Supreme Court of India
MANOJ NARULAversusUNION OF INDIA
- Citation
- 2014 INSC 568
- Decided
- 27 August 2014
- Disposal
- Disposed off
- Bench
- RAJENDRA MAL LODHA
Holding
The Constitution does not impose a disqualification on persons with pending criminal charges from being appointed as Ministers, though the Prime Minister is expected to exercise constitutional trust and avoid such appointments.
Summary
The petition challenged the appointment of several Union Ministers on the ground that they had criminal antecedents or were facing charges for serious offences, seeking a declaration that such appointments were unconstitutional and requesting the Court to frame guidelines for ministerial appointments. The Court examined Articles 75 and 164 of the Constitution, the concept of constitutional trust in the Prime Minister’s advice, and the doctrine of implied limitation, concluding that the Constitution does not expressly disqualify a person with pending criminal charges from being appointed a Minister, though it is a constitutional expectation that the Prime Minister should avoid such appointments. The Court held that any further restrictions must be made by Parliament under the Representation of the People Act, 1951, and declined to issue guidelines. Consequently, the writ petition was dismissed without any order as to costs.
Issues considered
- The legality of appointing persons with criminal antecedents or pending charges as Ministers under Articles 75 and 164 of the Constitution.
- Whether the doctrine of implied limitation can be read into Article 75(1) to create a disqualification for such persons.
- Whether the Court can frame guidelines for ministerial appointments in the absence of a statutory provision.
- The scope of disqualification under the Representation of the People Act, 1951 in relation to ministerial appointments.
Legislation cited
- Code of Criminal Procedure, 1973s. Section 228
- Constitution of Indias. Article 102, s. Article 164, s. Article 173, s. Article 191, s. Article 1A, s. Article 5, s. Article 74, s. Article 75(1), s. Article 84
- Delhi Special Police Establishment Act, 1946s. Section 6A
- Representation of the People Act, 1951s. Section 8(1), s. Section 8(2), s. Section 8(3), s. Section 8(4)
Subjects
ministerial appointmentcriminal antecedentsconstitutional trustimplied limitationgood governanceconstitutional moralityRepresentation of the People ActArticle 75Article 164disqualificationcriminalisation of politics
Judgment
[2014] 9 S.C.R. 965
MANOJ NARULA A
v.
UNION OF INDIA
(Writ Petition (Civil) No. 289 of 2005)
AUGUST 27, 2014
B
[R.M. LODHA, CJI, DIPAK MISRA, MADAN 8. LOKUR,
KURIAN JOSEPH AND S.A. BOBDE, JJ.]
Constitution of India, 1950 - Arts. 75 and 164 - Scope
and purpose of -Legality of person with criminal background C
and/or charged with offences involving moral turpitude being
appointed as Ministers in Central and State Governments -
Scope for framing of possible guidelines for appointment of
Ministers for the UOI as well as for the State - Legal position
discussed - Representation of the People Act, 1951 - D
Chapter Ill -Criminalisation of politics.
Doctrines/Principles - Doctrine of implied limitation -
Discussed.
Doctrines/Principles - Principle of Constitutional silence/ E
abeyance - Discussed.
Doctrines/Principles - Principle of Constitutional
implications - Discussed.
Doctrines/Principles - Doctrine of Constitutional morality F
- Discussed.
Doctrines/Principles - Doctrine of good governance -
Discussed.
G
Doctrines/Principles - Doctrine of Constitutional trust -
Discussed.
Disposing of the writ petition, the Court
965 H
966 SUPREME COURT REPORTS [2014] 9 S.C.R.
•
A Per Dipak Misra, J. [for himself, Lodha, CJI. And
Bobde, J.)
HELD:1. The Prime Minister has been regarded as
the repository of constitutional trust. The use of the
words "on the advice of the Prime Minister" in Article 75
8
of the Constitution cannot be all()wed 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
C person is disqualified under the Constitution to contest
the election or under the Repr..esentation of the People
Act, 1951. 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
D 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
E 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
F 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.
