Dismissed

Surinder Mohan Arora and Ors. v. the State of Maharashtra through Chief Secretary, Gen. Administration Dept. and Ors.

Bombay HC13 Sept 2019WP/6922/2019

Case brief

AI extract

What is this about?

Two writ petitions challenged the induction of non-legislators as Ministers in the Maharashtra cabinet shortly before the Assembly's term expired. The High Court dismissed the petitions, refusing to read a prohibition into Article 164(4) or to prescribe a time-frame for the Speaker's decision on pending defection petitions.

What the court decided

AI extract

Surinder Mohan Arora and Ors. Vs the State of Maharashtra… — Election Law | Bombay HC (2019)

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Vijay Namdeorao Wadettiwar v State Of Maharashtra & Ors |
Surinder Mohan Arora & Ors v State of Maharashtra & Ors
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REPORTABLE

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Shephali

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6996 OF 2019

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Vijay Namdeorao Wadettiwar,

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Age: 56 years, Occupation: Agriculture,
R/o 73, Brahmapuri, District Chandrapure. …Petitioner

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~ versus ~

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1. The State of Maharashtra, Through Chief Secretary, General Administration Department, Mantralaya, Mumbai.

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2. The Hon’ble Chief Minister, Maharashtra State, Mumbai – 400 032.

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3. The Hon’ble Governor of Maharashtra, Raj Bhawan, Walkeshwar Road, Malabar Hills, Mumbai.

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4. The Hon’ble Speaker, Maharashtra State Legislative Assembly, Mantralaya, Mumbai – 400 032.

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5. Shri. Radhakrushna Eknath @ Balasaheb Vikhe Patil, Age: Major, Occu: Politician, R/o: At post Loni (Pravaranagar), Tq. Rahata, Dist: Ahmednagar.

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6. Shri. Jaydatta Sonajirao

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Kshirsagar,

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Age: Major, Occu: Politician,
R/o: A/P Rajuri, Tq and Dist: Beed.

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7.Shri. Avinash Sharad
Mahatekar,
Age: Major, Occu: Politician,
R/o: 152/5111, Bhimlight Co-op Hsg.
Soc., Nehru Nagar, Kurla (E),
Mumbai – 400 024.…Respondents

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AND WRIT PETITION NO. 6922 OF 2019

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1.Surinder Mohan Arora,
Age: 65 years, Occu.: business,
R/o: Plot No.33/13, A wing,
Kiran Chandra CHS Ltd.,
Manish Nagar, Four Bungalows,
Andheri, Mumbai 400 053.

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2. Sanjay Bhaskarrao kale Age : 57 years, Occu: Medical Representative and Social work, R/o: “Swapna Bhaskar”, Swami Vivekanand Nagar, Kopargaon, Tq. Kopargaon, Dist: Ahmednagar.

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3. Sandeep S/o Vijay Kulkarni Age : 46 years, Occu: Clot Store, R/o At Post Wadala Mahadeo, Tq. Shrirampur, Dist: Ahmednagar. … Petitioners

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~ versus ~

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1. The State of Maharashtra, Through Chief Secretary, General Administration Department, Mantralaya, Mumbai.

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2. The Hon’ble Chief Minister, Maharashtra State, Mumbai – 400 032.

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3. The Hon’ble Governor of Maharashtra, Raj Bhawan, Walkeshwar Road, Malabar Hills, Mumbai.

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4. The Hon’ble Speaker, Maharashtra State Legislative Assembly, Mantralaya, Mumbai – 400 032.

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5.Shri. Radhakrushna Eknath
@ Balasaheb Vikhe Patil,
Age: Major, Occu: Politician,
R/o: At post Loni (Pravaranagar),
Tq. Rahata, Dist: Ahmednagar.

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6.Shri. Jaydatta Sonajirao Kshirsagar, Age: Major, Occu: Politician, R/o: A/P Rajuri, Tq and Dist: Beed.

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7. Shri. Avinash Sharad
Mahatekar,
Age: Major, Occu: Politician,
R/o: 152/5111, Bhimlight Co-op Hsg.
Soc., Nehru Nagar, Kurla (E),
Mumbai – 400 024.…Respondents

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APPEARANCES

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FORTHEPETITIONER Mr SB Talekar, with Madhavi Ayyappan,
i/b Talekar & Associates.
FORRESPONDENTMr VA Thorat, Senior Advocate, with PP
NOS. 1 & 2Kakade, Government Pleader & Mrs AA
Purav, AGP.
FORRESPONDENTMr Vinayak D Hon, Senior Advocate,

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`NO. 5`	`with Ms Prachi` `A` `Tatake.`
`FOR` `RESPONDENT`	`Mr VR Kasle``, i/b Ram & Co.`
`NO. 6`
`FOR` `RESPONDENT`	`Mr BK Barve``, with` `Archana Lad, i/b BK`
`NO. 7`	`Barve & Co.`

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CORAM :S.C. Dharmadhikari & G.S. Patel, JJ.

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DATED :9th & 13th September 2019 ORAL JUDGMENT ( Per S.C. Dharmadhikari, J ):

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1.By these petitions under Article 226 of the Constitution of
India, the essential challenge of the petitioners is to the induction of
Mr Radhakrushna Vikhe Patil, Mr Jaydatta Kshirsagar and Mr
Avinash Mahatekar as Cabinet Ministers and Minister of State,
respectively in the Maharashtra State Cabinet of Ministers. As the
challenge is common, both petitions can be disposed of by a single
Judgment.

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2. We take the facts in in Writ Petition No. 6996 of 2019 fled by Mr Vijay Namdeorao Wadettiwar. He says that he is a member of the Indian National Congress Legislature Party. He has been elected

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to the Maharashtra State Legislative Council for a term of six years.
He is a leader of the Lower House of the Maharashtra State
Legislature. He had ofciated as Minister of State twice in the past.

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3.The Respondents Nos. 5, 6 and 7 are inducted in the State
Cabinet by the Respondent No. 2 and were sworn in as Ministers by
the Hon’ble Governor of Maharashtra in terms of the advice
tendered to him. These three persons are not members of the
legislature.

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4.As far as Respondent No. 5 is concerned, he was elected as a
Member of the Legislative Assembly from Shirdi constituency in
Maharashtra State Legislative Assembly Election 2014. He
contested the elections as a candidate of the Indian National
Congress. He was leader of opposition in the State Legislative
Assembly. The 6th Respondent was elected as an M.L.A. from Beed
constituency in Maharashtra State Legislative Assembly Election
2014 as a candidate of the Nationalist Congress Party.

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5.Respondent No. 5 resigned from his political party with a
declaration that he intends to join the Bharatiya Janata Party,
namely, the ruling party. This is evident, according to the Petitioner,
from a news item published in the daily newspapers circulated in
Mumbai and elsewhere in Maharashtra and that is not disputed.
Thus, Respondent No. 5 has now joined the Bharatiya Janata Party.

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6. The 6th Respondent is a candidate from Chausala District, Beed. He equally made up his mind on 22nd May 2019 to sever his relations with the Nationalist Congress Party and join the Shiv Sena.

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7.These persons thus resigned from their respective erstwhile
parties and joined the ruling alliance. These two Respondents have
demitted their seats by resigning from the Vidhan Sabha / State
Legislative Assembly. Thus, the 5th Respondent is not the leader of
opposition in the Assembly nor is he associated with the Indian
National Congress Party. On 16th June 2019, he was sworn in as a

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Cabinet Minister.

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8.At page 46 of the paper-book is a letter of one Sanjay Kale.
He has invited the attention of the authorities concerned to Article
164 of the Constitution of India. He has complained that this
induction into the Cabinet of these two persons in question is
nothing but an attempt to get over the Constitutional mandate and
avoid the consequences of the Anti-Defection Law. It is an attempt
to get over the Constitutional embargo on change of political loyalty
by resigning from the party on whose tickets the candidates have
been elected, and this is done just fve months before the end of the
term of the House. Such persons are rewarded by making them
Cabinet Ministers although it is known that they will not be elected
within the period specifed in clause (4) of Article 164 of the
Constitution of India. There is no re-election possible. By virtue of
Section 151-A of the Representation of Peoples Act 1951, no bye-
elections can be held to fll up any vacancy that might be caused
even if these two persons resign. Today, the situation is that the
disqualifcation proceedings which have been initiated against these
two persons are pending.

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9.The 7th Respondent, Avinash Mahatekar, is not a member of
either House but he is a Member of the Republican Party of India,
Athawale Group. He is equally a benefciary of a berth in the State
Cabinet. He will also not be elected either, for no election is possible
to enable him to get elected to the House.

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10.Thus, all three of these Respondents have now been rewarded
with ministerial berths with the House having less than six months
term.

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11.Mr Talekar, learned Advocate appearing on behalf of the
petitioner in these petitions, addressed several contentions. We
found from the nature of the arguments canvassed by both sides that
there is no dispute on facts and there is thus no need of fling any
returns or Afdavits. Be that as it may, a return is fled by the 5th
Respondent and it is treated as a return or Afdavit in Reply for both

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petitions.

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12.Since a short legal question is involved, we grant Rule in
these petitions. The Respondents concerned waive service. Heard
both sides at great length.

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13.By consent of both sides, we dispose of these petitions fnally.

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14.Our attention has been invited by Mr Talekar to Articles 163,
164(1-B) and Article 164(4) of the Constitution of India. He has also
invited our attention to Articles 173 and 191 and to the Tenth
Schedule to the Constitution. Mr Talekar has submitted that there is

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an application made to the Speaker (Respondent No.4) seeking
disqualifcation of Respondents Nos. 5 and 6. The applications are
fled on 17th June 2019 and prayer clause (c) of Mr Wadettiwar’s
petition prays for a time-frame for disposal of these petitions.

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15.On the larger challenge, Mr Talekar would submit that
probity in public administration and ensuring purity in public afairs
is the object behind the insertion of these Constitutional provisions.
He read extensively from the Constituent Assembly debates to
buttress his argument that the Constitution never envisaged the

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induction into the Cabinet or the Ministry of persons who are not
members of either House, and who cannot continue for more than
six months in such ministerial berths and who simultaneously have
no prospect or possibility of a re-election within six months. The
only non-legislator who can be sworn in as a minister is one who has
the actual possibility of getting elected within six months, i.e. when
the remaining term of the House permits such a re-election or
election. Mr Talekar’s arguments are premised on this fact that the
Constitution postulates that the a non-legislator Minister is duty-
bound to face the electorate within six months. He cannot continue
as a non-legislator minister any longer than that. There is no
possibility at all of Respondents Nos. 5 and 6 facing an election (let
alone being elected) simply because the term of the Legislative
Assembly is less than six months from the date of their induction.
Pertinently, both these persons have voluntarily resigned from the
membership of the original party and of the House as well. Yet they
are inducted in the cabinet and given ministerial berths, purely for
political expediency. This is all the more egregious when the son of
Respondent No. 5 on the eve of Lok Sabha elections joined the

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Bharatiya Janata Party. Respondent No. 5 ensured a Lok Sabha
nomination by the BJP for his son from the Kopargaon constituency.
The son was duly elected. It was, therefore, clear that the
Respondent No. 5 desired to defect to the Bharatiya Janata Party.

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16.Mr Talekar, therefore, submits that we should not place an
interpretation on clause (4) of Article 164 which will reduce it to ‘a
dead letter’. That Article itself should not be read in isolation but
must be read along with Articles 173 and 191(2) and the Tenth
Schedule of the Constitution. If elections were not possible for these
persons, and that fact was known to the Chief Minister, then such a
person could not have been inducted into his Cabinet. Doing so
makes not only a mockery of the Constitutional principles and
democracy as a whole, but what is directly prohibited is sought to be
achieved in an indirect and oblique manner.

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17.Apart from extensive oral arguments, Mr Talekar has also
handed in a note of his written submissions and several volumes of
compilations of additional materials.

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18.In that note, we have found that Mr Talekar has made a
reference to these Articles and elaborated that the power to induct a
non-legislator into a ministerial berth is not an unfettered one. That
power has to be exercised on an assurance and understanding that
any such non-legislator will get himself or herself elected within six
months; he or she cannot continue for any longer period. If a bye-
election in the present case within six months was always impossible
or impermissible, then exceptional circumstances ought to have
existed for such an induction. They should have been demonstrated.
There has to be seen to exist an emergent or extraordinary situation
for the induction of a non-legislator as a minister and it must be
proved that he was inducted to obtain his expert guidance and
advice. Therefore, political persons apart, others who are experts in
their respective feld can be inducted, for, with their experience and
expertise, the afairs of the Government and administration can be
improved. However, such contingencies and circumstances have to
be established. Political expediency or political convenience can
never be a substitute nor can it be ever termed as an exceptional
circumstance or an extraordinary contingency.

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19.The other argument is that merely because an application is
made to disqualify these two persons, a writ petition under Article
226 of the Constitution of India cannot be thrown out or held to be
not maintainable. This Court is requested to grant a declaration so
that the constitutional mechanism is sub-served and moves ahead.
That constitutional mandate should not be frustrated and defeated
by such a subterfuge, according to Mr Talekar. Therefore, he would
submit that the remedy to seek disqualifcation should not infuence
the outcome of these petitions. In substance, the power of judicial
review can be exercised to scrutinise the instant induction. The
petitions raise important questions of interpretation of the
Constitution and are therefore maintainable. This Court is not
called upon to decide any political issues or questions.

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20.Mr Talekar would submit that while interpreting
Constitutional provisions, the purpose behind them, and
particularly those meant not to encourage but to thwart defection,
must be noted by us. If a person is disqualifed to be a minister from
inception, then that person cannot be brought into the Cabinet by an

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oblique or indirect method. Such a disqualifed candidate could not
have been made a minister in the frst place, and that such a
disqualifcation by itself would exclude him therefore is clear. Once
that is clear, then a person other than such a candidate can be
brought in for a limited period and within that limited period, he
must face the electorate. The heart of democracy is free and fair
elections. Adult sufrage is the rule and not the exception. We must
therefore place a purposive interpretation on these Constitutional
provisions and read them harmoniously. That democratic spirit,
representative participation, duties of Constitutional functionaries,
Constitutional morality, values, and trust are, therefore, to be borne
in mind in dealing with such a controversy.

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21.Mr Talekar has handed over to us a copy of the notifcation
which notifes the Members of Maharashtra Legislative Assembly
(Disqualifcation on Ground of Defection) Rules 1986. Mr Talekar
has also tendered to us the Constituent Assembly Debates, Volume
VIII and extracts thereof of 1st June 1949 on Article 164 (or its
equivalent in the draft then under discussion). He has also handed in

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a copy of the Constitution (Fifty-Second Amendment) Act 1985 and
the Constitution (Ninety-First Amendment) Act 2003. Thereafter,
heavy reliance is placed upon two judgments of the Hon’ble
Supreme Court rendered in the case of S.R. Chaudhuri v State of
Punjab and Others1and VR Kapoor v State of Tamil Nadu.2 It is
submitted that Article 164(4) is neither a source of power nor an
enabling provision for the appointment of a non-legislator as a
minister even for a short duration. Secondly, a non-member to be
appointed as a minister must possess the qualifcations under Article
173, and must not have sufered a disqualifcation under Article 191.
The Governor must reject any proposal to appoint such an
unqualifed or disqualifed person as minister. Else a writ of quo
warranto can be issued.

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22.Our attention is also invited to the judgments which outline
the power of judicial review. Our attention is also invited to certain
judgments which set out salutary principles on Constitutional
interpretation.

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1 (2001) 7 SCC 126.

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2 (2001) 7 SCC 231.

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23.Thus, the emphasis is on giving a meaningful interpretation to
the provisions of the Constitution that are pressed into service. The
whole purpose is to emphasize that the Constitution is a living
document and must take care of, and must reach, every attempt
evolved over time by those in the political feld and in power to
defeat and frustrate its objectives. We are, therefore, called upon to
place such an interpretation on the Constitution which would
advance its intent and suppress the mischief.

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24.During the course of his arguments, Mr Talekar has also
invited our attention to a judgment of a Division Bench of this Court
rendered at Nagpur. That judgment has been rendered in the case of
Sandeep Yashwantrao Sarode v Election Commission of India.3

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25.On the other hand, Mr V.A. Thorat, learned Senior Advocate
who has been appointed as a Special Counsel by the State, would
submit that this writ petition should be dismissed. He would submit
that in the garb of placing an interpretation on certain Articles of the
Constitution, we cannot re-write the Constitution itself. That which

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3 2019 SCC On-Line Bombay 629.

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is not expressly provided in the Constitution cannot be introduced
or imputed by an interpretative process. Mr Thorat would submit
that if the Constitution enacts something as an express bar or a
prohibition, then and then alone is there an opportunity to consider
the arguments canvassed by Mr Talekar. Mr Thorat would submit
that the very foundation of the edifce of Mr Talekar’s argument is
fawed simply because there is no express prohibition in appointing
or inducting a non-legislator as a minister merely because the term
of the House is coming to an end in less than six months. That the
term of the House is less then six months and hence the induction is
bad is not a possible argument in this case. This Court is called upon
to read a Constitutional Article in a manner convenient to the
petitioners, one of whom is also an active politician. What the
petitioner seeks to do is to introduce an otherwise non-existent link
or nexus in the Constitution between the outer limit within which
the non-legislator must get elected and the term (or remainder of
the term) of the House. If such a link or nexus was the
Constitutional intent and purpose, a specifc provision would have
been made in the Constitution itself. Absent such a provision, we

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cannot read anything like it into the Constitution. Thus, it is not
permissible to take away or add something to the Constitution.

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26.There is another error in the understanding of the
Constitutional provision, namely that it has not been inserted only
to take care of political manoeuvring or the engineering of
defections. The provision to induct a non-legislator enables a person
who is not a member of either House to be brought in the cabinet so
that his expertise or experience can be utilized for improving the
administration and the afairs of the State. It is entirely left to the
discretion of the Chief Minister therefore to induct such a non-
legislator and when that advice is tendered, the Governor has only
to ensure that the constitutional mandate enshrined in clause (4) of
Article 164 would be adhered to later on. If such a person cannot get
elected after six months, he would cease to be a Minister. That is
provided in the Constitution itself. In other words, the non-
legislator-Minister must get elected to the House within six months,
else the Chief Minister must drop him. None has a choice. In the
circumstances, the induction of Respondents Nos. 5 and 6 does not

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sufer from a constitutional anomaly or illegality of such nature as
would warrant interference with their induction in our limited
jurisdiction under Article 226 of the Constitution of India. Mr
Thorat, therefore, would submit that the writ petition be dismissed.

