# B.R. KAPUR v. STATE OF TAMIL NADU AND ANR

- **Citation:** [2001] Supp. 3 S.C.R. 191
- **Court:** Supreme Court of India
- **Decided:** 2001-09-21
- **Bench:** S.P. Bharucha, B. Pattanaik, Y.K. Sabharwal, Ruma Pal B, Brijesh Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-r-kapur-v-state-of-tamil-nadu-and-anr-18230
- **Pages:** 62

## Headnote

Constit~ttion of India-Articles 164.:__Appointment of Chief MinisterGovemor's power-Person convicted and sentenced to more than two years'
imprisonment-Her party winning large majofity in general election-Party
C
electing her as their leader-Governor appointing her as the Chief MinisterHeld, a person convicted for a criminal offence and sentenced to imprisonment
for a period not less than two years cannot be appointed the Chief MinisterHence her appointment quashed-Representation of the People Act, 195ISection 8( 3 ).
Constitution of India-Articles I64, 173 and 191-Chief Minister/
Minister-Qual{fications for appointment-Held, person appointed as Chief
Minister/Minister should possess qualifications enumerated in Article 173 and
should not.be disqualified.from seeking membership of legislature under Article
I91.
Constitution of lndia-,-Article 164( 4 )-Appointment of Ministers for six
months-Held, cannot be used to induct short term Ministers who do not.fulfil
D
E
the requirements of Articles 173 and 191-Person appointed as Chief Minister
though convicted and sentenced for more than two years-Held, such
appointment is illegal for being appointed under Article 164(4) the person
F
should be qual(fied to be a member of the legislature under Article 173 and
should not be disqual(fied under Article 191-Articles 173 and 191.
Constitution of India-Artie!~ 164-Govemor s power under-Not obliged
to appoint the nominee of the majority party as Chief Minister if the nominee
is ineligible to be appointed as Chief Minister-Governor cannot do anything
G
contrary to the Constitution and laws-Will of the People-Held, cannot prevail
over the constitutional mandate.
Constitution of India-Article 361-Scope of Judicial Review-lllegal
appointment made by Governor not protected-Appointment of a person to the
post of Chief Minister/Minister made by the Governor can be challenged in quo
H
191
192
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
A
warranto proceedings-Quo warranto proceeding lie against the appointee to
show by what authority is he entitled to hold the office-Appointing authority
may not be made party to such proceeding-Articles 226 and 32.
B
c
D
Constitution of India-Articles 226 and 32-Writ of quo warrantoMeaning of.
Doctrines-De facto doctrine-Meaning o.f-Setting aside of the
appointment o.f Chief Minister-Serious consequences resulting from-De facto
doctrine used to validate the acts of the Chief Minister, cabinet and the
govemmentfrom the date o.f appointment to the date of judgment.
Code of Criminal Pro!edure, 1973:
Section 389-Power of appellate court-Sentence cannot be stayed by
appellate court-Appellate court can suspend only execution of sentenceOrder of suspension o.f execution of sentence does not alter the conviction o.f the
accused.
Section 374-Appeal-Pendency-E.ffect o.f.
Representation of the People Act, I 95 /-Section 8( 3 )-Held, Presumption
of innocence comes to end on conviction by the trial court-Conviction and
sentence operate against accused until set aside in appeal-Accused filed
appeal against her conviction-Execution of sentence suspe1uled by the appellate
E
court-In the meanwhile she filed nomination for election-Her party wins
Assembly elections and she was elected leader of her party-She was sworn in
by Governor as Chief Minister-Held, as she was convictedfor an offence and
sentenced to more than two years imprisonment she could not have been
appointed Chief Minister/Minister.
F
G
H
Respondent No. 2, who was the Chief Minister of the State of Tamil
Nadu, was convicted of offences punishable under section 120B of the
Penal Code read with sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention
of Corruption Act and for offence punishable under section 409 of the
Indian Penal Code. She was sentenced to undergo three years' rigorous
imprisonment and a fine of Rs. 10,000 in the first case and to undergo two
years' rigorous imprisonment and a fine of Rs. 5000/- in the second case.
