MANU/SC/1659/2001
Equivalent Citation: AIR2001SC3435, 2002 (46) ALR 156, 2003(1)CGLJ446, 2002-1-
LW(Crl)1, 2001(6)SCALE309
IN THE SUPREME COURT OF INDIA
W.P. (C) Nos. 242, 245, 246, 261 of 2001, C.A. No. 6589 of 2001 (Arising out of S.L.P.
(C) No. 11763 of 2001), T.C. (C) No. 26 of 2001 (Arising from T.P. (C) No. 382 of
2001), W.P. (C) No. 10682 of 2001 and Transferred case Civil No. 26 of 2001 (Arising
from Transfer Petition (Civil) No. 382 of 2001)
Decided On: 21.09.2001
Appellants: B.R. Kapur
Vs.
Respondent: State of Tamil Nadu and Anr.
Hon'ble Judges/Coram:
S.P. Bharucha, G.B. Patnaik, Y.K. Sabharwal, Ruma Pal and Brijesh Kumar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Soli J. Sorabjee, Attorney-General, Harish N. Salve,
Solicitor-General, Ashok H. Desai, Anil B. Divan, R. Mohan, F.S. Nariman,P.P. Rao, K.K.
Venugopal and M. Rama Jois, Sr. Advs., R.K. Kapoor, R.A. Mishra, B.R. Kapoor, Sumit
Kumar, R. Varma, S.K. Srivastava, K.L. Vohra, Chander Shekhar Ashri, V.G.
Pragasam, Dinesh Kr. Garg, R.C. Kaushik, Francis Julian, B.V. Deepak, Roxna
Swamy, R,N. Keswani, Revathy Raghavan, Shweta Garg, Manish Goswami, P.
Parameswaran, Manish Singhvi, Sanjav R. Hegde, Satya Mitra, S.W.A. Qadri, Dhruv
Mehta, Preetesh Kapur, Siddharth Goswami, Sushma Suri, K.V. Viswanathan, N.
Jyothi, Kunwar Ajit Mohan Singh, Atul Kr. Sinha, K.V.
Venkataraman, Seema, Divya, T.V. George and Raj Kanwar, Advs. (Party-in-Person)
for Interveners in IA No. 4 of 2001
For Respondents/Defendant: S.N. Bhat, Adv.
Subject: Criminal
Catch Words
Mentioned IN
Acts/Rules/Orders: 
Prevention of Corruption Act, 1988 - Section 8, Prevention of Corruption Act, 1988 -
Section 13, Prevention of Corruption Act, 1988 - Section 13(1), Prevention of
Corruption Act, 1988 - Section 13(2); Representation of the People Act, 1951 - Section
8, Representation of the People Act, 1951 - Section 8(1), Representation of the People
Act, 1951 - Section 8(2), Representation of the People Act, 1951 - Section
8(3), Representation of the People Act, 1951 - Section 8(4), Representation of the
People Act, 1951 - Section 8A, Representation of the People Act, 1951 - Section
9, Representation of the People Act, 1951 - Section 9A, Representation of the People
Act, 1951 - Section 10, Representation of the People Act, 1951 - Section
10A, Representation of the People Act, 1951 - Section 153A; Protection of Civil Rights
Act, 1955; Customs Act, 1962 - Section 10, Customs Act, 1962 - Section 11, Customs
Act, 1962 - Section 12; Unlawful Activities (Prevention) Act, 1967;Foreign Exchange
(Regulation) Act, 1973; Narcotic Drugs and Psychotropic Substances Act,
1985; Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 3, Terrorist
and Disruptive Activities (Prevention) Act, 1987 - Section 4; Religious Institutions
(Prevention of Misuse) Act, 1988 - Section 3, Religious Institutions (Prevention of
Misuse) Act, 1988 - Section 4, Religious Institutions (Prevention of Misuse) Act, 1988 -
Section 5, Religious Institutions (Prevention of Misuse) Act, 1988 - Section 6, Religious
Institutions (Prevention of Misuse) Act, 1988 - Section 125, Religious Institutions
(Prevention of Misuse) Act, 1988 - Section 135, Religious Institutions (Prevention of
Misuse) Act, 1988 - Section 135A, Religious Institutions (Prevention of Misuse) Act,
1988 - Section 136(2); Places of Worship (Special Provisions) Act, 1991 - Section
6; Prevention of Insults to National Honour Act, 1971 - Section 2, Prevention of Insults
to National Honour Act, 1971 - Section 3; Dowry Prohibition Act, 1961; Commission of
Sati (Prevention) Act, 1987; Drugs and Cosmetics Act, 1940; Essential Commodities
Act, 1955;Prevention of Food Adulteration Act, 1954; Constitution (Forty - second
second Amendment) Act, Constitution (Forty - second 1976; Government of India Act,
1935 - Section 51(1), Government of India Act, 1935 - Section 51(2); Indian Penal
Code (IPC) - Section 120B, Indian Penal Code (IPC) - Section 171E, Indian Penal Code
(IPC) - Section 171F, Indian Penal Code (IPC) - Section 303, Indian Penal Code (IPC) -
Section 376(1), Indian Penal Code (IPC) - Section 376(2), Indian Penal Code (IPC) -
Section 376A, Indian Penal Code (IPC) - Section 376B, Indian Penal Code (IPC) -
Section 376C, Indian Penal Code (IPC) - Section 376D, Indian Penal Code (IPC) -
Section 498A, Indian Penal Code (IPC) - Section 409, Indian Penal Code (IPC) -
Section 505(3); Code of Criminal Procedure (CrPC) - Section 389, Code of Criminal
Procedure (CrPC) - Section 389(3); Constitution of India - Article 14, Constitution of
India - Article 32, Constitution of India - Article 74, Constitution of India - Article
75, Constitution of India - Article 75(5), Constitution of India - Article 84, Constitution
of India - Article 88, Constitution of India - Article 102,Constitution of India - Article
159, Constitution of India - Article 163, Constitution of India - Article
163(1), Constitution of India - Article 164(1), Constitution of India - Article
164(2), Constitution of India - Article 164, Constitution of India - Article
164(4), Constitution of India - Article 173, Constitution of India - Article
191,Constitution of India - Article 191(1), Constitution of India - Article
226, Constitution of India - Article 356, Constitution of India - Article
356(1), Constitution of India - Article 361, Constitution of India - Article
368, Constitution of India - Article 368(1), Constitution of India - Article 368(5)
Cases Referred: 
Ames v. State of Kansas 4 S Ct 437 : 111 US 449 : 1 Ed 482 (1884); Dilip Kumar
Sharma and Ors. v. State of Madhya Pradesh MANU/SC/0109/1975  : 1976 (1) SCC
560; Har Sharan Verma v. Shri Tribhuvan Narain Singh Chief Minister U.P. and
Anr. MANU/SC/0041/1971  : 1971 (1) SCC 616; Har Sharan Verma v. State of U.P
and Anr. MANU/SC/0031/1985  : 1985 (2) SCC 48; Harsharan Verma v. Union of
India and Anr. MANU/SC/0112/1987  : JT 1987 (3) SC 62 : 1987 (Supp.) SCC
310; His Holiness Kesavananda Bharati Sripadagalavaru v. State of
Kerala MANU/SC/0114/1972  : 1973 (Supp.) SCR 1; Lucas v. Colorado General
Assembly377 US 713 : 12 Led 2d 632 : 84 S Ct 1472; Maru Ram v. Union of India and
Ors. MANU/SC/0159/1980  : 1981 (1) SCC 107; Minerva Mills Ltd. and Ors. v. Union
of India and Ors. MANU/SC/0075/1980  : 1981 (1) SCR 206; Padam Singh v. State of
U.P.MANU/SC/0745/1999  : JT 1999 (9) SC 351 : 2000 (1) SCC 621; People v.
Dashaway Assn. 24 P 277 : 84 Cal 114; R.K. Jain v. Union of
India MANU/SC/0291/1993  : JT 1993 (3) SC 297 : 1993 (4) SCC 119; Raghbir Singh
v. Surjit SinghMANU/SC/1157/1994  : JT 1994 (5) SC 311 : 1994 Supp (3) SCC
162; S.P. Anand Indore v. H.D. Deve Gowda and Ors. MANU/SC/0075/1997  : JT
1996 (10) SC 274 : 1996 (6) SCC 734; S.R. Bommai v. Union of
India MANU/SC/0444/1994  : JT 1994 (2) SC 215 : 1994 (3) SCC 1; S.R. Chaudhuri
v. State of Punjab and Ors. MANU/SC/0457/2001  : JT 2001 (6) SC 446 : 2001 (5)
SCALE 269; Shamsher Singh v. State of Punjab MANU/SC/0073/1974  : 1974 (2)
SCC 831; Shri Kumar Padma Prasad v. Union of India and Ors. MANU/SC/0227/1992  
: JT 1992 (2) SC 247 : 1992 (2) SCC 428; State Ex inf. McKittrick v. Murphy 148 SW
2d 527: 347 Mo 484; State of Rajasthan and Ors. v. Union of India and
Ors. MANU/SC/0370/1977  : 1977 (3) SCC 592; Vidya Charan Shukla v. Purshottam
Lal KaushikMANU/SC/0307/1981  : 1981 (2) SCC 84; Walsh v. Thatche 102 SW 2d
937 : 340 Mo 865
Authorities Referred: 
Halsbury's Laws of England, Reissue Vol. I, 4th Edn., p. 368, para 265
Citing Reference: 

Discussed
 
 22
Case Note: 
Election - Disqualification - Article 191 read with Sections 8 to 11 of
Representation of People Act, 1951 - Second Respondent was convicted for
criminal offence under Section 13(1)(c) and 13(1)(d) of the Prevention of
Corruption Act, 1988 and conviction had not been suspended and Appeal
pending second Respondent was sworn in as chief minister of State - Hence,
this Petition - Whether, person who had been convicted of criminal offence
and whose conviction had not been suspended pending Appeal could be sworn
in and could continue to function as chief minister of state - Held, person who
was convicted for a criminal offence and sentenced to imprisonment for
period of not less than two years could not be appointed chief minister of
state - conclusions already arrived at, with regard to disqualifications
Respondent No. 2 had incurred, which prevents her for not being chosen as a
member of Legislative Assembly, it would be blatant violation of
constitutional laws to allow her to be continued as chief minister of state -
Respondent No. 2 was disqualified under Article 191(1)(e) read with Section
8(3) of 1951 Act - Respondent No. 2 had been convicted under Section 13 of
Prevention of Corruption Act, and had been sentenced to imprisonment for
period of 3 years, though execution of that sentence had been suspended by
Appellate Court while Appeal against conviction and sentence was pending
before High Court - Appointment of Respondent No. 2 as Chief Minister by
Governor, could not be challenged, in view of the provisions under Article 361
of the Constitution - Providing that Governor could not be answerable to any
court for performance of duties of his office as Governor - Petitioner suffered
from disqualification to hold public office of Chief Minister of a State - Writ of
quo warranto was writ which lies against person, who according to relator
was not entitled to hold an office of public nature and was not an usurper of
office - Petition disposed of.

