B.R. Kapur Vs. State of Tamil Nadu and Ors

Judges: S.P. Bharucha, G.B. Pattanaik, Y.K. Sabharwal, Ruma Paland Brijesh Kumar, JJ.

Facts:

The Second Respondent, Ms. J. Jayalalitha, was chief minister of the State of Tamil Nadu between 1991 and 1996. During said tenure, she was convicted for offences punishable under Section 120B of the Indian Penal Code (IPC) read with Sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (PC Act) and for the offence under Section 409 of IPC. She has preferred appeals against her conviction before the High Court at Madras. The appeals are pending. On applications filed by her in the two appeals, the High Court has suspended the sentences of imprisonment under Section 389(3) of the Code of Criminal Procedure and directed the release of Respondent No. 2 on bail. Thereafter, she filed petitions in the two appeals seeking the stay of the operation of the judgments in the two criminal cases. On 14th April, 2001, the Court has dismissed these petitions since the convictions were, inter alia, for offences under Section 13(1)(c) and 13(1)(d) of the PC Act. These orders were not challenged.

In April, 2001, the Second Respondent filed nomination papers for four constituencies in respect of the general election to be held to the Tamil Nadu Assembly. Her nomination papers were rejected on account of her disqualification under Section 8(3) of the Representation of the People Act, 1951, by reason of her conviction and sentence in the two criminal cases. On 13th May, 2001, the results of the election to the Tamil Nadu Assembly were announced and the AIADMK party, which had projected the Second Respondent as its chief ministerial nominee, won by a large majority. Consequently, the AIADMK elected the Second Respondent as its leader. The Second Respondent was sworn in as chief minister of the State of Tamil Nadu. Hence, the present petition wherein Petitioners seek directions in the nature of quo warranto against her.

Issues:

I. Whether a person can be appointed as a minister even though he was not a member of either House of the state Legislature?

II. Whether a person who has been convicted of a criminal offence and whose conviction has not been suspended pending appeal can be sworn in and can continue to function as the chief minister of a state.

Law:

Constitution of India - Article 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 office during the pleasure of the Governor: (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:

Respondent

I. It was not open to the court to read into Article 164 the requirement that a non-legislator minister must be elected to the Legislature within six months. No qualifications or disqualifications could, it was submitted, be read into a constitutional provision.

II. The suspension of the sentences passed against the second Respondent by the High Court at Madras was tantamount to the suspension of the convictions against her.

III. All the disqualifications set down in Section 8 would not apply until a final court had affirmed the conviction and sentence. This was for the reason that the principle underlying Section 8(4) had to be extended to a non legislator as, otherwise, Article 14 would stand violated for the presumption of innocence would apply to a sitting member till the conviction was finally affirmed but in the case of a non-legislator the disqualification would operate on conviction by the court of first instance. It was submitted that Section 8(4) had to be "read down" so that its provisions were not restricted to sitting members and in all cases the disqualification applied only when the conviction and sentence was finally upheld.

Analysis:

Appointment as Minister without becoming the member of either house

I. No one who was ineligible to become a member of the Legislature has been made a minister. Certainly, no one who has earned a conviction and sentence covered by Section 8 of the Prevention of Corruption Act would appear to have been appointed as chief minister.

II. What Sub-article (4) of Article 164 of Constitution does is to give a non-legislator appointed minister six months to become a member of the Legislature necessarily, therefore, that non-legislator must be one who, when he is appointed, is not debarred from obtaining membership of the Legislature : he must be one who is qualified to stand for the Legislature and is not disqualified to do so. Sub-article (4) is not intended for the induction into the council of ministers of someone for six months or less so that it is of no consequence that he is ineligible to stand for the Legislature.

III. It would be unreasonable and anomalous to conclude that a minister who is a member of the Legislature is required to meet the constitutional standards of qualification and disqualification but that a minister who is not a member of the Legislature need not. Logically, the standards expected of a minister who is not a member should be the same as, if not greater than, those required of a member.

IV. A non-legislator can be made chief minister or minister under Article 164 only if he has the qualifications for membership of the Legislature prescribed by Article 173 and is not disqualified from the membership thereof by reason of the disqualifications set out in Article 191.

Was the second Respondent disqualified for membership of the Legislature when she was appointed as chief minister

I. It is true that the order of the High Court on the application of the second Respondent states, "Pending criminal appeals the sentence of imprisonment alone is suspended and the Petitioners shall be released on bail...", but this has to be read in the context of Section 389 under which the power was exercised. Under Section 389 an appellate court may order that "the execution of the sentence or order appealed against be suspended...". It is not within the power of the appellate court to suspend the sentence; it can only suspend the execution of the sentence pending the disposal of appeal.