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27.For properly appreciating the rival contentions, a reference to
the Constitution would be necessary. The Constitution of India
contains specifc Articles inserted in Part VI Chapter 2, titled as
“The Executive” with the sub-title “The Governor”. Articles 153 to
158 deal with the Governor and in Article 159 “Oath or afrmation
by the Governor” is provided for. The “Discharge of the functions
of the Governor in certain contingencies” is a matter dealt with by
Article 160 and Article 161 enacts the power of Governor to grant
pardons etc. and to suspend, remit or commute sentences in certain
cases. The extent of the executive power of the State is set out by
Article 162 and then another sub-title “Council of Ministers”
contains Articles 163 and 164. The said Articles read as under:

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“ 163. Council of Ministers to aid and advise Governor . ― (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

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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.

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(2)If any question arises whether any matter is or is
not a matter as respects which the Governor is by or under this
Constitution required to act in his discretion, the decision of the
Governor in his discretion shall be fnal, and the validity of
anything done by the Governor shall not be called in question on
the ground that he ought or ought not to have acted in his
discretion.

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(3)The question whether any, and if so what, advice
was tendered by Ministers to the Governor shall not be inquired
into in any Court.

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― 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 ofce during the pleasure of the Governor.

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Provided that in the States of Chhattisgarh, Jharkhand,
Madhya Pradesh and Odisha, 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 classes or any other work.

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(1-A)The total number of Ministers, including the
Chief Minister, in the Council of Ministers in a State shall not
exceed ffteen per cent of the total number of members of the
Legislative Assembly of that State:

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Provided that the number of Ministers, including the
Chief Minister, in a State shall not be less than twelve.

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Provided further that where the total number of
Ministers, including the Chief Minister, in the Council of

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Ministers in any State at the commencement of the Constitution
(Ninety-frst Amendment) Act, 2003 exceeds the said ffteen per
cent or the number specifed in the frst proviso, as the case may
be, then, the total number of Ministers in that State shall be
brought in conformity with the provisions of this clause within six
months from such date as the president may by public notifcation
appoint.

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(1-B)A member of the Legislative Assembly of a State or
either House of the Legislature of a State having Legislative
Council belonging to any political party who is disqualifed for
being a member of that House under paragraph 2 of the Tenth
Schedule shall also be disqualifed to be appointed as a Minister
under clause (1) for duration of the period commencing from the
date of his disqualifcation till the date on which the term of his
ofce as such member would expire or where he contests any
election to the Legislative Assembly of a State or either House of
the Legislature of a State having Legislative Council, as the case
may be, before the expiry of such period, till the date on which he
is declared elected, whichever is earlier.

¶126

(2)The Council of Ministers shall be collectively
responsible to the Legislative Assembly of the State.

¶127

(3)Before a Minister enters upon his ofce, the
Governor shall administer to him the oaths of ofce and of secrecy
according to the forms set out for the purpose in the Third
Schedule.

¶128

(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.

¶129

(5)The salaries and allowances of Ministers shall be
such as the Legislature of the State may from time to time by law

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determine and, until the Legislature of the State so determines,
shall be as specifed in the Second Schedule.”

¶133

28.A perusal of Article 163 shows that by clause (1) it mandates
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.
Clause (2) of Article 163 says that if any question arises whether any
matter is or is not a matter as respects which the Governor is by or
under this Constitution required to act in his discretion, the decision

¶134

of the Governor in his discretion shall be fnal. The validity of
anything done by the Governor shall not be called in question on the
ground that he ought or ought not to have acted in his discretion.
Clause (3) of Article 163 says that question whether any, and if so
what, advice was tendered by Ministers to the Governor shall not be
inquired into in any Court. The marginal heading of Article 164
head is “Other provisions as to Ministers”. By clause (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

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Minister, and the Ministers shall hold ofce during the pleasure of
the Governor. There is a proviso to clause (1) of Article 164, which
requires the States of Chhattisgarh, Jharkhand , Madhya Pradesh
and Odisha to have a Minister in charge of tribal welfare who may in
addition be in charge of the welfare of the Scheduled Castes and
backward classes or any other work. By clause (1-A), there is an
outer limit on the number of Ministers including the Chief Minister
in the Council of Ministers in a State and that shall not exceed
ffteen per cent of the total number of Members of the Legislative
Assembly of that State.

¶138

29.This clause has been inserted by the Constitution (Ninety-
frst Amendment) Act, 2003 with efect from 1st January 2004.
Clause (1-B) says that a Member of the Legislative Assembly of a
State or either House of the Legislature of the State having a
Legislative Council, and belonging to any political party, who is
disqualifed for being a Member of that House under paragraph 2 of
the Tenth Schedule shall also be disqualifed to be appointed as a
Minister under clause (1) for duration of the period commencing

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from the date of his disqualifcation till the date on which the term
of his ofce as such member would expire.

¶142

30.There is a further stipulation. Clause (2) of Article 164 says
that the Council of Ministers shall be collectively responsible to the
Legislative Assembly of the State and by clause (3) before a Minister
enters upon his ofce, the Governor shall administer to him the oath
of ofce and of secrecy according to the forms set out for the
purpose in the Third Schedule.

¶143

31.Then comes clause (4). This says that a Minister who for any
period of six consecutive months is not a member of the Legislature

¶144

of the State shall at the expiration of that period cease to be a
Minister. Advisedly the clause says a ‘Minister’. That means a
person can be sworn in as a Minister even if he is not a Member of
the Legislature of the State, but if for any period of six consecutive
months, he is not a Member of the Legislature of the State, then he
shall at the expiration of that period cease to be a Minister.

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32.There is no dispute about the understanding of this clause
and that is that a person who is a non-legislator but made a Minister
has to be elected before the expiration of the period specifed in
clause (4). Else he ceases to be a Minister.

¶148

33.Admittedly this is not the situation or position obtaining
before us on facts.

¶149

34.The position obtaining on facts is that the persons who are
now inducted as Ministers, Respondents Nos. 5 and 6, were
erstwhile Members of the House and were also Members at one
time of political parties who sponsored their candidature from
distinct constituencies. They severed their connection or relations
with these political parties, tendered their resignation from the
House and joined the ruling alliance. Whether they have defected or
not is not the question before us. That would be addressed distinctly
by the competent authority in diferent and separate proceedings.
We are only concerned about the induction of such persons as are
referred by us above in the Council of Ministers by the Chief
Minister.

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35.The argument is that the Chief Minister and the Governor
both knew, since the Governor acted on the advice of the Chief
Minister, that Respondents Nos. 5 and 6 can never be elected as
Members of the Legislature of the State before the expiration of the
period mentioned in clause (4) of Article 164 because the duration
or term of the House itself is coming to an end. That term will end
even before the outer limit of six months stipulated in this clause.
Therefore, knowingly such non-legislators were inducted as
Ministers in the Council, particularly on the eve of elections for
purely political reasons and convenience. Their induction,
therefore, is contrary to the mandate of this clause. Once their
election is an impossibility then all the more the induction cannot be
supported. This is the frame of Mr Talekar’s case.

¶153

36.In this regard, Mr Talekar also invites our attention to other
Articles of the Constitution, viz., Articles 172, 173 and 191(2) which
set out the duration of State Legislature. Article 172 says in clause

¶154

(1) that every Legislative Assembly of every State, unless sooner
dissolved, shall continue for fve years from the date appointed for

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its frst meeting and no longer and the expiration of the said period
of fve years shall operate as a dissolution of the Assembly. Clause

¶158

(2) of Article 172 says that the Legislative Council of a State shall
not be subject to dissolution but as nearly as possible one-third of
the Members thereof shall retire as soon as may be on the expiration
of every second year in accordance with the provisions made in that
behalf by the Parliament by law.

¶159

37.Then Article 173 sets out the qualifcation for Membership of
the State Legislature. A person shall not be qualifed to be chosen to
fll a seat in the Legislature of a State unless he is a citizen of India,
by clause (a) of Article 173, in the case of seat in Legislative
Assembly shall not less than twenty-fve years of age and in the case
of a seat in the Legislative Council shall not be less than thirty years
of age and possesses such other qualifcations as may be prescribed
in that behalf by or under any law made by the Parliament.

¶160

38.Article 191 follows a series of Articles, particularly Article 190
under the sub-title ‘Disqualifcation of Members’ and says in specifc
terms that a person shall be disqualifed for being a Member of the

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Legislative Assembly or Legislative Council of a State if he is so
disqualifed under the Tenth Schedule.

¶164

39.Of course, he will be disqualifed if he incurs the
disqualifcation under clause (1) of Article 191 and he cannot be
chosen as, or for being, a Member of the Legislative Assembly or
Legislative Council of a State on his inviting these disqualifcations.

¶165

40.We must at once deal with the contention of Mr Talekar that
Respondents Nos. 5 and 6 are disqualifed on account of their
defections. This is not the law, for a person stands disqualifed only
on being so adjudged. No such adjudication has taken place in the
case of Respondents Nos. 5 and 6, for the applications seeking their
disqualifcation are admittedly pending. One cannot presume that
they are disqualifed merely because there is an allegation of
disqualifcation made against them. That allegation will have to be
inquired into by a process known to law. The disqualifcation is not
automatic in this case and it will have to be adjudicated upon by the
process set out in Tenth Schedule of the Constitution. We cannot,
therefore, agree with Mr Talekar that the Respondents Nos. 5 and 6

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stand disqualifed. The allegation or case that they have incurred or
invited this disqualifcation by their acts of omission or commission
or conduct must be ruled upon under specifc provisions. Persons
like Respondents Nos. 5 and 6 cannot be held to be disqualifed for
being inducted in the Ministry as suggested by Mr Talekar, viz., that
because they resigned from one party to join another and they
allegedly tried to get over a defection by resigning from the House.
This in itself will not allow us to hold that they stand disqualifed for
being inducted as Ministers. At best, they have joined another
alliance which is in power. That alliance thought of inducting them
in the Ministry, maybe for political reasons, but that by itself will not
enable us to hold that disqualifed Members or disqualifed persons
are inducted. ‘Disqualifcation’ means something that disqualifes
and ‘to disqualify’ means to make or pronounce ineligible or
unsuitable, to incapacitate legally. This pronouncement or
declaration is awaited. The proceedings in that behalf are pending
and the Hon’ble Speaker is yet to rendering his ruling on that
question.

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41.The argument of Shri Talekar overlooks the scheme of the
Tenth Schedule to the Constitution. However, we cannot ignore the
same and take over the powers of the Hon’ble Speaker of the House
to decide the application seeking disqualifcation of respondent Nos.
5 and 6.

¶172

42.After disposing of the frst contention of Mr Talekar, we
equally do not agree with him for he demands that we should set out
a time schedule for the Speaker to deal with the applications or
prescribe a time-frame. In that regard, a perusal of the Tenth
Schedule of the Constitution would reveal that the disqualifcation
proceedings have to take a specifc route. The disqualifcation
proceedings envisaged by this Schedule would demonstrate that
frstly the disqualifcation on the ground of defection set out in
paragraph 2, which is subject to the provisions of paragraphs 4 and
5, has been shown to be incurred or attracted. Paragraphs 4 and 5
clarify that disqualifcation on ground of defection will not apply in
case of merger. Then, there is an exemption carved out by paragraph
(5).

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43.What we have for our consideration and importantly is
paragraph 6, which says in clearest terms in sub-paragraph (1) that
when any question arises as to whether a Member of a House has
become subject to disqualifcation under this Schedule, the question
shall be referred for the decision of the Chairman or, as the case may
be, the Speaker of such House and his decision shall be fnal. Then
sub-paragraph (2) says that all proceedings under sub-paragraph (1)
of this paragraph in relation to any question as to disqualifcation of
a Member of the House under this Schedule shall be deemed to be
proceedings in Parliament within the meaning of Article 122 or, as
the case may be, proceedings in the Legislature of a State within the
meaning of Article 212. Then by paragraph 8 there is a rule making
power conferred. That is subjected to sub-paragraph (2) of
paragraph 8. However, importantly for us, we must refer to clause
(1) of sub-paragraph 1 of Rule 8 which says that the Rules
contemplated by that paragraph may provide for the procedure for
deciding any question referred to in sub-paragraph (1) of paragraph
6 including procedure for any inquiry which may be made for the
purpose of deciding such question.

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44.The Authority that is chosen for the purposes of a decision on
the applications made in this case is the Speaker of the House. The
specifc rules which would enable the Speaker to deal with such a
question are in place. We have not been shown any time-frame
either in the Tenth Schedule or in the Members of Maharashtra
Legislative Assembly (Disqualifcation on ground of Defection)
Rules 1986 which would mandate the disposal of the applications
within a given time-frame. The disqualifcation proceedings have to
follow Rules 6 and 7 and the procedure set out therein before a
decision either way can be taken.

¶179

45.The language of Rule 8 of these Rules is important for our
purpose. It says that at the conclusion of the consideration of the
petition, the Speaker shall by an order in writing dismiss the petition
or declare that the Member in relation to whom the petition has
been made has become subject to disqualifcation under the Tenth
Schedule and cause copies of the order to be delivered or forwarded
to the Petitioner, the Member in relation to whom the petition has
been made and the leader of the Legislature Party, if any concerned.

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Every decision declaring a Member to have become subject to
disqualifcation under the Tenth Schedule shall be reported to the
Assembly forthwith if the Assembly is in session and if the
Assembly is not in session immediately after the Assembly re-
assembles. The procedure that is to be followed and as laid down in
Rule 7 is fairly elaborate. Advisedly, therefore, there is no outer limit
prescribed. The decision has to be taken by the Speaker of the
House. We cannot by a judicial fat set out a time frame for the
Hon’ble Speaker to render his decision when neither the substantive
provisions in the Tenth Schedule nor the Rules set out the same. To
our mind, therefore, these questions are best left to the wisdom and
experience of the Speaker. We assume that the Speaker would give
the proceedings the required priority and would not allow their
purpose to be defeated and frustrated.

¶183

46.Now we come to the main question of interpretation of
Article 164 of the Constitution of India, and particularly clause (4)
thereof. Before we render our opinion on this question, we would

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advantageously refer to certain judgments of the Hon’ble Supreme
Court on the point of interpretation of the Constitution.

¶187

Resumed on 13th September 2019:

¶188

47.As early as in 1994, in R.C. Poudyal v Union of India and
Others,4 a decision by a bench of fve judges, the Hon’ble Supreme
Court had an occasion to express its opinion on the preamble to the
Constitution of India. The Hon’ble Court elucidated some of the
expressions employed therein, and generally with regard to the
meaning of the term ‘democratic republic’, in the following words:

¶189

“52. The preamble of the Constitution of India emphatically
declares that we were giving to ourselves the Constitution with a
frm resolve to constitute a sovereign, democratic, republica with
equality of status and of opportunity to all its citizens. The issue
which has direct bearing on the question under consideration is
as to what is the meaning of ‘democratic republic’. The
expressions ‘democracy’ and ‘democratic’ have been used in
varying senses in diferent countries and in many places have

¶190

41994 Supp (1) 324.

¶191

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been subjected to denote the state of afairs which is in complete
negation of the meaning in which they are understood. During
the present century it progressively became more fashionable and
proftable to frequently use those terms and accordingly they
have been grossly misused. We are not concerned with that kind
of so-called democracy, which is used as a stepping stone for the
establishment of a totalitarian regime, or that which is
hypocritically dangled before the people under the name of
democracy but is in reality an oligarchical set-up concentrating
the power in a few. We are also not concerned with the wider
theoretical conception in which the word can be understood. In
our Constitution, it refers to denote what it literally means, that
is, “people’s power”. It stands for the actual, active and efective
exercise of power by the people in this regard. Schumpeter gives a
simple defnition of democracy as “the ability of a people to
choose and dismiss a Government”. Giovanni Sartori translates
the same idea in institutional form and says that democracy is a
multi-party system in which the majority governs and respects
the right of minority. In the present context it refers to the
political participation of the people in running the
administration of the government. It conveys the state of afairs

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in which each citizen is assured of the right of equal
participation in the polity.”

¶197

48.The later judgment of the Hon’ble Supreme Court in Union
of India v Naveen Jindal & Anr.5raised a short but important
question and that was whether the right to fy the national fag by
Indian Citizen is a fundamental right within the meaning of Article
19(1)(a) of the Constitution of India. In regard to that, the Hon’ble
Supreme Court observed that although interpretation of the
Constitution is based on, and must be based on, materials available
in India, relevant Rules of other countries can be looked into for
guidance. In paragraphs 31, 38 and 39 of this decision, the Hon’ble
Supreme Court outlined the principles of interpretation as under:

¶198

“31. In S.C. Advocates-on-Record Assocn. V Union of India

¶199

((1993) 4 SCC 441), it was held:

¶200

“Constitution is the “will” of the people whereas the
statutory laws are the creation of the legislators who are
the elected representatives of the people. Where the will of

¶201

5AIR 2004 SC 1559.

¶202

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the legislature — declared in the statutes — stands in
opposition to that of the people — declared in the
Constitution — the will of the people must prevail.”

¶205

38.In S.C. Advocates-on-Record Assocn. V Union of India
((1993) 4 SCC 441), it was held:

¶206

Constitution being a living organ, its ongoing
interpretation is permissible. The supremacy of the Constitution
is essential to bring social changes in the national polity evolved
with the passage of time.

¶207

39.Interpretation of the Constitution is a difcult task.
While doing so, the constitutional Courts are not only required to
take into consideration their own experience over the time, the
international treatise and covenants but also keeping the doctrine
of fexibility in mind. This Court times without number has

¶208

extended the scope and extent of the provisions of the
fundamental rights, having regard to several factors including the
intent and purport of the constitution makers as refected in Parts
IV and IVA of the Constitution of India.”

¶209

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49.This principle has throughout been guiding the Courts in
India and they look at the Constitution as a living organ to hold that
its ongoing interpretation is permissible. The interpretation of the
Constitution is a difcult task but at the same time the Courts can
draw from their experience, international treaties and covenants
keeping in mind the ‘doctrine of fexibility’. Mr Talekar possibly has
this view in mind when he says emphatically that the interpretation
that we must place on the provision in question ought to be guided
by these principles. In one of the decisions rendered by the
Constitution Bench of the Hon’ble Supreme Court in the case of
Gujarat Assembly Election Matter In Re,6 the Hon’ble Supreme Court
came to the conclusion that it is permissible to interpret the
Constitution by applying the historical legislative developments and
taking into consideration the Constituent Assembly Debates. The
Hon’ble Supreme Court however outlined the basic Rules of
interpretation of the Constitution itself in the following words,
which we draw from the headnote:

¶212

6(2002) 8 SCC 237.

¶213

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“Since it is permissible to look into the pre-existing law, historical
legislative developments, and Constituent Assembly Debates, the
same have to be referred to for interpreting the provisions of the
Constitution.