Ratio Decidendi

"Person who is convicted for criminal offence and sentenced to imprisonment

for period of not less than two years could not be appointed chief minister of
state."
JUDGMENT
S.P. Bharucha, J.
1. Leave granted.
2. A question of great constitutional importance arises in these matters, namely,
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.
3. The second Respondent, Ms. J. Jayalalitha, was chief minister of the State of Tamil
Nadu between 1991 and 1996. In respect of that tenure in office she was (in CC 4 of
1997 and CC 13 of 1997) convicted for offences punishable under Section 120B of the
Indian Penal Code read with Sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention of
Corruption Act, 1988 and for the offence under Section 409 of the Indian Penal Code.
She was sentenced to undergo 3 years' rigorous imprisonment and pay a fine of Rs.
10,000 in the first case and to undergo 2 years rigorous imprisonment and pay a fine
of Rs. 5000 in the second case.
4. The fine that was imposed in both cases was paid.
5. The second Respondent preferred appeals against her conviction before the High
Court at madras. The appeals are pending. On applications filed by her in the two
appeals, the High Court, by an order dated 3rd November, 2000, suspended the
sentences of imprisonment under Section 389(3) of the Code of Criminal Procedure
and directed the release of Respondent No. 2 on bail on the terms and conditions
specified in that order. Thereafter, she filed petitions in the two appeals seeking the
stay of the operation of the judgments in the two criminal cases. On 14th April, 2001 a
learned single judge of the High Court at Madras, Mr. Justice Malai Subramanium,
dismissed these petitions since the convictions were, inter alia, for offences under
Section 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988. These orders
were not challenged.
6. In April, 2001 the second Respondent filed nomination papers for four constituencies
in respect of the general election to be held to the Tamil Nadu Assembly. On 24th
April, 2001 three nomination papers were rejected on account of her disqualification
under Section 8(3) of the Representation of the People Act, 1951, by reason of her
conviction and sentence in the two criminal cases. The fourth nomination paper was
rejected for the reason that she had filed her nomination for more than two seats. The
correctness of the orders of rejection was not called in question.
7. On 13th May, 2001 the results of the election to the Tamil Nadu Assembly were
announced and the AIADMK party, which had projected the second Respondent as its
chief ministerial nominee, won by a large majority. On 14th May, 2001, consequent
upon the result of the election, the AIADMK elected the second Respondent as its
leader.
8. On 14th May, 2001 the second Respondent was sworn in as chief minister of the
State of Tamil Nadu.
9. These writ petitions and appeal contend that the second Respondent could not in
law have been sworn in as chief minister and cannot continue to function as such. They
seek directions in the nature of quo warranto against her.
10. The provisions of the Prevention of Corruption Act, 1988, that are relevant to the
second Respondents' conviction and sentence read thus:

13. Criminal misconduct by a public servant (1) A public servant is said to

commit the offence of criminal misconduct,--
(a).. .. .. ..
(b).. .. .. ..
(c) if he dishonestly or fraudulently misappropriates or otherwise
converts for his own use any property entrusted to him or under his
control as a public servant or allows any other person to do so; or
(d) if he,-
i) by corrupt or illegal means, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or
ii) by abusing his position as a public servant, obtains for himself or
for any other person any valuable thing or pecuniary advantage; or
iii) while holding office as a public servant, obtains for any person
any valuable thing or pecuniary advantage without any public
interest; or
(e).. .. .. ..
(2) Any public servant who commits criminal misconduct shall be
punishable with imprisonment for a term which shall be not less than
one year but which may extend to seven years and shall also be
liable to fine.
11. Section 409 of the Indian Penal Code, also relevant to the conviction and sentence
reads thus:
409. Criminal breach of trust by public servant, or by banker, merchant or agent
- Whoever, being in any manner entrusted with property, or with any dominion
over property in his capacity of a public servant or in the way of his business as
a banker, merchant, factor, broker, attorney or agent, commits criminal breach
of trust in respect of that property, shall be punished with [imprisonment for
life], or with imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine.
12. For the purposes of answering the question formulated earlier, the following
provisions of the Constitution of India are most relevant:

163. (1) There shall be a council of ministers with the chief minister at the
head to aid and advise the Governor in the exercise of his functions,
except in so far as he is by or under this Constitution required to exercise
his functions or any of them in his discretion.
164. Other provisions as to ministers - (1) The chief minister shall be
appointed by the Governor and the other ministers shall be appointed by
the Governor on the advice of the chief minister, and the ministers shall
hold office during the pleasure of the Governor:
Provided that in the States of Bihar, Madhya Pradesh and Orissa,
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 nasses or any other work.
(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.
173. Qualification for membership of the state Legislature - A person
shall not be qualified to be chosen to fill a seat in the Legislature of a
state unless he--
(a) is a citizen of India, and makes and subscribes before some
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;
(b) is, in the case of a seat in the Legislative Assembly, not less
than twenty-five years of age and in the case of a seat in the
Legislative Council, not less than thirty years of age; and
(c) possesses such other qualifications as may be prescribed in
that behalf by or under any law made by Parliament.
177. Rights of Ministers and Advocate-General as respects the
Houses-Every minister and the advocate-general for a state shall
have the right to speak in, and otherwise to take part in the
proceedings of, the Legislative Assembly of the state or, in the
case of a state having a Legislative Council, both Houses, and to
speak in, and otherwise to take part in the proceedings of, any
committee of the Legislature of which he may be named a
member, but shall not, by virtue of this Article, be entitled to
vote.
191. Disqualifications for membership - (1) A person shall be
disqualified for being chosen as, and for being, a member of the
Legislative Assembly or Legislative Council of a state--
(a) if he holds any office of profit under the Government of India
or the Government of any state specified in the first schedule,
other than an office declared by the Legislature of the state by
law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a
competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign state, or is under any acknowledgement
of allegiance or adherence to a foreign state;
(e) if he is so disqualified by or under any law made by
Parliament.
Explanation - For the purposes of this clause, a person shall not
be deemed to hold an office of profit under the Government of
India or the government of any state specified in the first
schedule by reason only that he is a minister either for the union
or for such state.
(2) A person shall be disqualified for being a member of the
Legislative Assembly or Legislative Council of a state if he is so
disqualified under the tenth schedule.
13. Provisions of a similar nature with regard to Parliament are to be found in
Articles 74, 75, 84, 88 and 102.
14. The Representation of the People Act, 1951 was enacted to provide for the conduct
of elections to the Houses of Parliament and to the House or Houses of the Legislature
of each state, the qualifications and disqualifications for membership of those Houses,
the corrupt practices and other offences at or in connection with such elections and the
decision of doubts and disputes arising out of or in connection with such elections. The
relevant provisions of that Act for our purposes are Sections 8, 8A, 9, 9A, 10 and 10A.
They read thus:
8. Disqualification on conviction for certain offences - (1)A person
convicted of an offence punishable under--
(a) Section 153A (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 171E (offence of bribery) or Section 171F (offence of undue
influence or personation at an election) or Sub-section (1) or Sub-
section (2) of Section376 or Section 376A or Section 376B or
Section 376C or Section 376D (offences relating to rape) or
Section 498A (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) or 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) or
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 Section 3
to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988
(41 of 1988); or
(i) Section 125 (offence of promoting enmity between classes in
connection with the election) or Section 135 (offence of removal of
ballot papers from polling stations) or Section 135A(offence of booth
capturing) or Clause (a) of Sub-section (2) of Section 136 (offence of
fraudulently defacing or fraudulently destroying any nomination
paper) of this Act; [or]
(j) Section 6 (offence of conversion of a place or worship) of the
Places of Worship (Special Provisions) Act, 1991; [or]
[(k) Section 2 (offence of insulting the Indian national flag or the
Constitution of India) or Section 3 (Offence of Preventing singing of
national anthem) of the Prevention of Insults to National Honour Act,
1971 (69 of 1971);]
shall be disqualified for a period of six years from the date of such
conviction.
(2) A person convicted for the contravention of--
(a) any law providing for the prevention of hoarding or
profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961 (28 of
1961); or
(d) any provisions of the Commission of Sati (Prevention) Act,
1987 (3 of 1988),
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 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) and 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 herding 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
brought 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 ii 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).
15. Central to the controversy herein is Article 164, with special reference to Sub-
article (4) thereof. This Court has considered its import in a number of decisions. In
Har Sharan Verma v. Shri Tribhuvan Narain Singh Chief Minister U.P. and
Anr. MANU/SC/0041/1971  : 1971 (1) SCC 616, a Constitution bench rendered the
decision in connection with the appointment of the first Respondent therein as chief
minister of Uttar Pradesh at a time when he was not a member either House of the
Legislature of that State. The court said:
3. It seems to us that Clause (4) of Article 164 must be interpreted in the
context of Articles 163 and 164 of the Constitution. Article163(1) provides
that "there shall be a council of ministers with the chief minister at the
head to aid and advise the Governor in the exercise of his functions,
except in so far as he is by or under this Constitution required to exercise
his functions or any of them in his discretion". Under Clause (1) of
Article 164, the chief minister has to be appointed by the Governor and
the other ministers have to be appointee by him on the advice of the chief
minister. They all hold office during the pleasure of the Governor. Clause
(1) does not provide any qualification for the person to be selected by the
Governor as the chief minister or minister, but Clause (2) makes it
essential that the council of ministers shall be collectively responsible to
the Legislative Assembly of the state. This is the only condition that the
Constitution prescribes in this behalf.
6. It seems to us that in the context of the other provisions of the
Constitution referred to above there is no reason why the plain words of
Clause (4) of Article 164 should be cut down in any manner and confined
to a case where a minister loses for some reason his seat in the
Legislature of the state. We are assured that the meaning we have given
to Clause (4) of Article 164 is the correct one from the proceedings of the
Constituent Assembly and the position as it obtains in England, Australia
and South Africa.
The court set out the position as it obtained in England, Australia and South Africa and
observed that this showed that Article 164(4) had "an ancient lineage".
16. In Har Sharan Verma v. State of U.P and Anr. MANU/SC/0031/1985  : 1985 (2)
SCC 48, a two judge bench of this Court considered a writ petition for the issuance of a
writ in the nature of quo warranto to one K.P. Tewari, who had been appointed as a
minister of the Government of Uttar Pradesh even though he was not a member of
either House of the state Legislature. Reliance was placed upon the earlier judgment in
the case of Tribhuvan Narain Singh MANU/SC/0041/1971  : 1971 (1) SCC 616 and it
was held that no material change had been brought about by reason of the
amendment of Article 173(a) in the legal position that a person who was not a member
of the state Legislature might be appointed a minister, subject to Article 164(4) which
said that a minister who for any period of six consecutive months was not a member of
the state Legislature would at the expiration of that period cease to be a minister.
17. Another two judge bench of this Court in Harsharan Verma v. Union of India and
Anr. MANU/SC/0112/1987  : JT 1987 (3) SC 62 : 1987 (Supp.) SCC 310 considered
the question in the context of membership of Parliament and Article 75(5), which is
similar in terms to Article 164(4). The court said that a person who was not a member
of the either House of Parliament could be a minister for not more than six months;
though he would not have any right to vote, he would be entitled, by virtue of
Article 88, to participate in the proceedings of Parliament.
18. In S.P. Anand Indore v. H.D. Deve Gowda and Ors. MANU/SC/0075/1997  : JT
1996 (10) SC 274 : 1996 (6) SCC 734, the first Respondent, who was not a member of
Parliament, was sworn in as Prime Minister. This was challenged in a writ petition
under Article 32. Reference was made to the earlier judgments. It was held, on a
"parity of reasoning if a person who is not a member of the state Legislature can be
appointed a chief minister of a state under Article 164(4) for six months, a person who
is not a member of either House of Parliament can be appointed Prime Minister for the
same period".
19. In S.R. Chaudhuri v. State of Punjab and Ors. MANU/SC/0457/2001  : JT 2001
(6) SC 446 : 2001 (5) SCALE 269, one Tej Parkash Singh was appointed a minister of
the State of Punjab on the advice of the chief minister, Sardar harcharan Singh Barar.
At the time of his appointment as a minister Tej Parkash Singh was not a member of
the Punjab Legislative Assembly. He was not elected as a member of that Assembly
within a period of six months and he submitted his resignation. During the same
legislative term Sardar Harcharan Singh Barar was replaced as chief minister by Smt.
Rajinder Kaur Bhattal. On her advice, Tej Parkash Singh was appointed a minister yet
again. The appointment was challenged by a writ petition in the High Court seeking a
writ of quo warranto. The writ petition was dismissed in limine and an appeal was filed
by the writ Petitioner in this Court. The judgments aforementioned were referred to by
this Court and it was said:
77. The absence of the expression "from amongst members of the legislature" in
Article 164(1) is indicative of the position that whereas under that provision a
non-legislator can be appointed as a chief minister or a minister but that
appointment would be governed by Article 164(4), which places a restriction on
such a non-member to continue as a minister or the chief minister, as the case
may be, unless he can get himself elected to the Legislature within the period of
six consecutive months from the date of his appointment. Article 164(4) is,
therefore, not a source of power or an enabling provision for appointment of a
non-legislator as a minister even for a short duration. It is actually in the nature
of a disqualification or restriction for a non-member who has been appointed as
a chief minister or a minister, as the case may be, to continue in office without
getting himself elected within a period of six consecutive months.
The Court said that in England the position was this:

