Judges: R.M. Lodha, C.J.I., Dipak Misra, S.A. Bobde, Kurian Joseph and Madan B. Lokur JJ.

Facts:

The present writ petition Under Article 32 of the Constitution was filed by the Petitioner as pro bono publico assailing the appointment of some of the original Respondents as Ministers to the Council of Ministers of Union of India despite their involvement in serious and heinous crimes. On 24.3.2006, when the matter was listed before the Bench presided by the learned Chief Justice, the matter was directed to be placed before Constitutional Bench. Considering the controversy raised, the scope and purpose of Articles 75 and 164 of the Constitution required to be considered.

Issues:

I. Whether a person with criminal background and/or charged with offences involving moral turpitude be appointed as ministers in Central and State Governments?

II. What are the essential requirements for appointment as Ministers?

III. Whether taking recourse to this principle of implied limitation while interpreting, 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 offence and charges have been framed against him by the trial Judge?

Law:

Constitution of India - Article 75 - (1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.

(1A) The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed fifteen per cent of the total number of members of the House of the People.

(1B) A member of either House of Parliament belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister Under Clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to either House of Parliament before the expiry of such period, till the date on which he is declared elected, whichever is earlier.

(2) The Ministers shall hold office during the pleasure of the President.

(3) The Council of Ministers shall be collectively responsible to the House of the People.

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

(5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister.

(6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines, shall be as specified in the Second Schedule.

Constitution of India - Article 164 - (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor:

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

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

(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.

Contention:

Amicus curiae

I. Under the constitutional scheme, it is the right of a citizen to be governed by a Government which does not have Ministers in the Council of Ministers with criminal antecedents.

II. It is the constitutional obligation on the part of the Prime Minister not to recommend any person to be appointed as a Minister of the Council of Ministers who has criminal antecedents or at least who is facing a criminal charge in respect of heinous or serious offences. The choice made by the Prime Minister has to have its base on constitutional choice, tradition and constitutional convention which must reflect the conscience of the Constitution

III. The doctrine of implied limitation has been accepted as a principle of interpretation of our organic and living Constitution to meet the requirements of the contemporaneous societal metamorphosis and if it is not applied to the language of Article 75(1), the elan vital of the Constitution would stand extinguished.

IV. The framers of the Constitution have used the word "advice" as the Office of the Prime Minister is expected to carry the burden of the constitutional trust. The advice given by the Prime Minister to the President in the context of Article 75(1) has to be a considered, deliberate and informed one, especially taking note of the absence of criminal antecedents and lack of integrity. A Minister, though holds the office during the pleasure of the President, yet as per the law laid down by this Court and the convention, the advice of the Prime Minister binds the President. However, the President, being the Executive Head of the State, can refuse to follow the advice, if there is constitutional prohibition or constitutional impropriety or real exceptional situation that requires him to act to sustain the very base of the Constitution.

Petitioners

I. Though the choice of the Prime Minister relating to a person being appointed as a Minister is his constitutional prerogative, yet such choice cannot be exercised in an arbitrary manner being oblivious of the honesty, integrity and the criminal antecedents of a person who is involved in serious criminal offences. The Prime Minister, while giving advice to the President for appointment of a person as a Minister, is required to be guided by certain principles which may not be expressly stated in the Constitution but he is bound by the unwritten code pertaining to morality and philosophy encapsulated in the Preamble of the Constitution.

II. If a constitutional provision is silent on a particular subject, this Court can necessarily issue directions or orders by interpretative process to fill up the vacuum or void till the law is suitably enacted. The broad purpose and the general scheme of every provision of the Constitution has to be interpreted, regard being had to the history, objects and result which it seeks to achieve.

Assisting counsel

I. In the absence of any express provision for qualification of a Minister in the Union Cabinet Under Article 75 of the Constitution except that he has to be a Member of either House of the Parliament and when the oath required to be taken by a Minister Under Article 75(4) as given in the Third Schedule, does not give any requirement of his antecedent, there is no legal restriction under the Constitution for a person unless convicted of an offence as provided Under Section 8A of the 1951 Act to be appointed as a Minister.

II. Despite the absence of a legal prohibition, there are non-legal requirements of a constitutional behavior implicit in the character of an appointment.

Solicitor General

I. While interpreting Article 75(1) of the Constitution, the principle of implied limitation cannot be read into it to curtail the power of a high constitutional functionary like the Prime Minister.

II. In the absence of a constitutional prohibition or restriction, nothing should be engrafted into it or implanted.

III. If the stage of framing of charge of any offence is introduced, it would frustrate and, eventually, defeat the established concept of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty and there is indeed a long distance between the accused "may have committed the offence" and "must have committed the offence" which must be traversed by the prosecution by adducing reliable and cogent evidence.

Analysis

Dipak Misra, J.

Doctrine of Implied Limitation

I. Reading implied limitation as a prohibition to the words contained in Article 75(1) of the Constitution would tantamount to adding a disqualification 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 Constitution by the 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.

