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SUPREME COURT OF INDIA
R.M. Lodha, CJI., Dipak Misra, S.A. Bobde, Madan B. Lokur, Kurian Joseph, JJ.
Manoj Narula - Petitioner
Versus
Union of India - Respondent
WRIT PETITION (CIVIL) NO. 289 OF 2005
Decided On : 27-08-2014
(a) Public Polity – Purity of elections – Need to elect good people and restrict law breakers from becoming law makers – Constitution of India – Article 324 – Election Commission requiring candidates for MP and MLA elections to furnish accounts and disclose their antecedents – Introduction of NOTA in voting – Supreme Court, while emphasizing sanctity of elections, has expressed its concern with regard to various facets of the candidates who contest the election and seek votes. (Para 4 to 6)
AIR 1975 SC 2299; (1995) 4 SCC 611; AIR 2006 SC 3127; (2013) 10 SCC 1; (1978) 1 SCC 405; AIR 1980 SC 1362; (2002) 5 SCC 294 – Relied upon
(b) Representation of the People Act, 1951 – Section 8(3) – Criminalization of politics – Courts, Committees, Law Commission all expressing concern about criminalization of politics – Raising voices for disqualifying candidates with criminal antecedents. (Para 7 to 12)
(1997) 4 SCC 306; (1997) 6 SCC 1; AIR 2005 SC 688 – Relied upon
(c) Corruption in Public life – Criminality and corruption go hand in hand – Corruption, breeding criminality, is the enemy of nation. (Para 14)
(2013) 4 SCC 642; Writ Petition (Civil) No. 38 of 1997 – Relied upon
(d) Constitution of India – Article 84, 102, 173, 191 r/w section 8, Representation of People Act, 1951 – Membership of a Member disqualified on conviction for offences in sub-sections (1), (2) or (3) – Would not be saved by subsection (4) – A convict is unfit to represent people. (Para 20, 21)
(2013) 7 SCC 653; AIR 2005 SC 688 – Relied upon
(e) Interpretation of statute – Doctrine of implied limitation – Attracted to constitutional interpretation – Whether can be invoked to read a categorical prohibition in Article 75(1) of the Constitution to prohibit Prime Minister from recommending persons facing criminal trial for heinous and serious offences where charges have been framed for Council of Ministers – In absence of disqualification of persons facing trial for heinous or serious offences for contesting elections, prohibition to Prime Minister not to recommend such persons for Council of Ministers cannot be read into Article 75(1) or, for that matter, Article 164(1). (Para 52, 53)
(1973) 4 SCC 225; (1980) 3 SCC 625; (2007) 2 SCC 1; (2001) 7 SCC 231 – Relied upon
(2011) 4 SCC 1; (2009) 7 SCC 1; (2006) 11 SCC 356; (2014) 2 SCC 609; (2013) 5 SCC 1; (2005) 8 SCC 202; (2004) 8 SCC 788; 1981 Supp SCC 87; (2006) 8 SCC 212; (1971) 2 SCC 63; (1972) 3 SCC 717; (2006) 2 SCC 682; (2004) 10 SCC 699; (2005) 5 SCC 294; (2011) 2 SCC 83; (2011) 4 SCC 324; (2012) 2 SCC 34 – Referred
(f) Interpretation of statute – Doctrine of constitutional silence or silence of the Constitution or constitutional abeyance – To fill up the gaps in respect of certain areas in the interest of justice and larger public interest – Introducing prohibition to Prime Minister from appointing persons facing trial for heinous and serious offences as Ministers – In view of express provisions for qualifications and disqualifications in Article 75(1), 102 and 109 of the Constitution and section 8 of the Representation of People Act, 1951 this doctrine cannot be pressed into service to add disqualification for becoming a Minister – Doing so would tantamount to crossing the boundaries of judicial review. (Para 56)
AIR 1987 SC 232; AIR 1997 SC 610; (1997) 6 SCC 241; (2010) 12 SCC 1 – Relied upon