In the Westminster system, it is an established convention that Parliament

maintains its position as controller of the executive. By a well settled convention,
it is the person who can rely on support of a majority in the House of Commons,
who forms a government and is appointed as the Prime Minister. Generally
speaking he and his ministers must invariably all be Members of Parliament
(House of Lords or House of Commons) and they are answerable to it for their
actions and policies. Appointment of a non-member as a minister is a rare
exception and if it happens it is for a short duration. Either the individual
concerned gets elected or is conferred life peerage.
The court noted the constitutional scheme that provided for a democratic
parliamentary form of government, which envisaged the representation of the people,
responsible government and the accountability of the council of ministers to the
Legislature. Thus was drawn a direct line of authority from the people through the
Legislature to the executive. The position in England, Australia and Canada showed
that the essentials of a system of representative government, like the one in India,
were that, invariably, all Ministers were chosen out of the members of the Legislature
and only in rare cases was a non-member appointed a minister and he had to get
himself returned to the Legislature by direct or indirect election within a short period.
The framers of the Constitution had not visualised that a non-legislator could be
repeatedly appointed a minister, for a term of six months each, without getting elected
because such a course struck at the very root of parliamentary democracy. It was
accordingly held that the appointment of Tej Parkash Singh as a minister for a second
time was invalid and unconstitutional.
20. Mr. K.K. Venugopal, learned Counsel for the second Respondent, was right when
he submitted that the question that arises before us has not, heretofore, arisen before
the courts. This is for the reason that, heretofore, so far as is known, no one who was
ineligible to become a member of the Legislature has been made a minister. Certainly,
no one who has earned a conviction and sentence covered by Section 8 of the
Prevention of Corruption Act would appear to have been appointed as chief minister.
21. To answer the question before us, three Sub-Articles of Article 164 need, in our
view, to be read together, namely, Sub-Articles (1), (2) and (4). By reason of Sub-
article (1), the Governor is empowered to appoint the chief minister; the Governor is
also empowered to appoint the other ministers, but, in this regard, he must act on the
advice of the chief minister. Sub-article (2) provides, as is imperative in a
representative democracy, that the council of ministers shall be collectively responsible
to the Legislative Assembly of the state. The political executive, namely, the council of
ministers, is thus, through the legislative Assembly, made representative of and
accountable to the people of the state who have elected the Legislative Assembly.
There is necessarily implicit in these provisions the requirement that a minister must
be a member of the Legislative Assembly and thus representative of and accountable
to the people of the state. It is Sub-article (4) which makes the appointment of a
person other than a member of the Legislature of the state as a minister permissible,
but if stipulates that 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. Necessarily implicit in Sub-article (4) read with Sub-articles (1) and (2) is
the requirement that a minister who is not a member of the Legislature must seek
election to the Legislature and, In the event of his failing to secure a seat in the
Legislature within six months, he must cease to be a minister. The requirement of Sub-
article (4) being such, it follows as the night follows the day that a person who is
appointed a minister though he is not a member of the Legislature shall be one who
can stand for election to he Legislature and satisfy the requirement of Sub-article (4).
In other words, he must be one who satisfies the qualifications for membership of the
Legislature contained in the Constitution (Article 173) and is not disqualified from
seeking that membership by reason of any of the provisions therein (Article 191) on
the date of his appointment.
22. The provision of Sub-article (4) of Article 164 is meant to provide for a situation
where, due to political exigencies or to avail of the services of an expert in some field,
it is requisite to induct into the council of ministers a person who is not then in the
Legislature. That he is not in the Legislature is not made an impassable barrier. To that
extent we agree with Mr. Venugopal, but we cannot accept his submission that Sub-
article (4) must be so read as to permit the induction into the council of ministers of
short term ministers whose term would not extend beyond six months and who,
therefore, were not required to have the qualifications and be free of the
disqualifications contained in Articles 173 and 191 respectively. What Sub-article (4)
does is to give a non-legislator appointed minister six months to become a member of
the Legislature Necessarily, therefore, that non-legislator must be one who, when he is
appointed, is not debarred from obtaining membership of the Legislature : he must be
one who is qualified to stand for the Legislature and is not disqualified to do so. Sub-
article (4) is not intended for the induction into the council of ministers of someone for
six months or less so that it is of no consequence that he is ineligible to stand for the
Legislature.
23. It would be unreasonable and anomalous to conclude that a minister who is a
member of the Legislature is required to meet the constitutional standards of
qualification and disqualification but that a minister who is not a member of the
Legislature need not. Logically, the standards expected of a minister who is not a
member should be the same as, if not greater than, those required of a member.
24. The Constituent Assembly Debates (Volume VII) note that when the corresponding
Article relating to Members of Parliament was being discussed by the Constituent
Assembly, Dr. B.R. Ambedkar said:

...The first amendment is by Mr. Mohd. Tahir. His suggestion is that no

person should be appointed a minister unless at the time of his
appointment he is an elected member of the House. He does not admit
the possibility of the cases covered in the proviso, namely, that although a
person is not at the time of his appointment a member of the House, he
may nonetheless be appointed as a minister in the cabinet subject to the
condition that within six months he shall get himself elected to the House.
The second qualification is by Prof. K.T. Shah. He said that a minister
should belong to a majority party and his third qualification is that he
must have a certain educational status. Now, with regard to the first
point, namely, that no person shall be entitled to be appointed a minister
unless he is at the time of his appointment an elected member of the
House. I think it forgets to take into consideration certain important
matters which cannot be overlooked. First is this, it is perfectly possible to
imagine that a person who is otherwise competent to hold the post of a
minister has been defeated in a constituency for some reason which,
although it may be perfectly good, might have annoyed the constituency
and he might have incurred the displeasure of that particular
constituency. It is not a reason why a member of the cabinet on the
assumption that he shall be able to get himself elected either from the
same constituency or from another constituency. After all the privilege
that is permitted is a privilege that extends only for six months. It does
not confer a right to that individual to sit in the House without being
elected at all....
(Emphasis supplied)
25. What was said by Dr. B.R. Ambedkar is self-explanatory. It shows clearly that the
Constituent Assembly envisaged that non-legislator ministers would have to be elected
to the Legislature within six months and it proceeded on the basis that the Article as it
read required this. The manner in which we have interpreted Article 164 is, thus, borne
out.
26. It was submitted on behalf of the Respondents that it was not open to the court to
read into Article 164 the requirement that a non-legislator minister must be elected to
the Legislature within six months. No qualifications or disqualifications could, it was
submitted, be read into a constitutional provision. Reliance was placed upon passages
from some of the judgments in His Holiness Kesavananda Bharati Sripadagalavaru v.
State of KeralaMANU/SC/0516/1972  : 1973 (Supp.) SCR 1.
27. What we have done is to interpret Article 164 on its own language and to read
Sub-article (4) thereof in the context of Sub-Articles (1) and (2). In any event, it is
permissible to read into Sub-article (4) limitations based on the language of Sub-
Articles (1) and (2).
28. A Constitution bench in Minerva Mills Ltd. and Ors. v. Union of India and
Ors. MANU/SC/0075/1980  : 1981 (1) SCR 206, considered in some detail the
judgment in Kesavananda Bharati. It was considering the validity of the clauses
introduced into Article (sic) by the Constitution (Forty-second Amendment) Act. They
provided:
(4) No amendment of this Constitution (including the provisions of part
III) made or purporting to have been made under this Article (whether
before or after the commencement of Section 55 of the Constitution
(Forty-second Amendment Act, 1976) shall be called in question in any
court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no
limitation whatever on the constituent power of Parliament to amend by
way of addition, variation or repeal the provisions of this Constitution
under this Article.
Chandrachud, C.J. noted in his judgment that the avowed purpose thereof was the
"removal of doubts". He observed that after the decision in Kesavananda Bharati, there
could be no doubt as regards the existence of limitations on Parliament's power to
amend the Constitution. In the context of the constitutional history of Article 368, the
true object of the declaration contained in Clause (5) was the removal of those
limitations. Clause (5) conferred upon Parliament a vast and undefined power to
amend the Constitution, even so as to distort it out of recognition. The theme song of
the court in the majority decision in Kesavananda Bharati had been, "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". The majority judgment in
Kesavananda Bharti conceded to Parliament the right to make alterations in the
Constitution so long as they were within the basic framework. The Preamble assured
the peopled? India of a polity whose basic structure was described therein as a
sovereign democratic republic; Parliament could make any amendments to the
Constitution as it deemed expedient so long as they did not damage or destroy India's
sovereignty and its democratic, republican character. Democracy was a meaningful
concept whose essential attributes were recited in the Preamble itself : Justice, social,
economic and political : Liberty of thought, expression, belief, faith and worship; and
Equality of status and opportunity. Its aim, again as set out in the Preamble, was to
promote among the people an abiding sense of 'Fraternity assuring the dignity of the
individual and the unity of the nation'. The newly introduced Clause (5) demolished the
very pillars on which the Preamble rested by empowering Parliament to exercise its
constituent power without any "limitation whatever". No constituent power could
conceivably go higher than the power conferred by Clause (5) for it empowered
Parliament even to "repeal the provisions of this Constitution", that is to say, to
abrogate democracy and substitute for it a totally antithetical form of government.
That could most effectively be achieved, without calling democracy by any other name,
by denial of social, economic and political justice to the people, by emasculating liberty
of thought, expression, belief, faith and worship and by abjuring commitment to the
magnificent ideal of a society of equals. The power to destroy was not a power to
amend. Since the Constitution had conferred a limited amending power on Parliament,
Parliament could not under the exercise of that limited power enlarge that very power
into an absolute power. A limited amending power was one of the basic features of the
Constitution and, therefore, the limitations on that power could not be destroyed. In
other words, Parliament could not, under Article 368, 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.
29. All this was said in relation to the Article 368(1) and (5). Sub-article (1)reads thus:
368. Power of Parliament to amend the Constitution and procedure therefore--
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of
its constituent power amend by way of addition, variation or repeal any provision
of this Constitution in accordance with the procedure laid down in this Article.
Nothing can better demonstrate that is permissible for the Court to read limitations
into the Constitution based on its language and scheme and its basic structure.
30. We hold, therefore, that a non-legislator can be made 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.
31. The next question is : Was the second Respondent qualified for membership of the
Legislature and not disqualified there for when she was appointed chief minister on
14th May, 2001.
32. It was submitted by learned Counsel for the Respondents that the suspension of
the sentences passed against the second Respondent by the High Court at Madras was
tantamount to the suspension of the convictions against her. Our attention was then
drawn to Section 8(3) of the Representation of the People Act, which says that "a
person convicted of any offence and sentenced to imprisonment for not less than two
years shall be disqualified...". In learned Counsel's submission, for the purposes of
Section 8(3), it was the sentence alone which was relevant and if there were a
suspension of the sentence, there was a suspension of the disqualification. The
sentences awarded to the second Respondent having been suspended, the
disqualification under Section 8(3), in so far as it applied to her, was also suspended.
33. Section 389 of the Code of Criminal Procedure on the basis of which the second
Respondent was released on bail by the Madras High Court reads, so far as is relevant,
as follows:
389. Suspension of sentence pending the appeal; release of Appellant on
bail -- (1) Pending any appeal by a convicted person, the appellate court
may, for reasons to be recorded by it in writing, order that the execution
of the sentence or order appealed against be suspended and also, if he is
in confinement, that he be released on bail, or on his own bond.
(Emphasis supplied)
34. It is true that the order of the High Court at Madras on the application of the
second Respondent states, "Pending criminal appeals the sentence of imprisonment
alone is suspended and the Petitioners shall be released on bail...", but this has to be
read in the context of Section 389 under which the power was exercised. Under
Section 389 an appellate court may order that "the execution of the sentence or order
appealed against be suspended...". It is not within the power of the appellate court to
suspend the sentence; it can only suspend the execution of the sentence pending the
disposal of appeal. The suspension of the execution of the sentence does not alter or
affect the fact that the offender has been convicted of a grave offence and has
attracted the sentence of imprisonment of not less than two years. The suspension of
the execution of the sentences, therefore, does not remove the disqualification against
the second Respondent. The suspension of the sentence, as the Madras High Court
erroneously called it, was in fact only the suspension of the execution of the sentences
pending the disposal of the appeals filed by the second Respondent. The fact that she
secured the suspension of the execution of the sentences against her did not alter or
affect the convictions and the sentences imposed on her and she remained disqualified
from seeking legislative office under Section 8(3).
35. In the same connection, learned Counsel for the Respondents drew our attention to
the judgment of a learned single judge of the High Court at Madras, Mr. Justice Malai
Subramanium, on the application of the second Respondent for stay of the execution of
the orders of conviction against her. The learned judge analysed Section 8 of the
Representation of the People Act and came to this conclusion:
In this case, sentence of imprisonment has already been suspended. Under such
circumstances, in my view, there may not be any disqualification for the
Petitioner to contest in the election.
learned Counsel submitted that it was because of this conclusion that the learned
judge had not stayed the execution of the orders, and his conclusion bound the
Governor. In the first place, the interpretation of the provision by the learned judge is,
as shown above, erroneous. Secondly, the reason why he refused to stay the execution
of the orders was because the second Respondent had been found guilty of offences
under the Prevention of Corruption Act. Thirdly, the learned judge was required by the
application to consider whether or not the execution of the orders against the second
Respondent should be stayed; the consideration of and conclusion upon the provisions
of Section 8 of the Representation of the People Act was wholly Extraneous to that
issue. Fourthly, the conclusion was tentative, as indicated by the use of the word
"may" in the passage quoted from his judgment above. Lastly, as will be shown, we
are not here concerned with what the Governor did or did not do; we are concerned
with whether the second Respondent can show that she was when she was appointed
chief minister qualified to be a legislator under Article 173 and not disqualified under
Article 191.
36. In relation to the difference in the periods of disqualification in Sub-sections (1),
(2) and (3) of Section 8 of the Representation of the People Act an argument similar to
that which was raised and rejected in Raghbir Singh v. Surjit
Singh MANU/SC/1157/1994  : JT 1994 (5) SC 311 : 1994 Supp (3) SCC 162 was
advanced. This Court there said:
5. Section 8 prescribes disqualification on conviction for certain offences.
Sub-section (1) provides the disqualification for a period of six years from
the date of conviction for the offences specified in Clauses (a) to (i)
thereof. In Sub-section (1), the only reference is to conviction for the
specified offences irrespective of the sentence awarded on such
conviction. Sub-section (2) then prescribes that on conviction for the
offences specified therein and sentence to imprisonment for not less than
six months, that person shall be disqualified from the date of such
conviction and shall continue to be disqualified for a further period of six
years since his release. Thus, in case of conviction for the offences
specified in Sub-section (2), the disqualification is attracted only if the
sentence is of imprisonment for not less than six months and in that event
the disqualification is for a period of not merely six years from the date of
such conviction but commencing from the date of such conviction it shall
continue for a further period of six years since his release. Sub-section (3)
then prescribes a similar longer period of disqualification from the date of
such conviction to continue for a further period of six years since his
release where a person is 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). The classification is clear. This
classification is made with reference to the offences and the sentences
awarded on conviction. In Sub-section (1) are specified the offences which
are considered to be of one category and the period of six years'
disqualification from the date of conviction is provided for them
irrespective of one sentence awarded on such conviction. In Sub-section
(2) are specified some other offences, the conviction for which is
considered significant for disqualification only if the sentence is of
imprisonment for not less than six months and in that case a longer
period of disqualification has been considered appropriate. Then comes
Sub-section (3) which is the residuary provision of this kind wherein the
disqualification is prescribed only with reference to the period of sentence
of imprisonment of not less than two years for which the longer period of
disqualification is considered appropriate. The Legislature itself has
classified the offences on the basis of their nature and in the residuary
provision contained in Sub-section (3), the classification is made only with
reference to the period of sentence being not less than two years.
6. In Sub-section (3) of Section 8, all persons 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)] are
classified together and the period of disqualification prescribed for all of
them is the same. All persons convicted of offences other than any offence
referred to in Sub-section (1) or Sub-section (3) and sentenced to
imprisonment of not less than two years constitute one class and are
governed by Sub-section (3) prescribing the same period of
disqualification for all of them. The category of persons covered by Sub-
sections (1), (2) and (3) being different and distinct, the question of
comparison inter se between any two of these three distinct classes does
not arise. Without such a comparison between persons governed by these
different sub-sections being permissible, the very basis of attack on the
ground of discrimination is not available. Prescription of period of
disqualification for different classes of persons convicted of different
offences is within the domain of legislative discretion and wisdom, which is
not open to judicial scrutiny.
37. It was pointed out by learned Counsel for the Respondents that under
Section 8(3) of the Representation of the People Act the disqualification was attracted
on the date on which a person was convicted of any offence and sentenced to
imprisonment for not less than two years. It was pointed out, rightly, that the law
contemplated that the conviction and the sentence could be on different dates. It was
submitted that it was unworkable that the disqualification should operate from the date
of conviction which could precede the date of sentence; therefore, the conviction
referred to in Section 8(3) should be taken to be that confirmed by the appellate court
because it was only in the appellate court that conviction and sentence would be on
the same day. We find the argument unacceptable. In those cases where the sentence
is imposed on a day later than the date of conviction (which, incidentally, is not the
case here) the disqualification would be attracted on the date on which the sentence
was imposed because only then would a person be both convicted of the offence and
sentenced to imprisonment for not less than two years which is cumulatively requisite
to attract the disqualification under Section 8(3).
38. The focus was then turned upon Section 8(4) of the Representation of the People
Act and it was submitted that all the disqualifications set down in Section 8would not
apply until a final court had affirmed the conviction and sentence. This was for the
reason that the principle underlying Section 8(4) had to be extended to a non legislator
as, otherwise, Article 14 would stand violated for the presumption of innocence would
apply to a sitting member till the conviction was finally affirmed but in the case of a
non-legislator the disqualification would operate on conviction by the court of first
instance. It was submitted that Section 8(4) had to be "read down" so that its
provisions were not restricted to sitting members and in all cases the disqualification
applied only when the conviction and sentence was finally upheld.
39. Section 8(4) opens with the word's "Notwithstanding anything in Sub-section (1),
Sub-section (2) and Sub-section (3)", and it applies only to Sitting members of
Legislatures. There is no challenge to it on the basis that it violates Article 14. If there
were, it might be tenable to contend that legislators stand in a class apart from non-
legislators, but we need to express no final opinion. In any case, if it were found to be
violative of Article 14, it would be struck down in its entirety. There would be, and is no
question of so reading it that its provisions apply to all, legislators and non-legislators
and that, therefore, in all cases the disqualification must await affirmation of the
conviction and sentence by a final court. That would be "reading up" the provision, not
"reading down", and that is not known to the law.
40. In much the same vein, it was submitted that the presumption of innocence
continued until the final judgment affirming the conviction and sentence was passed
and, therefore, no disqualification operated as of now against the second Respondent.
Before we advert to the four judgments relied upon in support of this submission, let
us clear the air. When a lower court convicts an accused and sentences him, the
presumption that the accused is innocent comes to an end. The conviction operates
and the accused has to undergo the sentence. The execution of the sentence can be
stayed by an appellate court and the accused released on bail. In many cases, the
accused is released on bail so that the appeal is not rendered infructuous, at least in
part, because the accused has already undergone imprisonment. If the appeal of the
accused succeeds the conviction is wiped out as cleanly as if it had never existed and
the sentence is set aside. A successful appeal means that the stigma of the offence is
altogether erased. But that it is not to say that the presumption of innocence continues
after the conviction by the trial court. That conviction and the sentence it carries
operate against the accused in all their rigour until set aside in appeal, and a
disqualification that attaches to the conviction and sentence applies as well.
41. learned Counsel cited from the judgment of this Court in Padam Singh v. State of
U.P.MANU/SC/0745/1999  : JT 1999 (9) SC 351 : 2000 (1) SCC 621 the passage
which reads:
It is the duty of an appellate court to look into the evidence adduced in the case
and arrive at an independent conclusion as to whether the said evidence can be
relied upon or not and even if it can be relied upon, then whether the
prosecution can be said to have been proved beyond reasonable doubt on the
said evidence.
The passage is relevant to the duty of an appeal court. It is the duty of an appeal,
court to look at the evidence afresh to see if the case against the accused has been
established by the prosecution beyond reasonable doubt, uninfluenced by the decision
of the trial court; in other words, to look at it as if the presumption of the innocence of
the accused still applied. The passage does not support the proposition canvassed.