Against her conviction, respondent No

## Text

_Characters 0–39,858 of 159,099. This is a partial read: ask again with offset=39858 for what follows._

-
B.R. KAPUR
A
v.
STATE OF TAMIL NADU AND ANR.
SEPTEMBER 21, 2001
[S.P. BHARUCHA, G,B. PATTANAIK, Y.K. SABHARWAL, RUMA PAL
B
AND BRIJESH KUMAR, JJ.]
Constit~ttion of India-Articles 164.:__Appointment of Chief MinisterGovemor's power-Person convicted and sentenced to more than two years'
imprisonment-Her party winning large majofity in general election-Party
C
electing her as their leader-Governor appointing her as the Chief MinisterHeld, a person convicted for a criminal offence and sentenced to imprisonment
for a period not less than two years cannot be appointed the Chief MinisterHence her appointment quashed-Representation of the People Act, 195ISection 8( 3 ).
Constitution of India-Articles I64, 173 and 191-Chief Minister/
Minister-Qual{fications for appointment-Held, person appointed as Chief
Minister/Minister should possess qualifications enumerated in Article 173 and
should not.be disqualified.from seeking membership of legislature under Article
I91.
Constitution of lndia-,-Article 164( 4 )-Appointment of Ministers for six
months-Held, cannot be used to induct short term Ministers who do not.fulfil
D
E
the requirements of Articles 173 and 191-Person appointed as Chief Minister
though convicted and sentenced for more than two years-Held, such
appointment is illegal for being appointed under Article 164(4) the person
F
should be qual(fied to be a member of the legislature under Article 173 and
should not be disqual(fied under Article 191-Articles 173 and 191.
Constitution of India-Artie!~ 164-Govemor s power under-Not obliged
to appoint the nominee of the majority party as Chief Minister if the nominee
is ineligible to be appointed as Chief Minister-Governor cannot do anything
G
contrary to the Constitution and laws-Will of the People-Held, cannot prevail
over the constitutional mandate.
Constitution of India-Article 361-Scope of Judicial Review-lllegal
appointment made by Governor not protected-Appointment of a person to the
post of Chief Minister/Minister made by the Governor can be challenged in quo
H
191
192
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
A
warranto proceedings-Quo warranto proceeding lie against the appointee to
show by what authority is he entitled to hold the office-Appointing authority
may not be made party to such proceeding-Articles 226 and 32.
B
c
D
Constitution of India-Articles 226 and 32-Writ of quo warrantoMeaning of.
Doctrines-De facto doctrine-Meaning o.f-Setting aside of the
appointment o.f Chief Minister-Serious consequences resulting from-De facto
doctrine used to validate the acts of the Chief Minister, cabinet and the
govemmentfrom the date o.f appointment to the date of judgment.
Code of Criminal Pro!edure, 1973:
Section 389-Power of appellate court-Sentence cannot be stayed by
appellate court-Appellate court can suspend only execution of sentenceOrder of suspension o.f execution of sentence does not alter the conviction o.f the
accused.
Section 374-Appeal-Pendency-E.ffect o.f.
Representation of the People Act, I 95 /-Section 8( 3 )-Held, Presumption
of innocence comes to end on conviction by the trial court-Conviction and
sentence operate against accused until set aside in appeal-Accused filed
appeal against her conviction-Execution of sentence suspe1uled by the appellate
E
court-In the meanwhile she filed nomination for election-Her party wins
Assembly elections and she was elected leader of her party-She was sworn in
by Governor as Chief Minister-Held, as she was convictedfor an offence and
sentenced to more than two years imprisonment she could not have been
appointed Chief Minister/Minister.
