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TMI Blog2015 (4) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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. 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 bea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... democratic polity, as understood in its quintessential purity, is conceptually abhorrent to corruption and, especially corruption at high places, and repulsive to the idea of criminalization of politics as it corrodes the legitimacy of the collective ethos, frustrates the hopes and aspirations of the citizens and has the potentiality to obstruct, if not derail, the rule of law. Democracy, which has been best defined as the Government of the People, by the People and for the People, expects prevalence of genuine orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of constitutional morality which is the pillar stone of good governance. While dealing with the concept of democracy, the majority in Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299, stated that 'democracy' as an essential feature of the Constitution is unassailable. The said principle was reiterated in T.N. Seshan, CEC of India v. Union of India and ors.(1995) 4 SCC 611. and Kuldip Nayar v. Union of India Ors. AIR 2006 SC 3127 It was pronounced with asseveration that democracy is the basic and fundamental structure of the Constitution. There is no shadow of doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecomes easy to collect tons of black money which is used for retaining power and for re-election. The Court further observed that if on an affidavit a candidate is required to disclose the assets held by him at the time of election, the voter can decide whether he should be re-elected. Thereafter, as regards the purity of election, the Court observed that to maintain purity of elections and, in particular, to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties, and the voters would have basic elementary right to know full particulars of a candidate who is to represent them in Parliament where laws to bind their liberty and property may be enacted because the right to get information in a democracy is recognised all throughout and it is a natural right flowing from the concept of democracy. Elaborating further, the Court opined that a voter has a right to know the antecedents including the criminal past of his candidate contesting election for MP or MLA as it is fundamental and basic for the survival of democracy, for he may think over before making his choice of electing law-breakers as lawmake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that they have been made to exclude persons with criminal background of the kind specified therein from the election scene as candidates and voters with the object to prevent criminalization of politics and maintain propriety in elections. Thereafter, the three-Judge Bench opined that any provision enacted with a view to promote the said object must be welcomed and upheld as subserving the constitutional purpose. In K. Prabhakaran v. P. Jayarajan AIR 2005 SC 688, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revent 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 nominati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 6-A on the basis of status in the Government service is not permissible under Article 14 as it defeats the purpose of finding prima facie truth into the allegations of graft, which amount to an offence under the PC Act, 1988. Can there be sound differentiation between corrupt public servants based on their status? Surely not, because irrespective of their status or position, corrupt public servants are corrupters of public power. The corrupt public servants, whether high or low, are birds of the same feather and must be confronted with the process of investigation and inquiry equally. Based on the position or status in service, no distinction can be made between public servants against whom there are allegations amounting to an offence under the PC Act, 1988. And thereafter, the larger Bench further said:- Corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification which has been made in Section 6- A because the goal of law in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations and disqualifications and the absence of disqualifications, but to be a Minister in the Council of Ministers which is done solely on the advice of the Prime Minister, absence of criminal antecedents has to be a condition precedent. It is canvassed by him that when parliamentary democracy is a basic feature of the Constitution and the Council of Ministers exercise all the powers as per the democratic conventions, it has to be treated as an important constitutional institution of governance of the nation and, therefore, it cannot be allowed to be held by persons involved in criminal offences. He has placed reliance upon the authorities in Centre for PIL and another v. Union of India and another (2011) 4 SCC 1, N. Kannadasan v. Ajoy Khose and others (2009) 7 SCC 1, Inderpreet Singh Kahlon v. State of Punjab (2006) 11 SCC 356, Arun Kumar Agarwal v. Union of India (2014) 2 SCC 609, State of Punjab v. Salil Sabhlok and others (2013) 5 SCC 1 and Centre for Public Interest Litigation and another v. Union of India and another (2005) 8 SCC 202. 24. Laying stress on the word advice , apart from referring to the dictionary meaning, the learned senior counsel has urged that the frame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Prime Minister or by not acting on the advice of the Prime Minister is contrary to the constitutional norms and the parliamentary system prevalent in our country under the Constitution. For the aforesaid purpose, he has placed reliance on the decision in U.N.R. Rao v. Smt. Indira Gandhi (1971) 2 SCC 63. It is urged by him that if anything is added to Article 75(1), that would tantamount to incorporating a disqualification which is not present and the principle of judicial review does not conceptually so permit, for such a disqualification could have been easily imposed by the framers of the Constitution or by the Parliament by making a provision under the 1951 Act. To bolster the said submission, he has commended us to the Constitution Bench decision in G. Narayanaswami v. G. Pannerselvam and others (1972) 3 SCC 717 and a three-Judge Bench decision in Shrikant v. Vasantrao and others (2006) 2 SCC 682. The choice of the Prime Minister is binding on the President and a Minister holds the office till he enjoys the confidence of the House. Learned Additional Solicitor General, for the said purpose, has drawn inspiration from certain passages from Samsher Singh (supra). 34. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 case 1965 AC 172 Taylor v. Attorney General of Queensland 23 CLR 457; Mangal Singh v. Union of India (1967) 2 SCR 109, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 Nadu (2007) 2 SCC 1, 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, lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd larger public interest. Liberalization of the concept of locus standi for the purpose of development of Public Interest Litigation to establish the rights of the have-nots or to prevent damages and protect environment is one such feature. Similarly, laying down guidelines as procedural safeguards in the matter of adoption of Indian children by foreigners in the case of Laxmi Kant Pandey v. Union of India AIR 1987 SC 232 or issuance of guidelines pertaining to arrest in the case of D.K. Basu v. State of West Bengal AIR 1997 SC 610 or directions issued in Vishakha and others v. State of Rajasthan and others (1997) 6 SCC 241 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 others (2010) 12 SCC 1 wherein this Court was dealing with the constitutional validity of the U.P. Panchayat Laws (Amendment) Act, 2007. One of the grounds for challenge was that there is no concept of no confidence motion in the detailed constitutional provision under Part IX of the Constitution and, therefore, the incorporation of the said provision in the statute militates against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 others (1994) 6 SCC 632, right to privacy has been inferred from Article 21. Similarly, in Joginder Kumar v. State of U.P. and others AIR 1994 SC 1349, inherent rights unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutional 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 inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow to sustain the value of such a morality. The democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints. Commitment to the Constitution is a facet of constitutional morality. In this context, the following passage would be apt to be reproduced: - If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. James Madison as Publius, Federalist 51 65. Regard being had to the aforesaid concept, it would not be out of place to state that institutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutional 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 becomi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 India AIR 1994 SC 2, 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attention of the press that he will be no longer able to carry out departmental duties. 77. In Constitutional Administrative Law 5th Edition, pg 297-305, Hilaire Barnett, while dealing with the conduct of Ministers, referred to the Nolan Committee Nolan Report, Standards in Public Life, Cm 2850-I, 1995, Lodon HMSO, Chapter 3, para 4. 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 78. In Constitutional Practice (Constitutional Practice (Second Edition) (pg. 146-148)), 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 gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... squalified 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 grea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive reliefs have been claimed in the writ petition. The first relief is for a declaration that the appointment of Respondent Nos. 3 to 7 as Ministers in the Government of India is unconstitutional. This is based, inter alia, on the averment that these respondents have criminal antecedents . Subsequently by an order passed on 24th March, 2006 these respondents (along with respondent No. 2) were deleted from the array of parties since the broad question before this Court was about the legality of the persons with criminal background and/or charged with offences involving moral turpitude being appointed as ministers in Central and State Governments. 4. As far as the first substantive relief is concerned, the expressions criminal background and criminal antecedents are extremely vague. Nevertheless the legal position on the appointment of a Minister is discussed hereafter. 5. The second substantive relief is for the framing of possible guidelines for the appointment of a Minister in the Central or State Government. It is not clear who should frame the possible guidelines, perhaps this court. 6. As far as this substantive relief is concerned, it is entirely for the appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tick for measuring the moral qualities of a man and so long as that is not possible, our Constitution will remain defective. The other regret is that we have not been able to draw up our first Constitution of a free Bharat in an Indian language. The difficulties in both cases were practical and proved insurmountable. But that does not make the regret any the less poignant. 10. Hopefully, Parliament may take action on the views expressed by Dr. Rajendra Prasad, the first President of our Republic. 11. Article 102 provides the disqualifications for membership of either House of Parliament. This Article too is quite simple and straightforward and reads as follows: 102. Disqualifications for membership. - (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament. (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 Assem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to learned counsel for the respondent, there is no bar to this course being adopted on the plain language of the article , which does not expressly prohibit reappointment of the Minister, without being elected, even repeatedly, during the term of the same Legislative Assembly. We cannot persuade ourselves to agree. 33. Constitutional provisions are required to be understood and interpreted with an object-oriented approach. A Constitution must not be construed in a narrow and pedantic sense. The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve. Debates in the Constituent Assembly referred to in an earlier part of this judgment clearly indicate that a non-member's inclusion in the Cabinet was considered to be a privilege that extends only for six months, during which period the member must get elected, otherwise he would cease to be a Minister. It is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the court to find o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Chief Minister a person who is not qualified to be a member of the Legislature or who is disqualified to be such, the Governor must, having due regard to the Constitution and the laws, to which he is subject, decline, and the exercise of discretion by him in this regard cannot be called in question. 51. If perchance, for whatever reason, the Governor does appoint as Chief Minister a person who is not qualified to be a member of the Legislature or who is disqualified to be such, the appointment is contrary to the provisions of Article 164 of the Constitution, as we have interpreted it, and the authority of the appointee to hold the appointment can be challenged in quo warranto proceedings. That the Governor has made the appointment does not give the appointee any higher right to hold the appointment. If the appointment is contrary to constitutional provisions it will be struck down. The submission to the contrary - unsupported by any authority - must be rejected. 