
IAs filed with a direction that the problem of hawking and street
vending may be regulated by the present schemes framed by
NDMC and MCD up to 30-6-2011. Within that time, the
appropriate Government is to legislate and bring out the law to
regulate hawking and hawkers’ fundamental right. Till such time
the grievances of the hawkers/vendors may be redressed by the
internal dispute redressal mechanisms provided in the schemes.
“78. However, before 30-6-2011, the appropriate Government is to
enact a law on the basis of the Bill mentioned above or on the
basis of any amendment thereof so that the hawkers may precisely
know the contours of their rights. This Court is giving this
direction in exercise of its jurisdiction to protect the fundamental
rights of the citizens.”12
30. The law having been laid down by a larger Bench than in
Gainda Ram it is quite clear that the decision, whether or not
Section 8 of the Representation of the People Act, 1951 is to be
amended, rests solely with Parliament.
31. Assuming Parliament does decide to amend Section 8 of the
Representation of the People Act, 1951 the content of the amended
11 Gainda Ram v. MCD, (2010) 10 SCC 715. This was a judgment delivered by a Bench of two learned Judges.
12 The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill was eventually passed and notified as an Act in 2014.
Writ Petition (Civil) No.289 of 2005 Page 19 of 27
Section cannot be decided easily. Apart from the difficulty in fixing
the quantum of sentence (adverted to above), there are several other
imponderables, one of them being the nature of the offence. It has
been pointed out by Rodney Brazier in “Is it a constitutional issue:
fitness for ministerial office in the 1990s”13 that there are four
categories of offences. The learned author says:
“But four types of crime may be distinguished. First, minor
convictions would not count against a politician’s worthiness for
office. Minor driving offences, for example, are neither here nor
there. Secondly, and at the other extreme, convictions for offences
involving moral turpitude would dash any ministerial career. No
one could remain in the Government who had been convicted of
any offence of corruption, dishonesty, serious violence, or sexual
misconduct. Thirdly, and most difficult, are offences the
seriousness of which turn on the facts. A conviction for (say)
assault, or driving with excess alcohol in the blood, could present a
marginal case which would turn on its own facts. Fourthly,
offences committed from a political motive might be condoned.
Possibly a person who had refused to pay the poll tax might be
considered fit.”
32. Therefore, not only is the quantum of sentence relevant but
the nature of the offence that might disqualify a person from
becoming a legislator is equally important. Perhaps it is possible to
make out an exhaustive list of offences which, if committed and the
accused having been found guilty of committing that offence, can be
disqualified from contesting an election. The offences and the
13 Public Law 1994, Aut, 431‐45
Writ Petition (Civil) No.289 of 2005 Page 20 of 27
sentence to be awarded for the purpose of disqualifying a person
from being elected to a Legislature are matters that Parliament may
like to debate and consider, if at all it is felt necessary. Until then,
we must trust the watchful eye of the people of the country that the
elected representative of the people is worthy of being a legislator.
Thereafter we must trust the wisdom of the Prime Minister and
Parliament that the elected representative is worthy of being a
Minister in the Central Government. In this context, it is
appropriate to recall the words of Dr. Ambedkar in the Constituent
Assembly on 30th December, 1948. He said:
“His [Hon’ble K.T. Shah] last proposition is that no person who is
convicted may be appointed a Minister of the State. Well, so far as
his intention is concerned, it is no doubt very laudable and I do not
think any Member of this House would like to differ from him on
that proposition. But the whole question is this whether we should
introduce all these qualifications and disqualifications in the
Constitution itself. Is it not desirable, is it not sufficient that we
should trust the Prime Minister, the Legislature and the public at
large watching the actions of the Ministers and the actions of the
legislature to see that no such infamous thing is done by either of
them? I think this is a case which may eminently be left to the
good-sense of the Prime Minister and to the good sense of the
Legislature with the general public holding a watching brief upon
them. I therefore say that these amendments are unnecessary.”14
33. That a discussion is needed is evident from the material
placed by the learned Additional Solicitor General. He referred to
14 Constituent Assembly Debates, Volume VII
Writ Petition (Civil) No.289 of 2005 Page 21 of 27
the 18th Report presented to the Rajya Sabha on 15th March, 2007
by the Department-Related Parliamentary Standing Committee On
Personnel, Public Grievances, Law And Justice on Electoral Reforms
(Disqualification Of Persons From Contesting Elections On Framing
Of Charges Against Them For Certain Offences). The Report
acknowledges the criminalization of our polity and the necessity of
cleansing the political climate and had this to say:
“At the same time, the Committee is deeply conscious of the
criminalization of our polity and the fast erosion of confidence of
the people at large in our political process of the day. This will
certainly weaken our democracy and will render the democratic
institutions sterile. The Committee therefore feels that politics
should be cleansed of persons with established criminal
background. The objective is to prevent criminalisation of politics
and maintain probity in elections. Criminalization of politics is the
bane of society and negation of democracy. But the arguments
against the proposal of the Election Commission are overwhelming.