[Para 85) [1031-C-G]
G 2. 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
H
MANOJ NARULA v. UNION OF INDIA 967
expected that the Prime Minster should act in the interest A
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 B
the constitutional trust. The 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. [Para
SSA] [1031-H; 1032-A-C] C
3. While interpreting Article 75(1) of the Constitution,
definitely a disqualification cannot be added. However, it
can always be legitimately expected, regard being had to
ttie role of a Minister in the Council of Ministers and
keeping in view the sanctity of oath he takes, the Prime D
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 E
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.
What has been said for the Prime Minister is wholly
applicable to the Chief Minister, regard being had to the F
language employed in Article 164(1) of the Constitution
of India. [Paras 86, 87] [1032-D-G]
Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299:
1976 SCR 347; T.N. Seshan, CEC of India v. Union of India G
and ors. (1995) 4 sec 611: 1995 (2) Suppl. SCR 106;
Ku/dip Nayar v. Union of India & Ors AIR 2006 SC 3127:
2006 (5) Suppl. SCR 1; People's Union for Civil Liberties
and another v. Union of India and another (2013) 1o sec 1:
2013 (12) SCR 283; Mohinder Singh Gill and another v.
H
968 SUPREME COURT REPORTS [2014] 9 S.C.R.
A Chief Election Commissioner, New Delhi and others (1978)
1 sec 405: 1978 (2) SCR 272; Raghbir Singh Gill v. S.
Gurcharan Singh Tohra AIR 1980 SC 1362: 1980
SCR 1302; Union of India v. Association for Democratic
Reforms and another (2002) 5 SCC 294: 2002 (3) SCR
s 696; Dinesh Trivedi, M.P. and others v. Union of India and
others (1997) 4 SCC 306: 1997 (3) SCR 93; Anukul
Chandra Pradhan, Advocate Supreme Court v. Union of India
and others (1997) 6 SCC 1: 1997 (1) Suppl. SCR 641; K.
Prabhakaran v. P. Jayarajan AIR 2005 SC 688: 2005 (1)
c SCR 296; Niranjan Hemchandra Sashitta/ and another v.
State of Maharashtra (2013) 4 SCC 642: 2013 (4) SCR 767;
Dr. Subramanian Swamy v. Director, Central Bureau of
Investigation & Anr., 2014 AIR 2140; Lily Thomas v. Union of
India and others (2013) 7 SCC 653; His Holiness
Kesavananda Bharati Sripadagalvaru v. State of Kera/a and
0
another (1973) 4 SCC 225: 1973 (0) Suppl. SCR 1; Centre
for.PIL and another v. Union of India and another (2011) 4
SCC 1: 2011 (4) SCR 445; N. Kannadasan v. Ajoy Khose
and others (2009) 7 SCC 1: 2009 (7) SCR 668; lnderpreet
E Singh Kah/on v. State of Punjab (2006) 11 SCC 356: 2006
(1) Suppl. SCR 772; Arun Kumar Agarwal v. Union of India
(2014) 2 SCC 609; State of Punjab v. Sa/ii Sabhlok and
others (2013) 5 SCC 1; Centre for Public Interest Litigation
and another v. Union of India and another (2005) 8 sec 202:
2005 (4) Suppl. SCR 77; Samsher Singh v. State of Punjab
F and another (1974) 2 sec 831: 1975 (1) SCR 814; B.R.
Kapur v. State of T.N. and another (2001) 7 SCC 231: 2001
(3) SOppl. SCR 191; M.P. Special Police Establishment v.
State of M.P. and others (2004) 8 SCC 788: 2004 (5) Suppl.
SCR 1020; S.P. Gupta v. Union of India and another 1981
G Supp SCC 87: 1982 SCR 365; M. Nagaraj and others v.
Union of India and others (2006) 8 sec 212: 2006 (7) Suppl.
SCR 336; U.N.R. Rao v. Smt. Indira Gandhi (1971) 2 SCC
63: 1971 (0) Suppl. SCR 46; G. Narayanaswami v. G.