¶216

S.Interpretation of the Constitution — External aids
— Historical legislative developments and Constituent
Assembly Debates — can be referred to for ascertaining
intention behind a provision

¶217

Per majority

¶218

Once of the known methods to discern the intention behind
enacting a provision of the Constitution and also to interpret the
same is to look into the historical legislative developments,
Constituent Assembly Debates or any enactment preceding the
enactment of the constitutional provision. (para 15)

¶219

Kesavananda Bharati v State of Kerala (1973) 4 SCC 225 :
AIR 1973 SC 1461a R.S. Nayak v A.R. Antulay, (1984) 2 SCC
183 : 1984 SCC (Cri) 172 : (1984) 2 SCR 495, relied on

¶220

T. Interpretation of the Constitution — Liberal and visional interpretation necessary

¶221

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Per Arijit Pasayat, .

¶224

The old articles of the suprema lex meet new challenges of life, the
old legal pillars sufer new stresses. So the Court has to adopt the
law and develop its latent capabilities if novel situations, as here,
are encountered. In the reasoning adopted and the perspective
projected the Court has to be not literal nor lexical but liberal and
visional in its interpretation of the articles of the Constitution.
(para 126)

¶225

U. Interpretation of Statutes — Basic rules of interpretation — Contextual construction — Explained

¶226

Per Arijit Pasayat, J.

¶227

In providing key to the meaning of any word of expression the
context in which it is said has signifcance. Colour and content
emanating from context may permit sense being preferred to mere
meaning depending on what is sought to be achieved and what is
sought to be prevented by the legislative scheme surrounding the
expression. It is a settled principle that in interpreting the statute
the words used therein cannot be read in isolation. Their colour

¶228

and content are derived from their context and, therefore, every

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word in a statute must be examined in its context. By the word

¶232

“context”, it means in its widest sense as including not only other
enacting provisions of the same statute but its preamble, the
existing state of the law, other statutes in pari materia and the
mischief which the statute intended to remedy. While making
such interpretation, the roots of the past, the foliage of the present
and the seeds of the future cannot be lost sight of. Judicial
interpretation should not be imprisoned in verbalism and words
lose their thrust when read in vacuo. Context would quite often
provide the key to the meaning of the word and the sense it should
carry. Its setting would give colour to it and provide a clue to the
intention of the legislature in using it. A word Is not a crystal,
transparent and unchangeda it is the skin of living thought and
may vary greatly in colour and content according to the
circumstances and the time in which the same is used.

¶233

Towne v Eisner, 245 US 418, 425 : L Ed 372 (1917), relied on.

¶234

V. Interpretation of the Constitution — Generally — Judicial function of Supreme Court

¶235

Per Arijit Pasayat, J.

¶236

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A constitutional court like the Supreme Court is a nice balance of
jurisdiction and it declares the law as contained in the
Constitution but in doing so it rightly refects that the
Constitution is a living and organic thing which of all
instruments has the greatest claim to be construed broadly and
liberally. (Para 138)

¶239

Goodyear India Ltd v State of Haryana, (1990) 2 SCC 71 :
1990 SCC (Tax) 223 : AIR 1990 SC 781 : Synthetics and
Chemicals Ltd. V. State of U.P., (1990) 1 SCC 109 : AIR 1990
SC 1927, relied on

¶240

W. Interpretation of the Constitution — Meaning of the

¶241

words should be understood having regard to their line of
growth and change of concepts

¶242

Per Arijit Pasayat, J.

¶243

In the interpretation of a constitutional document words are but

¶244

the framework of concepts and concepts may change more than
words themselves. The signifcance of the change of the concepts
themselves is vital and the constitutional issues are not solved by

¶245

a mere appeal to the meaning of words without an acceptance of

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the line of their growth. It is aptly said that the intention of the
Constitution is rather to outline principles than to engrave details
(Para 139).

¶249

R.C. Poudyal v. Union of India, 1994 Supp (1) SCC 324 : AIR
1993 SC 1804, relied on.

¶250

150.The necessity for completing the election expeditiously is
enjoined by the Constitution in public and State interest to see
that the governance of the country is not paralysed.

¶251

151.The impossibility of holding the election is not a factor
against the Election Commission. The maxim of Law impotentia
excusat legem is intimately connected with another maxim of law
lex non cogit ad impossibilia. Impotentia excusat legem is that
when there is a necessary or invincible disability to perform the
mandatory part of the law that impotential excuses. The law does
not compel one to do that which one cannot possibly perform.
“Where the law creates a duty or change, and the party is
disabled to perform it, without any default in him, and has no
remedy over it, there the law will in general excuse him.”
Therefore, when it appears that the performance of the

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formalities prescribed by a statute has been rendered impossible by
circumstances over which the persons interested had no control,
like an act of God, the circumstances will be taken as a valid
excuse. Where the act of God prevents the compliance with the
words of a statute, the statutory provision is not denuded of its
mandatory character because of supervening impossibility caused
by the act of God (See Broom’s Legal Maxims, 10th Edn., at pp.
1962-63 and Craies on Statute Law, 6th Edn., p. 268.) These
aspects were highlighted by this Court in Special Reference No. 1
of 1974 ((1826) 3 Addams 210). Situations may be created by
interested persons to see that elections do not take place and the
caretaker Government continues in ofce. This certainly would be
against the scheme of the Constitution and the basic structure to
that extent shall be corroded.”

¶255

50.There is, therefore, according to Mr Talekar, a certain
latitude available to us in interpreting the Constitution and we must
therefore be guided by these principles and bear them in mind
throughout. The preamble to the Constitution also envisages that
the manner in which the Constitution has been framed and drafted

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would provide enough fexibility to the Courts to interpret it in
accordance with the conditions prevailing at the relevant time. Mr
Talekar would therefore submit that we must give a purposive and
meaningful interpretation to the Constitution, and particularly to
clause (4) of Article 164. Mr Talekar would submit that given the
mandate of the Representation of Peoples Act 1951, and when no
bye-elections can be held as the period that is now available at the
disposal of the Legislature is less than what is prescribed by the RP
Act, a backdoor method is chosen so as to bring in either a
dissatisfed or disgruntled a member of the opposition into the fold
of the ruling alliance. The apprehension of Mr Talekar is that if this
is held to be permitted by the Constitution, then cases like the
present one would increase manifold. There will be then an
unhealthy trend and practice of inducting in the ruling alliance, on
the eve of the Assembly, certain infuential and powerful regional or
local leaders by promising them cabinet or ministerial berths. This
would then facilitate a defection from one party to another. If this
trend is not curbed by judicial intervention then that would lead to
subversion of the Constitutional and democratic principles. Mr

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Talekar therefore submits that we should not allow this trend to
continue and pollute public and political life. Mr Talekar’s
endeavour is to urge that the respondents feel that there is no
prohibition in taking the step and measure that has been undertaken
by them. Mr Talekar submits that if we do not arrest this trend, the
Constitution would be construed as permitting and encouraging
defections, particularly on the eve of elections.

¶262

51.Therefore, Mr Talekar presses into service the principles of
interpretation of Constitution and particularly that it is a living
organ and that its ongoing interpretation is permissible. Mr Talekar
has also invited our attention to several judgments, and particularly
the judgment of the Hon’ble Supreme Court rendered recently on
the powers of a Lieutenant Governor.7 The Governor of National

¶263

Capital Territory of Delhi who is styled as a Lieutenant Governor
had a confict with the elected Government, and while resolving that
confict, the issues that cropped up for consideration before the
Supreme Court were noted and considered. While we appreciate the

¶264

7 State (NCT at Delhi) vs Union of India and Ors , (2018) 8 SCC 501.

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anxiety of Mr Talekar, what we can do by an interpretative process
has certain in-built and inherent limitations.

¶268

52.Mr Talekar’s arguments are premised on his reading of
Article 164(4) as covering even a situation of the present nature. He
would submit that if it is impossible for the Election Commission to
hold a bye-election or a re-election and that is because the term of
the Assembly itself is going to expire, then that impossibility of
holding an election, re-election or bye-election should not mean that
a handle is provided to induct in the ministry the non-legislators.

¶269

53.We do not think that the Constitution can be read as
suggested by Mr Talekar.

¶270

54.There are numerous instances where the Supreme Court has
considered several provisions of the Constitution. One may
illustratively refer to two recent judgments. In one judgment. the
Hon’ble Supreme Court was considering the challenge to Sections
499 and 500 of the Indian Penal Code 1860. While holding them as
constitutional, legal and valid, the Hon’ble Supreme Court took

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note of established principles of interpretation, particularly on the
interpretation of statutes, and held these to govern questions of
interpretation of the Constitution itself. The Hon’ble Supreme
Court adverted to its previous decisions and concluded that the
Constitution of India has to be interpreted so as to give meaning to
every expression and word used therein. There is, therefore, no
scope for whittling down or diluting the Constitution in any
8
manner.

¶274

55.At the same time, in another decision in Manoj Narula v
Union of India,9 the Supreme Court considered the limitations
which are exceptions to this principle. In that decision, the Hon’ble
Supreme Court concluded that in the garb of interpreting the
Constitution itself, we cannot assume that there is a defect or
lacunae therein or that we can remove it by an interpretative
process. The Court cautioned that nothing should be read in the
Constitution that is expressly not there. There is no question of
adding or subtracting anything as far as the Constitution is

¶275

8 Subramanian Swamy v Union of India & Ors , (2016) 7 SCC 221. 9 (2014) 9 SCC 1.

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concerned. The caution administered in the later judgment is, to our
mind, enough guidance. The judgment of the Hon’ble Mr Justice
Madan B. Lokur, as His Lordship then was, shows us the path in
holding that the Constitution cannot be interpreted in the manner
suggested in that case as well as in the present case. We cannot re-
write a Constitutional provision. In the garb of its interpretation it
will not be possible to assume that there is something lacking or
missing in the Constitution itself.

¶279

56.What the decision in the case of Manoj Narula v Union of
India says, speaking through a fve judge Bench of the Hon’ble
Supreme Court, is eloquent enough. The issue there was somewhat
comparable. In that case, the Hon’ble Supreme Court had before it a
writ petition under Article 32 of the Constitution fled by the
petitioner, Manoj Narula pro bono publico assailing the appointment
of some of the original respondents to that petition as ministers in
the Council of Ministers of Union of India despite their involvement
in serious and heinous crimes. On 24th March 2006, this matter was
listed before a bench presided over by the then learned Chief Justice

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and he passed an order referring it to a Constitution Bench. The
controversy required the Supreme Court 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.

¶283

57.While lamenting the fact that there is a gross criminalisation
of politics and that is an anathema to the sacredness of democracy,
the Hon’ble Supreme Court laid down a principle of interpretation
of Constitution, one we fnd to be vital and salutary. The Hon’ble
Supreme Court outlined the concept that because a constitutional
provision does not encompass every possible situation including of
the nature brought before us does not mean its silence is not telling
or it is not speaking at all. A constitutional silence is also important
and equally salutary. The Hon’ble Supreme Court held that what is
not constitutionally prohibited cannot be held to be permitted and
that is not how the Constitution must be read and interpreted. That
the Prime Minister and Chief Ministers cannot be constitutionally
prohibited to give advice to the President and the Governor in
respect of a person becoming a Minister who is charged for serious

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or heinous ofences or ofences relating to corruption, would not
mean that by interpretative process we will read such a prohibition
into Article 75(1) or 161(4)(i). These will have to be then taken as
fetters on the powers of the Prime Minister and Chief Ministers to
include in their Ministry persons of their choice. That would
tantamount to prescribing an eligibility qualifcation and adding a
.
disqualifcation which has not been stipulated in the Constitution
There is a basic rule of interpretation of Constitution and that is that
one takes into consideration the intent of the framers. There is a
doctrine of implied limitation. That Constituent Assembly or
Parliamentary Debates are but aids to interpreting the Constitution.
However, we cannot substitute, amend and rewrite a Constitutional
provision with the aid of these debates. The debates are enlightening
enough as we have noted in this case. In the debates themselves,
there is an indicator as to why the Members of the Constituent
Assembly did not frame or model Article 164(4) in the manner
suggested before us by Mr Talekar. That they left the matter at that
or by not encompassing a situation like the one brought before us
does not mean that there is an approval or permission to resort to

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what is complained of in this case. The Supreme Court has said and
in clearest terms that whenever the Constitution is silent in matters

¶290

of the nature covered by Articles 75 and 164, there is a
Constitutional trust reposed in holders of high ofce. In a written
Constitution like ours, the Prime Minister as also the Chief
Ministers are expected to act with Constitutional responsibility as a
consequence of which the cherished values of democracy and
established norms of good governance get condignly fructifed. The
framers of the Constitution left many a thing unwritten by reposing
immense trust in the Prime Minister. The scheme of the
Constitution suggests that there has to be an emergence of
Constitutional governance which would gradually grow to give rise
to a Constitutional renaissance.

¶291

58.Thus, the silence has been taken to be a doctrine by itself.
The principle of constitutional silence or abeyance is progressive
and is applied as a recognized advanced constitutional practice to fll
up gaps in respect of certain areas in the interest of justice and larger
public interest. The applicability of such a doctrine of silence when

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there is already an existing express provision, particularly in relation
to disqualifcations, therefore, has an in-built limitation and would
enable the Court to leave the silence at that and not attempt to re-
write or introduce into the Constitution something which is
expressly not there.

¶295

59.We also note from the Constituent Assembly Debates, Vol
VIII, 1st June 1949, that the precise issue came up for discussion.
The Article in the draft being discussed corresponding to present
Article 164(4) was Article 144(3). It read, in its original form, exactly
as the current Article 164(4) reads today, viz., thus:

¶296

A.144(3)A Minister who for any period of six consecutive

¶297

months is not a member of the Legislature of the State shall at

¶298

the expiration of that period cease to be a Minister.

¶299

Shri Mohd Tahir moved the following amendment, as Amendment
No.185:

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A.144(3)A Minister shall, at the time of his being chosen

¶303

as such be a member of the Legislative Assembly or Legislative
Council as the case may be.

¶304

We fnd from a close reading of the transcript that Amendment No.
.
185 was negatived

¶305

60.It follows therefore, that in addition to the doctrine of silence,
what will apply here is another principle: once a provision has been
negatived and specifcally omitted, it can be re-introduced or
imputed back into the very provision from which it was excluded by
a process of interpretation of ‘intent and purpose’. The only manner
in which it can be re-introduced is by a positive act of legislature, i.e.
by a full-fedged amendment. Therefore, what Mr Talekar urges us
to do is not merely absent from the Constitution. An amendment
very similar to what Mr. Talekar proposes today was actually
canvassed and entirely negatived just a little over seven decades ago
on 1st June 1949. We do not see how we can possibly re-introduce by
a process of interpretation the very thing that the Constituent
Assembly so considered and negatived.

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61.We think that the portions of the judgments that we
reproduce hereinbelow are a complete answer to the submissions of
Mr Talekar.

¶309

62.Before their reproduction, we must clarify that reluctance to
agree with Mr Talekar should not be construed as a sign of weakness
much less a approval of the induction of Respondent Nos. 5 and 6.
We are of the frm opinion that the doctrine of public trust applies
even when the Chief Minister exercises his powers to make or
expand his Council of Ministers. The Chief Minister is the head of
the Council and he ought to be aware of his duty to abide by the
trust reposed in him by the Constitution, the supreme instrument.
A political compulsion or convenience should not result in a
compromise with the Constitutional values and ideals of
Democracy. A true and real leader of the State, which the Chief
Minister is, and not just of the ruling party, is vested with a power
which is coupled with a duty. While making the Cabinet, he is
expected to act with maturity and responsibility and do nothing to
destroy the trust reposed in him by the Constitution. Very often, the

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Chief Minister is compelled to accept as his colleagues, persons of
doubtful integrity and character only because they have been elected
at the general elections from a area or region where the ruling party
has strong roots and a base or a sizeable presence. Popular leaders
are foisted on the Chief Minister and consequently imposed on the
State. It is here that the Chief Minister is tested and if he possesses
qualities of statesmanship, he can successfully get over the above-
noted situations. All political parties, whether in power today or in
opposition should remember the following words of the Hon’ble
Supreme Court in Shailesh Manubhai Parmar v Election Commission
of India:10

¶313

“19. The aforesaid passages throw immense light on the
distinction between direct and indirect elections and especially
on the concept of indirect election which encompasses
proportional representation. There is voting by open ballot and it
has been so introduced to sustain the foundational values of
party discipline and to avoid any kind of cross voting thereby
ensuring purity in the election process. They have been treated as

¶314

10(2018) 9 SCC 100.

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core values of democracy and fair election. It is worth to note
that in a voting for members of the Council of States, the nature
of voting by an elector is a grave concern. It is because in such an
election, there is a party whip and the elector is bound to obey the
command of the party. The party discipline in this kind of
election is of extreme signifcance, for that is the fulcrum of the
existence of political parties. It is essential in a parliamentary
democracy. The thought of cross voting and corruption is
obnoxious in such a voting. In this context, we may refer with
proft to the authority in Ravi S. Naik v. Union of India (1994
Supp (2) SCC 641). In the said case, the question arose relating
to the disqualifcation of a Member of the State Legislature
under Article 191(2) read with the Tenth Schedule to the
Constitution. The two-Judge Bench referred to the decision in
Kihoto Hollohan v. Zachillhu (1992 Supp (2) SCC 651) and
addressed the issue of defection covered under paragraphs 2(1)
(a) and 2(1)(b) of the Tenth Schedule. Referring to the said
paragraphs, the Court ruled: (Ravi S Naik Case, SCC p.649,
para 11)

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“11. … The said paragraph provides for disqualifcation of a
member of a House belonging to a political party “if he has
voluntarily given up his membership of such political party”.
The words “voluntarily given up his membership” are not
synonymous with “resignation” and have a wider connotation.
A person may voluntarily give up his membership of a political
party even though he has not tendered his resignation from the
membership of that party. Even in the absence of a formal
resignation from membership an inference can be drawn from
the conduct of a member that he has voluntarily given up his
membership of the political party to which he belongs.”

¶321

23. In a democracy, the purity of election is categorically
imperative. The democratic body polity, as has been held in
Manoj Narula v. Union of India ((2014) 9 SCC 1), stipulates
that the quintessential idea of democracy is abhorrent to
corruption and laws emphasize on prevalence of genuine
orderliness, positive propriety, dedicated discipline and sanguine
sanctity by constant afrmance of constitutional morality which
is the pillar stone of good governance. The purity of democracy
does not withstand anything that has the potential to create an

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incurable chasm in the backbone of a democratic setup. The law
is meant to eradicate the same. … … It is a well settled principle
that what cannot be done directly, cannot be done indirectly. To
elaborate, if NOTA is allowed in the election of the members to
the Council of States, the prohibited aspect of defection would
indirectly usher in with immense vigour.