F
G
H
Respondent No. 2, who was the Chief Minister of the State of Tamil
Nadu, was convicted of offences punishable under section 120B of the
Penal Code read with sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention
of Corruption Act and for offence punishable under section 409 of the
Indian Penal Code. She was sentenced to undergo three years' rigorous
imprisonment and a fine of Rs. 10,000 in the first case and to undergo two
years' rigorous imprisonment and a fine of Rs. 5000/- in the second case.
Against her conviction, respondent No. 2 filed appeals before the
High Court. By order dated 3.11.2000, the High Court, under Section
389(2) of the Code of Criminal Procedure suspended the sentences of
imprisonment pending the criminal appeals and directed the release of
-
....
..
l ,
'
r
.1
i
I
J
..
B.R. KAPUR v. STATE
193
respondent No. 2 on bail.
As the High Court had only suspended the sentences of imprisonment
against respondent No. 2 without staying the order of conviction, respondent
No. 2 filed another application seeking stay of the operation of the judgments
of the trial court which was rejected by the High Court. Respondent No. 2
did not challenge the order of the High Court.
In the meanwhile the general elections to the Tamil Nadu Assembly
were announced. Respondent No. 2 filed nomination papers in four
constituencies. Her nomination papers were rejected in three constituencies
A
B
on account of her disqualification under section 8(3) of the Representation
C
of the People Act. The fourth nomination paper was rejected for the
reason that she had filed her nomination for more than two seats. These
orders rejecting her nominations were not challenged by respondent No. 2.
The party of respondent No. 2 won by a large majority in the
assembly elections and elected respondent No. 2 as its leader. On 14.5.2001,
D
respondent No. 2 was sworn in as the Chief Minister of Tamil Nadu by the
Governor of the State. The appointment of respondent No. 2 as the Chief
Minister was challenged by the petitioner by way of a writ petition under
Article 32 of the Constitution of India contending that respondent No. 2
could not have been sworn in as the Chief Minister as she was disqualified
E
to be elected as a member of the State Legislature on account of her
disqualification under section 8(3) of the Representation of the People Act
read with Article 191 of the Constitution of India. Another writ petition
filed before the High Court of Madras, raising the same contention, was
dismissed by the High Court against which Special Leave Petition was filed
in this court. A third writ petition pending before the High Court of
Madras was transferred to this court to be heard along with the writ
petition filed under Article 32 of the Constitution of India.
The contentions raised by respondent No. 2 and the State of Tamil
Nadu before this Court were :-
1. Article 164 of the Constitution of India does not provide any
qualification or disqualification for being appointed as a Chief Minister or
a Minister. It was not open to the Court to read into Article 164 of the
Constitution of India the qualificati!-lns enumerated under Article 173 or
the disqualifications enumerated under Article 191 of the Constitution of
F
G
H
I
194
A
India.
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
B
2. The people, who are the ultimate sovereign, had expressed their
will through their elected representatives. The people's will should prevail
for six months in a true parliamentary democracy especially when there is
no provision for adjudicating the alleged disqualifications. The Governor
does not have the power or the machinery for adjudicating alleged
disqualifications. Therefore, the Governor cannot ignore the will of the
people and is bound to call the leader of the majority party to be the Chief
Minister irrespective of the fact that the said person does not possess the
qualifications for being a member of the Legislature. The appointment is
C
made by the Governor on the basis of conventions of the Constitution. By
deciding that the Chief Minister appointed by the Governor should demit
office, the Court would be entering in.to political thicket, arrogating to
itself a power never intended by the Constitution of India.
....
3. The Governor of a State, in view of Article 361 of the Constitution
t- ,.._
D
of India, is not answerable to any court for performance of the powers and
duties of his office. As respondent No. 2 was appointed as Chief Minister
by the Governor in exercise of powers of the Governor under A.-ticle 164
of the Constitution of India, the said appointment as well as the exercise of
discretion by the Governor is immune from being challenged and is not
E
open to judicial review.
4. The disqualification under section 8(3) of the Representation of
the People Act would be attracted only when a person is convicted as well
as sentenced to imprisonment for not less than two years. For the purpose
of section 8(3) of the Representation of the People Act, sentence alone is
F
relevant. As the High Court has suspended the sentences passed against
respondent No. 2, her disqualification also stands suspended.