Pannerselvam and others (1972) 3 SCC 717: 1973 (1)
H
MANOJ NARULA v. UNION OF INDIA 969
SCR 172; Shrikant v. Vasantrao and others (2006) 2 SCC A
682: 2006 (1) SCR 496; Narendra Singh v. State of M.P.
(2004) 10 SCC 699: 2004 (3) SCR 1148; Ranjitsing
Brahmajeetsing Sharma v. State of Maharashtra (2005) 5
SCC 294: 2005 (3) SCR 345; S. Ganesan v. Rama
Ranghuraman (2011) 2 SCC 83: 2011 (1) SCR 27 State of B
UP. v. Naresh (2011) 4 SCC 324: 2011 (4) SCR 1176;
Kai/ash Gour & ors. v. State of Assam (2012) 2 SCC 34:
2011 (16) SCR 318; Minerva Mills Ltd. And Others v. Union
of India and Others (1980) 3 sec 625: 1981 (1) SCR 206;
l.R. Coelho (Dead) by Lrs. v. State of Tamil Nadu (2007) 2 C
SCC 1: 2007 (1) SCR 706; Laxmi Kant Pandey v. Union of
India AIR 1987 SC 232: 1987 (1) SCR 383; D.K. Basu v.
State of West Bengal AIR 1997 SC 610: 1996 (10) Suppl.
SCR 284; Vishakha and others v. State of Rajasthan and
others (1997) 6 sec 241: 1997 (3) Suppl. SCR 404;
Bhanumati and others v. State of Uttar Pradesh through its D
Principal Secretary and others (2010) 12 SCC 1: 2010 (7)
SCR 585; R. Rajagopal alias R.R. Gopal and another v.
State of T.N. and others (1994) 6 sec 632; Joginder Kumar
v. State of UP. and others AIR 1994 SC 1349: 1994 (4)
SCC 260; Romesh Thappar v. The State of Madras, AIR E
1950 SC 124; A. Abdul Farook v. Municipal Council,
Perambalur and others (2009) 15 SCC 351 2009 (11)
SCR 727; Patangrao Kadam v. Prithviraj Sayajirao Yadav
Deshmukh and Ors. (2001) 3 SCC 594: 2001 (2) SCR 118;
M.J. Shivani and others v. State of Karnataka and others F
(1995) 6 SCC 289; State of Maharashtra and others v.
Jalgaon Municipal Corporation and others (2003) 9 SCC
731: 2003 (1) SCR 1112; UP. Power Corporation Ltd. and
Anr. v. Sant Steels & Alloys (P) Ltd. and Ors. AIR 2008 SC
693: 2007 (12) SCR 1160; Rai Sahib Ram Jawaya Kapur G
and others v. The State of Punjab AIR 1955 SC 549: 1955
SCR 225; Supreme Court Advocates-on-Record
Association and another v. Union of India AIR 1994 SC 268:
1993 (2) Suppl. SCR 659 and In re Art. 143, Constitution
H
970 SUPREME COURT REPORTS [2014] 9 S.C.R.
A of India and Delhi Laws Act (1912) AIR 1951 SC 332 -
referred to.
Melbourne Corporation v. Commonwealth (1974) 74
CLR 31; Political Advertising Case (1992) 177 CLR 106;
Australian National Airways Pty Ltd. v Commonwealth (1945)
B 71 CLR 29; Lamshed v. Lake (1958) 99 CLR 132 and
Payroll Tax Case (1971) 122 CLR 353, 401 - referred to.
Constituent Assemby Debates, 1989: VII, 38; James
Madison as Publius, Federalist 51 and Laurance H. Tribe,
C The Invisible Constitution 29 (2008); H. M. Seervai,
Constitutional Law of India, vo.I. 2, 4th Ed. Pg. 2060;
Constitutional and Administrative Law, 2nd Ed. Pg 368-
370, David Polland, Neil Parpworth David Hughs;
Constitutional & Administrative Law 5th Edition, pg 297-
D 305, Hilaire Barnett; Nolan Report, Standards in Public
Life, Cm 2850-1, 1995, Lodon HMSO, Chapter 3, para 4;
and Constitutional Practice (Second Edition) (pg. 146-
148); The Statute of Westminster and Dominion Status
(fourth edition) by K.C. Wheare; The Law and the
E Constitution by I. Jennings (5th Edition, ELBS: London,
1976) and Constitutional Law- A critical introduction {2nd
edition, Butterworths: London, 2000) by I. Lovehead -
referred to.