(g) Interpretation of statute – Doctrine of constitutional implication – Doctrine used to include many facets in Article 21 – Constitution of India – Article 75(1) – “On the advice of the Prime Minister” – However, doctrine cannot be employed to add a new disqualification in Article 75(1) – It cannot be legitimately inferred from the words “advice of the Prime Minister” that there is a prohibition to appoint a person as a Minister if charges have been framed against him in respect of heinous and serious offences including corruption cases under the criminal law. (Para 57, 58, 61)
(1994) 6 SCC 632; AIR 1994 SC 1349; AIR 1950 SC 124; (1974) 74 CLR 31; (1992) 177 CLR 106; (1945) 71 CLR 29; (1958) 99 CLR 132; (1971) 122 CLR 353; AIR 2006 SC 3127 – Relied upon
(h) Constitutional Concepts – Concepts of constitutional morality, good governance and constitutional trust – Though these are abstract concepts, people expect the cabinet form of government headed by Prime Minister, i.e., all members of the cabinet to conform to and act according to these concepts – They are expected to rise above their political interest and act only in the public interest and for the welfare of its people. (Para 66 to 80)
(2009) 15 SCC 351; (2001) 3 SCC 594; (1995) 6 SCC 289; (2003) 9 SCC 731; AIR 2008 SC 693; AIR 1955 SC 549; (1974) 2 SCC 831; AIR 1994 SC 268; AIR 1951 SC 332 – Relied upon
(i) Constitution of India – Article 75(1) – Words “on the advice of the Prime Minister” – It is a “constitutional advice” – The repose of faith in the Prime Minister has expectations of good governance – People never intend to be governed by persons who have criminal antecedents – Conventions – Need to be developed on basis of constitutional morality, good governance – Prime Minster should act in the interest of the national polity bearing in mind that unwarranted elements or persons facing charge in certain category of offences may diminish the constitutional trust reposed in him – Prohibition cannot be built in ‘advice’ of Prime Minister but the concept of constitutional trust can be perceived in the act of such advice. (Para 81, 83, 84, 86)
AIR 1994 SC 268 – Relied upon
Per Madan B. Lokur, J. [Concurring]
(j) Constitution of India – Article 84(c) – qualifications for membership of Parliament to be prescribed by Parliament – Not done so far – While elaborate qualifications are prescribed for persons responsible for implementing the law, no qualification is prescribed for the law makers – Regretted and hoped that Parliament will do the needful. (Para 9, 10)
(k) Constitution of India – Article 84, and 164 – Implied limitation – Implied limitations already read into Constitution – A person otherwise not qualified to be elected as a Member of Parliament or disqualified from being so elected cannot be appointed as a Minister – And, though a person can be appointed as a Minister for a period of six months, he or she cannot repeatedly be so appointed – Whether necessary to read another implied limitation into appointment of persons with criminal antecedents as Ministers – Presumption of innocence until proved guilty – Representation of the People Act, 1951 – Section 8 – Parliament already disqualifying convicted persons – Adding to it is in the domain of Parliament, not Court – Wisdom of the Prime Minister and Parliament must be trusted for deciding that the elected representative is worthy of being a Minister in the Central Government. (Para 22, 23, 26, 28, 32 38)
(2001) 7 SCC 126; (2001) 7 SCC 231; (2010) 6 SCC 331; (2013) 5 SCC 1; (2007) 8 SCC 669; (1985) 3 SCC 169; (2012) 2 SCC 542; (2010) 10 SCC 715; (2013) 7 SCC 653 – Relied upon
Per Kurian, J.