G
H
5. Under section 8(3) of the Representation of the People Act the
disqualification is attracted on the date on which a person was convicted of
any offence and sentenced to imprisonment for not less than two years.
Law contemplates that the conviction and the sentence could be on different
dates. It is unworkable that the disqualification should operate from the
date of conviction which could be separate from the date of sentence and
therefore, the conviction referred to in Section 8(3) of the Representation
of the People Act should be taken to be that confirmed by the appellate
court because it was only in the appellate court that the date of conviction
I
i
....
-
B.R. KAPUR v. STATE
195
and sentence would be the same.
6. Under Section 8(4) of the Representation of the People Act, the
disqualification does not operate against a sitting member of Parliament
or the Legislature of the State until three months or, if an appeal, application
or revision is filed until that appeal, application or revision is disposed of.
The principle underlying Section 8(4) of the Representation of the People
Act had to be extended to a non-legislator als~ as otherwise Article 14 of
the Constitution of India would be violated for presumption of innocence
would apply to the sitting member till the conviction was finally affirmed
whereas in case of a non-legislator the disqualification would operate on
conviction by the court of first instance.
Setting aside the appointment of respondent No. 2 and making the
writ petition absolute, the court
HELD:
Per S.P. Bharucha, 1. (for himself, Y.K. Sabharwal and Ruma Pal,
JJ.):
1.1. A non-legislator can be made Chief Minister or Minister under
Article 164 of the Constitution of India only if he has the qualifications for
membership of the legislature prescribed by Article 173 of the Constitution
oflndia and is not disqualified from the membership thereof by reason of the
disqualifications set out in Article 191 of the Constitution oflndia. [222-A]
1.2. The essential of a system of representative Government, like the
A
B
c
D
E
one in India, is that, invariably, all Ministers are chosen out of the members
F
of the legislature and only in rare cases is a non-member appointed a
Minister and he has to get himself returned to the legislature by direct or
indirect election with a short period. It is sub-Article (4) of Article 164 of
the Constitution of India which makes the appointment of a person other
than a member of the Legislature of the State as a Minister permissible,
but it stipulates that a Minister who for any period of six consecutive
months is not member of the Legislature of the State shall at the expiration
of that period cease to be a Minister. Necessarily implicit in Article 164(4)
read with sub-Articles (1) and (2) of Article 164 of the Constitution of
India 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
G
H
A
B
c
D
196
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
failing to secure the seat in the legislature within six months, he must cease
to be a Minister. The requirement of sub-Article (4) of Article 164 of the
Constitution of India being such, it follows as the night 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 the legislature and
satisfy the requirement of sub-Article (4) of Article 164 of the Constitution
of India, in other words, he must be one who satisfies the qualifications for
membership of the legislature contained in Article 173 of the Constitution
of India and is not disqualified from seeking that membership by reason of
any of the provisions in Article 191 of the Constitution of India on the date
of his appointment. [217-B; H; 218-A-C]
1.3. The provision of sub-Article (4) of Article 164 of the Constitution
of India 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. However,
it·cannot be accepted that sub-Article (4) of Article 164 of the Constitution
of India 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 of the
E
Constitution of India respectively. What sub-Article (4) of Article 164 of
the Con~titution oflndia does is to give a non-legislator appointed Minister
six months to become a member of the legislature. Necessarily, theref~re,
that non~legislator niust be one who, when he is appointed, is not debarred
from obtaining. membership of the legislature : he must be one who is
F
qualified to stand for the legislature and is not disqualified to do so.