Per Madan 8. Lokur, J. [Concurring]
F
HELD:1. Two substantive reliefs have been claimed
in the writ petition. The first relief is for a declaration that
the appointment of Respondent Nos. 3 to 7 as Ministers
in the Government of India is unconstitutional. This is
G based, inter alia, on the averment that these respondents
have 'criminal antecedents' .As far as the first substantive
relief is concerned, the expressions 'criminal
background' and 'criminal antecedents' are extremely
vague. [Paras 3, 4] [1033-C-D, E]
H
MANOJ NARULA v. UNION OF INDIA 971
2. The second substantive relief is for the framing of A
possible guidelines for the appointment of a Minister in
the Central or State Government. It is not clear who
should frame the possible guidelines, perhaps this court.
As far as this substantive relief is concerned, it is entirely
for the appropriate Legislature to decide whether B
guidelines are necessary, as prayed for, and the frame of
such guidelines. No direction is required to be given on
this subject. [Paras 5, 6] [1033-F-H]
3. The offences and the sentence to be awarded for
the purpose of disqualifying a person from being elected C
to a Legislature are matters that Parliament may like to
debate and consider, if at all it is felt necessary. Until then,
one must trust the watchful eye of the people of the
country that the elected representative of the people is
worthy of being a legislator. Thereafter the wisdom of the D
Prime Minister and Parliament must be trusted that the
elected representative is worthy of being a Minister in the
Central Government. It is for the electorate to ensure that
suitable (not merely eligible) persons are elected to the
Legislature and it is for the Legislature to enact or not E
enact a more restrictive law. 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. [Paras 32, 34 and F
38] [1050-F-G; 1053-G; 1055-D]
S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126;
B. R. Kapur v. State of T.N. and another (2001) 7 SCC 231:
2001 (3) Suppl. SCR 191; B.P. Singhal v. Union of India, G
(2010) 6 SCC 331; State of Punjab v. Sa/ii Sabhlok and
others (2013) 5 SCC 1; Municipal Committee, Patiala. v.
Model Town Residents Association, (2007) 8 SCC 669; State
of Himachal Pradesh v. Parent of a student of Medical
College, (1985) 3 SCC 169; V.K. Naswa v. Union of India,
H
972 SUPREME COURT REPORTS [2014] 9 S.C.R.
A (2012) 2 sec 542; Gainda Ram v. MCD, (2010) 10 sec 715
and Lily Thomas v. Union of India and others (2013) 7 sec
653 - referred to.
http :I/pa rl ia me ntofi n d ia. n ic .i n/lsldebatesl
B vol11 p11.htm;http:l/parliamentofindia.nic.inllsldebatesl
vol11p12.htm;and http:l/hansard.millbanksystems.coml
written_answe rsl1994/ja nl251m in isters-u ns u ita bi I ity-fo r
office#S6CV0236P0_19940125_CWA_172; Constituent
Assemby Debates, 1989: VII; Public Law 1994, Aut, 431-
C 4; and 244th report of the Law Commission of India on
"Electoral disqualifications" - referred to.
Per Kurian Joseph, J. [Concurring]
HELD: No doubt, it is not for the court to issue any
0 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,
E protect and defend the Constitution. But it is the
prophetic duty of this Court to remind the key duty
holders about their role in working of the Constitution.
Hence, 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
F 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 offences
involving moral turpitude and also offences specifically
G referred to in Chapter Ill of The Representation of the
People Act, 1951. [Para 12) [1062-E-G]
Oxford English Dictionary; Concise Oxford English
Dictionary; and Arthasastra, Chapter IX - The creation of
H Councillors and Priests - referred to.
