Very Important Points
1. A person who is convicted for a criminal offence and sentenced to imprisonment for a period of not less than 2 years cannot be appointed the Chief Minister of a State under Article 164(1) r/w (4) of the Constitution of India and cannot continue to function as such.
2. The appointment of Ms. J. Jayalalitha as Chief Minister of State of Tamil Nadu on 14-5-2001 was not legal and valid and that she cannot continue to function as such. Her appointment as Chief Minister of the State of Tamil Nadu is quashed and set aside. Though all her acts, otherwise legal and valid between 14.5.2001 and 21.9.2001 as C.M. shall not be adversely affected by reason only of this order.
3. The argument about implementing the will of the people in the appointment of Chief Minister by Governor is misconceived. The Constitutional mandate prevails over the will of the people.

Headnote:(i) Constitution of India—Articles 32, 164, 173, 191—Whether a non-legislator can be made a Chief Minister or Minister under Article 164? (Yes)—After reviewing constitutional provisions and case law.
       Held : 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. (Para 30)
       (ii) Constitution of India—Article 164—Provision as to appointment of Chief Minister by Governor—Article 173—Qualifications for Membership of the State Legislature—Article 191 —Disqualification for membership—Representation of People Act, 1951—Section 8—Disqualification on conviction for certain offences—Ms. J. Jayalalitha (respondent 2) while Chief Minister of Tamil Nadu between 1991-1996, she was convicted in two criminal cases for offences under Sections 13(1)(c)(d) r/w 13(2) of Prevention of Corruption Act, 1988 r/ws 120B IPC and u/s 409 IPC for offence of Criminal Breach of Trust by a Public Servant—Sentenced to 3 years RI and fine for 1st and 2 years RI and fine for second—Sentence suspended but conviction is not suspended in appeals pending—Bail granted—Sought nominations for contesting 2001 election—Rejected —Her party AIADMK winning the majority—They elected her as leader—Governor appointed her as Chief Minister—Was the second respondent qualified for membership of the State Legislature and not disqualified therefore when she was appointed Chief Minister on 14.5.2001 by Governor? After referring to rival contentions, relevant statutory constitutional provisions and case law.
       Held : 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. (Para 45)
       (iii) Constitution of India—Article 32—Governor’s act of appointing respondent-2 as Chief Minister under Article 164(1)—Whether can be examined in quo warranto proceedings and the appointment can be quashed? (Yes)—Per Bharucha J. (on his own behalf and on behalf of Y.K. Sabharwal and Ruma Pal, JJ.)
       Held : 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. But submissions were made by learned counsel for the respondents in respect of the Governor’s powers under Article 164 which call for comment. (Paras 47, 48)
       After referring statutory & constitutional provision and case law :
       Held 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. (Para 52)
       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. (Para 2)
       Held : 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. 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 writ 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 Article 226, 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. 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. 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. 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. 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. 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 effected by reason only of this order. Writ Petition (C) No.242 of 2001 is made absolute in the aforesaid terms. In the light of this order, the other writ petitions, the appeal and the transferred writ petition stand disposed of. No order as to costs. (Paras 54 to 63)
       Per G.B. Pattanaik. J.—(Concurring with Bharucha, J.)
       Held : On a pure construction of provisions of Article 164 of the Constitution, the discussions made in the Constituent Assembly, referred to earlier, the pre-existing 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 Article 164(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. (Para 68)
       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 face, 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. (Para 69)
       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 ingredients to be satisfied by the Court before issuing a writ is that the office in question must be public 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. It 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. (Para 70)
       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. 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. (Paras 72 and 73)
       Per Brijesh Kumar, J.—(Concurring with Bharucha, J.)
       Held : 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. (Paras 83)
       It has been very categorically submitted, without any ambiguity, that the Governor is bound to appoint any person whosoever is chosen by majority party, as the Chief Minister. This argument cuts against his own submission made earlier that the Governor appoints the Chief Minister in exercise of his discretionary powers. If it is right, that the Governor is bound by the decision of the majority party, the element of discretion of Governor, in the matter, disappears. In the scheme of Constitutional provisions the Governor is to act with the aid and advise of the Council of Ministers headed by the Chief Minister. He is bound to act accordingly. The other functions which the Governor performs in which aid and advice of the Council of Ministers is not necessary, he acts in his own discretion. He is not bound by decision/advice of any other agency. It is no doubt true that even in the written Constitution it is not possible to provide each and every detail. Practices and conventions do develop for certain matters. This is how democracy becomes workable. It is also true that the choice of the majority party regarding its leader for appointment as Chief Minister is normally accepted, and rightly. But the contention that in all eventualities whatsoever the Governor is bound by the decision of the majority party is not a correct proposition. The Governor cannot be totally deprived of element of discretion in performance of duties of his office, if ever any such exigency may so demand its exercise. The argument about implementing the will of the people in the context indicated above is misconceived and misplaced. (Paras 84)

Judgement Key Points

Key Points: - The judgment holds that a non-legislator can be made Chief Minister or Minister under Article 164 only if he possesses qualifications for membership of the legislature as per Article 173 and is not disqualified under Article 191 (!) . - It holds that on 14 May 2001, Ms. J. Jayalalitha was disqualified from membership due to convictions and sentences not less than two years under Section 8(3) RP Act, 1951, affecting her eligibility to be Chief Minister (!) . - It holds that even though the Governor swore her in, the appointment was not legal/valid and writ of quo warranto must issue to quash it, with de facto protection for acts in office during the interim not to be adversely affected (!) (!) . - It discusses the interpretation that Article 164(4) gives a six-month period for a non-legislator appointed as Minister to get elected, but this does not permit appointing someone who is disqualified or lacks qualifications; they must meet Articles 173 and 191 on appointment (!) (!) (!) . - It rejects the proposition that the Governor is bound to appoint the majority leader regardless of qualifications, affirming constitutional limits and supremacy of the Constitution over will of the people or majority party (!) (!) . - It references the de facto doctrine to protect Acts of Government when invalid appointment is declared, to preserve administrative continuity (!) . - It cites that Section 8 disqualifications can default to six-year periods and that certain convictions impact eligibility to contest elections and hold office (!) (!) - (!) . - It notes that quo warranto jurisdiction extends to examining whether an appointee is entitled to hold the public office, even against the Governor’s actions (!) (!) . - It emphasizes that Article 361 immunity does not shield the Governor’s appointee from quo warranto challenges when disqualified (!) . - It discusses constitutional history and intent that non-legislators appointed as ministers must either get elected within six months or cease to be ministers, with strict adherence to qualifications/disqualifications (!) (!) .

What is the legality of appointing a non-legislator as Chief Minister under Article 164(1) and (4) of the Constitution?

What is the effect of a conviction and sentence under the Representation of the People Act, 1951 (Section 8(3)) on eligibility to be Chief Minister at the time of appointment and during the six-month grace period?

How does the court treat the Governor's discretion versus constitutional qualifications and disqualifications for a Chief Minister or Minister appointed under Article 164?

Judgment

Bharucha, J.—(On his own behalf and on behalf of Y.K. Sabharwal and Mrs. Ruma Pal, JJ.)

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

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2001 Supreme(SC) 1318

What is the legality of appointing a non-legislator as Chief Minister under Article 164(1) and (4) of the Constitution?

What is the effect of a conviction and sentence under the Representation of the People Act, 1951 (Section 8(3)) on eligibility to be Chief Minister at the time of appointment and during the six-month grace period?

How does the court treat the Governor's discretion versus constitutional qualifications and disqualifications for a Chief Minister or Minister appointed under Article 164?

Cases Referred (17)