Sub-Article (4) of Article 164 of the Constitution of India is not intended
for the inductio!l into the Council of Ministers of somemie for six months
or less so that it is of no consequence that he is in~ligible to stand for the
legislature. [218-D-F]
G
Har Sharan. Verma v. Shri Tribhuvan Narain Singh, Chief Minister, U.P.
and Am:, [1971] 1 SCC 616; Har Sharan Verma v. State of U.P. and Am:,
[1985] 2 SCC 48; Har Sharan Venna v. Union of India and Am:, [1987] Supp;
SCC 310; S.P. Anand, Indore v. H.D. Deve Gowda and Ors., [1996] 6 SCC
734; S.R. Chaudhuri v. State of Pw~jab & Ors., [2001] 5 SCALE 269; His
H
Holiness Kesavananda Bharti Sripadagalavaru v. State of Kera/a, [1973]
I
I
-
B.R. KAPUR v. STATE
Supp. SCR 1 and Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981]
A
1 SCR 206, referred to.
Constituent Assembly Debates, Vol. VII, referred to.
2.1. 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. 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. [231-E·G]
2.2. 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 of India 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
appointm~nt of a person to the office of Chief Minister who is not qualified
to hold it should be struck down at the earliest. [231-H; 232-A-B; 233-E]
Shri Kumar Padma Prasad v. Union of India and Ors., [1992] 2 SCC
428 arid State of Rajasthan and Ors. v. Union of India and Ors., [1977] 3 SCC
592, relied on.
3.1. 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. 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. This implies
that the stigma attached to the conviction and the rigour of the sentence
B
c
D
E
F
G
H
A
B
198
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
are completely obliterated, but that does not mean that the fact of conviction
and sentence by the lower court is obliterated until the conviction and
sentence are set aside by an appellate court. The c'.>nviction and sentence
stand pending the decision in the appeal and for the p~rposes of a provision
such as Section 8 of the Representation of the People Act are determinative
of the disqualifications provided for therein. [226-G-H; 228-G]
3.2. 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
disposai of appeal. 1be suspension of the execution of the sentence does not
alter or affect the fact that the offender has been convicted of a grave
C
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 under the Representation of the People
Act. The suspension of the sentence, as the High C~mrt erroneously called
it, was in fact only the suspension of the execution of the sentences pending
D
E
F
G
H
the disposal of the appeals filed by the respondent No. 2. The fact that she
secured the suspension of the execution of the sentences against her did not
alter or affect the convictions and sentences imposed on her and she
remained disqualified from seeking legislative office under Section 8(3) of
the Representation of the People Act. [223-B-C]
Raghbir Singh v. Surjit Singh, [1994) Supp. 3 SCC 162, referred to.
Padam Singh v. State of U.P., (2000) 1 SCC 621; Maru Ram v. Union of
India and Ors., [1981) 1SCC107; Dilip Kumar Shanna and Ors. v. State of
Madhya Pradesh, [1976) 1 SCC 560 and Vidya Charan Shukia v. Purshottam
Lal Kaushik, [1981] 2 SCC 84, distinguished.
3.3. In those cases where the sentence is imposed on a day later than
the date of conviction, 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 less not
than two years, which is cumulatively requisite to attract the disqualification
under Section 8(3) of the Representation of the People Act. [225-H; 226-A]
3.4, Section 8(4) of the Representation of the People Act opens with
the words "notwithstanding any thing in sub-section (l), 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 of the
•
I
B.R. KAPUR v. STATE
199
Constitution of India. In any case, if it were found to be violative of Article
A
14 of the Constitution of India, 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. [226-D-E]
B
3.5. 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 Article 164(4)
of the Constitution of India and cannot continue to function as such. On
the date on which ~espondent No. 2 was sworn in as Chief Minbter she was
disqualified, by reason of 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. [234-B; 228-H; 229-A]
4. The finding that respondent No. 2 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 respondent No.2 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
respondent No.2. 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, the de facto doct,rine is invoked and it is declared that
all acts, otherwise legal and valid, performed between 14th May, 2001 and
the date of the present judgment by the respondent No.2 as Chief Minister,
by the members of the Council of Ministers and by the Government of t(le
State shall not be adversely affected by reason only of this order. [233-F-H]
Per G.B. Pattanaik, J. (concurring) :
5.1. Notwithstanding the fact that no qualification or disqualification
is prescribed in Article 164(1) or Article 164(4) of the Constitution of
India, Qualification or disqualification provided in Articles 173 and 191 of
the Constitution of India for being chosen as a member will have to be read
c
D
E
F
G
into Article 164 of the Constitution of India and so read, respondent No. 2,
H
A
B
c
D
E
200
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
who had incurred the disqualification under Article 191(1)(e) of the
Constitution of India read ~ith Section 8(3) of the Representation of the
People Act, could not have been appointed as the Chief Minister, whatever