MANOJ NARULA v. UNION OF INDIA 973
Case Law Reference: A
In the judgment of Di~ak Misra, J.
1976 SCR 347 referred to Para 1
1995 (2) Suppl. SCR 106 referred. to Para 1
2006 (5) Suppl. SCR 1 referred to Para 1 B
2013 (12) SCR 283 referred to Para 1
1978 (2) SCR 272 referred to Para 3
1980 SCR 1302 referred to Para 4
2002 (3) SCR 696 referred to Para 5 c
1997 (3) SCR 93 referred to Para 7
1997 (1) Suppl. SCR 641 referred to Para 8
2005 (1) SCR 296 referred to Para 8
2013 (4) SCR 767 referred to Para 13 D
2014 AIR 2140 referred to Para 14
(2013) 1 sec 653 referred to Para 20
1973 (0) Suppl. SCR 1 referred to Para 22
2011 (4) SCR445 referred to Para 23 E
2009 (7) SCR 668 referred to Para 23
2006 (1) Suppl. SCR 772 referred to Para 23
(2014) 2 sec 609 referred to Para 23
(2013) 5 sec 1 referred to Para 23 F
2005 (4) Suppl. SCR 77 referred to Para 23
1975 (1) SCR 814 referred to Para 24
2001 (3) Suppl. SCR 191 referred to Para 24
2004 (5) Suppl. SCR 1020 referred to Para 25 G
1982 SCR 365 referred to Para 26
2006 (7) Suppl. SCR336 referred to Para 26
1971 (0) Suppl. SCR 46 referred to Para 33
1973 (1) SCR 172 referred to Para 33 H
974 SUPREME COURT REPORTS (2014] 9 S.C.R.
A 2006 (1) SCR496 referred to Para 33
2004 (3) SCR 1148 referred to Para 34
2005 (3) SCR 345 referred to Para 34
2011 (1) SCR27 referred to Para 34
B 2011 (4) SCR 1176 referred to Para 34
2011 (16) SCR 318 referred to Para 34
1981 (1) SCR 206 referred to Para 49
2007 (1) SCR 706 referred to Para 51
c 1987 (1) SCR 383 referred to Para 54
1996 (10) Suppl. SCR 284referred to Para 54
1997 (3) Suppl. SCR 404 referred to Para 54
2010 (7) SCR 585 referred to Para 55
D (1994) 6 sec 632 referred to Para 58
1994 (4) sec 260 referred to Para 58
1950 SCR 594 referred to Para 58
(1974) 74 CLR 31 referred to Para 59
E (1992) 177 CLR 106 referred to Para 59
(1945) 71 CLR 29 referred to Para 60
(1958) 99 CLR 132 referred to Para 60
(1971) 122 CLR 353 referred to Para 60
F 2009 (11) SCR 727 referred to Para 66
2001 (2) SCR 118 referred to Para 67
(1995) 6 sec 289 referred to Para 68
2003 (1) SCR1112 referred to Para 68
G 2007 (12) SCR 1160 referred to Para 68
1955 SCR 225 referred to Para 71
1993 (2) Suppl. SCR 659 referred to Para 73
In the judgment of Madan B. Lokur1 J.
H c2001) 1 sec 126 referred to Para 12
MANOJ NARULA v. UNION OF INDIA 975
2001 (3) Suppl. SCR 191 referred to Para 14 A
(201 O) 6 sec 331 referred to Para 19
(2013) 5 sec 1 referred to Para 20
(2001) 8 sec 669 referred to Para 27
(1985) 3 sec 169 referred to Para 27 B
(2012) 2 sec 542 referred to Para 28
(2010) 10 SCC 715 referred to Para 29
(2013) 7 SCC 653 referred to Para 36
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. C
289 of 2005.
Under Article 32 of the Constitution of India.