(l) Administration of Justice – Constitutional law – Court is the conscience of the Constitution – If anything goes wrong, conscience must speak. (Para 3)
(m) Representation of the People Act, 1951 – Section 8 – Minister’s oath – To conscientiously and faithfully discharge his duties – Can a person in conflict with law on offences involving moral turpitude and laws specified by the Parliament under Chapter III discharge his duties conscientiously – When a person is in conflict with law – When charges are framed – A candidate is not appointed to civil service if he is facing trial. (Para 6, 8)
(n) Constitution of India – Article 74, 164 – Prime Minister/Chief Minister should consider avoiding any person in the Council of Ministers, against whom charges have been framed by a criminal court in respect of offences involving moral turpitude and also offences specifically referred to in Chapter III of The Representation of the People Act, 1951. (Para 12)
Facts of the case:
This writ petition under Article 32 of the Constitution was filed by the petitioner as pro bono publico assailing the appointment of some of the original respondents as Ministers to the Council of Ministers of Union of India despite their involvement in serious and heinous crimes.
In this case the Court was required to interpret the scope and purpose of Articles 75 and 164 of the Constitution, regard being had to the text, context, scheme and spirit of the Constitution.
Finding of the Court:
While interpreting Article 75(1), a disqualification cannot be added. It can always be legitimately expected that the Prime Minister would consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers. What applies to Prime Minister wholly applies to Chief Minister.
Result: Writ petition disposed of.
Judgment :
Dipak Misra, J. [for himself, R.M. Lodha, C.J.I., and S.A. Bobde, J.]
A democratic polity, as understood in its quintessential purity, is conceptually abhorrent to corruption and, especially corruption at high places, and repulsive to the idea of criminalization of politics as it corrodes the legitimacy of the collective ethos, frustrates the hopes and aspirations of the citizens and has the potentiality to obstruct, if not derail, the rule of law. Democracy, which has been best defined as the Government of the People, by the People and for the People, expects prevalence of genuine orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of constitutional morality which is the pillar stone of good governance. While dealing with the concept of democracy, the majority in Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299, stated that ‘democracy’ as an essential feature of the Constitution is unassailable. The said principle was reiterated in T.N. Seshan, CEC of India v. Union of India and ors. (1995) 4 SCC 611. and Kuldip Nayar v. Union of India & Ors. AIR 2006 SC 3127. It was pronounced with asseveration that democracy is the basic and fundamental structure of the Constitution. There is no shadow of doubt that democracy in India is a product of the rule of law and aspires to establish an egalitarian social order. It is not only a political philosophy but also an embodiment of constitutional philosophy. In People’s Union for Civil Liberties and another v. Union of India and another (2013) 10 SCC 1, while holding the voters’ rights not to vote for any of the candidates, the Court observed that democracy and free elections are a part of the basic structure of the Constitution and, thereafter, proceeded to lay down that democracy being the basic feature of our constitutional set-up, there can be no two opinions that free and fair elections would alone guarantee the growth of a healthy democracy in the country. The term “fair” denotes equal opportunity to all people. Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for millions of individual voters to participate in the governance of our country. For democracy to survive, it is fundamental that the best available men should be chosen as the people’s representatives for the proper governance of the country and the same can be best achieved through men of high moral and ethical values who win the elections on a positive vote. Emphasizing on a vibrant democracy, the Court observed that the voter must be given an opportunity to choose none of the above (NOTA) button, which will indeed compel the political parties to nominate a sound candidate. Accordingly, the principle of the dire need of negative voting was emphasised. The significance of free and fair election and the necessity of the electorate to have candidates of high moral and ethical values was re-asserted. In this regard, it may be stated that the health of democracy, a cherished constitutional value, has to be protected, preserved and sustained, and for that purpose, instilment of certain norms in the marrows of the collective is absolutely necessitous.
THE REFERENCE
2. We have commenced our judgment with the aforesaid prologue as the present writ petition under Article 32 of the Constitution was filed by the petitioner as pro bono publico assailing the appointment of some of the original respondents as Ministers to the Council of Ministers of Union of India despite their involvement in serious and heinous crimes. On 24.3.2006, when the matter was listed before the Bench presided by the learned Chief Justice, the following order came to be passed: -
“A point of great public importance has been raised in this petition. Broadly, the point is about the legality of the person with criminal background and/or charged with offences involving moral turpitude being appointed as ministers in Central and State Governments. We have heard
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