¶325

24. We may further add with proft that the purpose of
introduction of NOTA in PUCL case is that a provision for
negative voting can send a clear message to the political parties
and what a voter thinks about the candidates in the fray. Thus,

¶326

the said decision is directly relatable to a direct election, one
man, one vote and one value.”

¶327

63.Pertinently, Manoj Narula (supra) is followed and, hence, we
quote the paragraphs from the same:

¶328

“By interpretative process, it is difcult to read such
prohibition into Arts. 75(1) or 164(1) on the powers of
PM/CMs as that would tantamount to prescribing eligibility
qualifcation and adding a disqualifcation which has not been
stipulated in the Constitution - Representation of the People

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¶331

Act, 1951 -5. 8-Constitutional Interpretation - Basic rules of
interpretation -Framers'/legislative intent-Doctrine of implied
limitation-Constitution of India, Art. 32

¶332

D. Constitutional Law - Silences of the
Constitution/Implied Limitation-Constitutional trust
reposed in holders of high ofce- Held, in a controlled
Constitution like ours, the Prime Minister, as also the
Chief Ministers, are expected to act with constitutional
responsibility as a consequence of which the cherished
values of democracy and established norms of good
governance get condignly fructifed - The Framers of the
Constitution left many a thing unwritten by reposing
immense trust in the Prime Minister - The scheme of the
Constitution sugests that there has to be an emergence of
constitutional governance which would gradually grow to
give rise to a constitutional renaissance- Constitution of
India,Arts.75 and 164

¶333

E. Constitutional Law - Constitutional Trust -
Applicability - Held, doctrine of constitutional trust is
applicable not only to exercise of legislative power but also

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to every high constitutional functionary -Therefore,
doctrine is applicable to Prime Minister as also Chief
Ministers who hold high constitutional positions -
Constitution of India - Arts. 75 and 164 - Prime Minister
and Chief Ministers - Position and status of

¶337

F. Constitutional Interpretation Subsidiary
rules of-interpretation Casus omissus/Necessary
implication - Doctrine of implication - Scope and
applicability - Explained in detail - Held, doctrine of
implication can be taken aid of for interpreting
constitutional provision in expansive manner - Doctrine is
fundamentally founded on rational inference of idea from
words used in the text - However, interpretation given by
Court has to have a base in Constitution - Court cannot
rewrite a constitutional provision - Words "on the advice
of the Prime Minister/Chief Minister" under Arts. 75(1)
and 164(1) of Constitution - Interpretation of - Held,
while interpreting these words "on the advice of the
PM/CM" appearing in Arts. 75(1) and 164(1), it cannot be
legitimately inferred that there is prohibition to think of

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person as Minister if charges have been framed against
him in respect of serious or heinous ofences including
corruption cases - Constitution of India, Arts. 32, 75(1)
and 164(1)

¶341

S. Public Accountability, Vigilance and Prevention of
Corruption - Corruption/ Abuse of power - Held, erodes
fundamental tenets of rule of law - Corruption has
potentiality to destroy many a progressive aspect and has
acted as formidable enemy of the nation - Prevention of

¶342

Corruption Act, 1988- Ss. 7 to 13- Rule of Law

¶343

(Paras 16 to 18)

¶344

Subramanian Swamy v. CBI, (2014) 8 SCC 682, relied on
Niranjan Hemchandra Sashittal v. State of Maharashtra,

¶345

(2013) 4 SCC 642 : (2013) 2 SCC

¶346

(Cri) 737 : (2013) 2 SCC (L&S) 187, afrmed

¶347

X. Constitutional Law - Democracy - Conditions for

¶348

survival and success of democratic values - Constitution of
India – Preamble

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¶351

Held:

¶352

The Constitution of India is a living instrument with
capabilities of enormous dynamism. It is a Constitution made
for a progressive society. Working of such a Constitution
depends upon the prevalent atmosphere and conditions. The
Constitution can live and grow on the bedrock of
constitutional morality. The principle of constitutional morality
basically means to bow down to the norms of the Constitution
and not to act in a manner which would become violative of the
rule of law or refectible of action in an arbitrary manner. It
actually works at the fulcrum and guides as a laser beam in
institution building. The traditions and conventions have to
grow to sustain the value of such a morality. Democratic
values survive and become successful where the people at large
and the persons in charge of the institution are strictly guided
by the constitutional parameters without paving the path of
deviancy and refecting in action the primary concern to
maintain institutional integrity and the requisite
constitutional restraints. Commitment to the Constitution is a

¶353

facet of constitutional morality. Thus, institutional

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respectability and adoption of precautions for the sustenance
of constitutional values would include reverence for the
constitutional structure. It is always proftable to remember that
a Constitution is "written in blood, rather than ink". (Paras 74
to 76, 138 and 139)

¶357

Constituent Assembly Debates, 1989, VII, 38a James Madison as Publius,
Federalist 51, <http://parliamentofndia.nic.in/ls/debates/volllpll.htm>a
<http://parliamentofndia.nic.in/ls/debates/vol11p12.htm>a Laurence H.
Tribe, The Invisible Constitution (2008) 29, relied on

¶358

Corruption in the present scenario

¶359

16. Criminality and corruption go hand in hand. From the
date the Constitution was adopted i.e. 26-1-1950, a Red Letter
Day in the history of India, the nation stood as a silent witness
to corruption at high places. Corruption erodes the fundamental
tenets of the rule of law. In Niranjan Hemchandra Sashittal v.
State of Maharashtra [(2013) 4 SCC 642 : (2013) 2 SCC
(Cri) 737 : (2013) 2 SCC (L&S) 187] the Court has observed:
(SCC pp. 654-55, para 26)

¶360

“26. It can be stated without any fear of
contradiction that corruption is not to be judged by
degree, for corruption mothers disorder, destroys societal

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will to progress, accelerates undeserved ambitions, kills
the conscience, jettisons the glory of the institutions,
paralyses the economic health of a country, corrodes the
sense of civility and mars the marrows of governance. It
is worth noting that immoral acquisition of wealth
destroys the energ of the people believing in honesty,
and history records with agony how they have sufered.
The only redeeming fact is that collective sensibility
respects such sufering as it is in consonance with the
constitutional morality.”

¶364

17. Recently, in Subramanian Swamy v. CBI [(2014) 8
SCC 682] , the Constitution Bench, speaking through R.M.
Lodha, C.J., while declaring Section 6-A of the Delhi Special
Police Establishment Act, 1946, which was inserted by Act 45 of
2003, as unconstitutional, has opined that: (SCC pp. 725-26,
para 59)

¶365

“59. It seems to us that classifcation which is
made in Section 6-A on the basis of status in the
government service is not permissible under Article 14 as
it defeats the purpose of fnding prima facie truth into
the allegations of graft, which amount to an ofence
under the PC Act, 1988. Can there be sound
diferentiation between corrupt public servants based on
their status? Surely not, because irrespective of their

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¶368

status or position, corrupt public servants are corrupters
of public power. The corrupt public servants, whether
high or low, are birds of the same feather and must be
confronted with the process of investigation and inquiry
equally. Based on the position or status in service, no
distinction can be made between public servants against
whom there are allegations amounting to an ofence
under the PC Act, 1988.”

¶369

And thereafter, the larger Bench further said: (SCC p. 726,
para 60)

¶370

“60. Corruption is an enemy of the nation and
tracking down corrupt public servants and punishing
such persons is a necessary mandate of the PC Act, 1988.
It is difcult to justify the classifcation which has been
made in Section 6-A because the goal of law in the PC
Act, 1988 is to meet corruption cases with a very strong
hand and all public servants are warned through such a
legislative measure that corrupt public servants have to
face very serious consequences.”

¶371

And again: (SCC pp. 730-31, paras 71-72)

¶372

“71. Ofce of public power cannot be the
workshop of personal gain. The probity in public life is of
great importance. How can two public servants against
whom there are allegations of corruption of graft or

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¶375

bribe-taking or criminal misconduct under the PC Act,
1988 can be made to be treated diferently because one
happens to be a junior ofcer and the other, a senior
decision maker.

¶376

72. Corruption is an enemy of nation and
tracking down corrupt public servant, howsoever high he
may be, and punishing such person is a necessary
mandate under the PC Act, 1988. The status or position
of public servant does not qualify such public servant
from exemption from equal treatment. The decision-
making power does not segregate corrupt ofcers into two
classes as they are common crimedoers and have to be
tracked down by the same process of inquiry and
investigation.”

¶377

18. From the aforesaid authorities, it is clear as noonday

¶378

that corruption has the potentiality to destroy many a
progressive aspect and it has acted as the formidable enemy of
the nation.

¶379

Doctrine of implied limitation

¶380

51.It has been highlighted before us by Mr Dwivedi, as
noted earlier, that regard being had to the nature of ofce a
Minister holds in a democratic set-up under the Constitution,
persons with criminal antecedents especially charged for heinous

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¶383

and serious ofences cannot and should not hold the said ofce.
He has emphatically put forth that apart from the prohibitions
contained in Articles 102 and 179 of the Constitution and the
conviction under the 1951 Act, the relevant stage in trial needs
to be introduced to the phraseolog of Article 75(1) as well as
Article 164(1) so that the Prime Minister's authority to give
advice has to be restricted to the extent not to advise a person
with criminal antecedents to become a Minister. To substantiate
the said view, he has taken aid of the doctrine of “implied
limitation”.

¶384

52. In Kesavananda Bharati case [Kesavananda Bharati v.
State of Kerala, (1973) 4 SCC 225] , Sikri, C.J., while
expressing his view on the doctrine of implied limitation, has
observed that in a written Constitution, it is rarely that
everything is said expressly. Powers and limitations are implied
from necessity or the scheme of the Constitution. He has further
held: (Kesavananda Bharati case [Kesavananda Bharati v.
State of Kerala, (1973) 4 SCC 225] , SCC pp. 364-65, paras
282-284)

¶385

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¶387

“282. It seems to me that reading the Preamble
the fundamental importance of the freedom of the
individual, indeed its inalienability, and the importance
of the economic, social and political justice mentioned in
the Preamble, the importance of directive principles, the
non-inclusion in Article 368 of provisions like Articles
52, 53 and various other provisions to which reference
has already been made an irresistible conclusion emerges
that it was not the intention to use the word
‘amendment’ in the widest sense.

¶388

283. It was the common understanding that
fundamental rights would remain in substance as they
are and they would not be amended out of existence. It
seems also to have been a common understanding that
the fundamental features of the Constitution, namely,
secularism, democracy and the freedom of the individual
would always subsist in the welfare State.

¶389

284. In view of the above reasons, a necessary
implication arises that there are implied limitations on
the power of Parliament that the expression ‘amendment
of this Constitution’ has consequently a limited meaning
in our Constitution and not the meaning sugested by
the respondents.”

¶390

53. Shelat and Grover, JJ., in their opinion, while speaking
about the executive power of the President, have observed that:

¶391

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¶393

(Kesavananda Bharati case [Kesavananda Bharati v. State of
Kerala, (1973) 4 SCC 225] , SCC p. 437, para 550)

¶394

“550. … Although the executive power of the
President is apparently expressed in unlimited terms, an
implied limitation has been placed on his power on the
ground that he is a formal or constitutional head of the
executive and that the real executive power vests in the
Council of Ministers.”

¶395

The learned Judges arrived at the said conclusion on the basis of
the implications of the Cabinet system of government so as to
constitute an implied limitation on the power of the President
and the Governors. Proceeding further as regards the amending
power of the Constitution, as engrafted under Article 368 of the
Constitution, said the learned Judges: (Kesavananda Bharati
case [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC
225] , SCC p. 454, para 583)

¶396

“583. The entire discussion from the point of
view of the meaning of the expression ‘amendment’ as
employed in Article 368 and the limitations which arise
by implications leads to the result that the amending
power under Article 368 is neither narrow nor
unlimited. On the footing on which we have proceeded

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¶399

the validity of the 24th Amendment can be sustained if
Article 368, as it originally stood and after the
amendment, is read in the way we have read it. The
insertion of Articles 13(4) and 368(3) and the other
amendments made will not afect the result, namely,
that the power in Article 368 is wide enough to permit
amendment of each and every article of the Constitution
by way of addition, variation or repeal so long as its
basic elements are not abrogated or denuded of their
identity.”

¶400

54. Hegde and Mukherjea, JJ., while discussing about
implied limitations, opined thus: (Kesavananda Bharati case
[Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225] ,
SCC p. 482, para 655)

¶401

“655. Implied limitations on the powers
conferred under a statute constitute a general feature of
all statutes. The position cannot be diferent in the case
of powers conferred under a Constitution. A grant of
power in general terms or even in absolute terms may be
qualifed by other express provisions in the same
enactment or may be qualifed by the implications of the
context or even by considerations arising out of what
appears to be the general scheme of the statute.”

¶402

And again: (SCC pp. 482, para 656)

¶403

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¶405

“656. Lord Wright in James v. Commonwealth
of Australia [1936 AC 578 : (1936) 2 All ER 1449
(PC)] stated the law thus:

¶406

‘The question, then, is one of construction, and
in the ultimate resort must be determined upon
the actual words used, read not in vacuo but as
occurring in a single complex instrument, in
which one part may throw light on another. The
Constitution has been described as the federal
compact, and in the construction must hold a
balance between all its parts.’”

¶407

Thereafter, the learned Judges proceeded to state that:
(Kesavananda Bharati case [Kesavananda Bharati v. State of
Kerala, (1973) 4 SCC 225] , SCC p. 482, para 657)

¶408

“657. Several of the powers conferred under our
Constitution have been held to be subject to implied
limitations though those powers are expressed in general
terms or even in absolute terms.”

¶409

And further proceeded to state thus: (SCC p. 483, para 657)

¶410

“657. … though plenary powers of legislation
have been conferred on Parliament and the State
Legislatures in respect of the legislative topics allotted to
them, yet this Court has opined that by the exercise of

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¶413

that power neither Parliament nor the State Legislatures
can delegate to other authorities their essential
legislative functions nor could they invade on the judicial
power. These limitations were spelled out from the nature
of the power conferred and from the scheme of the
Constitution. But, it was urged on behalf of the Union
and the States that, though there might be implied
limitations on other powers conferred under the
Constitution, there cannot be any implied limitations on
the amending power. We see no basis for this
distinction.”

¶414

55. Jaganmohan Reddy, J., in his separate opinion,
concurred with the view expressed by Sikri, C.J.

¶415

56. Palekar, J., has opined thus: (Kesavananda Bharati
case [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC
225] , SCC p. 713, para 1307)

¶416

“1307. … Some more cases like Ranasinghe case
[Bribery Commr. v. Ranasinghe, 1965 AC 172 : (1964)
2 WLR 1301 : (1964) 2 All ER 785 (PC)] , Taylor v.
Attorney General of Queensland [(1917) 23 CLR 457
(Aust)] a Mangal Singh v. Union of India [AIR 1967
SC 944 : (1967) 2 SCR 109] , were cited to show that
constitutional laws permit implications to be drawn
where necessary. Nobody disputes that proposition.

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¶419

Courts may have to do so where the implication is
necessary to be drawn.”

¶420

After so stating, the learned Judge distinguished the cases by
observing that: (SCC p. 714, para 1307)

¶421

“1307. … None of the cases sheds any light on
the question with which we are concerned viz. whether an
unambiguous and plenary power to amend the provisions
of the Constitution, which included the Preamble and
the fundamental rights, must be frightened by the fact
that some superior and transcendental character has
been ascribed to them.”

¶422

And eventually, ruled thus: (SCC p. 720, para 1318)

¶423

“1318. On a consideration, therefore, of the
nature of the amending power, the unqualifed manner
in which it is given in Article 368 of the Constitution it
is impossible to imply any limitations on the power to
amend the fundamental rights. Since there are no
limitations express or implied on the amending power, it
must be conceded that all the Amendments which are in
question here must be deemed to be valid. We cannot
question their policy or their wisdom.”

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¶426

57. Chandrachud, J., has observed that: (Kesavananda
Bharati case [Kesavananda Bharati v. State of Kerala, (1973)
4 SCC 225] , SCC p. 988, para 2087)

¶427

“2087. In considering the petitioner's argument
on inherent limitations, it is well to bear in mind some of
the basic principles of interpretation. Absence of an
express prohibition still leaves scope for the argument
that there are implied or inherent limitations on a power,
but absence of an express prohibition is highly relevant
for inferring that there is no implied prohibition.”

¶428

58. Khanna, J., while speaking on implied limitation, noted
the submission of the learned counsel for the petitioner in the
following terms: (Kesavananda Bharati case [Kesavananda
Bharati v. State of Kerala, (1973) 4 SCC 225] , SCC p. 776,
para 1444)

¶429

“1444. The learned counsel for the petitioners
has addressed us at some length on the point that even if
there are no express limitations on the power of
amendment, the same is subject to implied limitations,
also described as inherent limitations. So far as the
concept of implied limitations is concerned, it has two
facets. Under the frst facet, they are limitations which
fow by necessary implications from express provisions of

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¶432

the Constitution. The second facet postulates limitations
which must be read in the Constitution irrespective of the
fact whether they fow from express provisions or not
because they are stated to be based upon certain higher
values which are very dear to the human heart and are
generally considered essential traits of civilized existence.
It is also stated that those higher values constitute the
spirit and provide the scheme of the Constitution. This
aspect of implied limitations is linked with the existence
of natural rights and it is stated that such rights being of
paramount character, no amendment of Constitution
can result in their erosion.”

¶433

Dealing with the same, the learned Judge ruled: (SCC p. 776,
para 1446)

¶434

“1446. So far as the frst facet is concerned
regarding a limitation which fows by necessary
implication from an express provision of the
Constitution, the concept derives its force and is founded
upon a principle of interpretation of statutes. In the
absence of any compelling reason it may be said that a
constitutional provision is not exempt from the operation
of such a principle. I have applied this principle to Article
368 and despite that, I have not been able to discern in
the language of that article or other relevant articles any
implied limitation on the power to make amendment
contained in the said article.”

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¶437

Be it clarifed, in subsequent paragraphs, the learned Judge
expressed the view that though Parliament has been conferred
with the power of amendment under Article 368 of the
Constitution, yet it cannot be permitted to incorporate an
amendment which would destroy the basic structure or essential
feature of the Constitution.