Paras Kuhad, R.K. Khanna, A.S.Gs., A. Mariarputham,
Rakesh Dwivedi (AC.), K. Parasaran (A.C.), T.R. Andhyarujina D
(A.C.), lrshad Ahmad, Manjit Singh, S.S. Shamshery,
Suryanaryana Singh, A.A.Gs, Preetika Dwivedi, Sansriti
Pathak, Ananya Pandey, Nikhil Sharma, Shridhar Pottaraju,
Zoheb Hoosein, Ashwin Kumar, D.S., C.S. Bharadwaj, Soumik
Ghosal, Anil Kumar Jha, Vijendra Mishra, Binay Kumar Das,
V.P. Singh, Y.S. Chauhan, Jitin Chaturvedi, T.A. Khan, Abhik E
C., D.L. Chidananda, Swati Vijay wargiya, Pravita Shekar, B.K.
Prasad, Sunita Sharma, D.S. Mahra, R. Satish, Gopal Singh,
Ritu Raj Biswas, V.G. Pragasam, S.J. Aristotle, Prabu
Ramasubramanian, Raman Yadav, Abhist Kumar, Vaibhav
Yadav, Vivekta Singh, Nupur Chaudhary, Tarjit Singh Chikkara, F
Vikas Sharma, Vinay Kuhar, Kamal Mohan Gupta, Gopal
Prasad, Anip Sachthey, Shagun Matta, Mohit Paul, Saakaar
Sardana, Mishra Saurabh, Vanshaja Shukla, Ankit Lal, S.S.
Banthia, Vartika Sahay Walia, (for Corporate Law Group),
Ranjan Mukherjee, C.D. Singh, Shweta Singh, Mohit Keswani, G
Shreya Dubey, Anil Shrivastav, Rituraj Biswas, Gopal Singh,
Chandan Kumar, Aruna Mathur, Yusuf (for Arputham, Aruna &
Co.), Hemantika Wahi, Puja Singh, Sandeep Singh, Amit
Sharma, Harshvardhan Rather, A.P. Mayee, B.B. Singh,
H
976 SUPREME COURT REPORTS [2014] 9 S.C.R.
A Rachna Srivastava, Anitha Shenoy, G.V.S. Jagannadha Rao,
Vikas G., Mayank Kshirsagar, Prabhat, Ranjan, Balaji
Srinivasan, Shrishti, Govil, Vashali Dixit, K. Enatoli Serna, Amit
Kumar Singh, P.V. Dinesh, Balasubramanian, K.V.
Jagdishvaran, G. Indira, P.V. Yogeswaran, Kuldip Singh,
B Sapam Biswajit Meitei, Khwairakpam Nobin Singh, B. Balaji,
R. Rakesh Sharma, Ranjan Mukherjee, Kamini Jaiswal, V.N.
Raghupathy, D. Mahesh Babu, Amit K. Nain, Suchitra
Hrangkhawl, Amjit Maqbool, Aditya Jain, B. Ramakrishna Rao,
T.V. Bhaskar Reddy, Pragati Neekhra for the Appearing
C parties.
The Judgment of the Court was delivered by
Dipak Misra, J.[for himself, R.M. Lodha, C.J., and
S.A. Bobde, J.]
D A democratic polity, as understood in its quintessential
purity, is conceptually abhorrent to corruption and, especially
corruption at high places, and repulsive to the idea of
criminalization of politics as it corrodes the legitimacy of the
collective ethos, frustrates the hopes and aspirations of the
E citizens and has the potentiality to obstruct, if not derail, the rule
of law. Democracy, which has been best defined as the
Government of the People, by the People and for the People,
expects prevalence of genuine orderliness, positive propriety,
dedicated discipline and sanguine sanctity by constant
F affirmance of constitutional morality which is the pillar stone of
good governance. While dealing with the concept of
democracy, the majority in Indira Nehru Gandhi v. Raj Narain1,
stated that 'democracy' as an essential feature of the
Constitution is unassailable. The said principle was reiterated
G in T.N. Seshan, CEC of India v. Union of India and ors. 2 • and
Ku/dip Nayarv. Union of India & Ors3 . It was pronounced with
1. AIR 1975 SC 2299.
2. (1995) 4 sec 611.
H 3. AIR 2006 SC 3127.