maybe the majority of her party members being elected to the Legislative
Assembly. [239-G-H]
5.2. The Constitution of India, 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 aa 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 of the Constitution of India respectively
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 191 of the Constitution of India respectively. 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 of the Constitution of India or incurs disqualification for being chosen
p
as, or for being a member of the Legtslative Assembly, enumerated under
Article 191 of the Constitution of India, 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 of India. When Article
G
H
164(1) itself confers the discre_tion on the Governor to appoint a Chief
Minister at his pleasure and when the Governor has taken oath under
Article 159 of the Constitution of India to preserve, protect and defend the
Constitution and the law, 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 of the Constitution of India
-
B.R. KAPUR v. STATE
201
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 of the
Constitution of India proprio vigore applies to a person for being appointed
as the Chief Minister or a Minister in as much 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 of the Constitution of India 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 a limited period of
six months, as contained in Article 164( 4) of the Constitution of India, 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 incurs the disqualifications enumerated in Article 191 would
be subversive of the Constitution and would be repugnant to the theory of
good governance. [237-E-H; 238-A-E]
Constituent Assembly Debates, referred to.
5.3. The appointment of a non-member of legislature as the Chief
Minister or Minister on the advice of a Chief Minister is made under
Article 164 of the Constitution of India on the Governor's satisfaction. If
any of the disqualification mentioned in Article 191(1)(e) of the Constitution
of India 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 of the Constitution
of India, then in such a case, 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 dependent upon the disputed questions
A
B
c
D
E
F
G
H
202
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
A
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, the Governor exercises· his
discretion under Article 164 of the Constitution of India in the matter of
appointment of the Chief Minister or a Minister. But in a case where the
B
c
D
E
F
G
H
disqualification is one which is apparent as in the case in hand namely the
person concerned has been convicted and has been sentenced ~o
imprisonment for more than two years and operation of the conviction has
not been stayed and the appeal is pending, there~y the disqualification
under Article 191(1)(e) of the Constitution of India 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 t? form
the government. (240-D-H; 241-A-B]
'
6. 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, whic!t is in violation of its constitutional
limitations, then the same could be examined by the Courts. 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 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 has been
usurping the same. If respondent No. 2 is disqualified under the Constitution
B.R. KAPUR v. STATE
203
to hold public office of the Chief Minister, then the immunity of Governor
. under Article 361 of the Constitution of India cannot stand as a bar from
issuing a writ of quo warranto. The immunity provided to the Governor
under Article 361 of the Constitution of India is certainly not extended to
an appointee by the Governor. [241-H; 242-A; F-G]
S.R. Bommai, v. Union of India, [1994) 3 SCC 1, relied on.
R.K. Jain v. Union of India, [1993) 4, SCC 119, distinguished.
7.1. H the majority political party elects a person as their leader,
whom the Constitution and the laws of the country disqualify 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 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. [245-G-H]
7.2. 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
legislative supremacy in the United Kingdom has no application in India
with a written Constitution limiting the extent of such supremacy of the
Legislature or Parliament. 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 legislatμre
and entrust the ordinary courts or a constitutional court with the functjon
of deciding whether the acts of the legislature are in accordance with the
Constitution. In other words, the people of the country, the organs of the
Government, legislature, executive and judiciary are all bound by the
Constitution. [246-A; 246-C]
7.3. When Court has been ascribed the duty of interpreting the
Constitution and when Court finds that manifestly there is an unauthori$ed
exercise of power under the Constitution, it would be the solemn duty of
the Court to intervene. This being the position, the action of the majority
of the electl'!d 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. [246-B; D]
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
204
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
7.4. It would be a blatant violation of constitutional laws to allow
respondent No. 2 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 their leader and
that is the expression of the will of the people. 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 to the Legislative Assembly, to be their leader are as much
subservient to the Constitution of India as the Governor himself.