II. When there is no disqualification for a person against whom charges have been framed in respect of heinous or serious offences or offences relating to corruption to contest the election, by interpretative process, it is difficult 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 qualification and adding a disqualification which has not been stipulated in the Constitution. In the absence of any constitutional prohibition or statutory embargo, such disqualification cannot be read into Article 75(1) or Article 164(1) of the Constitution.

Principle of Constitutional Silence or Abeyance

I. This principle is a progressive one and is applied as a recognized advanced constitutional practice. It has been recognized by the Court to fill up the gaps in respect of certain areas in the interest of justice and larger public interest.

II. 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 disqualification to the already expressed disqualifications provided under the Constitution and the 1951 Act. The answer has to be in the inevitable negative, for there are express provisions stating the disqualifications and second, it would tantamount to crossing the boundaries of judicial review.

Doctrine of Constitutional Implications

I. 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.

II. It is not possible to accept 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 offences including corruption cases under the criminal law.

Doctrine of Good Governance

I. In a democracy, the citizens legitimately expect that the Government of the day would treat the public interest as 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 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 an Utopian conception or an abstraction. It has been the demand of the polity wherever democracy is nourished. The growth of democracy is dependant 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.

Advice by Prime Minister - Appointment of Ministers

I. 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 significance. 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 disqualified under the Constitution to contest the election or under the 1951 Act. That is in the realm of disqualification. But, a pregnant one, the trust reposed in a high constitutional functionary like the Prime Minister under the Constitution does not end there.

II. 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 fructified. 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 constitutional renaissance.

III. 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 trust, a constitutional one. It is also expected that the Prime Minster 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 offences 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.

IV. Thus, while interpreting Article 75(1), definitely a disqualification 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 offences or charges of corruption to become a Minister of the Council of Ministers. This is what the Constitution suggests and that is the constitutional expectation from the Prime Minister. Rest has to be left to the wisdom of the Prime Minister.

Madan B. Lokur, J.

Conditions for Appointment as Member of Parliament

I. To become a Member of Parliament, a person should possess the qualifications mentioned in Article 84 of the Constitution;

II. To become a Member of Parliament, a person should not suffer any of the disqualifications mentioned in Article 102 of the Constitution;

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

IV. 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 months;

V. 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 appointed;

VI. Yet another implied limitation read into the Constitution is that a person otherwise not qualified to be elected as a Member of Parliament or disqualified from being so elected cannot be appointed as a Minister;

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

Criminal Background and antecedents

I. The law does not hold a person guilty or deem or brand a person as a criminal only because an allegation is made against that person of having committed a criminal offence-be it in the form of an off-the-cuff allegation or an allegation in the form of a First Information Report or a complaint or an accusation in a final report Under Section 173 of the Code of Criminal Procedure or even on charges being framed by a competent Court. The reason for this is fundamental to criminal jurisprudence, the rule of law and is quite simple, although it is often forgotten or overlooked-a person is innocent until proven guilty. This would apply to a person accused of one or multiple offences. At law, he or she is not a criminal-that person may stand 'condemned' in the public eye, but even that does not entitle anyone to brand him or her a criminal.

II. Consequently, merely because a First Information Report is lodged against a person or a criminal complaint is filed against him or her or even if charges are framed against that person, there is no bar to that person being elected as a Member of Parliament or being appointed as a Minister in the Central Government.

III. Parliament has, therefore, in its wisdom, made a distinction between an accused person and a convict. For the purposes of the election law, an accused person is as much entitled to be elected to the Legislature as a person not accused of any offence. But, Parliament has taken steps to ensure that at least some categories of convicted persons are disqualified from being elected to the Legislature. A statutory disqualification is to be found in Section 8 of the Representation of the People Act, 1951. The adequacy of the restrictions placed by this provision is arguable. For example, a disqualification under this Section is attracted only if the sentence awarded to a convict is less than 2 years imprisonment.

IV. Thus: (i) To become a legislator and to continue as a legislator, a person should not suffer any of the disqualifications mentioned in Section 8 of the Representation of the People Act, 1951; (ii) 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 offence but awarded a sentence of less than two years imprisonment may still be eligible for being elected as a Member of Parliament; (iii) 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 consideration; (iv) That there is some degree of criminalization of politics is quite evident; (v) 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 Government.

Conclusion:

Writ petition is disposed of but with no order as to costs

Important Precedents:

I. His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. MANU/SC/0445/1973

II. Minerva Mills Ltd. and Ors. v. Union of India and Ors. MANU/SC/0075/1980

III. Bhanumati and Ors. v. State of Uttar Pradesh through its Principal Secretary and Ors. MANU/SC/0515/2010

IV. R. Rajagopal alias R.R. Gopal and Anr. v. State of T.N. and Ors. MANU/SC/0056/1995 

V. Joginder Kumar v. State of U.P. and Ors. MANU/SC/0311/1994

VI. Romesh Thappar v. The State of Madras MANU/SC/0006/1950