42. In Maru Ram v. Union of India and Ors. MANU/SC/0159/1980  : 1981 (1) SCC
107 it was stated:
...When a person is convicted in appeal, it follows that the appellate court has
exercised its power in the place of the original court and the guilt conviction and
sentence must be substituted for and shall have retroactive effect from the date
of judgment of the trial court. The appellate conviction must relate back to the
date of the trial court's verdict and substitute it.
There is no question of the correctness of what is set out above but it has no
application to the issue before us. What we are concerned with is whether, on the date
on which the second Respondent was sworn in as chief minister, she suffered from a
disqualification by reason of the convictions and sentences against her.
43. In Dilip Kumar Sharma and Ors. v. State of Madhya Pradesh MANU/SC/0109/1975
 : 1976 (1) SCC 560, this Court was concerned with Section 303 of the Indian Penal
Code, which provided : "Whoever being under sentence of imprisonment for life,
commits murder shall be punished with death." Sarkaria; J., in his concurring
judgment, held, on an interpretation of the section, that once it was established that,
at the time of committing the murder, the prisoner was under a sentence of life
imprisonment, the court had no discretion but to award the sentence of death,
notwithstanding mitigating circumstances. The provision was, therefore, Draconian in
its severity. It was in these circumstances that he held that the phrase "being under
sentence of imprisonment for life" had to be restricted to a sentence which was final,
conclusive and ultimate so far as judicial remedies were concerned for the other
alternative would lead to unreasonable and unjust results. The observations of the
learned judge are relevant to the case before him; they do not have wider implications
and do not mean that all convictions by a trial court do not operate until affirmed by
the highest court.
44. Lastly, in this connection, our attention was drawn to the case of Vidya Charan
Shukla v. Purshottam Lal Kaushik MANU/SC/0307/1981  : 1981 (2) SCC 84. The
Court held that if a successful candidate was disqualified for being chosen, at the date
of his election or at any earlier stage of any step in the election process, on account of
his conviction and sentence exceeding two years imprisonment, but his Conviction and
sentence was set aside and he was acquitted on appeal before the pronouncement of
the judgment in the election petition pending against him, his disqualification was
retrospectively annulled and the challenge to His election on the ground that he was so
disqualified was no longer sustainable. This case dealt with an election petition and it
must be understood in that light. What it laid down does not have a bearing on the
question before us : the construction of Article 164 was not in issue. There can be no
doubt that in a criminal case acquittal in appeal takes effect retrospectively and wipes
out the sentence awarded by the lower court. This implies that the stigma attached to
the conviction and the rigour of the sentence are completely obliterated, but that does
not mean that the fact of the conviction and sentence by the lower court is obliterated
until the conviction and sentence are set aside by an appellate court. The conviction
and sentence stand pending the decision in the appeal and for the purposes of a
provision such as Section 8 of the Representation of the People Act are determinative
of the disqualifications provided for therein.
45. 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.
46. It was submitted by learned Counsel for the Respondents that, even so, the court
could do nothing about it. It was submitted that in the case of a chief minister or
minister appointed under Article 164(1) read with (4) the people, who were the
ultimate sovereign, had expressed their will through their elected representatives. For
the period of six months the locus penitentiae operated as an exception, as a result of
which, for that period, the people's will prevailed in a true parliamentary democracy,
especially as no provision was made for adjudicating alleged disqualifications, like the
holding of an office of profit or a subsisting contract for the supply of goods or
execution of works. In this area of constitutional governance, for the limited period of
six months, it was not open to the court to import qualifications and disqualifications
for a minister qua minister when none existed in Article 164(4). The Governor, not
being armed with the machinery for adjudicating qualifications or disqualifications, for
example, on the existence of subsisting contracts or the holding of offices of profit, and
having no power to summon witnesses or to administer an oath or to summon
documents or to deliver a reasoned judgment, the appointment made by him on the
basis of the conventions of the Constitution could not be challenged in quo warranto
proceedings so that an appointment that had been made under Article 164 could not
be rendered one without the authority of law. If it did so, the court would be entering
the political thicket. When qualifications and disqualifications were prescribed for a
candidate or a member of the Legislature and a machinery was provided for the
adjudication thereof, the absence of the prescription of any qualification for a minister
or chief minister appointed under Article 164(1) read with (4) and for adjudication
thereof meant that the Governor had to accept the will of the people in selecting the
chief minister or minister, the only consideration being whether the political party and
its leader commanded a majority in the Legislature and could provide a stable
government. Once the electorate had given its mandate to a political party and its
leader to run the government of a state for a term of five years, in the absence of any
express provision in the Constitution to the contrary, the Governor was bound to call
the leader of that Legislature party to form the government. There was no express,
unambiguous provision in the Constitution or in the Representation of the People Act or
any decision of this Court or a High Court declaring that a person convicted of an
offence and sentenced to imprisonment for a period of not less than two years by the
trial court shall not be appointed chief minister during the pendency of his first appeal.
In such a situation, the Governor could not be expected to take a position of
confrontation with the people of the state who had voted the ruling party to power and
plunge the state into turmoil. In the present case, the Governor was entitled to
proceed on the basis that the appeals of the second Respondent having been directed,
in October, 2000, to be heard within two months, it would be open to the second
Respondent to have the appeals disposed of within the time limit of six months and, in
case of an acquittal, no question of ineligibility to contest an election within the period
of six months would arise. If the Governor invited the leader of the party which had a
majority in the Legislature to form a government, it would, if the leader was a non
legislator, thereafter not be open to the court in quo warranto proceedings to decide
that the chief minister was disqualified. Otherwise, this would mean that when the
Governor had invited, in accordance with conventions, the leader to be chief minister,
in the next second the leader would have to vacate his office by reason of the quo
warranto. The court would then be placing itself in a position of prominence among the
three organs of the state, as a result of which, instead of the House deciding whether
or not to remove such a person through a motion of no confidence, the court would
take over the function, contrary to the will of the Legislature which would mean the will
of the people represented by the majority in the Legislature. In then deciding that the
chief minister should demit office, the court would be entering the political thicket,
arrogating to itself a power never intended by the Constitution, the exercise of which
would result in instability in the governance of the state.
47. We are, as we have said, not concerned here with the correctness or otherwise of
the action of the Governor in swearing the second Respondent in as chief minister in
the exercise of the Governor's discretion.
48. But submissions were made by learned Counsel for the Respondents in respect of
the Governor's powers under Article 164 which call for comment. The submissions
were that the Governor, exercising powers under Article 164(1) read with (4), was
obliged to appoint as chief minister whosoever the majority party in the Legislature
nominated, regardless of whether or not the person nominated was qualified to be a
member of the Legislature under Article 173 or was disqualified in that behalf under
Article 191, and the only manner in which a chief minister who was not qualified or
who was disqualified could be removed was by a vote of no-confidence in the
Legislature or by the electorate at the next elections. To a specific query, learned
Counsel for the Respondents submitted that the Governor was so obliged even when
the person recommended was, to the Governor's knowledge, a non-citizen, under-age,
a lunatic or an undischarged insolvent, and the only way in which a non-citizen or
under-age or lunatic or insolvent chief minister could be removed was by a vote of no-
confidence in the Legislature or at the next election.
49. The nomination to appoint a person who is a non-citizen or underage or a lunatic
or an insolvent as chief minister having been made by the majority party in the
Legislature, it is hardly realistic to expect the Legislature to pass a no-confidence
motion against the chief minister and the election would ordinarily come after the chief
minister had finished his term.
50. To accept learned Counsel's submission is to invite disaster. As an example, the
majority party in the Legislature could recommend the appointment of a citizen of a
foreign country, who would not be a member of the Legislature and who would not be
qualified to be a member thereof under Article 173, as chief minister under
Article 164(1) read with (4) to the Governor; and the Governor would be obliged to
comply; the Legislature would be unable to pass a no-confidence motion against the
foreigner chief minister because the majority party would oppose it; and the foreigner
chief minister would be ensconced in office until the next election. Such a dangerous -
such an absurd - interpretation of Article 164 has to be rejected out of hand. The
Constitution prevails over the will of the people as expressed through the majority
party. The will of the people as expressed through the majority party prevails only if it
is in accord with the Constitution. The Governor is a functionary under the Constitution
and is sworn to "preserve, protect and defend the Constitution and the laws"
(Article 159). The Governor cannot, in the exercise of his discretion or otherwise, do
anything that is contrary to the Constitution and the laws. It is another thing that by
reason of the protection the Governor enjoys under Article 361, the exercise of the
Governor's discretion cannot be questioned. We are in no doubt at all that if the
Governor is asked by the majority party in the Legislature to 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 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.
52. The judgment of this Court in Shri Kumar Padma Prasad v. Union of India and
Ors. MANU/SC/0227/1992  : JT 1992 (2) SC 247 : 1992 (2) SCC 428 is a case on
point. One K.N. Shrivastava was appointed a judge of the Gauhati High Court by a
warrant of appointment signed by the President of India. Before the oath of his office
could be administered to him, quo warranto proceedings were taken against him in
that High Court. An interim order was passed directing that the warrant of appointment
should not be given effect to until further orders. A transfer petition was then filed in
this Court and was allowed. This Court, on examination of the record and the material
that it allowed to be placed before it, held that Shrivastava was not qualified to be
appointed a High Court judge and his appointment was quashed. This case goes to
show that even when the President, or the Governor, has appointed a person to a
constitutional office, the qualification of that person to hold that office can be examined
in quo warranto proceedings and the appointment can be quashed.
53. It was submitted that we should not enter a political thicket by answering the
question before us. The question before us relates to the interpretation of the
Constitution. It is the duty of this Court to interpret the Constitution. It must perform
that duty regardless of the fact that the answer to the question would have a political
effect. In State of Rajasthan and Ors. v. Union of India and Ors. MANU/SC/0370/1977
 : 1977 (3) SCC 592, it was said by Bhagwati, J., "But merely because a question
has a political complexion, that by itself is no ground why the court should shrink from
performing its duty under the Constitution, if it raises an issue of constitutional
determination. Every constitutional question concerns the allocation and exercise of
governmental power and no constitutional question can, therefore, fail to be political...
So long as a question arises whether an authority under the Constitution has acted
within the limits of its power or exceeded it, it can certainly be decided by the court.
Indeed it would be its constitutional obligation to do so. It is necessary to assert the
clearest possible terms, particularly in the context of recent history, that the
Constitution is suprema lex, the paramount law of the land and there is no department
or branch of Government above or beyond it.
54. We are satisfied that in the appointment of the second Respondent as chief
minister there has been a clear infringement of a constitutional provision and that a
writ of quo warranto must issue.
55. We are not impressed by the submissions that the writ petitions for quo warranto
filed in this Court are outside our jurisdiction because no breach of fundamental rights
has been pleaded therein; that the appeal against the decision of the Madras High
Court in the write petition for similar relief filed before it was correctly rejected
because the same issue was pending here; and that the transferred writ petition for
similar relief should, in the light of the dismissal of the writ petitions filed in this Court,
be sent back to the High Court for being heard. Breach of Article 14 is averred in at
least the lead writ petition filed in this Court (W.P. (C) No. 242 of 2001). The writ
petition which was dismissed by the High Court and against which order an appeal is
pending in this Court was filed under Article226 as was the transferred writ petition.
This Court, therefore, has jurisdiction to issue a writ of quo warranto. We propose to
pass the order in the lead writ petition, and dispose of the other writ petitions, the
appeal and the transferred writ petition in the light thereof.
56. We are not impressed by the submission that we should not exercise our discretion
to issue a writ of quo warranto because the period of six months allowed by
Article 164(4) to the second Respondent would expire in about two months from now
and it was possible that the second Respondent might succeed in the criminal appeals
which she has filed. We take the view that the appointment of a person to the office of