¶438

59. In Minerva Mills Ltd. v. Union of India [Minerva Mills
Ltd. v. Union of India, (1980) 3 SCC 625] , the Constitution
Bench was dealing with the validity of Sections 4 and 55 of the
Constitution (42nd Amendment) Act, 1976. Chandrachud,
C.J., speaking for himself, Gupta, Untwalia and Kailasam,
JJ., referred to the majority opinion in Kesavananda Bharati
[Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225]
and referred to the opinion given by Sikri, C.J. and Shelat and
Grover, JJ., Hegde and Mukherjea, JJ., Jaganmohan Reddy,
J. and Khanna, J. and opined thus: (Minerva Mills Ltd. case
[Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625] ,
SCC p. 641, paras 11-12)

¶439

“11. Khanna, J. broadly agreed with the
aforesaid views of the six learned Judges and held that

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¶442

the word ‘amendment’ postulated that the Constitution
must survive without loss of its identity, which meant
that the basic structure or framework of the Constitution
must survive any amendment of the Constitution.
According to the learned Judge, although it was
permissible to Parliament, in exercise of its amending
power, to efect changes so as to meet the requirements of
changing conditions, it was not permissible to touch the
foundation or to alter the basic institutional pattern.
Therefore, the words ‘amendment of the Constitution’,
in spite of the width of their sweep and in spite of their
amplitude, could not have the efect of empowering
Parliament to destroy or abrogate the basic structure or
framework of the Constitution.

¶443

12. The summary of the various judgments in
Kesavananda Bharati [Kesavananda Bharati v. State
of Kerala, (1973) 4 SCC 225] was signed by nine out of
the thirteen Judges. Para 2 of the summary reads to say
that according to the majority, ‘Article 368 does not
enable Parliament to alter the basic structure or
framework of the Constitution’. Whether or not the
summary is a legitimate part of the judgment, or is per
incuriam for the scholarly reasons cited by authors, it is
undeniable that it correctly refects the majority view.”

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¶446

Thereafter, the learned Chief Justice proceeded to state thus:
(Minerva Mills Ltd. case [Minerva Mills Ltd. v. Union of
India, (1980) 3 SCC 625] , SCC p. 642, para 16)

¶447

“16. … The theme song of the majority decision
in Kesavananda Bharati [Kesavananda Bharati v.
State of Kerala, (1973) 4 SCC 225] is: ‘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 heritagea therefore, you cannot destroy its
identity’.”

¶448

60. In B.R. Kapur [B.R. Kapur v. State of T.N., (2001) 7
SCC 231], the Constitution Bench, after referring to the
decision in Kesavananda Bharati [Kesavananda Bharati v.
State of Kerala, (1973) 4 SCC 225] , reproduced para 16 from
Minerva Mills case [Minerva Mills Ltd. v. Union of India,
(1980) 3 SCC 625] and opined that: (B.R. Kapur case [B.R.
Kapur v. State of T.N., (2001) 7 SCC 231] , SCC p. 292, para
28)

¶449

“28. … Since the Constitution had conferred a
limited amending power on Parliament, Parliament
could not in the exercise of that limited power, enlarge

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¶452

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.”

¶453

61. In I.R. Coelho v. State of T.N. [(2007) 2 SCC 1] , the
nine-Judge Bench, while dealing with the doctrine of implied
limitation, ruled thus: (SCC p. 97, para 96)

¶454

“96. … In the four diferent opinions six learned
Judges came substantially to the same conclusion. These
Judges read an implied limitation on the power of
Parliament to amend the Constitution. Khanna, J. also
opined that there was implied limitation in the shape of
the basic structure doctrine that limits the power of
Parliament to amend the Constitution but the learned
Judge upheld the 29th Amendment and did not say, like
the remaining six Judges, that the Twenty-ninth
Amendment will have to be examined by a smaller
Constitution Bench to fnd out whether the said
amendment violated the basic structure theory or not.

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¶457

This gave rise to the argument that fundamental rights
chapter is not part of basic structure. Khanna, J.
however, does not so say in Kesavananda Bharati case
[Kesavananda Bharati v. State of Kerala, (1973) 4
SCC 225] .”

¶458

62. From the aforesaid authorities, it is luminescent that the
principle of implied limitation is attracted to the sphere of
constitutional interpretation. The question that is required to be
posed here is whether taking recourse to this principle of
interpretation, this Court can read a categorical prohibition to
the words contained in Article 75(1) of the Constitution so that
the Prime Minister is constitutionally prohibited to give advice
to the President in respect of a person for becoming a Minister of
the Council of Ministers who is facing a criminal trial for a
heinous and serious ofence and charges have been framed
against him by the trial Judge. Reading such an implied
limitation as a prohibition would tantamount to adding a
disqualifcation at a particular stage of the trial in relation of a
person. This is neither expressly stated nor is impliedly
discernible from the provision. The doctrine of implied
limitation was applied to the amending power of the

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¶461

Constitution by Parliament on the fundamental foundation
that the identity of the original Constitution could not be
amended by taking recourse to the plenary power of amendment
under Article 368 of the Constitution. The essential feature or
the basic structure of the doctrine was read into Article 368 to
say that the identity or the framework of the Constitution
cannot be destroyed. In Minerva Mills case [Minerva Mills Ltd.
v. Union of India, (1980) 3 SCC 625] , giving example, the
Court held that by amendment, Parliament cannot damage the
democratic republican character as has been conceived in the
Constitution. Though in Article 368 of the Constitution there
was no express prohibition to amend the constitutional
provisions, yet the Court in the aforesaid two cases ruled that
certain features which are basic to the Constitution cannot be
changed by way of amendment. The interpretative process
pertained to the word “amendment”. Therefore, the concept of
implied limitation was read into Article 368 to save the
constitutional integrity and identity.

¶462

63. In B.R. Kapur case [B.R. Kapur v. State of T.N.,
(2001) 7 SCC 231] , the Constitution Bench ruled that a non-

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¶465

legislator can be made a Chief Minister or Minister under
Article 164(1) only if he has qualifcations for membership of the
Legislature prescribed under Article 173 and is not disqualifed
from the membership thereof by reason of the disqualifcations
set out in Article 191. Bharucha, J. (as His Lordship then was),
speaking for the majority, opined that as the second respondent
therein had been convicted for ofences punishable under
Sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention of
Corruption Act, 1988 and Sections 409 and 120-B of the Penal
Code and sentenced to undergo rigorous imprisonment for three
years, she was disqualifed under Section 8(4) of the 1951 Act as
the said respondent was disqualifed to contest the election. In
the said case, she was sworn in as the Chief Minister by the
Governor. This Court was moved in by a writ of quo warranto
that she was not eligible to hold the post of the Chief Minister. A
submission was advanced that it was not open to the Court to
read anything into Article 164, for a non-legislator could be
sworn in as the Chief Minister, regardless of the qualifcations
or disqualifcations. The Court placed reliance on Kesavananda
Bharati case [Kesavananda Bharati v. State of Kerala, (1973)
4 SCC 225] and Minerva Mills case [Minerva Mills Ltd. v.

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¶468

Union of India, (1980) 3 SCC 625] and opined that if a non-
legislator is made a Chief Minister under Article 164, then he
must satisfy the qualifcation for membership of a legislator as
prescribed under Article 173. A specifc query was made by the
Court that even when the person recommended, was, to the
Governor's knowledge, a non-citizen or underaged or lunatic or
discharged insolvent, could he be appointed as a Chief Minister?
It was urged that he/she could only be removed by the vote of no-
confdence in the Legislature or at the next election. Discarding
the same, the Court opined that acceptance of such a submission
would invite disaster. The Court further ruled that when a
person is not qualifed to become a Member in view of Article
173, he cannot be appointed as a Chief Minister under Article
164(1). Be it noted, there was disqualifcation in the
Constitution and under the 1951 Act to become a Member of the
State Legislature, and hence, the Court, appreciating the text
and context, read the disqualifcation into Article 164(1) of the
Constitution.

¶469

64. On a studied scrutiny of the ratio of the aforesaid
decisions, we are of the convinced opinion that when there is no

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¶472

disqualifcation for a person against whom charges have been
framed in respect of heinous or serious ofences or ofences
relating to corruption to contest the election, by interpretative
process, it is difcult to read the prohibition into Article 75(1) or,
for that matter, into Article 164(1) to the powers of the Prime
Minister or the Chief Minister in such a manner. That would
come within the criterion of eligibility and would amount to
prescribing an eligibility qualifcation and adding a
disqualifcation which has not been stipulated in the
Constitution. In the absence of any constitutional prohibition or
statutory embargo, such disqualifcation, in our considered
opinion, cannot be read into Article 75(1) or Article 164(1) of the
Principle of constitutional silence or abeyance

¶473

Principle of constitutional silence or abeyance

¶474

65. The next principle that can be thought of is
constitutional silence or silence of the Constitution or
constitutional abeyance. The said principle is a progressive one
and is applied as a recognised advanced constitutional practice.
It has been recognised by the Court to fll up the gaps in respect
of certain areas in the interest of justice and larger public

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¶477

interest. Liberalisation of the concept of locus standi for the
purpose of development of public interest litigation to establish
the rights of the have-nots or to prevent damages and protect
environment is one such feature. Similarly, laying down
guidelines as procedural safeguards in the matter of adoption of
Indian children by foreigners in Laxmi Kant Pandey v. Union
of India [(1987) 1 SCC 66 : 1987 SCC (Cri) 33 : AIR 1987 SC
232] or issuance of guidelines pertaining to arrest in D.K. Basu
v. State of W.B. [(1997) 1 SCC 416 : 1997 SCC (Cri) 92 : AIR
1997 SC 610] or directions issued in Vishaka v. State of
Rajasthan [(1997) 6 SCC 241 : 1997 SCC (Cri) 932] are some
of the instances.

¶478

66. In this context, it is proftable to refer to the authority in
Bhanumati v. State of U.P. [(2010) 12 SCC 1] wherein this
Court was dealing with the constitutional validity of the U.P.
Panchayat Laws (Amendment) Act, 2007. One of the grounds
for challenge was that there is no concept of no-confdence
motion in the detailed constitutional provision under Part IX of
the Constitution and, therefore, the incorporation of the said
provision in the statute militates against the principles of

¶479

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¶481

Panchayati Raj institutions. That apart, reduction of one year
in place of two years in Sections 15 and 28 of the Amendment
Act was sought to be struck down as the said provision diluted
the principle of stability and continuity which is the main
purpose behind the object and reason of the constitutional
amendment in Part IX of the Constitution. The Court, after
referring to Articles 243-A, 243-C(1), (5), 243-D(4), 243-D(6),
243-F(1), 243-G, 243-H, 243-I(2), 243-J, 243-K(2) and (4) of
the Constitution and further taking note of the amendment,
came to hold that the statutory provision of no-confdence is
contrary to Part IX of the Constitution. In that context, it has
been held as follows: (Bhanumati case [(2010) 12 SCC 1] ,
SCC p. 17, paras 49-50)

¶482

“49. Apart from the aforesaid reasons, the
arguments by the appellants cannot be accepted in view
of a very well-known constitutional doctrine, namely, the
constitutional doctrine of silence. Michael Foley in his
treatise on The Silence of Constitutions (Routledge,
London and New York) has argued that in a
Constitution ‘abeyances are valuable, therefore, not in
spite of their obscurity but because of it. They are
signifcant for the attitudes and approaches to the

¶483

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¶485

Constitution that they evoke, rather than the content or
substance of their strictures’. (p. 10)

¶486

50. The learned author elaborated this
concept further by saying, “Despite the absence of any
documentary or material form, these abeyances are real
and are an integral part of any Constitution. What
remains unwritten and indeterminate can be just as
much responsible for the operational character and
restraining quality of a Constitution as its more tangible
and codifed components.' (p. 82)”

¶487

67.The question that is to be posed here is whether taking
recourse to this doctrine for the purpose of advancing
constitutional culture, can a court read a disqualifcation to the
already expressed disqualifcations provided under the
Constitution and the 1951 Act. The answer has to be in the
inevitable negative, for there are express provisions stating the
disqualifcations and second, it would tantamount to crossing
the boundaries of judicial review.

¶488

Doctrine of constitutional implications

¶489

68. The next principle that we intend to discuss is the
principle of constitutional implication. We are obliged to discuss
this principle as Mr Dwivedi, learned Amicus Curiae, has put

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¶492

immense emphasis on the words “on the advice of the Prime
Minister” occurring in Article 75(1) of the Constitution. It is his
submission that these words are of immense signifcance and
apposite meaning from the said words is required to be deduced
to the efect that the Prime Minister is not constitutionally
allowed to advise the President to make a person against whom
charge has been framed for heinous or serious ofences or ofences
pertaining to corruption as Minister in the Council of Ministers,
regard being had to the sacrosanctity of the ofce and the oath
prescribed under the Constitution. The learned Senior Counsel
would submit that on many an occasion, this Court has
expanded the horizon inherent in various articles by applying
the doctrine of implication based on the constitutional scheme
and the language employed in other provisions of the
Constitution.

¶493

69. In this regard, inclusion of many a facet within the
ambit of Article 21 is well established. In R. Rajagopal v. State
of T.N. [(1994) 6 SCC 632] , right to privacy has been inferred
from Article 21. Similarly, in Joginder Kumar v. State of U.P.
[(1994) 4 SCC 260 : 1994 SCC (Cri) 1172 : AIR 1994 SC

¶494

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¶496

1349] , inherent rights under Articles 21 and 22 have been
stated. Likewise, while dealing with freedom of speech and
expression and freedom of press, the Court, in Romesh Thappar
v. State of Madras [AIR 1950 SC 124 : (1950) 51 Cri LJ 1514]
, has observed that freedom of speech and expression includes
freedom of propagation of ideas.

¶497

70. There is no speck of doubt that the Court has applied the
doctrine of implication to expand the constitutional concepts, but
the context in which the horizon has been expanded has to be
borne in mind. What is sugested by Mr Dwivedi is that by
taking recourse to the said principle, the words employed in
Article 75(1) are to be interpreted to add a stage in the
disqualifcation i.e. framing of charges in serious and heinous
criminal ofences or ofences relating to corruption. At this
juncture, it is seemly to state that the principle of implication is
fundamentally founded on rational inference of an idea from the
words used in the text. The concept of legitimate deduction is
always recognised. In Melbourne Corpn. v. Commonwealth
[(1947) 74 CLR 31 (Aust)] , Dixon, J. opined that
constitutional implication should be based on considerations

¶498

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¶500

which are compelling. Mason, C.J., in Political Advertising case
[Australian Capital Television Pty. Ltd. v. Commonwealth,
(1992) 177 CLR 106 (Aust)] , has ruled that there can be
structural implications which are “logically or practically
necessary for the preservation of the integrity of that structure”.
Any proposition that is arrived at taking this route of
interpretation must fnd some resting pillar or strength on the
basis of certain words in the text or the scheme of the text. In the
absence of that, it may not be permissible for a court to deduce
any proposition as that would defeat the legitimacy of reasoning.
A proposition can be established by reading a number of articles
cohesively, for that will be in the domain of substantive
legitimacy.

¶501

71. Dixon, J., in Australian National Airways Pty. Ltd.
(No. 1) v. Commonwealth [(1945) 71 CLR 29 at p. 85 (Aust)] ,
said: “I do not see why we should be fearful about making
implications”. The said principle has been approved in Lamshed
v. Lake [(1958) 99 CLR 132 at pp. 144-5 (Aust)] , and
thereafter, in Payroll Tax case [Victoria v. Commonwealth,
(1971) 122 CLR 353 at p. 401 (Aust)] . Thus, the said principle

¶502

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¶504

can be taken aid of for the purpose of interpreting constitutional
provision in an expansive manner. But, it has its own
limitations. The interpretation has to have a base in the
Constitution. The Court cannot rewrite a constitutional
provision. In this context, we may fruitfully refer to Kuldip
Nayar case [Kuldip Nayar v. Union of India, (2006) 7 SCC 1]
wherein the Court repelled the contention that a right to vote
invariably carries an implied term i.e. the right to vote in
secrecy. The Court observed that where the Constitution thought
it ft to do so, it has itself provided for elections by secret ballot

¶505

e.g. in the case of election of the President of India and the Vice-
President of India. Thereafter, the Court referred to Articles
55(3) and 66(1) of the Constitution which provide for elections

¶506

of the President and the Vice-President respectively, referring to
voting by electoral colleges, consisting of elected Members of
Parliament and Legislative Assembly of each State for the
purposes of the former ofce and Members of both Houses of
Parliament for the latter ofce and in both cases, it was felt
necessary by the Framers of the Constitution to provide that the
voting at such elections shall be by secret ballot through inclusion
of the words “and the voting at such election shall be by secret

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¶509

ballot”. If the right to vote by itself implies or postulates voting
in secrecy, then Articles 55(3) and 66(1) would not have required
the inclusion of such words. The necessity for including the said
condition in the said Articles shows that “secret ballot” is not
always implied. It is not incorporated in the concept of voting by
necessary implication. Thereafter, the Court opined: (Kuldip
Nayar case [Kuldip Nayar v. Union of India, (2006) 7 SCC
1] , SCC p. 139, para 424)

¶510

“424. It follows that for ‘secret ballot’ to be the
norm, it must be expressly so provided. To read into
Article 80(4) the requirement of a secret ballot would be
to read the words ‘and the voting at such election shall be
by secret ballot’ into the provision. To do so would be
against every principle of constitutional and statutory
construction.”

¶511

72. Thus analysed, it is not possible to accept the submission
of Mr Dwivedi that while interpreting the words “advice of the
Prime Minister” it can legitimately be inferred that there is a
prohibition to think of a person as a Minister if charges have
been framed against him in respect of heinous and serious
ofences including corruption cases under the criminal law.

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¶514

Other relevant constitutional concepts — Constitutional morality, good governance and constitutional trust

¶515

73. Though we have not accepted the inspired arguments of
Mr Dwivedi to add a disqualifcation pertaining to the stage
into Article 75(1) of the Constitution, yet we cannot be oblivious
of the three concepts, namely, constitutional morality, good
governance and constitutional trust.

¶516

Constitutional morality

¶517

74. The Constitution of India is a living instrument with
capabilities of enormous dynamism. It is a Constitution made
for a progressive society. Working of such a Constitution depends
upon the prevalent atmosphere and conditions. Dr Ambedkar
had, throughout the debate, felt that the Constitution can live

¶518

and grow on the bedrock of constitutional morality. Speaking on
the same, he said:

¶519

“Constitutional morality is not a natural
sentiment. It has to be cultivated. We must realise that
our people have yet to learn it. Democracy in India is
only a top-dressing on an Indian soil, which is essentially

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¶522

undemocratic.” [Constituent Assembly Debates, 1948,
Vol. VII, 38.]