(246-G; 244-C]
Lucas v. Colorado General Assembly, 377 US 713; 12 L Ed 632; 84 S
Ct 1472 and Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981) 1
SCR 206, referred to.
Law and the Constitution, by .Sir Ivor Jennings, referred to.
8. Having regard to the mass scale corruption which has corroded ·
the court 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 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. [248-CJ
Raghbir Singh v. Surjit Singh, [1994) Supp. 3 SCC 162, referred to.
Per Brijesh Kumar, J. (concurring):
9.1. 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 only 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 fulfil the required qualifications or suffers from any
disqualification, which debars the person to hol.d such office. [249-B]
9.2. Article 361 of the Constitution of India would be no impediment
H
in examining the question of entitlement of a person, appointed by the
..
B.R. KAPUR v. STATE
205
Governor to hold a public office, who according to the relator is usurper to
A
the office. Article 361 of the Constitution 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
B
not answerable to any Court for anything done in performance of duties or
his office. The question of fulfilling the legal requirements ~nd qualification$
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. [251-A; 250-G-H]
Words and Phrases Permanent Edition, Volume 35 A page 647 and 648
and Halsbury's Laws of England, 4th Edition Reissue Volume-I, para 265,
page 368, referred to.
10. The argument about implementing the will of the people is
misconceived and misplaced. In the scheme of Constitutional provisions
the Governor is to act with the aid and advice 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 Ministe""i 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 the
element of discretion in performance of duties of his office, if ever any such
exigency may so demand its exercise. [251-C-D; E-H]
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 242 of 2001
Under Article 32 of the Constitution of India.
WITH
c
D
E
F
G
H
206
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
A
W.P. (C) Nos. 245, 246, 26112001, C.A. No. 6589/2001, and T.C. (C}No.
B
c
D
26/2001 Aris!ng from T.P. (C) No. 382/2001)
;
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.
yenugopal and M. Rama jois, R.K. Kapoor, R.A. Mis~ra, B.R. Kapoor, Sumit
Kumar, P. Varma, S.K. Srivastava; K.L. Vohra, Chander Shekhar Ashri, V.G~
Pragasaffi, Dinesh Kumar Garg, R.C. Kaushik, Dr. Fran~is Julian, B.V. Deepak,
Ms. Roxna Swamy, R.N. Keshwani, Ms. Reyathy Raghavan, l\(s. Shweta Garg,
Manish Goswami, P. Parmeswaran, Manish Singhvi, Sanjay R. Hegde, Satya
Miira,'S.W.A. Qadri, Dhru~-Mehta, Preet;sh Kapu;, Siddharth Goswami, Ms.
Sushma Suri," K.V. Vishw~nathan, N. Jyothi, Kunwar Ajit Mohan Singh, Atul
Kumar Sinha, K.V. Venkataraman, Ms. Seema; Ms. Divya, T.V. George, Raj
Kanwar-in-person for Intervenors in I.A. No. 4/2001.
S.N. Bhat for the appearing parties.
Petitioner In-person .(NP), in W.P. (C) No. 26112001.
The Judgments of the Court were delivered by
i. BHARUCHA, J._: Leave granted.
E
A question of great constitutional importance arises in these matters,
F
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.
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 4of1997 and CC 13of1997) convicted for offences punishable
under Section 120B of the Indian Penal Code read with Sections 13(1)(c);
13(l)(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
G
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.
The fine that was imposed in both cases was paid.
H
The second respondent preferred appeals against her conviction before
I
~
<
...
-
-
B.R. KAPUR v. STATE [BHARUCHA, J.]
207
the High Court at Madras. The appeals are pending.