II. The suspension of the execution of the sentence does not alter or affect the fact that the offender has been convicted of a grave offence and has attracted the sentence of imprisonment of not less than two years. The suspension of the execution of the sentences, therefore, does not remove the disqualification against the second Respondent. The suspension of the sentence, as the Madras High Court erroneously called it, was in fact only the suspension of the execution of the sentences pending the disposal of the appeals filed by the second Respondent. The fact that she secured the suspension of the execution of the sentences against her did not alter or affect the convictions and the sentences imposed on her and she remained disqualified from seeking legislative office under Section 8(3) of Representation Of The People Act, 1951.

III. In those cases where the sentence is imposed on a day later than the date of conviction (which, incidentally, is not the case here) the disqualification would be attracted on the date on which the sentence was imposed because only then would a person be both convicted of the offence and sentenced to imprisonment for not less than two years which is cumulatively requisite to attract the disqualification under Section 8(3) of Representation Of The People Act, 1951.

IV. When a lower court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo the sentence. The execution of the sentence can be stayed by an appellate court and the accused released on bail. In many cases, the accused is released on bail so that the appeal is not rendered infructuous, at least in part, because the accused has already undergone imprisonment. If the appeal of the accused succeeds the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the stigma of the offence is altogether erased. But that it is not to say that the presumption of innocence continues after the conviction by the trial court. That conviction and the sentence it carries operate against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well.

V. On the date on which the second Respondent was sworn in as chief minister she was disqualified, by reason of her convictions under the Prevention of corruption Act and the sentences of imprisonment of not less than two years, for becoming a member of the Legislature under Section 8(3) of the Representation of the People Act.

Maintainability of Petition

I. We are not impressed by the submission that we should not exercise our discretion to issue a writ of quo warranto because the period of six months allowed by Article 164(4) to the second Respondent would expire in about two months from now and it was possible that the second Respondent might succeed in the criminal appeals which she has filed. We take the view that the appointment of a person to the office of chief minister who is not qualified to hold it should be struck down at the earliest.

II. A person who is convicted for a criminal offence and sentenced to imprisonment for a period of not less than two years cannot be appointed the chief minister of a state under Article 164(1) read with (4) and cannot continue to function as such.

III. In the appointment of the Second Respondent as chief minister there has been a clear infringement of a constitutional provision and a writ of quo warranto must issue.

G.B. Pattanaik, J.

I. In view of the conclusions already arrived at, with regard to the disqualifications the Respondent No. 2 had incurred, which prevents her for not being chosen as a member of the Legislative Assembly, it would be a blatant violation of constitutional laws to allow her to be continued as the chief minister of a state, howsoever short the period may be, on the theory that the majority of the elected members of the Legislative Assembly have elected her as the leader and that is the expression of the will of the people.

Brijesh Kumar, J.

I. In so far it relates to Article 361 of the Constitution, that the Governor shall not be answerable to any court for performance of duties of his office as Governor, it may, at the very outset, be indicated that we are considering the prayer for issue of writ of quo warranto against the Respondent No. 2, who according to the Petitioner suffers from disqualification to hold the public office of the Chief Minister of a State.

II. In view of the legal position as indicated above it would not be necessary to implead the appointing authority as Respondent in the proceedings. In the case in hand, the Governor need not be made answerable to court. Article 361 of the Constitution however does not extend any protection or immunity, vicariously, to holder of an office, which under the law, he is not entitled to hold. On being called upon to establish valid authority to hold a public Office, if the person fails to do so, a writ of quo warranto shall be directed against such person. It shall be no defence to say that the appointment was made by the competent authority, who under the law is not answerable to any court for anything done in performance of duties of his office. The question of fulfilling the legal requirements and qualifications necessary to hold a public office would be considered in the proceedings, independent of the fact as to who made the appointment and the manner in which appointment was made. Therefore, Article 361 of the Constitution would be no impediment in examining the question of entitlement of a person, appointed by the Governor to hold a public office, who according to the Petitioner/relator is usurper to the office.

Conclusion:

I. The appointment of the Second Respondent as chief minister of the State of Tamil Nadu was not legal and valid and she cannot continue to function as such. The appointment of the second Respondent as chief minister of the State of Tamil Nadu is quashed and set aside.

II. All acts, otherwise legal and valid, performed between 14th May, 2001 and today by the Second Respondent acting as chief minister of the State of Tamil Nadu, by the members of the council of ministers of that state and by the government of that state shall not be adversely affected by reason only of this order.