¶523

75. The principle of constitutional morality basically means
to bow down to the norms of the Constitution and not to act in a
manner which would become violative of the rule of law or
refectible of action in an arbitrary manner. It actually works at
the fulcrum and guides as a laser beam in institution building.
The traditions and conventions have to grow to sustain the value
of such a morality. The democratic values survive and become
successful where the people at large and the persons in charge of
the institution are strictly guided by the constitutional
parameters without paving the path of deviancy and refecting in
action the primary concern to maintain institutional integrity
and the requisite constitutional restraints. Commitment to the
Constitution is a facet of constitutional morality. In this context,
the following passage would be apt to be reproduced:

¶524

“If men were angels, no Government would be
necessary. If angels were to govern men, neither external
nor internal controls on government would be necessary.
In framing a government which is to be administered by
men over men, the great difculty lies in this: you must
frst enable the government to control the governeda and

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¶527

in the next place oblige it to control itself. A dependence
on the people is, no doubt, the primary control on the
governmenta but experience has taught mankind the
necessity of auxiliary precautions. [ James Madison as
Publius, Federalis]

¶528

76. Regard being had to the aforesaid concept, it would not
be out of place to state that institutional respectability and
adoption of precautions for the sustenance of constitutional
values would include reverence for the constitutional structure.
It is always proftable to remember the famous line of Laurence

¶529

H. Tribe that a Constitution is “written in blood, rather than
ink.” [Laurence H. Tribe, The Invisible Constitution (2008)
29]

¶530

Good governance

¶531

77.Having stated about the aspect of the constitutional
morality, we presently proceed to deal with the doctrine of good
governance. In A. Abdul Farook v. Municipal Council,
Perambalur [(2009) 15 SCC 351], the Court observed that:
(SCC p. 352)

¶532

“The doctrine of good governance requires the
Government to rise above their political interest and act

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¶535

only in the public interest and for the welfare of its
people.”

¶536

78. In Patangrao Kadam v. Prithviraj Sayajirao Yadav
Deshmukh [(2001) 3 SCC 594] , the Court, referring to the
object of the provisions relating to corrupt practices, elucidated
as follows: (SCC p. 605, para 14)

¶537

“14. … Clean, efcient and benevolent
administration are the essential features of good
governance which in turn depends upon persons of
competency and good character.”

¶538

79. In M.J. Sivani v. State of Karnataka [(1995) 6 SCC
289] , it has been held that: (SCC pp. 306-07, para 31)

¶539

“31. … Fair play and natural justice are part of
fair public administrationa non-arbitrariness and
absence of discrimination are hallmarks for good
governance under the rule of law.”

¶540

80. In State of Maharashtra v. Jalgaon Municipal Council
[(2003) 9 SCC 731] , it has been ruled that: (SCC p. 760, para
37)

¶541

“37. … One of the principles of good governance
in a democratic society is that smaller interest must

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¶544

always give way to larger public interest in case of
confict.”

¶545

81. In U.P. Power Corpn. Ltd. v. Sant Steels & Alloys (P)
Ltd. [(2008) 2 SCC 777 : AIR 2008 SC 693] , the Court
observed that in this 21st century, when there is global economy,
the question of faith is very important.

¶546

82. In a democracy, the citizens legitimately expect that the
Government of the day would treat the public interest as the
primary one and any other interest secondary. The maxim salus
populi suprema lex, has not only to be kept in view but also has
to be revered. The faith of the people is embedded in the root of
the idea of good governance which means reverence for citizenry

¶547

rights, respect for fundamental rights and statutory rights in
any governmental action, deference for unwritten constitutional
values, veneration for institutional integrity, and inculcation of
accountability to the collective at large. It also conveys that the
decisions are taken by the decision-making authority with
solemn sincerity and policies are framed keeping in view the
welfare of the people, and including all in a homogeneous
compartment. The concept of good governance is not a Utopian

¶548

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¶550

conception or an abstraction. It has been the demand of the
polity wherever democracy is nourished. The growth of
democracy is dependent upon good governance in reality and the
aspiration of the people basically is that the administration is
carried out by people with responsibility with service orientation.

¶551

Constitutional trust

¶552

83. Having stated about good governance, we shall proceed
to deal with the doctrine of “constitutional trust”. The issue of
constitutional trust arises in the context of the debate in the
Constituent Assembly that had taken place pertaining to the
recommendation for appointment of a Minister to the Council of
Ministers. Responding to the proposal for the amendment
sugested by Prof. K.T. Shah with regard to the introduction of a
disqualifcation of a convicted person becoming a Minister, Dr
B.R. Ambedkar had replied: (CAD Vol. VII, p. 1160)

¶553

“His last proposition is that no person who is
convicted may be appointed a Minister of the State. Well,
so far as his intention is concerned, it is no doubt very
laudable and I do not think any Member of this House
would like to difer from him on that proposition. But the
whole question is this: whether we should introduce all

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¶556

these qualifcations and disqualifcations in the
Constitution itself. Is it not desirable, is it not sufcient
that we should trust the Prime Minister, the legislature
and the public at large watching the actions of the
Ministers and the actions of the legislature to see that no
such infamous thing is done by either of them? I think
this is a case which may eminently be left to the good
sense of the Prime Minister and to the good sense of the
legislature with the general public holding a watching
brief upon them. I therefore say that these amendments
”
are unnecessary. (emphasis

¶557

supplied)

¶558

84. The trust reposed in the Prime Minister is based on his
constitutional status. In Ram Jawaya Kapur v. State of Punjab
[AIR 1955 SC 549] , B.K. Mukherjea, C.J., while referring to
the scope of Article 74, observed that under Article 53(1) of the
Constitution, the executive power of the Union is vested in
President but under Article 74, there is to be a Council of
Ministers with the Prime Minister at the head to aid and advise
the President in the exercise of his functions. The President has,
thus been, made a formal or constitutional head of the executive
and the real executive powers are vested in the Ministers or the

¶559

Cabinet.

¶560

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¶562

85. In Samsher Singh [Samsher Singh v. State of Punjab,
(1974) 2 SCC 831 : 1974 SCC (L&S) 550] , Ray, C.J.,
speaking for the majority, opined that the President as well as
the Governor are the constitutional or the formal head and
exercise the power and functions conferred on them by or under
the Constitution on the aid and advice of the Council of
Ministers, save in spheres where the Governor is required by or
under the Constitution to exercise his functions in his discretion.
The learned Chief Justice further observed that the satisfaction
of the President or the Governor in the constitutional sense in
the Cabinet system of government is really the satisfaction of the
Council of Ministers on whose aid and advice the President or
the Governor generally exercises his powers and functions and,
thereafter, it has been held that they are required to act with the
aid and advice of the Council of Ministers and are not required
by the Constitution to act personally without the aid and advice.
Krishna Iyer, J., speaking for himself and Bhagwati, J., opined
that under the Constitution, the President and Governor,
custodian of all executive and other powers under various
articles, are to exercise their formal constitutional powers only
upon and in accordance with the due advice of their Ministers,

¶563

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¶565

save in few well-known exceptional situations. The learned
Judge has carved out certain exceptions with which we are really
presently not concerned with.

¶566

86. In Supreme Court Advocates-on-Record Assn. v. Union
of India [(1993) 4 SCC 441 : AIR 1994 SC 268], while
discussing about constitutional functions, the Court observed
that it is a constitutional requirement that the person who is
appointed as Prime Minister by the President is the efective
head of the Government and the other Ministers are appointed
by the President on the advice of the Prime Minister and both
the Prime Minister and the Ministers must continuously have
the confdence of the House of the People, individually and
collectively. The Court further observed that: (SCC p. 650, para
336)

¶567

“336. … The powers of the President are
exercised by him on the advice of the Prime Minister and
the Council of Ministers which means that the said
powers are efectively exercised by the Council of
Ministers headed by the Prime Minister.”

¶568

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¶570

87. We have referred to these authorities singularly for the
purpose that the Prime Minister has been conferred an extremely
special status under the Constitution.

¶571

88. As the Prime Minister is the efective head of the
Government, indubitably, he has enormous constitutional
responsibility. The decisions are taken by the Council of
Ministers headed by the Prime Minister and that is the Cabinet
form of government and our Constitution has adopted it. While
discussing about the successful working of the Cabinet form of
government, H.M. Seervai, the eminent author of
Constitutional Law [ H.M. Seervai, Constitutional Law of
India, Vol. 2, 4th Edn., 2060] , observed:

¶572

“18.57. The Constitution does not guarantee
that power would be wisely exercised by the executive.—
… But as long as the political atmosphere remains what
it is, the Constitution cannot be worked as it was
intended to be worked. It has been said that the
Constitution confers power, but it does not guarantee
that the power would be wisely exercised. It can be said
equally that the Constitution confers power but it gives
no guarantee that it will be worked by men of high
character, capacity and integrity. If the Constitution is

¶573

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¶575

to be successfully worked, an attempt must be made to
improve the political atmosphere and to laydown and
enforce standards of conduct required for a successful
working of our Constitution.” (emphasis added)

¶576

89. In Constitutional and Administrative Law [2nd Edn.,
368-370, David Polland, Neil Parpworth David Hughs] , the
learned authors while dealing with individual responsibility of
Ministers, have said:

¶577

“3. The individual responsibility of Ministers

¶578

The individual responsibility of ministers illustrates
further Prof. Munro's continuum theory. Ministers are
individually accountable for their own private conduct,
the general running of their departments and acts done,
or omitted to be done, by their civil servantsa
responsibility in the frst two cases is clearer than in
others. A minister involved in sexual or fnancial
scandals particularly those having implications for
national security, is likely to have to resign because his
activities will so attract the attention of the press that he
will be no longer able to carry out departmental duties.”

¶579

90. In Constitutional & Administrative Law [5th Edn.,
297-305], Hilaire Barnett, while dealing with the conduct of
Ministers, referred to the Nolan Committee [Nolan Report,

¶580

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¶582

“Standards in Public Life”, Cm 2850-I, 1995, London
HMSO, Chapter 3, Para 4.] which had endorsed the view that:

¶583

“public is entitled to expect very high standards
of behaviour from ministers, as they have profound
infuence over the daily lives of us all”.

¶584

91. In Constitutional Practice [ Second Edn., 146-148] ,
Rodney Brazier has opined:

¶585

“… a higher standard of private conduct is
required of Ministers than of others in public life, a
major reason for this today being that the popular press
and the investigative journalism of its more serious
rivals will make a wayward Minister's continuance in
ofce impossible.”

¶586

92. Centuries back what Edmund Burke had said needs to
be recapitulated:

¶587

“All persons possessing a position of power ought
to be strongly and awfully impressed with an idea that
they act in trust and are to account for their conduct in
that trust to the one great Master, Author and Founder
of Society.”

¶588

93. This Court, in Delhi Laws Act, 1912, In re [AIR 1951
SC 332] , opined that the doctrine of constitutional trust is

¶589

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¶590

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applicable to our Constitution since it lays the foundation of
representative democracy. The Court further ruled that
accordingly, the Legislature cannot be permitted to abdicate its
primary duty viz. to determine what the law shall be. Though it
was stated in the context of exercise of legislative power, yet the

¶592

same has signifcation in the present context, for in a
representative democracy, the doctrine of constitutional trust has
to be envisaged in every high constitutional functionary.

¶593

96. The repose of faith in the Prime Minister by the entire
nation under the Constitution has expectations of good
governance which is carried on by the Ministers of his choice. It
is also expected that the persons who are chosen as Ministers do
not have criminal antecedents, especially facing trial in respect
of serious or heinous criminal ofences or ofences pertaining to
corruption. There can be no dispute over the proposition that
unless a person is convicted, he is presumed to be innocent but
the presumption of innocence in criminal jurisprudence is
something altogether diferent, and not to be considered for being
chosen as a Minister to the Council of Ministers because framing
of charge in a criminal case is totally another thing. Framing of

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charge in a trial has its own signifcance and consequence.
Setting the criminal law into motion by lodging of an FIR or
charge-sheet being fled by the investigating agency is in the
sphere of investigation. Framing of charge is a judicial act by an
experienced judicial mind. As the debates in the Constituent
Assembly would show, after due deliberation, they thought it
appropriate to leave it to the wisdom of the Prime Minister
because of the intrinsic faith in the Prime Minister. At the time
of framing of the Constitution, the debate pertained to
conviction. With the change of time, the entire complexion in the
political arena as well as in other areas has changed. This
Court, on number of occasions, as pointed out hereinbefore, has
taken note of the prevalence and continuous growth of
criminalisation in politics and the entrenchment of corruption at
many a level. In a democracy, the people never intend to be
governed by persons who have criminal antecedents. This is not
merely a hope and aspiration of citizenry but the idea is also
engrained in apposite executive governance.

¶597

97. It would be apt to say that when a country is governed by
a Constitution, apart from constitutional provisions, and

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¶600

principles constitutional morality and trust, certain conventions
are adopted and grown. In Supreme Court Advocates-on-Record
Assn. [(1993) 4 SCC 441 : AIR 1994 SC 268] , the Court
reproduced a passage from K.C. Wheare's book The Statute of
Westminster and Dominion Status (4th Edn.) and we quote:
(SCC p. 650, para 337)

¶601

“337. … ‘The defnition of “conventions” may
thus be amplifed by saying that their purpose is to defne
the use of constitutional discretion. To put this in slightly
diferent words, it may be said that conventions are non-
legal rules regulating the way in which legal rules shall
be applied.’”

¶602

I.Jennings, in The Law and the Constitution [ 5th Edn.,
ELBS: London, 1976), in his Chapter “Conventions” 247.] ,
stated that a convention exists not only due to its non-
enforceability but also because there is a reason for the rule. I.
Lovehead, in Constitutional Law — A Critical Introduction
[ 2nd Edn., Butterworths: London, 2000), 247] , has said that
the conventions provide a moral framework within which the
government ministers or the monarch should exercise non-
justiciable legal powers and regulate relations between the

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Government and other constitutional authorities. In the
Constituent Assembly Debates, Dr Rajendra Prasad, in his
speech as President of the Constituent Assembly, while moving
for the adoption of the Constitution of India, had observed:
(CAD p. 993)

¶606

“… Many things which cannot be written in a
Constitution are done by conventions. Let me hope that
we shall show those capacities and develop those
conventions.”

¶607

Conclusion

¶608

98. From the aforesaid, it becomes graphically vivid that the
Prime Minister has been regarded as the repository of
constitutional trust. The use of the words “on the advice of the
Prime Minister” cannot be allowed to operate in a vacuum to
lose their signifcance. There can be no scintilla of doubt that the
Prime Minister's advice is binding on the President for the
appointment of a person as a Minister to the Council of
Ministers unless the said person is disqualifed under the
Constitution to contest the election or under the 1951 Act, as has
been held in B.R. Kapur case [B.R. Kapur v. State of T.N.,

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¶611

(2001) 7 SCC 231] . That is in the realm of disqualifcation.
But, a pregnant one, the trust reposed in a high constitutional
functionary like the Prime Minister under the Constitution does
not end there. That the Prime Minister would be giving apposite
advice to the President is a legitimate constitutional expectation,
for it is a paramount constitutional concern. In a controlled
Constitution like ours, the Prime Minister is expected to act with
constitutional responsibility as a consequence of which the
cherished values of democracy and established norms of good
governance get condignly fructifed. The Framers of the
Constitution left many a thing unwritten by reposing immense
trust in the Prime Minister. The scheme of the Constitution
sugests that there has to be an emergence of constitutional
governance which would gradually grow to give rise to
constitutional renaissance.

¶612

99.It is worthy to note that the Council of Ministers has the
collective responsibility to sustain the integrity and purity of the
constitutional structure. That is why the prime Minister enjoys a
great magnitude of constitutional power. Therefore, the
responsibility is more, regard being had to the instillation of

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¶615

trust, a constitutional one. It is also expected that the Prime
Minister should act in the interest of the national polity of the
nation-State. He has to bear in mind that unwarranted
elements or persons who are facing charge in certain category of
ofences may thwart or hinder the canons of constitutional
morality or principles of good governance and eventually
diminish the constitutional trust. We have already held that
prohibition cannot be brought in within the province of “advice”
but indubitably, the concepts, especially the constitutional trust,
can be allowed to be perceived in the act of such advice.

¶616

100. Thus, while interpreting Article 75(1), defnitely a
disqualifcation cannot be added. However, it can always be
legitimately expected, regard being had to the role of a Minister
in the Council of Ministers and keeping in view the sanctity of
oath he takes, the Prime Minister, while living up to the trust
reposed in him, would consider not choosing a person with
criminal antecedents against whom charges have been framed
for heinous or serious criminal ofences or charges of corruption
to become a Minister of the Council of Ministers. This is what
the Constitution sugests and that is the constitutional

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¶619

expectation from the Prime Minister. Rest has to be left to the
wisdom of the Prime Minister. We say nothing more, nothing
less.

¶620

101. At this stage, we must hasten to add what we have said
for the Prime Minister is wholly applicable to the Chief
Minister, regard being had to the language employed in Article
164(1) of the Constitution of India.

¶621

114. In S.R. Chaudhuri [S.R. Chaudhuri v. State of Punjab,
(2001) 7 SCC 126] the following question arose for
consideration: (SCC p. 138, para 20)

¶622

“20. … can a non-member, who fails to get
elected during the period of six consecutive months, after
he is appointed as a Minister or while a Minister has
ceased to be a legislator, be reappointed as a Minister,
without being elected to the legislature after the expiry of
the period of six consecutive months?”

¶623

(emphasis in original)

¶624

This question arose in the context of Article 164 of the

¶625

Constitution [“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

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¶628

Ministers shall hold ofce during the pleasure of the Governor:Provided that in
the States of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha, 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 classes or any other work.
(1-A) The total number of Ministers, including the Chief Minister, in the
Council of Ministers in a State shall not exceed ffteen per cent of the total
number of members of the Legislative Assembly of that State:Provided that the
number of Ministers, including the Chief Minister, in a State shall not be less
than twelve:Provided further that where the total number of Ministers,
including the Chief Minister, in the Council of Ministers in any State at the
commencement of the Constitution (Ninety-frst Amendment) Act, 2003
exceeds the said ffteen per cent or the number specifed in the frst proviso, as
the case may be, then, the total number of Ministers in that State shall be
brought in conformity with the provisions of this clause within six months from
such date as the President may by public notifcation appoint.(1-B) A Member
of the Legislative Assembly of a State or either House of the legislature of a
State having Legislative Council belonging to any political party who is
disqualifed for being a member of that House under Para 2 of the Tenth
Schedule shall also be disqualifed to be appointed as a Minister under clause
(1) for duration of the period commencing from the date of his disqualifcation
till the date on which the term of his ofce as such member would expire or where
he contests any election to the Legislative Assembly of a State or either House of
the legislature of a State having Legislative Council, as the case may be, before
the expiry of such period, till the date on which he is declared elected, whichever
is earlier.(2) The Council of Ministers shall be collectively responsible to the

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¶631

Legislative Assembly of the State.(3) Before a Minister enters upon his ofce,
the Governor shall administer to him the oaths of ofce 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 specifed in the Second Schedule.” Note:—The Article is
reproduced as it is today.] and is mentioned here since one of the
issues raised during submissions related to the permissibility of
reading implied limitations in the Constitution. It was
submitted that implied limitations can be read into the
Constitution and this is an appropriate case in which this Court
should read an implied limitation in the appointment of a
Minister in the Government of India, the implied limitation
being that a person with criminal antecedents or a criminal
background should not be appointed a Minister.