As stated in the foregoing paras the Courts frame charges even
when they are conscious that the case is ultimately bound to fail.
Appreciation of evidence at the stage of framing charges being
more or less prohibited, charges are still framed even when the
court is convinced that the prosecution will never succeed. There
are many glaring illustrations which are of common knowledge and
any criminal lawyer can multiply instances of such nature. Hence
the proposal can not be accepted in its present form as the country
has witnessed in the past misuse of MISA, TADA, POTA etc.”
34. On the issue of criminalization of politics, the learned
Additional Solicitor General also referred to the 244th Report of the
Law Commission of India on “Electoral Disqualifications”
presented in February, 2014. Though the Report concerns itself
Writ Petition (Civil) No.289 of 2005 Page 22 of 27
primarily with the disqualification to be a member of a Legislature,
it does give some interesting statistics about the elected
representatives of the people in the following words:
“In the current Lok Sabha, 30% or 162 sitting MPs have criminal
cases pending against them, of which about half i.e. 76 have
serious criminal cases. Further, the prevalence of MPs with
criminal cases pending has increased over time. In 2004, 24% of
Lok Sabha MPs had criminal cases pending, which increased to
30% in the 2009 elections.
The situation is similar across states with 31% or 1,258 out of
4,032 sitting MLAs with pending cases, with again about half being
serious cases. Some states have a much higher percentage of MLAs
with criminal records: in Uttar Pradesh, 47% of MLAs have
criminal cases pending. A number of MPs and MLAs have been
accused of multiple counts of criminal charges. In a constituency
of Uttar Pradesh, for example, the MLA has 36 criminal cases
pending including 14 cases related to murder.
From this data it is clear that about one-third of elected candidates
at the Parliament and State Assembly levels in India have some
form of criminal taint. Data elsewhere suggests that one-fifth of
MLAs have pending cases which have proceeded to the stage of
charges being framed against them by a court at the time of their
election. Even more disturbing is the finding that the percentage of
winners with criminal cases pending is higher than the percentage
of candidates without such backgrounds. While only 12% of
candidates with a “clean” record win on average, 23% of candidates
with some kind of criminal record win. This means that candidates
charged with a crime actually fare better at elections than ‘clean’
candidates. Probably as a result, candidates with criminal cases
against them tend to be given tickets a second time. Not only do
political parties select candidates with criminal backgrounds, there
is evidence to suggest that untainted representatives later become
involved in criminal activities. The incidence of criminalisation of
politics is thus pervasive making its remediation an urgent need.”
While it may be necessary, due to the criminalization of our
polity and consequently of our politics, to ensure that certain
Writ Petition (Civil) No.289 of 2005 Page 23 of 27
persons do not become Ministers, this is not possible through
guidelines issued by this Court. It is for the electorate to ensure
that suitable (not merely eligible) persons are elected to the
Legislature and it is for the Legislature to enact or not enact a more
restrictive law.
Conclusions on the second relief
35. The discussion leads to the following conclusions:
(i) To become a legislator and to continue as a
legislator, a person should not suffer any of the
disqualifications mentioned in Section 8 of the
Representation of the People Act, 1951;
(ii) There does seem to be a gap in Section 8 of the
Representation of the People Act, 1951 inasmuch as
a person convicted of a heinous or a serious offence
but awarded a sentence of less than two years
imprisonment may still be eligible for being elected
as a Member of Parliament;
(iii) While a debate is necessary for bringing about a
suitable legislation disqualifying a person from
becoming a legislator, there are various factors that
need to be taken into consideration;
(iv) That there is some degree of criminalization of
politics is quite evident;
(v) It is not for this Court to lay down any guidelines
relating to who should or should not be entitled to
become a legislator or who should or should not be
appointed a Minister in the Central Government;
Writ Petition (Civil) No.289 of 2005 Page 24 of 27
36. The range of persons who may be elected to a Legislature is
very wide and amongst those, who may be appointed a Minister in
the Central Government is also very wide, as mentioned above. Any
legislator or non-legislator can be appointed as a Minister but must
quit as soon as he or she earns a disqualification either under the
Constitution or under Section 8 of the Representation of the People
Act, 1951.15 In B.P. Singhal this Court observed that “a Minister is
hand-picked member of the Prime Minister’s team. The relationship
between the Prime Minister and a Minister is purely political.”