18. Therefore, two implied limitations were read into the Constitution with regard to the appointment of an unelected person as a Minister. Firstly, the Minister cannot continue as a Minister beyond a period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes are discernible from the functions of the Public Service Commissions enumerated in Article 320 of the Constitution. Under clause (1) of Article 320 of the Constitution, the State Public Service Commission has the duty to conduct examinations for appointments to the services of the State. Under clause (3) of Article 320, the State Public Service Commission has to be consulted by the State Government on matters relating to recruitment and appointment to the civil services and civil posts in the State; on disciplinary matters affecting a person serving under the Government of a State in a civil capacity; on claims by and in respect of a person who is serving under the State Government towards costs of defending a legal proceeding; on claims for award of pension in respect of injuries sustained by a person while serving under the State Government and other matters. In such matters, the State Public Service Commission is expected to act with independence from the State Government and with fairness, besides competence and maturity acquired through knowledge and experience of public administration. 21. Thereafter in paragraph 99 of the Report, it was said: While it is dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed (but not charged or convicted) of an offence or a person charged (but not convicted) of an offence or only a person convicted of an offence? No clear answer was made available to this question, particularly in the context of the presumption of innocence that is central to our criminal jurisprudence. Therefore, to say that a person with criminal antecedents or a criminal background ought not to be elected to the Legislature or appointed a Minister in the Central Government is really to convey an imprecise view. 24. The law does not hold a person guilty or deem or brand a person as a criminal only because an allegation is made against that person of having committed a criminal offence . be it in the form of an off-the-cuff allegation or an allegation in the form of a First Information Report or a complaint or an accusation in a final report under Section 173 of the Criminal Procedure Code or even on charges being framed by a competent Court. The reason for this is fundamental to criminal jurisprudence, the rule of law and is quite simple, although it is often forgotten or overlooked . a person is innocent until proven guilty. This would apply to a person accused of one or multi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssociation 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) The adequacy of the restrictions placed by this provision is arguable. For example, a disqualification under this Section is attracted only if the sentence awarded to a convict is less than 2 years imprisonment. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill was eventually passed and notified as an Act in 2014.) 30. The law having been laid down by a larger Bench than in Gainda Ram it is quite clear that the decision, whether or not Section 8 of the Representation of the People Act, 1951 is to be amended, rests solely with Parliament. 31. Assuming Parliament does decide to amend Section 8 of the Representation of the People Act, 1951 the content of the amended Section cannot be decided easily. Apart from the difficulty in fixing the quantum of sentence (adverted to above), there are several other imponderables, one of them being the nature of the offence. It has been pointed out by Rodney Brazier in Is it a constitutional issue: fitness for ministerial office in the 1990s (Public Law 1994, Aut, 431-45) that there are four categories of offences. The learned au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (Constituent Assembly Debates, Volume VII) 33. That a discussion is needed is evident from the material placed by the learned Additional Solicitor General. He referred to the 18th Report presented to the Rajya Sabha on 15th March, 2007 by the Department-Related Parliamentary Standing Committee On Personnel, Public Grievances, Law And Justice on Electoral Reforms (Disqualification Of Persons From Contesting Elections On Framing Of Charges Against Them For Certain Offences). The Report acknowledges the criminalization of our polity and the necessity of cleansing the political climate and had this to say: At the same time, the Committee is deeply conscious of the criminalization of our polity and the fast erosion of confidence of the people at large in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... candidates at the Parliament and State Assembly levels in India have some form of criminal taint. Data elsewhere suggests that one-fifth of MLAs have pending cases which have proceeded to the stage of charges being framed against them by a court at the time of their election. Even more disturbing is the finding that the percentage of winners with criminal cases pending is higher than the percentage of candidates without such backgrounds. While only 12% of candidates with a clean record win on average, 23% of candidates with some kind of criminal record win. This means that candidates charged with a crime actually fare better at elections than clean candidates. Probably as a result, candidates with criminal cases against them tend to be given tickets a second time. Not only do political parties select candidates with criminal backgrounds, there is evidence to suggest that untainted representatives later become involved in criminal activities. The incidence of criminalisation of politics is thus pervasive making its remediation an urgent need. While it may be necessary, due to the criminalization of our polity and consequently of our politics, to ensure that certain persons d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the Minister can continue to perform the duties of office effectively. (http://hansard.millbanksystems.com/written answers/1994/jan/25/ministers-unsuitability-for office#S6CV0236P0 19940125 CWA 172) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. ( http://parliamentofindia.nic.in/ls/debates/vol11p11.ht) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ister/Chief Minister would be well advised and guided by such unwritten yet constitutional principles as well. According to Dr. B. R. Ambedkar, as specifically referred to by my learned brother at pargraph-70 of the leading judgment, such things were only to be left to the good sense of the Prime Minister, and for that matter, the Chief Minister of State, since it was expected that the two great constitutional functionaries would not dare to do any infamous thing by inducting an otherwise unfit person to the Council of Ministers. It appears, over a period of time, at least in some cases, it was only a story of great expectations. Some of the instances pointed out in the writ petition indicate that Dr. Ambedkar and other great visionaries in the Constituent Assembly have been bailed out. Qualification has been wrongly understood as the mere absence of prescribed disqualification. Hence, it has become the bounden duty of the court to remind the Prime Minister and the Chief Minister of the State of their duty to act in accordance with the constitutional aspirations. To quote Dr. Ambedkar: However, good a Constitution may be, it is sure to turn out bad because those who are called ..... X X X X Extracts X X X X X X X X Extracts X X X X
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