¶632

115. In S.R. Chaudhuri [S.R. Chaudhuri v. State of Punjab,
(2001) 7 SCC 126] this Court examined the law in England,
Canada and Australia and by reading an implied limitation,
answered the question in the negative. It was held that a non-
elected person may be appointed as a Minister, but only for a

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¶635

period of six months. During that period the Minister would
either have to get elected to the Legislature or quit his or her
position. That person cannot again be appointed as a Minister
unless elected. It was said: (SCC p. 142, paras 32-33)

¶636

“32. Thus, we fnd from the positions prevailing
in England, Australia and Canada that the essentials of
a system of representative government, like the one we
have in our country, are that invariably all Ministers
are chosen out of the members of the Legislature and
only in rare cases, a non-member is appointed as a
Minister, who must get himself returned to the
legislature by direct or indirect election within a short
period. He cannot be permitted to continue in ofce
indefnitely unless he gets elected in the meanwhile. The
scheme of Article 164 of the Constitution is no diferent,
except that the period of grace during which the non-
member may get elected has been fxed as ‘six consecutive
months’, from the date of his appointment. (In Canada
he must get elected quickly and in Australia, within
three months.) The Framers of the Constitution did not
visualise that a non-legislator can be repeatedly
appointed as a Minister for a term of six months each
time, without getting elected because such a course strikes
at the very root of parliamentary democracy. According
to learned counsel for the respondent, there is no bar to

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¶639

this course being adopted on the ‘plain language of the
article’, which does not ‘expressly’ prohibit
reappointment of the Minister, without being elected,
even repeatedly, during the term of the same Legislative
Assembly. We cannot persuade ourselves to agree.

¶640

33. Constitutional provisions are required to be
understood and interpreted with an object-oriented
approach. A Constitution must not be construed in a
narrow and pedantic sense. The words used may be
general in terms but, their full import and true meaning,
has to be appreciated considering the true context in
which the same are used and the purpose which they seek
to achieve. Debates in the Constituent Assembly referred
to in an earlier part of this judgment clearly indicate
that a non-member's inclusion in the Cabinet was
considered to be a ‘privilege’ that extends only for six
months, during which period the member must get
elected, otherwise he would cease to be a Minister. It is a
settled position that debates in the Constituent Assembly
may be relied upon as an aid to interpret a constitutional
provision because it is the function of the court to fnd out
the intention of the Framers of the Constitution. We
must remember that a Constitution is not just a
document in solemn form, but a living framework for the
Government of the people exhibiting a sufcient degree of
cohesion and its successful working depends upon the
democratic spirit underlying it being respected in letter

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¶643

and in spirit. The debates clearly indicate the ‘privilege’
to extend ‘only’ for six months.

¶644

116. An implied limitation in the Constitution was also read
in B.R. Kapur [B.R. Kapur v. State of T.N., (2001) 7 SCC
231] . In that case, the second respondent was not even eligible to
become a legislator (having earned a disqualifcation under
Section 8 of the Representation of the People Act, 1951) and
therefore the question of getting elected to the State Legislature
did not arise. Nevertheless, having been projected as the Chief
Ministerial nominee of the political party that obtained a
majority in the elections, she was elected as its leader and
appointed as the Chief Minister of the State. The question before
this Court was whether a person who has been convicted of a
criminal ofence 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? Reliance was placed on the plain
language of Article 164 of the Constitution. Answering the
question in the negative, this Court held in para 30 of the
Report: (B.R. Kapur case [B.R. Kapur v. State of T.N., (2001)
7 SCC 231] , SCC p. 293, para 30)

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¶647

“30. We hold, therefore, that a non-legislator
can be made a Chief Minister or Minister under Article
164 only if he has the qualifcations for membership of
the legislature prescribed by Article 173 and is not
disqualifed from the membership thereof by reason of the
disqualifcations set out in Article 191.”

¶648

This was reiterated by this Court in para 45 of the Report in the

¶649

following words” (B.R. Kapur v State of T.N., (2001) 7 SCC
231, SCC p.298)

¶650

“45. Our conclusion, therefore, is that on the
date on which the second respondent was sworn in as
Chief Minister she was disqualifed, 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.”

¶651

117. Finally, in paras 50 and 51 of the Report, this Court

¶652

held: (B.R. Kapur case [B.R. Kapur v. State of T.N., (2001) 7
SCC 231] , SCC p. 301)

¶653

“50. We are in no doubt at all that if the
Governor is asked by the majority party in the
legislature to appoint as the Chief Minister a person who
is not qualifed to be a member of the Legislature or who

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¶656

is disqualifed 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.

¶657

51. If perchance, for whatever reason, the
Governor does appoint as Chief Minister a person who is
not qualifed to be a Member of the Legislature or who is
disqualifed 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.”

¶658

Therefore, two implied limitations were read into the
Constitution with regard to the appointment of an unelected
person as a Minister. Firstly, the Minister cannot continue as a
Minister beyond a period of six months without getting elected,
nor can such a person be repeatedly appointed as a Minister.
Secondly, the person should not be under any disqualifcation
for being appointed as a legislator. If a person is disqualifed

¶659

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¶661

from being a legislator, he or she cannot be appointed as a
Minister.

¶662

118. Implied limitations to the Constitution were also read in
B.P. Singhal [B.P. Singhal v. Union of India, (2010) 6 SCC
331] . In that case, an implied limitation was read into the
pleasure doctrine concerning the removal of the Governor of a
State by the President in terms of Article 156 of the
Constitution. It was held that the pleasure doctrine as originally
envisaged in England gave unfettered power to the authority at
whose pleasure a person held an ofce. However, where the rule
of law prevails, the “fundamentals of constitutionalism” cannot
be ignored, meaning thereby that the pleasure doctrine does not
enable an unfettered discretion to act arbitrarily, whimsically,
or capriciously. It does not dispense with the need for a cause for
withdrawal of the pleasure, which can only be for valid reasons.

¶663

119. Similarly, in Salil Sabhlok [(2013) 5 SCC 1 : (2013) 2
SCC (L&S) 1] integrity and competence were read as implied in
the appointment of the Chairperson of the State Public Service
Commission. It was held in para 45 of the Report as follows:
(SCC pp. 35-36)

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¶666

“45. I have already held that it is for the
Governor who is the appointing authority under Article
316 of the Constitution to lay down the procedure for
appointment of the Chairman and Members of the
Public Service Commission, but this is not to say that in
the absence of any procedure laid down by the Governor
for appointment of Chairman and Members of the
Public Service Commission under Article 316 of the
Constitution, the State Government would have
absolute discretion in selecting and appointing any
person as the Chairman of the State Public Service
Commission. Even where a procedure has not been laid
down by the Governor for appointment of Chairman
and Members of the Public Service Commission, the
State Government has to select only persons with
integrity and competence for appointment as Chairman
of the Public Service Commission, because the discretion
vested in the State Government under Article 316 of the
Constitution is impliedly limited by the purposes for
which the discretion is vested and the purposes are
discernible from the functions of the Public Service
Commissions enumerated in Article 320 of the
Constitution. Under clause (1) of Article 320 of the
Constitution, the State Public Service Commission has
the duty to conduct examinations for appointments to the
services of the State. Under clause (3) of Article 320, the
State Public Service Commission has to be consulted by

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¶669

the State Government on matters relating to recruitment
and appointment to the civil services and civil posts in
the Statea on disciplinary matters afecting a person
serving under the Government of a State in a civil
capacitya on claims by and in respect of a person who is
serving under the State Government towards costs of
defending a legal proceedinga on claims for award of
pension in respect of injuries sustained by a person while
serving under the State Government and other matters.
In such matters, the State Public Service Commission is
expected to act with independence from the State
Government and with fairness, besides competence and
maturity acquired through knowledge and experience of
public administration.”

¶670

Thereafter in para 99 of the Report, it was said: (Salil Sabhlok
case [(2013) 5 SCC 1 : (2013) 2 SCC (L&S) 1] , SCC p. 52)

¶671

“99. While it is difcult to summarise the
indicators laid down by this Court, it is possible to say
that the two most important requirements are that
personally the Chairperson of the Public Service
Commission should be beyond reproach and his or her
appointment should inspire confdence among the people
in the institution. The frst ‘quality’ can be ascertained
through a meaningful deliberative process, while the
second ‘quality’ can be determined by taking into

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¶674

account the constitutional, functional and institutional
requirements necessary for the appointment.”

¶675

Conclusions on the frst relief

¶676

120. Therefore, the position as it stands today is this:

¶677

120.1. To become a Member of Parliament, a person should
possess the qualifcations mentioned in Article 84 of the
Constitutiona

¶678

120.2. To become a Member of Parliament, a person should not
sufer any of the disqualifcations mentioned in Article 102 of
the Constitutiona

¶679

120.3.The Constitution does not provide for any limitation on a
Member of Parliament becoming a Minister, but certain implied
limitations have been read into the Constitution by the decisions
rendered by this Court regarding an unelected person becoming a
Ministera

¶680

120.4. One implied limitation read into the Constitution is that
a person not elected to Parliament can nevertheless be appointed
as a Minister for a period of six monthsa

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¶683

120.5. Another implied limitation read into the Constitution is
that though a person can be appointed as a Minister for a period
of six months, he or she cannot repeatedly be so appointeda

¶684

120.6. Yet another implied limitation read into the Constitution
is that a person otherwise not qualifed to be elected as a Member
of Parliament or disqualifed from being so elected cannot be
appointed as a Ministera

¶685

120.7. In other words, any person, not subject to any
disqualifcation, can be appointed a Minister in the Central
Government.

¶686

120.8. Given this position in law, is it necessary to read any
other implied limitation in the Constitution concerning the
appointment of a person as a Minister in the Government of
India, particularly any implied limitation on the appointment

¶687

of a person with a criminal background or having criminal
antecedents?

¶688

Conclusions on the second relief

¶689

133. The discussion leads to the following conclusions:

¶690

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¶692

133.1. To become a legislator and to continue as a legislator, a
person should not sufer any of the disqualifcations mentioned
in Section 8 of the Representation of the People Act, 1951a

¶693

133.2. There does seem to be a gap in Section 8 of the
Representation of the People Act, 1951 inasmuch as a person
convicted of a heinous or a serious ofence but awarded a
sentence of less than two years' imprisonment may still be
eligible for being elected as a Member of Parliamenta

¶694

133.3. While a debate is necessary for bringing about a suitable
legislation disqualifying a person from becoming a legislator,
there are various factors that need to be taken into
considerationa

¶695

133.4. That there is some degree of criminalisation of politics is

¶696

quite evidenta

¶697

133.5. It is not for this Court to lay down any guidelines relating
to who should or should not be entitled to become a legislator or
who should or should not be appointed a Minister in the Central

¶698

Government.

¶699

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¶701

134. The range of persons who may be elected to a legislature
is very wide and amongst those, who may be appointed a
Minister in the Central Government is also very wide, as
mentioned above. Any legislator or non-legislator can be
appointed as a Minister but must quit as soon as he or she earns
a disqualifcation either under the Constitution or under
Section 8 of the Representation of the People Act, 1951. [Lily
Thomas v. Union of India, (2013) 7 SCC 653 : (2013) 3 SCC
(Civ) 678 : (2013) 3 SCC (Cri) 641 : (2013) 2 SCC (L&S)
811] In B.P. Singhal [B.P. Singhal v. Union of India, (2010) 6
SCC 331] this Court observed that “a Minister is hand-picked
member of the Prime Minister's team. The relationship between
the Prime Minister and a Minister is purely political”.

¶702

135. In addition to the above, how long a Minister should
continue in ofce is best answered by the response to a question
put to the British Prime Minister John Major who was asked to
“list the circumstances which render Ministers unsuitable to
retain ofce”. His written reply given to the House of Commons
on 25-1-1994 was:

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¶705

“There can be a variety of circumstances but the
main criterion should be whether the Minister can
continue to perform the duties of ofce efectively.”
<http://hansard.millbanksystems.com/written_answers/1994/jan/25/mi
nisters-unsuitability-forofcecS6-CV0236-P0_19940125_CWA_172>

¶706

136. This being the position, the burden of appointing a
suitable person as a Minister in the Central Government lies
entirely on the shoulders of the Prime Minister and may
eminently be left to his or her good sense. This is what our
Constitution-makers intended, notwithstanding the view
expressed by Shri H.V. Kamath in the debate on 30-12-1948. He
said: (CAD p. 1149)

¶707

“My Friend, Prof. Shah, has just moved
Amendment No. 1300 comprising fve sub-clauses. I dare
say neither Dr Ambedkar nor any of my other
honourable friends in this House will question the
principle which is sought to be embodied in Clause (2-E)
of Amendment No. 1300 moved by Prof. Shah. I have
sugested my Amendment No. 46 seeking to delete all the
words occurring after the words ‘moral turpitude’
because I think that bribery and corruption are ofences
which involve moral turpitude. I think that moral
turpitude covers bribery, corruption and many other
cognate ofences as well. Sir, my friends here will, I am

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¶710

sure, agree with me that it will hardly redound to the
credit of any Government if that Government includes
in its fold any Minister who has had a shady past or
about whose character or integrity there is any
widespread suspicion. I hope that no such event or
occurrence will take place in our country, but some of the
recent events have created a little doubt in my mind. I
refer, Sir, to a little comment, a little article, which
appeared in the Free Press Journal of Bombay dated 8-
9-1948 relating to the … Ministry. The relevant portion
of the article runs thus:

¶711

‘The Cabinet (the … Cabinet) includes
one person who is a convicted blackmarketeer,
and although it is said that his disabilities,
resulting from his conviction in a court of law,
which constituted a formidable hurdle in the way
of his inclusion in the interim Government, were
graciously removed by the Maharaja.’”
[Constituent Assembly Debates, Vol. 7]

¶712

137. In this respect, the Prime Minister is, of course,
answerable to Parliament and is under the gaze of the watchful
eye of the people of the country. Despite the fact that certain
limitations can be read into the Constitution and have been read
in the past, the issue of the appointment of a suitable person as a

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¶715

Minister is not one which enables this Court to read implied
limitations in the Constitution.

¶716

Epilogue

¶717

138. It is wise to remember the words of Dr Ambedkar in the
Constituent Assembly on 25-11-1949. He had this to say about
the working of our Constitution: (CAD p. 975)

¶718

“As much defence as could be ofered to the
Constitution has been ofered by my friends Sir Alladi
Krishnaswami Ayyar and Mr T.T. Krishnamachari. I
shall not therefore enter into the merits of the
Constitution. Because I feel, however good a
Constitution may be, it is sure to turn out bad because
those who are called to work it, happen to be a bad lot.
However bad a Constitution may be, it may turn out to
be good if those who are called to work it, happen to be a
good lot. The working of a Constitution does not depend
wholly upon the nature of the Constitution. The
Constitution can provide only the organs of State such as
the Legislature, the Executive and the Judiciary. The
factors on which the working of those organs of the State
depend are the people and the political parties they will
set up as their instruments to carry out their wishes and
their politics. Who can say how the people of India and
their parties will behave? Will they uphold constitutional

¶719

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¶721

methods of achieving their purposes or will they prefer
revolutionary methods of achieving them? If they adopt
the revolutionary methods, however good the
Constitution may be, it requires no prophet to say that it
will fail. It is, therefore, futile to pass any judgment upon
the Constitution without reference to the part which the
people and their parties are likely to play.”
[<http://parliamentofndia. nic.in/ls/debates/vol11p11.htm>]

¶722

143. Court is the conscience of the Constitution of India.
Conscience is the moral sense of right and wrong of a person.
(Ref.: Oxford English Dictionary.) Right or wrong, for court,
not in the ethical sense of morality but in the constitutional
sense. Conscience does not speak to endorse one's good conducta
but when things go wrong, it always speaksa whether you listen
or not. It is a gentle and sweet reminder for rectitude. That is the
function of conscience. When things go wrong constitutionally,
unless the conscience speaks, it is not good consciencea it will be
accused of as numb conscience.

¶723

144. One cannot think of the Constitution of India without
the Preambular principle of democracy and good governance.
Governance is mainly in the hands of the Executive. The
executive power of the Union under Article 53 and that of the

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¶726

States under Article 154 vests in the President of India and the
Governor of the State, respectively. Article 74 for the Union of
India and Article 163 for the State have provided for the
Council of Ministers to aid and advise the President or the
Governor, as the case may be. The executive power extends to the
respective legislative competence.

¶727

145. Before entering ofce, a Minister has to take oath of
ofce (Articles 75/164). In form, except for the change in the
words “Union” or particular “State”, there is no diference in
the form of oath. Ministers take oath to … “faithfully and
conscientiously discharge …” their duties and “… do right to all
manner of people in accordance with Constitution and the law,
without fear or favour, afection or ill will”.

¶728

146. Allegiance to the Constitution of India, faithful and
conscientious discharge of the duties, doing right to people and
all these without fear or favour, afection or ill will, carry heavy
weight. “Conscientious” means “wishing to do what is right,
relating to a person's conscience”. (Ref.: Concise Oxford English
Dictionary.) The simple question is, whether a person who has
come in confict with law and, in particular, in confict with law

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¶731

on ofences involving moral turpitude and laws specifed by
Parliament under Chapter III of the Representation of the
People Act, 1951, would be in a position to conscientiously and
faithfully discharge his duties as Minister and that too, without
any fear or favour?

¶732

149. Good governance is only in the hands of good men. No
doubt, what is good or bad is not for the court to decide: but the
court can always indicate the constitutional ethos on goodness,
good governance and purity in administration and remind the
constitutional functionaries to preserve, protect and promote the
same. Those ethos are the unwritten words in our Constitution.
However, as the Constitution-makers stated, there is a
presumption that the Prime Minister/Chief Minister would be
well advised and guided by such unwritten yet constitutional
principles as well. According to Dr B.R. Ambedkar, as
specifcally referred to by my learned Brother at para 83 of the
leading judgment, such things were only to be left to the good
sense of the Prime Minister, and for that matter, the Chief
Minister of the State, since it was expected that the two great
constitutional functionaries would not dare to do any infamous

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¶735

thing by inducting an otherwise unft person to the Council of
Ministers. It appears, over a period of time, at least in some
cases, it was only a story of great expectations. Some of the
instances pointed out in the writ petition indicate that Dr
Ambedkar and other great visionaries in the Constituent
Assembly have been bailed out. Qualifcation has been wrongly
understood as the mere absence of prescribed disqualifcation.
Hence, it has become the bounden duty of the Court to remind
the Prime Minister and the Chief Minister of the State of their
….
duty to act in accordance with the constitutional aspirations.