37. In addition to the above, how long a Minister should continue
in office is best answered by the response to a question put to the
British Prime Minister John Major who was asked to “list the
circumstances which render Ministers unsuitable to retain office.”
His written reply given to the House of Commons on 25th January,
1994 was: “There can be a variety of circumstances but the main
criterion should be whether the Minister can continue to perform
the duties of office effectively.”16
15 Lily Thomas v. Union of India, (2013) 7 SCC 653
16http://hansard.millbanksystems.com/written answers/1994/jan/25/ministers‐unsuitability‐for
office#S6CV0236P0 19940125 CWA 172
Writ Petition (Civil) No.289 of 2005 Page 25 of 27
38. This being the position, the burden of appointing a suitable
person as a Minister in the Central Government lies entirely on the
shoulders of the Prime Minister and may eminently be left to his or
her good sense. This is what our Constitution makers intended,
notwithstanding the view expressed by Shri H.V. Kamath in the
debate on 30th December, 1948. He said:
“My Friend, Prof. Shah, has just moved amendment No.1300
comprising five sub-clauses. I dare say neither Dr. Ambedkar nor
any of my other honourable Friends in this House will question the
principle which is sought to be embodied in Clause (2E) of
amendment No. 1300 moved by Prof. Shah. I have suggested my
amendment No. 46 seeking to delete all the words occurring after
the words “moral turpitude” because I think that bribery and
corruption are offences which involve moral turpitude. I think that
moral turpitude covers bribery, corruption and many other cognate
offences as well. Sir, my friends here will, I am sure, agree with me
that it will hardly redound to the credit of any government if that
government includes in its fold any minister who has had a shady
past or about whose character or integrity there is any widespread
suspicion. I hope that no such event or occurrence will take place
in our country, but some of the recent events have created a little
doubt in my mind. I refer, Sir, to a little comment, a little article,
which appeared in the Free Press Journal of Bombay dated the 8th
September 1948 relating to the **** Ministry. The relevant portion
of the article runs thus:
“The Cabinet (the * * * * Cabinet) includes one person who is
a convicted black marketeer, and although it is said that his
disabilities, resulting from his conviction in a Court of Law,
which constituted a formidable hurdle in the way of his
inclusion in the interim Government, were graciously
removed by the Maharaja.”17
17 Constituent Assembly Debates, Volume VII
Writ Petition (Civil) No.289 of 2005 Page 26 of 27
39. In this respect, the Prime Minister is, of course, answerable to
Parliament and is under the gaze of the watchful eye of the people
of the country. Despite the fact that certain limitations can be read
into the Constitution and have been read in the past, the issue of
the appointment of a suitable person as a Minister is not one which
enables this Court to read implied limitations in the Constitution.
Epilogue
40. It is wise to remember the words of Dr. Ambedkar in the
Constituent Assembly on 25th November, 1949. He had this to say
about the working of our Constitution:
“As much defence as could be offered to the Constitution has been
offered by my friends Sir Alladi Krishnaswami Ayyar and Mr. T.T.
Krishnamachari. I shall not therefore enter into the merits of the
Constitution. Because I feel, however good a Constitution may be,
it is sure to turn out bad because those who are called to work it,
happen to be a bad lot. However bad a Constitution may be, it may
turn out to be good if those who are called to work it, happen to be
a good lot. The working of a Constitution does not depend wholly
upon the nature of the Constitution. The Constitution can provide
only the organs of State such as the Legislature, the Executive and
the Judiciary. The factors on which the working of those organs of
the State depend are the people and the political parties they will
set up as their instruments to carry out their wishes and their
politics. Who can say how the people of India and their purposes or
will they prefer revolutionary methods of achieving them? If they
adopt the revolutionary methods, however good the Constitution
may be, it requires no prophet to say that it will fail. It is, therefore,
futile to pass any judgement upon the Constitution without
reference to the part which the people and their parties are likely
to play.”18
18 http://parliamentofindia.nic.in/ls/debates/vol11p11.htm
Writ Petition (Civil) No.289 of 2005 Page 27 of 27
41. This sentiment was echoed in the equally memorable words of
Dr. Rajendra Prasad on 26th November, 1949. He had this to say:
“Whatever the Constitution may or may not provide, the welfare of
the country will depend upon the way in which the country is
administered. That will depend upon the men who administer it. It
is a trite saying that a country can have only the Government it
deserves. Our Constitution has provision in it which appear to
some to be objectionable from one point or another. We must
admit that the defects are inherent in the situation in the country
and the people at large. If the people who are elected are capable
and men of character and integrity, they would be able to make the
best even of a defective Constitution. If they are lacking in these,
the Constitution cannot help the country. After all, a Constitution
like a machine is a lifeless thing. It acquires life because of the
men who control it and operate it, and India needs today nothing
more than a set of honest men who will have the interest of the
country before them.”19
42. The writ petition is disposed of but with no order as to costs. It
must, however, be stated that all learned counsels appearing in the
case have rendered very useful and able assistance on an issue
troubling our polity.