chief minister who is not qualified to hold it should be struck down at the earliest.
57. We are aware that the finding that the second Respondent could not have been
sworn in as chief minister and cannot continue to function as such will have serious
consequences. Not only will it mean that the state has had no validly appointed chief
minister since 14th May, 2001 when the second Respondent was sworn in, but also
that it has had no validly appointed council of ministers, for the council of ministers
was appointed on the recommendation of the second Respondent. It would also mean
that all acts of the Government of Tamil Nadu since 14th May, 2001 would become
questionable. To alleviate these consequences and in the interest of the administration
of the state and its people, who would have acted on the premise that the
appointments were legal and valid, we propose to invoke the de facto doctrine and
declare that all acts, otherwise legal and valid performed between 14th May, 2001 and
today by the second Respondent as Chief Minister, by the members of the council of
ministers and by the government of the state shall not be adversely affected by reason
only of the order that we now propose to pass.
58. We are of the view that a person who is convicted for a criminal offence and
sentenced to imprisonment for a period of not less than two years cannot be appointed
the chief minister of a state under Article 164(1) read with (4) and cannot continue to
function as such.
59. We, accordingly, order and declare that the appointment of the second Respondent
as chief minister of the State of Tamil Nadu on 14th May, 2001 was not legal and valid
and that she cannot continue to function as such. The appointment of the second
Respondent as chief minister of the State of Tamil Nadu is quashed and set aside.
60. All acts, otherwise legal and valid, performed between 14th May, 2001 and today
by the second Respondent acting as chief minister of the State of Tamil Nadu, by the
members of the council of ministers of that state and by the government of that state
shall not be adversely affected by reason only of this order.
61. Writ Petition (C) No. 242 of 2001 is made absolute in the aforesaid terms.
62. In the light of this order, the other writ petitions, the appeal and the transferred
writ petition stand disposed of.
63. No order as to costs.
Pattanaik, J.
64. Leave granted.
65. I have my respectful concurrence with the conclusions and directions in the
judgment of Brother Bharucha, J. I am conscious of the fact that plurality of judgments
should ordinarily be avoided. But, having regard to the importance of the question
involved, and the enormity of the consequences, if the contentions of Respondent No.
2 are accepted, I consider it appropriate to express my thoughts on some aspects. It is
not necessary to reiterate the facts which have been lucidly narrated in the judgment
of Brother Bharucha, J. The question that arises for consideration is whether a non
elected member, whose nomination for contesting the election to the Legislative
Assembly stood rejected, and that order of rejection became final, not being assailed,
could still be appointed as the chief minister or the minister under Article 164 of the
Constitution, merely because the largest number of elected members to the Legislative
Assembly elects such person to be their leader. Be it be stated, that the nomination of
such person had been rejected, on the ground of disqualification incurred by such
person under Section 8(3) of the Representation of People Act, 1951, the said person
having been convicted under the provisions of the Prevention of Corruption Act, and
having been sentenced to imprisonment for 3 years. The main basis of the arguments
advanced by Mr. Venugopal the learned senior counsel, appearing for Respondent No.
2 and Mr. P.P. Rao, learned senior counsel appearing for the State of Tamil Nadu, is
that Article 164 of the Constitution conferring power on the Governor to appoint a
person as chief minister, and then appoint ministers on the advice of such chief
minister, does not prescribe any qualification for being appointed as minister or chief
minister and on the other hand, Sub-article (4) of Article 164 enables such a minister
to continue as a minister for a period of six months and said minister ceases to be a
minister unless within that period of six months gets himself elected as a member of
the Legislature of the state. As such, it would not be appropriate to import the
qualifications enumerated for the members of the state Legislature under Article 173,
or the disqualifications enumerated in respect of a person for being chosen as or for
being a member of the Legislative Assembly under Article 191 of the Constitution.
According to the learned senior counsel, the Governor, while exercising power under
Article 164, is duty bound to follow the well settled Parliamentary convention and
invites a person to be the chief minister, which person commands the confidence of the
majority of the House. In other words, if a political party gets elected to the majority of
seats in a Legislative Assembly and such elected Legislatures elected a person to be
their leader, and that fact is intimated to the Governor then the Governor is duty
bound to call that person to be the chief minister, irrespective of the fact whether that
person does not possess the qualifications for being a member of the Legislative
Assembly, enumerated under Article 173, or is otherwise disqualified for being chosen,
or being a member of the Legislative Assembly on account of any of the
disqualifications enumerated under Article 191. The aforesaid contention is based upon
two reasonings. (1) The lack of prescription of qualification or disqualifications for a
chief minister or minister under Article 164 and (2) that in a parliamentary democracy
the will of the people must prevail. Necessarily, therefore, the provisions of
Article 164 of the Constitution requires an in-depth examination, and further the
theory that in a parliamentary democracy, the will of the people must prevail under
any circumstance, as propounded by Mr. Venugopal and Mr. Rao, requires a deeper
consideration. I would, therefore, focus my attention on the aforesaid two issues.
66. It is no doubt true, that Articles 164(1) and 164(4) do not provide any qualification
or disqualification, for being appointed as a chief minister or a minister, whereas,
Article 173 prescribes the qualification for a person to be chosen to fill a seat in the
Legislature of a state. Article 191 provides the disqualification for a person for being
chosen as or being a member of the Legislative Assembly or Legislative Council of a
state. In the case in hand, the Respondent No. 2 was disqualified under Article 191(1)
(e) read with Section 8(3) of the Representation of the People Act, 1951, in as much as
the said Respondent No. 2 has been convicted under Section 13 of the Prevention of
Corruption Act, and has been sentenced to imprisonment for a period of 3 years,
though the execution of that sentence has been suspended by the appellate court while
the appeal against the conviction and sentence is pending before the High Court of
Madras.
67. According to Mr. Venugopal, under the Constitution of India, when no qualification
or disqualification exists under Article 164(1) or 164(4), it necessarily postulates that
in the area of constitutional governance for the limited period of six months, any
person could be appointed as a chief minister or minister and it would not be open to
the court to import qualifications and disqualifications, prescribed under the
Constitution for being chosen as a member of the Legislative Assembly. According to
the learned Counsel, the reasonable conclusion to be drawn from the aforesaid
constitutional provision is that the constitution does not contemplate the scrutiny of
the credentials of a non-member Prime Minister or chief minister or minister, as in
constitutional theory it is the House, consisting of the majority thereof which proposes
him for this transient, temporary and limited period of six months. It is also contended
by Mr. Venugopal that people who are the ultimate sovereign, express their will
through their elected representatives for selecting a non-elected person as their under
and could be appointed as chief minister and Article 164(4) unequivocally provides a
period of six months as locus poenitentia which operates as an exception in deference
to the voice of the majority of the elected members, which in fact is the basis of a
parliamentary democracy. Mr. Venugopal also urged that a disqualification being in the
nature of a penalty unless expressly found to be engrafted in the Constitution or! in
other words, in Article 164, it would not be appropriate for the court to incorporate
that disqualification, which is provided for being chosen as a member of the Legislative
Assembly into Article 164 and pronounce the validity of the appointment of Respondent
No. 2, which has purely been made on the strength of the voice of the majority of the
elected members. I am unable to accept these contentions of the learned Counsel, as
in my considered opinion, the contentions are based on a wrong premise. In a
parliamentary system of government, when political parties fight elections to the
Legislative Assembly or to the Parliament for being chosen as a member after results
are declared, it would be the duty of the President in case of Parliament and the
Governor in case of Legislative Assembly of the state, to appoint the Prime Minister or
the chief minister, as the case may be. When the President appoints the Prime Minister
under Article 75 or the Governor appoints a chief minister under Article 164, the
question that weighs with the President or the Governor is, who will be able to provide
a stable government. Necessarily, therefore, it is the will of the majority party that
should ordinarily prevail and it is assumed that the elected members belonging to a
majority political party would elect one amongst them to be their leader. Constitution,
however does not prevent the elected members belonging to a political party
commanding the majority of seats in the Legislative Assembly or the Parliament to
elect a person who never contested for being chosen as a member or a person who
though contested, got defeated in the election for one reason or the other and it is in
such a situation that person on being elected as a leader of the political party
commanding the majority in the House, could be appointed as the Prime Minister or
the chief minister. But the Constitution certainly does not postulate such elected
representatives of the people belonging to a political party commanding a majority in
the Parliament or the Assembly to elect a person as their leader so as to be called by
the President or the Governor to head the government, who does not possess the
qualification for being chosen, to fill a seat in the Parliament or in the Legislative
Assembly, as contained in Articles 84 and 173 respectively of the Constitution or who
is disqualified for being chosen as or for being a member of the House of Parliament or
the Legislative Assembly, as stipulated under Articles 102 and 191of the Constitution
respectively. At any rate, even if a person is elected as the leader by the elected
members of the Legislative Assembly, commanding a majority of seats in the Assembly
and such person either does not possess the qualification enumerated under
Article 173 or incurs disqualification for being chosen as, or for being a member of the
Legislative Assembly, enumerated under Article 191, then the Governor would not be
bound to respect that will of the elected members of the political party, commanding
the majority in the House, so as to appoint that person as the chief minister under
Article 164(1) of the Constitution. When Article 164(1) itself confers the discretion on
the Governor to appoint a chief minister at his pleasure and when the Governor has
taken oath under Article 159 of the Constitution to preserve, protect and defend the
Constitution and the law and shall devote himself to the service and for the well-being
of the people, it would be against such oath, if such a person who does not possess the
qualification of being chosen as a member or has incurred disqualification for being
chosen as a member is appointed as a chief minister, merely because Article 164 does
not provide any qualification or disqualification for being appointed as a chief minister
or minister. It is indeed axiomatic that the necessary qualification in Article 173 and
the disqualification in Article 191 proprio vigore applies to a person for being appointed
as the chief minister or a minister inasmuch as in a parliamentary system of
government, a person is required to be chosen as a member of the Legislative
Assembly by the electorate of a constituency and then would be entitled to be
appointed as the chief minister or a minister on the advice of the chief minister. Non-
prescribing any qualification or disqualification under Article 164 for being chosen as
the chief minister or minister would only enable the Governor to appoint a person as
the chief minister or minister for limited period of six months, as contained in
Article 164(4) of the Constitution, only if such person possesses the qualification for
being chosen as a member of the Legislative Assembly, as required under
Article 173 and is not otherwise disqualified on account of any of the disqualifications
mentioned in Article 191. Any other interpretation by way of conferring an unfettered
discretion on the Governor or conferring an unfettered right on the elected members of
a political party commanding a majority in the Legislative Assembly to elect a person
who does not possess the qualifications, enumerated under Article 173 or who incurs
the disqualifications enumerated in Article 191 would be subversive of the Constitution
and would be repugnant to the theory of good governance and would be contrary to
the Constitution itself, which constitution has been adopted, enacted and given to the
people of India by the people of India.
68. In this connection it would be appropriate to notice that even under the
Government of India Act, 1935 where Sections 51(1) and 51(2) were somewhat similar
to Article 164 of the Constitution, even the Joint Committee Report on Indian
Constitutional Reforms would indicate that a disqualified person could not have been
appointed as a minister, as is apparent from the following sentence:
It was, therefore, suggested to us that the Governor ought not to be thus
restricted in his choice, and that he ought to be in a position, if the need should
arise, to select a minister or ministers from persons otherwise qualified for
appointment but to whom the doubtful pleasures of electioneering might make
no appeal.
Even in the Constituent Assembly Debates when Mohd. Tahir, an M.P. suggested an
amendment to Article 144(3) of the Draft Constitution, which corresponds with
Article 164(4) of the Constitution to the effect:
That a member shall, at the time of his being chosen as such be a member of
the Legislative Assembly or the Legislative council of the state, as the case may
be.
and urged that it is wholly against the spirit of democracy that a person who was not
being chosen by the people of the country, should be appointed as a minister, Dr.
Ambedkar did not accept the amendment on the ground that tenure of a minister must
be subject to the condition of purity of administration and confidence of the House. He
further stated:

It is perfectly possible to imagine that a person who is otherwise competent to

hold the post of a minister has been defeated in a constituency for some reason
which, although it may be perfectly good, might have annoyed the constituency
and he might have incurred the displeasure of that particular constituency.
If purity of administration and otherwise competence to hold the post of minister were
the factors which weighed with the founding fathers to allow a competent person to be
appointed as chief minister or a minister for a limited period of six months, who might
have been defeated, it is difficult to conceive that a person who is not an elected
member, does not possess even the minimum qualification for being chosen as a
member or has incurred the disqualification for being chosen as a member could be
appointed as a chief minister or minister, on the simple ground that Article 164 is quite
silent on the same and the court cannot import anything into the said Article. Thus on
a pure construction of provisions of Article 164 of the Constitution, the discussions
made in the Constituent Assembly, referred to earlier, the preexisting pari materia
provision in the Government of India Act, 1935 as well as the discussion of the Joint
Committee on Indian Constitutional Reforms referred to earlier, make it explicitly clear
that notwithstanding the fact that no qualification or disqualification is prescribed in
Article164(1) or Article 164(4) but such qualification or disqualification provided in
Articles 173 and 191 of the Constitution for being chosen as a member will have to be
read into Article 164 and so read, Respondent No. 2, who had incurred the
disqualification under Article 191(1)(e) read with Section 8(3) of the Representation of
the People Act, could not have been appointed as the chief minister, whatever may be
the majority of her party members being elected to the Legislative Assembly and they
elected her as the leader of the party to form the government.
69. One ancillary argument raised by Mr. Venugopal, in this connection requires some
consideration. According to the learned Counsel, no adjudicatory machinery having
been provided for in Article 164, in the event the qualifications and disqualifications
prescribed for being chosen as a member of the Legislative Assembly under
Articles 173 and 191 are imported into Article 164, then it will be an impossible burden
for the Governor at that stage to decide the question if the opponent raises the
question of any disqualification and no Governor can adjudicate on each one of the
disqualifications, enumerated in Article 191 read with Sections 8 to 11 or the
Representation of the People Act. According to the learned Counsel, the constitution
has avowedly not prescribed any qualification or disqualification with regard to a non-
member minister or chief minister and the only limitation is that such minister or Chief
minister must get elected within six months or else would cease to become a minister.
In my considered opinion, the appointment of a non-member as the chief minister or
minister on the advice of a chief minister is made under Article 164 on the Governor's
satisfaction. If any of the disqualifications mentioned in Article 191(1)(e) are brought
to the notice of the Governor which can be accepted without any requirement of
adjudication or if the Governor is satisfied that the person concerned does not possess
the minimum qualification for being chosen as a member, as contained in Article 173,
then in such a case, there is no question of an impossible burden on the Governor at
that stage and on the other hand, it would be an act on the part of the Governor in
accordance with the constitutional mandate not to appoint such person as the chief
minister or minister notwithstanding the support of the majority of the elected
members of the Legislative Assembly. In a given case, if the alleged disqualification is
dependant upon the disputed questions of fact and evidence, the Governor may choose
not to get into those disputed questions of fact and, therefore, could appoint such
person as the chief minister or minister. In such a case, Governor exercises his
discretion under Article 164 in the matter of appointment of the chief minister or a
minister. But in a case where the disqualification is one which is apparent as in the
case in hand namely the person concerned has been convicted and has been sentenced
to imprisonment for more than two years and operation of the conviction has not been
stayed and the appeal is pending, thereby the disqualification under Article 191(1)
(e) read with Section 8(3) of the Representation of the People Act staring at the fade,
the Governor would be acting beyond his jurisdiction and against the constitutional
inhibitions and norms in appointing such a disqualified person as the chief minister on
the sole reasoning that the majority of the elected members to the Legislative Council
have elected the person concerned to be their leader. The constitution does not permit
brute force to impede the constitution. The people of India and so also the elected
members to the Legislative Assembly are bound by the constitutional provisions and it
would be the solemn duty of the people's representatives who have been elected to the
Legislative Assembly to uphold the Constitution. Therefore, any act on their part,
contrary to the Constitution, ought not to have weighed with the Governor in the
matter of appointment of the chief minister to form the government. In my considered
opinion, therefore, the arguments of Mr. Venugopal, on this score cannot be sustained.
70. One of the arguments advanced on behalf of the Respondents was the immunity of
the Governor under Article 361 of the constitution. The genesis of the said arguments
is that the Governor of a state not being answerable to any court in exercise of
performance of the powers and duty of his office or for any act done or purported to be
done by him in the exercise and performance of those powers and duties and
Respondent No. 2 having been appointed as chief minister in exercise of powers of the
Governor under Article, 164, the said appointment as well as the exercise of discretion
by the Governor is immune from being challenged and is not open to judicial review.
The arguments of the counsel for the Respondents is also based on the ground that
any consideration by the court to the legality of such an appointment is not permissible
as it is apolitical thicket. The decision of this Court in R.K. Jain v. Union of
India MANU/SC/0291/1993  : JT 1993 (3) SC 297 : 1993 (4) SCC 119, has been
relied upon. At the outset, it may be stated that the immunity provided to the
Governor under Article 361 is certainly not extended to an appointee by the Governor.
In the present proceedings, what has been prayed for is to issue a writ of quo warranto
on the averments that Respondent No. 2 was constitutionally disqualified to usurp the
public office of the chief minister, who has been usurping the said post unauthorisedly
on being appointed by the Governor. In fact the Governor has not been arrayed as a
party Respondent to the proceedings. In the very case of R.K.
JainMANU/SC/0291/1993  : JT 1993 (3) SC 297 : 1993 (4) SCC 119, it has been held
by this Court in paragraph 73 that judicial review is concerned with whether the
incumbent possessed of qualification for appointment and the manner in which the
appointment came to be made or the procedure adopted whether fair, just and
reasonable. It has been further stated in paragraph 70 of the said judgment that in a
democracy governed by rule of law surely the only acceptable repository of absolute
discretion should be the courts. Judicial review is the basic and essential feature of the
Indian constitutional scheme entrusted to the judiciary. It is the essence of the rule of
law that the exercise of the power by the state whether it be the Legislature or the
executive or any other authority, should be within the constitutional limitation and if
any practice is adopted by the executive, which is in violation of its constitutional
limitations, then the same could be examined by the courts. In S.R. Bommai v. Union
of India MANU/SC/0444/1994  : JT 1994 (2) SC 215 : 1994 (3) SCC 1, this Court
held that a proclamation issued by the President on the advice of the council of
ministers headed by the Prime Minister is amenable to judicial review. Even justice
Ahmadi, as he then was, though was of the opinion that the decision making of the
President under Article 356 would not be justiciable but was firmly of the view that a
proclamation issued by the President is amenable to judicial review. Justice Verma and
Justice Yogeshwar Dayal held that there is no dispute that the proclamation issued
under Article 356 is subject to judicial review. So also was the view of Justice Sawant
and Justice Kuldip Singh and Justice Pandian, where their Lordships have stated that
the exercise of power by the President under Article 356(1) to issue proclamation is
subject to the judicial review at least to the extent of examining whether the conditions
precedent to the issuance of the proclamation have been satisfied or not. According to
Justice Ramaswamy, the action of the President under Article 356 is a constitutional
function and the same is subject to judicial review and according to the learned judge,
the question relating to the extent, scope and power of the President under
Article 356 though wrapped up with political thicket, per se it does not get immunity
from judicial review. According to Justice Jeevan Reddy and Agarwal, JJ. the power
under Article 356(1) is a conditional power and in exercise of the power of judicial
review, the Court is entitled to examine whether the condition has been satisfied or
not. But in the case in hand, when an application for issuance of a writ of quo warranto
is being examined, it is not the Governor who is being made amenable to answer the
Court. But it is the appointee Respondent No. 2, who is duty bound to satisfy that
there has been no illegal usurpation of public office. Quo warranto protects public from
illegal usurpation of public office by an individual and the necessary ingredient to be
satisfied by the Court before issuing a writ is that the office in question must be
publicly created by the Constitution and a person not legally qualified to hold the office,
in clear infringement of the provisions of the Constitution and the law viz.
Representation of the People Act has been usurping the same. If this Court ultimately
comes to the conclusion that the Respondent No. 2 is disqualified under the
Constitution to hold public office of the chief minister, as has already been held, then
the immunity of Governor under Article 361 cannot stand as a bar from issuing a writ
of quo warranto. In the present case, it is the state government who has taken the
positive stand that there has been no violation of the constitutional provisions or the
violation of law in the appointment of Respondent No. 2, as chief minister, the
correctness of that stand is the subject matter of scrutiny.
71. I am tempted to quote some observations of the United States Supreme Court in
the case of Lucas v. Colorado General Assembly 377 US 713, 12 Led 2d 632, 84 S Ct
1472. It has been held in the aforesaid case: "Manifestly, the fact that an
apportionment plan is adopted in a popular referendum is insufficient to sustain its
constitutionality or to induce a court of equity to refuse to act." It has been further
held: "The protection of constitutional rights is not to be approached either
pragmatically or expediently, and though the fact of enactment of a constitutional
provision by heavy vote of the electorate produces pause and generates restrain we
can not, true to our oath, uphold such legislation in the face of palpable infringement
of rights. It is too clear for argument that constitutional law is not a matter of majority
vote. Indeed the entire philosophy of the fourteenth amendment teaches that it is
personal rights which are to be protected against the will of the majority." What has
been stated therein should more appropriately be applicable to a case where the
Constitution is the supreme document which should bind people of India as well as all
other constitutional authorities, including the Governor and therefore if Respondent No.
2 is found to have been appointed as the chief minister, contrary to the constitutional
prohibition and prohibition under the relevant law of the Representation of the People
Act, there should be no inhibition on the Court to issue a writ of quo warranto and the
so-called immunity of the Governor will not stand as a bar.
72. According to Mr. P.P. Rao, learned senior counsel appearing for the State of Tamil
Nadu, parliamentary democracy is admittedly a basic feature of the Constitution. It
would be the duty of every functionary under the Constitution, including the Governor,
and the judiciary to give effect to the will of the people as reflected in the election to
the Legislative Assembly of a state. Once the electorate has given its mandate to a
political party and its leader to run the Government of the state for a term of five
years, in the absence of any express provision in the Constitution to the contrary, the
Governor is bound to call upon the leader of that Legislature party, so elected by the
elected members, to form the government. According to Mr. Rao, there is no express,
unambiguous provision in the Constitution or in the provisions of Representation of
People Act, declaring that a person convicted of an offence and sentenced to
imprisonment for a period not less than 2 years by the trial court shall not be
appointed as chief minister during the pendency of the first appeal. In such a situation,
the Governor is not expected to take a position of confrontation with the people of the
state who voted the ruling party to power and plunge the state into a turmoil. In
support of this contention, observation of this Court in the case of Shamsher Singh v.
State of Punjab MANU/SC/0073/1974  : 1974 (2) SCC 831. 'The head of the state
should avoid getting involved in polities', was pressed into service. I am unable to
persuade myself to agree with the aforesaid submission of Mr. Rao, inasmuch as, in my
considered opinion, the people of this country as well as their voice reflected through
their elected representatives in the Legislative Assembly, electing a disqualified person
for being chosen as a member of the Legislative Assembly, to be their leader are as
much subservient to the Constitution of India as the Governor himself. In a democracy,
constitutional law reflects the value that people attach to orderly human relations, to
individual freedom under the law and to institutions such as Parliament, political
parties, free elections and a free press. Constitution is a document having a special
legal sanctity which sets out the frame-work and the principal functions of the organs
of government within the state and declares the principles by which those organs must
operate. Constitution refers to the whole system of the governance of a country and
the collection of rules which establish and regulate or govern the government. In our
country, we have a written Constitution, which has been given by the people of India
to themselves. The said Constitution occupies the primary place. Notwithstanding the
fact, we have a written Constitution, in course of time, a wide variety of rules and
practices have evolved which adjust operation of the Constitution of changing
conditions. No written Constitution would contain all the detailed rules upon which the
government depends. The rules for electing the Legislature are usually found not in the
written Constitution but in the statutes enacted by the Legislature within limits laid
down by the Constitution. A Constitution is a thing antecedent to a government, and a
government or a good governance is a creature of the Constitution. A documentary
Constitution reflects the beliefs and political aspirations of those who had framed it.
One of the principles of constitutionalism is what it had developed in the democratic
traditions. A primary function that is assigned to the written Constitution is that of
controlling the organs of the government. Constitutional law pre-supposes the
existence of a state and includes those laws which regulate the structure and function
of the principal organs of government and their relationship to each other and to the
citizens. Where there is a written Constitution, emphasis is placed on the rules which it
contains and on the way in which they have been interpreted by the highest court with
constitutional jurisdiction, where there is a written Constitution the legal structure of
government may assume a wide variety of forms. Within a federal constitution, the
tasks of government are divided into two classes, those entrusted to the federal organs
of government and those entrusted to the various states, regions or provinces which
make up the federation. But the constitutional limits bind both the federal and state
organs of government, whose limits are enforceable as a matter of law. Many
important rules of constitutional behaviour, which are observed by the Prime Minister
and ministers, members of the Legislature, judges and civil servants are contained
neither in Acts nor in judicial decisions. But such rules have been nomenclatured by
the constitutional writers to be the rule of 'the positive morality of the constitution' and
some times the authors provide the name to be 'the unwritten maxims of the
Constitution'. Rules of constitutional behaviour, which are considered to be binding by
and upon those who operate the Constitution but which are not enforced by the law
courts nor by the presiding officers in the House of Parliament. Sir Ivor Jennings, in his
book, 'Law and the Constitution' had stated that constitutional conventions are
observed because of the political difficulties which arise if they are not. These rules
regulate the conduct of those holding public office and yet possibly the most acute
political difficulty can arise for such a person who is to be forced out of office. The
Supreme Court of Canada stated that the main purpose of conventions is to ensure
that legal frame work of the Constitution is operated in accordance with the prevailing
constitutional values of the period, (see (1982) 125 DLR (3d) 1 , 84). But where the
country has a written Constitution which ranks as fundamental law, legislative or
executive acts which conflicts with the Constitution must be held to be unconstitutional
and thus illegal. The primary system of government cannot be explained solely in
terms of legal and conventional rules. It depends essentially upon the political base
which underlies it, in particular on the party system around which political life is
organized. Given the present political parties and the electoral system, it is accepted
that following a general election, the party with a majority of seats in the state
Legislature or the Parliament will form the government. This is what the Constitution
postulates and permits. But in the matter of formation of government if the said
majority political party elects a person as their leader, whom the Constitution and the
laws of the country disqualifies for being chosen as a member of the Legislative
Assembly, then such an action of the majority-elected member would be a betrayal to
the electorates and to the Constitution to which they owe their existence. In such a
case, the so called will of the people must be held to be unconstitutional and, as such,
could not be and would not be tolerated upon. When one speaks of legislative
supremacy and the will of the people, the doctrine essentially consists of a rule which
governs the legal relationship between the Legislature and the Court, but what is
stated to be the legislative supremacy in the United Kindom has no application in our
country with a written Constitution limiting the extent of such supremacy of the
Legislature or Parliament. In other words, the people of the country, the organs of the
government, Legislature, executive and judiciary are all bound by the Constitution
which Hon'ble Justice Bhagwati, J. describes in Minerva Mills case to be suprema lex or
the paramount law of the land and nobody is above or beyond the Constitution. When
court has been ascribed the duty of interpreting the Constitution and when court finds
that manifestly there is an unauthorised exercise of power under the Constitution, it
would be the solemn duty of the court to intervene. The doctrine of legislative
supremacy distinguishes the United Kingdom from those countries in which they have
a written Constitution, like India, which imposes limits upon the Legislature and entrust
the ordinary courts or a constitutional court with the function of deciding whether the
acts of the Legislature are in accordance with the Constitution. This being the position,
the action of the majority of the elected members of a political party in choosing their
leader to head the government, if found to be contrary to the Constitution and the laws
of the land then the Constitution and the laws must prevail over such unconstitutional
decision, and the argument of Mr. Rao, that the will of the people would prevail must
give way. In a democratic society there are important reasons for obeying the law,
which do not exist in other forms of government. Our political system still is not perfect
and there are always the scope for many legislative reforms to be made. But the
maintenance of life in modern society requires a willingness from most citizens for
most of the time to observe laws, even when individually they may not agree with
them.
73. In the aforesaid premises, and in view of the conclusions already arrived at, with
regard to the disqualifications the Respondent No. 2 had incurred, which prevents her
for not being chosen as a member of the Legislative Assembly, it would be a blatant
violation of constitutional laws to allow her to be continued as the chief minister of a
state, howsoever short the period may be, on the theory that the majority of the
elected members of the Legislative Assembly have elected her as the leader and that is
the expression of the will of the people.
74. One other thing which I would like to notice, is the consciousness of the people
who brought such public interest litigation to the Court. Mr. Diwan in course of his
arguments, had raised some submissions on the subject - "Criminalization of Politics"
and participation of criminals in the electoral process as candidates and in that
connection, he had brought to our notice the order of the Election Commission of India
dated 28th of August, 1997. But for answering the essential issue before us, it was not
necessary to delve into that matter and, therefore, we have not made an in-depth
inquiry into the subject. In one of the speeches by the Prime Minister of India on the
subject - "Whither Accountability", published in the Pioneer, Shri Atal Bihari Vajpayee
had called for a national debate on all the possible alternatives for systematic changes
to cleanse our democratic governing system of its present mess. He has expressed his
dissatisfaction that neither Parliament nor the State Vidhan Sabhas are doing with any
degree of competence or commitment what they are primarily meant to do : legislative
function. According to him, barring exceptions, those who get elected to these
democratic institutions are neither trained, formally or informally, in law-making nor do
they seem to have an inclination to develop the necessary knowledge and competence
in their profession. He has further indicated that those individuals in society who are
generally interested in serving the electorate and performing legislative functions are
finding it increasingly difficult to succeed in today's electoral system and the electoral
system has been almost totally subverted by money power, muscle power, and vote
bank considerations of castes and communities. Shri Vajpayee also had indicated that
the corruption in the governing structures has, therefore, corroded the very core of
elective democracy. According to him, the certainty of scope of corruption in the
governing structure has heightened opportunism and unscrupulousness among political
parties, causing them to marry and divorce one another at will, seek opportunistic
alliances and coalitions often without the popular mandate. Yet they capture and
survive in power due to inherent systematic flaws. He further stated casteism,
corruption and politicization have eroded the integrity and efficacy of our civil service
structure also. The manifestoes, policies, programmes of the political parties have lost
meaning in the present system of governance due to lack of accountability. Lot of
arguments had been advanced both by Mr. Venugopal and Mr. Rao, on the ground that
so far as the offences under Section 8(3) of the Representation of the People Act are
concerned, mere conviction itself will not incur the disqualification, but conviction and
sentence for not less than two years would disqualify a person and, therefore, in such
a case, a person even being convicted of an offence under the Prevention of Corruption
Act, will not be disqualified, if the trying judge imposes the punishment of
imprisonment for a term of one year, which is the minimum under Section 13(2) of the
Prevention of Corruption Act and thus less than two years, which is the minimum
sentence required under Section 8(3) of the Representation of the People Act, to
disqualify a person for being chosen as a member or continuing as a member. As has
been discussed in the judgment of Brother Bharucha, J., the validity of providing
different punishments under different sub-sections of Section 8, has already been
upheld by this Court in the case of Raghbir Singh v. Surjit Singh. But having regard to
the mass-scale corruption which has corroded the core of elective democracy, it is high
time for the Parliament to consider the question of bringing the conviction under the
Prevention of Corruption Act, as a disqualification under Section 8(1) of the
Representation of the People Act, 1951, so that a person on being convicted of an
offence, punishable under the provisions of Prevention of Corruption Act, could be
disqualified for being chosen, as a member or being continuing as a member of the
Legislative Assembly or the Parliament. I hope and trust, our representatives in the
Parliament will bestow due thought over this issue.
75. These writ petitions, special leave petition/civil appeal and transferred case stand
disposed of in terms of the directions contained in the judgment of Brother Bharucha,
J.
Brijesh Kumar, J.
76. Leave granted.
77.1 have the advantage of going through the judgment prepared by Brother
Bharucha, J. I am in respectful agreement with the same. While doing so, I propose to
record my views in addition, on a few points only, in brief, since such points had been
argued at some length and with all vehemence. The points are also, no doubt,
important.
78. Amongst other points, the learned Counsel for the Respondents submitted that the
appointment of Respondent No. 2 as Chief Minister by the Governor, could not be
challenged, in view of the provisions under Article 361 of the Constitution, providing
that the Governor shall not be answerable to any court for the exercise and
performance of the powers and duties of his office. It was also submitted that in
appointing the Chief Minister, the Governor exercised is discretionary powers,
therefore, is action is not justiciable. Yet another submission is that the Governor had
only implemented the decision of the majority party, in appointing the Respondent No.
2 as a Chief Minister i.e. he had only given effect to the will of the people.
79. In so far it relates to Article 361 of the Constitution, that the Governor shall not be
answerable to any court for performance of duties of his office as Governor, it may, at
the very outset, be indicated that we are considering the prayer for issue of writ of quo
warranto against the Respondent No. 2, who according to the Petitioner suffers from
disqualification to hold the public office of the Chief Minister of a State. A writ of quo
warranto is a writ which lies against the person, who according to the relator is not
entitled to hold an office of public nature and is not an usurper of the office. It is the
person, against whom the writ of quo warranto is directed, who is required to show, by
what authority that person is entitled to hold the office. The challenge can be made on
various grounds, including on the grounds that the possessor of the office does not
fulfill the required qualifications or suffers from any disqualification, which debars the
person to hold such office. So as to have an idea about the nature of action in a
proceedings for writ of quo warranto and its original form, as it used to be, it would be
beneficial to quote from Words and Phrases, Permanent Edn., Vol. 35-A, p. 648. It
reads as follows:
The original common-law writ of quo warranto was a civil writ at the suit of the
Crown, and not a criminal prosecution. It was in the nature of a writ of right by
the King against one who usurped or claimed franchises or liabilities, to inquire
by what right he claimed them. This writ, however, fell into disuse in England
centuries ago, and its place was supplied by an information in the nature of a
quo warranto, which in its origin was a criminal method of prosecution, as well
to punish the usurper by a fine for the usurpation of the franchise, as to oust
him or seize it for the Crown. Long before our revolution, however, it lost its
character as a criminal proceeding in everything except form, and was applied to
the mere purposes of trying the civil right, seizing the franchise, or ousting the
wrongful possessor, the fine being nominal only and such, without any special
legislation to that effect, has always been its character in many of the States of
the Union, and it is therefore a civil remedy only. Ames v. State of Kansas 4 S Ct
437, 442 : 111 US 449 : 1 Ed 482 (1884), People v. Dashaway Assn. 24 P 277,
278 : 84 Cal 114.
80. In the same volume of Words and Phrases, Permanent Edn., at p. 647 we find as
follows:

The writ of 'quo warranto' is not a substitute for mandamus or injunction

nor for an appeal or writ of error, and is not to be used to prevent an
improper exercise of power lawfully possessed, and its purpose is solely to
prevent an officer or corporation or persons purporting to act as such from
usurping a power which they do not have. State Ex inf. McKittrick v.
Murphy 148 SW 2d 527, 529, 530 : 347 Mo 484.
Information in nature of 'quo warranto' does not command performance of
official functions by an officer to whom it may run, since it is not directed
to officer as such, but to person holding office or exercising franchise, and
not for purpose of dictating or prescribing official duties, but only to
ascertain whether he is rightfully entitled to exercise functions claimed.
State ex inf. Walsh v. Thatche 102 SW 2d 937, 938 : 340 Mo 865.
(emphasis supplied)
81. In Halsbury's Laws of England, 4th Edn., Reissue Vol. I, p. 368, para 265 it is
found as follows:

266. In general -- An information in the nature of a quo warranto took the

place of the obsolete writ of quo warranto which lay against a person who
claimed or usurped an office, franchise, or liberty, to inquire by what
authority he supported his claim, in order what the right to the office or
franchise might be determined.
(emphasis supplied)
82. Besides the above, many High Courts as well as this Court have, taken the view
that a writ of quo warranto lies against a person, who is called upon to establish his
legal entitlement to hold the office in question. MANU/WB/0009/1945  : AIR 1952 TC
66 : (1944) 48 Cal. W.N. 766 : AIR 1977 244 : AIR 1952 Nag. 330 : AIR 1945 Cal. 249
and MANU/SC/0268/1963  : AIR 1965 S.C. 491.
In view of the legal position as indicated above it would not be necessary to implead
the appointing authority as Respondent in the proceedings. In the case in hand, the
Governor need not be made answerable to court. Article 361 of the Constitution
however does not extend any protection or immunity, vicariously, to holder of an
office, which under the law, he is not entitled to hold. On being called upon to establish
valid authority to hold a public Office, if the person fails to do so, a writ of quo
warranto shall be directed against such person. It shall be no defence to say that the
appointment was made by the competent authority, who under the law is not
answerable to any court for anything done in performance of duties of his office. The
question of fulfilling the legal requirements and qualifications necessary to hold a
public office would be considered in the proceedings, independent of the fact as to who
made the appointment and the manner in which appointment was made. Therefore,
Article 361 of the Constitution would be no impediment in examining the question of
entitlement of a person, appointed by the Governor to hold a public office, who
according to the Petitioner/relator is usurper to the office.

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