¶736

150. Fortunately for us, our Constitution has stood the test of
time and is acclaimed to be one of the best in the world. Problem
has been with the other part, though sporadically. Kautilya, one
of the great Indian exponents of art of government, has dealt
with qualifcation of king and his councillors at Chapter IX in
Arthasastra, said to be compiled between BC 321-296. To quote
relevant portion:

¶737

“Chapter IX

¶738

The Creation of Councillors and Priests

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¶741

Native, born of high family, infuential, well
trained in arts, possessed of foresight, wise, of strong
memory, bold, eloquent, skilful, intelligent, possessed of
enthusiasm, dignity and endurance, pure in character,
afable, frm in loyal devotion, endowed with excellent
conduct, strength, health and bravery, free from
procrastination and fcklemindedness, afectionate, and
free from such qualities as excite hatred and enmity—
these are the qualifcations of a ministerial ofcer.”

¶742

151. The attempt made by this Court in the above
background history of our country and the Constitution is only
to plug some of the bleeding points in the working of our
Constitution so that the high constitutional functionaries may
work it well and not wreck it. Beauty of democracy depends on
the proper exercise of duty by those who work it.

¶743

152. No doubt, it is not for the Court to issue any direction to
the Prime Minister or the Chief Minister, as the case may be, as
to the manner in which they should exercise their power while
selecting the colleagues in the Council of Ministers. That is the
constitutional prerogative of those functionaries who are called
upon to preserve, protect and defend the Constitution. But it is
the prophetic duty of this Court to remind the key duty holders

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¶746

about their role in working the Constitution. Hence, I am of the
frm view, that the Prime Minister and the Chief Minister of the
State, who themselves have taken oath to bear true faith and
allegiance to the Constitution of India and to discharge their
duties faithfully and conscientiously, will be well advised to
consider avoiding any person in the Council of Ministers,
against whom charges have been framed by a criminal court in
respect of ofences involving moral turpitude and also ofences
specifcally referred to in Chapter III of the Representation of the
People Act, 1951.”

¶747

64.That there is this trust underlying reposed by the
Constitution makers and framers is therefore evident and we must
never lose sight of the same. We will not betray the constitutional
and public trust deface and defle the Constitution itself is therefore
the ordinary and normal expectation. The recent trend in the State
is to the contrary is what is complained before us. We cannot ignore
or brush it aside. We are not in agreement with the extreme
proposition that in no case of this nature will the Courts intervene; a
court may, where the facts so warrant and where the law permits

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¶750

such an intervention. But even this must remain within the confnes
of the sage caution administered by the Hon’ble Supreme Court.
Judicial discipline requires us not to attempt to travel beyond the
limits of what the Supreme Court has held to be permissible in
Constitutional interpretation. Judicial activism is one thing, and
judicial adventurism quite another. We regret that while canvassing
the former, Mr Talekar is actually inviting us to engage in the latter.

¶751

65.In taking this approach, we do not for a moment suggest that
we construe the Constitution as promoting and encouraging
defections. We fnd Mr. Talekar’s submission in this regard to be
unfortunate, viz., that should we not accept his construct and
interpretation, it would tantamount to our holding that the
Constitution promotes and encourages defections. We are not
saying anything of this kind. What we are questioning is the
fundamental premise underlying Mr. Talekar’s case and,
particularly, his understanding of the word ‘defections’. When we
say ‘defections’, we are careful not to express any opinion on the
facts and circumstances of the present case. However, it is

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¶754

understood by the common man as a switching of loyalties and
shifting of one’s position frequently and for political gains. The
Webster’s Dictionary defnes the term as under:

¶755

“Defection:1. FAILING, FAILURE, LOSS

¶756

{fell into a ~spirit} 2. obs: IMPERFECTION,

¶757

DEFECT 3: the act of abandoning a person, cause, or

¶758

doctrine to whom or to which one is bound by some tie (as
of allegiance or duty)”

¶759

66.It is abandoning a cause and embracing some other. That we

¶760

are noticing such a trend in Maharashtra on the eve of the elections
may be unfortunate. But that will not allow us to read into an Article
something that is not there, and is wholly left out. Where political
leaders and parties betray the constitutional trust, then such matters
are best left to the judgment of the people. It is eventually the voters
who have to take responsibility. The Constitution reposes equal
trust in civil society. After all, it is a Constitution given by the
people to themselves. It is their bounden duty to uphold the
cherished values of democracy. The world over, democracy comes

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¶763

at a price; and achieving it as a form of governance has required a
monumental sacrifce. When we take pride in Indian democracy, we
should note that we as Indians are equally observed world over for
our responses and reactions to acts subversive of democracy. When
we call ourselves a “civil society” it is our duty to ensure that there
is probity in public life and the purity of the electoral process is
maintained at all costs. Our votes are not on sale. The right to vote
must be exercised in a manner beftting the trust and faith reposed in
us. That has to be preserved at all costs. When the Hon’ble
Supreme Court in the case of Manoj Narula says that we must not
tinker with the Constitution, it also means that we should not allow
its goals to be frustrated and defeated. There is a Constitutional
morality and that is recognized principle recognized as well in this
decision.

¶764

67.Merely because our courts, including the highest Court in the
country, have not allowed the Constitution to be interpreted in a
manner suggested by parties like the Petitioners before us to take
care of every evil does not mean that the Constitution promotes,

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¶767

allows or permits, much less approves, such evil. If it is an evil, it
must be looked at as such. If for pure political gains people are
crossing over, then it is the bounden duty of the voters to take care
of such a situation and teach these leaders or defectors a lesson.
Ultimately, in every democracy real power rests with the people.
Merely because one is in majority does not mean there is a license to
strangulate the minority. In democracy there is an equal place,
respect and regard for an opposition. It guides the majority in
carrying out the administrative and governmental afairs properly
and smoothly. It is that aspect of the matter inbuilt in the
observations, fndings and conclusions of the Hon’ble Supreme
Court in Manoj Narula’s case which we have reproduced above.

¶768

68.We do not think that anything more has to be said for our
judgment and order expresses our disinclination to read into the
Constitution what is absent therein but which the Petitioners would
have us read into it. Our order is, therefore, an attempt at striking a
balance and must be seen as such. A balance has to be struck and
everything cannot be taken over by Courts. The Courts can bring to

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¶771

the notice of the public at large the above facts and to subserve its
interest to the maximum, but in our role as essentially of an
adjudicator of disputes, we cannot take over every function
including the responsibilities of a voter. It is for a voter to respond
and we are sure that in a State like Maharashtra we are aware and
enlightened enough to take note of the recent happenings and
events. That it is not enhancing the image, prestige and reputation
of our State but bringing disrepute to it is therefore a matter which
should be noted by the voters and we leave it to the wisdom and
knowledge of the voters and residents of the State.

¶772

69.We do not think that in the Constitutional scheme noted
above, we must read into clause (4) of Article 164 what is expressly
not there. We are not introducing a disqualifcation therein nor are
we re-writing that provision. It has a certain intent and purpose and
why it is not worded as desired by the petitioners in this petition is
therefore clear from the principles to which we have made a detailed
reference. That on the eve of elections none except, qualifed,
eligible, experienced and experts in specifed felds would be

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¶775

inducted into ministries so as to smoothen the afairs or to assist the
government in power particularly the Chief Minister to tide over
certain emergent crisis, particularly a fnancial and economic one, is
therefore the expectation of the framers of the Constitution. In the
last six months preceding the expiry of the term of the house the
leader, namely, the Chief Minister, would not induct anybody for
pure political gains or for political convenience is thus the
underlying hope. In situations where the country is facing an
economic and fnancial crisis, or a vital issue of its defence, these
would then enable the Prime Minister to induct into the Cabinet
experts in such felds and obtain their advice, guidance and
assistance. It is that advice and assistance which would guide the
afairs of the Government and the Prime Minister would ordinarily
want such a person in the cabinet and not necessarily a politician.
He may be a politician but not a member of the House. Nonetheless
he/she could be an expert in economics, fnance, law and justice,
corporate afairs or a defence tactician. Merely because he is not a
member of the ruling combine or any political party should not
therefore be a impediment in his or her induction. That is how the

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¶778

Constitution must be read and interpreted. None expects this
provision to be used to achieve an ouster or a complete take over of
the opposition in the Legislative Assembly or the Parliament. None
would expect this as a trade or a bargain for retaining power or
obtaining political gains. None would ever expect this to be resorted
to for political convenience or to make inroads into or split
opposition parties as well. In such circumstances, we are not
endorsing what has been done in the State but we are expressing our
concern and anxiety in the words and expressions of the Supreme
Court itself.

¶779

70.We fnd that the Petitioners are placing their case only on the
disqualifcation of respondents Nos. 5 and 6. That they and the
other respondent who is not a member of the either House and can
never be elected because the six months period is not available for
holding a election is the other complaint. We fnd that these
respondents may have been inducted in the ministry on the eve of
the elections or on the eve of the expiry of the term of the House
purely because of political reasons or to enable them to cross over at

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¶782

an opportune time but that by itself and without anything more
would not enable us to hold that these persons were ‘disqualifed’.
We cannot term them as ‘defectors’ in terms of the Tenth Schedule
of the Constitution of India. That contains elaborate and exhaustive
provisions to deal with defections. Whether the act of respondents
Nos. 5 and 6 amounts to defection is not our concern presently.
There are distinct proceedings pending in that regard. Those
proceedings would be taken up and decided on their own merits and
in accordance with law. However, we cannot presume that the acts
of the respondents Nos. 5 and 6 amount to defection and therefore
they could not have been inducted in the ministry. That they
resigned from the House as also a political party on whose ticket
they have been elected may invite other consequences, including a
declaration in terms of the Tenth Schedule of the Constitution and
its paragraphs, but because the Petitioners have sought their
disqualifcation, we cannot assume that their induction in the
ministry was impermissible. That is now not how we have or rather
we can read the Constitution and clause (4) of Article 164. We

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¶785

refuse to read it in that manner for the reasons enumerated
hereinabove.

¶786

71.As a result of the above discussion we do not think that there
is any merit in the submissions of Mr Talekar. The reliance by Mr
Talekar is essentially on the judgment of the Hon’ble Supreme
Court in a case arising from the State of Punjab (S.R. Chaudhuri v
State of Punjab & Ors.11) which would now be required to be noted.

¶787

72.In the Punjab decision the situation was peculiar. The
petitioner, SR Chaudhari approached the Hon’ble Supreme Court
of India complaining that respondent No. 2, Tej Parkash Singh, was

¶788

appointed as a minister in the State of Punjab on the advice of the
Chief Minister, Sardar Harcharan Singh Brar, on 9th September
1995. At the time of his appointment as a Minister he was not a
Member of the Punjab Legislative Assembly. He failed to get
himself elected as a member of the Legislature of the State of
Punjab within a period of six months and submitted his resignation

¶789

from the Council of Ministers on 8th March 1996. The term of the

¶790

11 (2001) 7 SCC 126.

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¶793

House had not expired and there was a change in the leadership of
the ruling party. The 3rd respondent on her election as a Chief
Minister (after being chosen as the leader of the ruling party) still
inducted the said Tej Parkash Singh. He had not been elected as a
member of the Legislature even when Smt. Rajinder Kaur Bhattal
took over as the Chief Minister on 21st November 1996. However,
Tej Parkash was appointed Minister with efect from 23rd
November 1996 and the appellant, SR Chaudhari fled a petition
seeking Writ of Quo Warranto against 2nd Respondent, Tej Parkash
Singh. It was stated in the petition that appointment of the 2nd
Respondent for a second timeduring the term of the same
Legislature, without being elected as a member of the Legislature
was violative of the constitutional provisions and therefore bad. This
Writ Petition was dismissed in limine. The matter was therefore
taken to the Hon’ble Supreme Court.

¶794

73.Mr Talekar’s arguments overlook this peculiar factual
position.

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¶797

74.It was in the peculiar facts and circumstances of that case and
fnding that this would be a total subversion of the rule of law and
would make mockery of the constitutional provision that the
Hon’ble Supreme Court stepped in and held that a person who
could not, within the term of the house, get himself elected within
six months of his initial induction cannot overtake the constitutional
mandate. By ceasing to be a minister on expiry of six months his re-
election cannot be facilitated in this manner so as to give him an
extended term in the Ministry, whatever may be the compelling
reasons for his induction. The observations heavily relied upon by
Mr Talekar would have to be considered in the backdrop of the
factual controversy before the Hon’ble Supreme Court. The
Hon’ble Supreme Court was not dealing with a controversy or the
issue projected before us. All observations would have to be seen
and noted in the factual backdrop. They are very apt but by relying
on them we cannot arrive at the conclusion desired by the
petitioners before us. In paragraph 33 of this judgment it is held that
Constitutional provisions are required to be understood and
interpreted with an object-oriented approach. There is no quarrel

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¶800

and indeed there can be none about this principle and equally the
other that Constitution must not be construed in a narrow and
pedantic manner. Moreover, the general words have to be given
there full import and true meaning, and particularly when we are
considering the Constitution itself is another precept of equal
importance. However, all these principles have their application to a
given fact situation and that cannot be lost sight of. Even if the
Petitioners insist that the conduct of these Respondents merits our
disapproval, and that their conduct is a blot on the purity of
elections and probity in public life, that by itself does not allow us to
conclude that SR Chaudhari’s case is exactly on all fours as far as
the present petitions are concerned. That judgment is therefore
distinguishable on facts.

¶801

75.In this context, Mr. Talekar expresses a secondary
apprehension that if, in the forthcoming elections, Respondents
Nos. 5 and 6 are again not elected, or do not contest, then, by
claiming that a ‘fresh term’ has begun for the new house, and the
meter has, so to say, been reset to zero, these same non-elected

¶802

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¶804

persons will be brought into the Cabinet for another six months. We
need not consider that aspect of the matter at all. At this stage, it is
both premature and speculative (and defeatist, for it assumes that
the present ruling alliance will necessarily be returned at the next
polls). It seems to us clear, however, that the six-month period is a
single opportunity. No one can take a break before six months by
demitting the ofce of Minister and then be inducted again. That
there is an intervening election will make no diference. Article
164(4) is person-specifc, and no person can be a minister without
facing an election in six months. He cannot come back again and
again by taking, for illustration, a day’s or a month’s gap or break
between ministerial terms. That would undoubtedly be a fraud on
the Constitution and is clearly forbidden. For a non-legislator
inducted into a ministry, the terminus a quo is an election, not a
mere demitting of ofce. However, since we are not presently called
upon to go into this, we leave the Petitioners’ contentions open in
that regard.

¶805

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¶807

76.As far the judgment in the case of BR Kapur V State of Tamil
Nadu,12 even that turns on a peculiar factual position. In that case, a
non-legislator was made a Chief Minister and it was argued that he
must possess qualifcations under Article 173 and must not sufer
from disqualifcations under Article 191 for membership of the
legislature. It is in that context that the Supreme Court held that it is
its duty to interpret the Constitution even if the answer to the
question before it has a political efect. There again the Supreme
Court noted that the essential controversy was that the Election
Commission of India by an order dated 28th August 1997 dealt with
the legal position and issued directions. All returning ofcers at the
time of scrutiny of nominations were directed to take a note of the
legal position and decide accordingly about the validity or otherwise
of the candidature of the contestants disqualifed under Section 8 of
the Representation of the Peoples Act 1951. The nomination papers
of the 2nd Respondent were rejected by a speaking order by the
returning ofcer on 24th April 2001. The order of the Election
Commission of India mentions clearly that despite suspension of

¶808

12(2001) 7 SCC 231.

¶809

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¶811

sentence and release on bail, the order of conviction remains in
operation. This order was not challenged. The 2nd Respondent did
not challenge the election of the respective candidates from these
constituencies by an election petition on the ground that her
nomination was wrongly rejected. The period of limitation for fling
the election petition of 45 days was also over. Thus, the issue was
that the rejection on the ground of disqualifcation had reached
fnality. It was therefore not permissible for such a candidate or
person to take over and be appointed as a Chief Minister and that is
how the matter was brought before the Supreme Court of India. A
totally ineligible candidate, already disqualifed from the inception
was sought to be appointed as a Chief Minister. A Chief Minister is
of the State and does not remain a mere leader of the largest single
party in the House, on being sworn in as such. The real issue
therefore was whether by the above mode can he/she enter the
House. The answer is obviously no.

¶812

77.The exhaustive discussion of legal principles is binding in a
case similar. We have noted the reliance placed by Mr Talekar on

¶813

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¶815

certain paragraphs of this judgment, but we do not think that even
this judgment has any application to the facts and circumstances
before us. We are mindful of the judgment of the Hon’ble Supreme
Court which outlines the powers of judicial review and enables us in
certain circumstances to interfere directly under Article 226 of the
Constitution of India even when the election of otherwise
disqualifed candidates has not been challenged by way of an
election petition. However, even these judgments have no
application to the facts and circumstances before us. The Division
Bench Judgment of the Nagpur Bench of this Court is also
distinguishable on facts.13 There, an election was declared to fll a

¶816

vacancy caused in the Assembly contrary to the mandatory
provision in Section 151-A of the Representation of People Act,
1951. Hence, the Notifcation to that efect was struck down.

¶817

78.As far as the judgment of the Constitution Bench of the
Supreme Court in the case of State (NCT at Delhi) vs Union of India
and Ors is concerned,14 we do not think the we have deviated or
13Sandeep Yeshwantrao Sarode v Election Commission of India, (2019) SCC
Online Bom 629.
14(2018) 8 SCC 501.

¶818

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¶820

departed from any of the principles enshrined in several paragraphs
of this judgment, particularly the principles on interpretation of the
Constitution.

¶821

79.As a result of the above discussion, we do not think that either
of these petitions can be accepted. For the reasons recorded above,
they are dismissed but without any order as to costs. Rule
discharged.

¶822

(S. C. DHARMADHIKARI, J)

¶823

(G. S. PATEL, J)

¶824

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Surinder Mohan Arora and Ors. v. the State of Maharashtra through Chief Secretary, Gen. Administration Dept. and Ors.

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Surinder Mohan Arora and Ors. v. the State of Maharashtra through Chief Secretary, Gen. Administration Dept. and Ors.

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