………………………..J
(Madan B. Lokur)
New Delhi;
August 27, 2014
19 http://parliamentofindia.nic.in/ls/debates/vol11p12.htm
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
WRIT PETITION (CIVIL) NO. 289 OF 2005
MANOJ NARULA … PETITIONER (S)
VERSUS
UNION OF INDIA … RESPONDENT (S)
KURIAN, J.:
1. I agree with the beautiful and erudite exposition of law
made by my esteemed brother. Yet why to pen something
more, one may naturally ask. The only answer is: in Kerala,
there is a saying: when you make a special tea, even if you add a
little more milk, don’t reduce even a bit of sugar!
2. The surviving prayer in the public interest litigation reads
as follows:
“(c) Issue appropriate writ/writs, order/orders,
direction/directions, including the writ of
mandamus and frame possible guidelines, for
appointment of Minister for the UOI as well as for
the State, especially, in view of the provisions,
terms of schedule III, Article 75(4), 164(3), basic
features, aims and objects of the Constitution etc.
as the Hon’ble Court may deem fit and proper for
the perseverance and protection of the
Constitution of India in both letters and spirit.”
3. Court is the conscience of the Constitution
of India. Conscience is the moral sense of right and wrong of
a person (Ref.: Oxford English Dictionary). Right or wrong, for
court, not in the ethical sense of morality but in the constitutional
sense. Conscience does not speak to endorse one’s good
conduct; but when things go wrong, it always speaks; whether
you listen or not. It is a gentle and sweet reminder for rectitude.
That is the function of conscience. When things go wrong
constitutionally, unless the conscience speaks, it is not good
conscience; it will be accused of as numb conscience.
4. One cannot think of the Constitution of India without the
preambular principle of democracy and good governance.
Governance is mainly in the hands of the Executive. The
executive power of the Union under Article 53 and that of the
States under Article 154 vests in the President of India and the
Governor of the State, respectively. Article 74 for the Union of
India and Article 163 for the State have provided for the Council
of Ministers to aid and advise the President or the Governor, as
the case may be. The executive power extends to the respective
legislative competence.
5. Before entering office, a Minister has to take oath of
office (Article 75/164). In form, except for the change in the
words ‘Union’ or particular ‘State’, there is no difference in the
form of oath. Ministers take oath to … “faithfully and
conscientiously discharge …” their duties and …. “do right to all
manner of people in accordance with Constitution and the law,
without fear or favour, affection or ill-will”.
6. Allegiance to the Constitution of India, faithful and
conscientious discharge of the duties, doing right to people and
all these without fear or favour, affection or ill-will, carry heavy
weight. ‘Conscientious’ means “wishing to do what is right,
relating to a person’s conscience” (Ref.: Concise Oxford English
Dictionary). The simple question is, whether a person who has
come in conflict with law and, in particular, in conflict with law
on offences involving moral turpitude and laws specified by the
Parliament under Chapter III of The Representation of the
People Act, 1951, would be in a position to conscientiously and
faithfully discharge his duties as Minister and that too, without
any fear or favour?
7. When does a person come in conflict with law? No quarrel,
under criminal jurisprudence, a person is presumed to be
innocent until he is convicted. But is there not a stage when a
person is presumed to be culpable and hence called upon to
face trial, on the court framing charges?
8. Under Section 228 of the Code of Criminal Procedure,
1973 (hereinafter referred to as ‘Cr.PC’), charge is framed by
the court only if the Judge (the Magistrate – under Section 240
Cr.PC) is of the opinion that there is ground for presumption that
the accused has committed an offence, after consideration of
opinion given by the police under Section 173(2) Cr.PC
(challan/police charge-sheet) and the record of the case and
documents. It may be noted that the prosecutor and the accused
person are heard by the court in the process. Is there not a
cloud on his innocence at that stage? Is it not a stage where his
integrity is questioned? If so, is it not a stage where the person
has come in conflict with law, and if so, is it desirable in a
country governed by rule of law to entrust the executive power
with such a person who is already in conflict with law? Will any
reasonably prudent master leave the keys of his chest with a
servant whose integrity is doubted? It may not be altogether
irrelevant to note that a person even of doubtful integrity is not
appointed in the important organ of the State which interprets
law and administers justice; then why to speak of questioned
integrity! What to say more, a candidate involved in any
criminal case and facing trial, is not appointed in any civil
service because of the alleged criminal antecedents, until
acquitted.
9. Good governance is only in the hands of good men. No
doubt, what is good or bad is not for the court to decide: but the
court can always indicate the constitutional ethos on goodness,
good governance and purity in administration and remind the
constitutional functionaries to preserve, protect and promote the
same. Those ethos are the unwritten words in our Constitution.
However, as the Constitution makers stated, there is a
presumption that the Prime Minister/Chief Minister would be
well advised and guided by such unwritten yet constitutional
principles as well. According to Dr. B. R. Ambedkar, as
6
specifically referred to by my learned brother at pargraph-70 of
the leading judgment, such things were only to be left to the
good sense of the Prime Minister, and for that matter, the Chief
Minister of State, since it was expected that the two great
constitutional functionaries would not dare to do any infamous
thing by inducting an otherwise unfit person to the Council of
Ministers. It appears, over a period of time, at least in some
cases, it was only a story of great expectations. Some of the
instances pointed out in the writ petition indicate that
Dr. Ambedkar and other great visionaries in the Constituent
Assembly have been bailed out. Qualification has been wrongly
understood as the mere absence of prescribed disqualification.
Hence, it has become the bounden duty of the court to remind
the Prime Minister and the Chief Minister of the State of their
duty to act in accordance with the constitutional aspirations. To
quote Dr. Ambedkar:
“However, good a Constitution may be, it is sure to turn
out bad because those who are called to work it happen
to be a bad lot. However, bad a Constitution may be, it
may turn out to be good if those who are called to work
it happen to be a good lot. The working of a
Constitution does not depend wholly upon the nature of
the Constitution.”
7
10. Fortunately for us, our Constitution has stood the test of
time and is acclaimed to be one of the best in the world.
Problem has been with the other part, though sporadically.
Kautilya, one of the great Indian exponents of art of government,
has dealt with qualification of king and his councillors at
Chapter IX in Arthasastra, said to be compiled between
BC 321-296. To quote relevant portion:
“CHAPTER IX
THE CREATION OF COUNCILLORS AND PRIESTS
NATIVE, born of high family, influential, well trained in
arts, possessed of foresight, wise, of strong memory,
bold, eloquent, skilful, intelligent, possessed of
enthusiasm, dignity and endurance, pure in character,
affable, firm in loyal devotion, endowed with excellent
conduct, strength, health and bravery, free from
procrastination and ficklemindedness, affectionate, and
free from such qualities as excite hatred and enmitythese
are the qualifications of a ministerial officer.”
11. The attempt made by this court in the above background
history of our country and Constitution is only to plug some of
the bleeding points in the working of our Constitution so that the
high constitutional functionaries may work it well and not wreck
it. Beauty of democracy depends on the proper exercise of duty
by those who work it.
8
12. No doubt, it is not for the court to issue any direction to the
Prime Minister or the Chief Minister, as the case may be, as to
the manner in which they should exercise their power while
selecting the colleagues in the Council of Ministers. That is the
constitutional prerogative of those functionaries who are called
upon to preserve, protect and defend the Constitution. But it is
the prophetic duty of this Court to remind the key duty holders
about their role in working the Constitution. Hence, I am of the
firm view, that the Prime Minister and the Chief Minister of the
State, who themselves have taken oath to bear true faith and
allegiance to the Constitution of India and to discharge their
duties faithfully and conscientiously, will be well advised to
consider avoiding any person in the Council of Ministers,
against whom charges have been framed by a criminal court in
respect of offences involving moral turpitude and also offences
specifically referred to in Chapter III of The Representation of
the People Act, 1951.
………………………J.
(KURIAN JOSEPH)
New Delhi;
August 27, 2014.

 

One thought on “Supreme Court Verdict on Ministers with Crime Record

  1. Really!!!

    If that is the case, then is it allowed for other’s to make their own decision when hiring people. There are rules and regulations on who can be hired (meaning age, education, ethics etc. for other jobs). And as ministers and high ranking officials these people will be entrusted with power over people. How can people with criminal records be handed over such powers??

    Damn shame

    Date: Wed, 27 Aug 2014 10:07:13 +0000
    To: blrsiteseeker@hotmail.com

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