MANOJ NARULA v. UNION OF INDIA 977
[DIPAK MISRA, J.]
asseveration that democracy is the basic and fundamental A
structure of the Constitution. There is no shadow of doubt that
democracy in India is a product of the rule of law and aspires
to establish an egalitarian social order. It is not only a political
philosophy but also an embodiment of constitutional philosophy.
In People's Union for Civil Liberties and another v. Union of B
India and anofhf?r4, while holding the voters' rights not to vote
for any of the candidates, the Court observed that democracy
and free elections are a part of the basic structure of the
Constitution and~ thereafter, proceeded to lay down that
democracy being the basic feature of our constitutional set-up, c
there can be no two opinions that free and fair elections would
alone guarantee the growth of a healthy democracy in the
country. The term "fair" denotes equal opportunity to all people.
Universal adult suffrage conferred on the citizens of India by the
Constitution has made it possible for millions of individual
0
voters to participat~ in the governance of our country. For
democracy to survive, it is fundamental that the best available
men should be chosen as the people's representatives for the
proper governance of the country and the same can be best
achieved through men of high moral and ethical values who win
the elections on a positive vote. Emphasizing on a vibrant E
democracy, the Court observed that the voter must be given
an opportunity to choose none of the above (NOTA) button,
which will indeed compel the political parties to nominate a
sound candidate. Accordingly, the principle of the dire need of
negative voting was emphasised. The significance of free and F
fair election and the necessity of the electorate to have
candidates of high moral and ethical values was re-asserted.
In this regard, it may be stated that the health of democracy, a
cherished constitutional value, has to be protected, preserved
and sustained, and for that purpose, instilment of certain norms G
in the marrows of the collective is absolutely necessitous.
. 4. 4. (2013) 10 sec 1. H
978 SUPREME COURT REPORTS [2014] 9 S.C.R.
A THE REFERENCE
2. We have commenced our judgment with the aforesaid
prologue as the present writ petition under Article 32 of the
Constitution was filed by the petitioner as pro bono pub/ico
B assailing the appointment of some of the original respondents
as Ministers to the Council of Ministers of Union of India despite
their involvement in serious and heinous crimes. On 24.3.2006,
when the matter was listed before the Bench presided by the
learned Chief Justice, the following order came to be passed:
c
"A point of great public importance has been raised
in this petition. Broadly, the point is about the legality of
the person with criminal background and/or charged with
offences involving moral turpitude being appointed as
D ministers in Central and State Governments.
We have heard in brief Mr. Rakesh Dwivedi, learned
senior counsel who was appointed as amicus curiae to
assist the Court, as also the learned Solicitor General,
appearing for the Union of India, and Mr. Gopal
E
Subramaniam, learned Additional Solicitor General
appearing on behalf of the Attorney General for India.
Having regard to the magnitude of the problem and its vital
importance, it is but proper that the petition is heard by a
Bench of five Judges.
F
We issue notice to Union of India. Formal notice
need not be issued since the Union of India is represented
by learned Solicitor General.
Notices shall also be issued to the Advocates
G
General of all the States. The notice shall state that the
State Governments and the Union of India may file their
affidavits along with relevant material within four weeks of
service of notice.
H
MANOJ NARULA v. UNION OF INDIA 979
[DIPAK MISRA, J.]
The Prime Minister and some of the Ministers in A
Union Cabinet have been arrayed as party respondents 2
to 7. It is not necessary to implead individual ministers and/
or Prime Minister for deciding the question above-named.
Accordingly, respondent Nos. 2 to 7 are deleted from the
array of parties. B
List the case after the Court reopens after the
summer vacation for directions as to fixing a date for its
being placed before the Constitution Bench."
In view of the aforesaid order and the subsequent orders, C
the matter has been placed before us. Considering the
controversy raised, we are required to interpret the scope and
purpose of Articles 75 and 164 of the Constitution, regard being
had to the text, context, scheme and spirit of the Constitution.
D
THE PURITY OF ELECTION
3. In the beginning, we have emphasized on the concept
of democracy which is the corner stone of the Constitution.
There are certain features absence of which can erode the
fundamental values of democracy. One of them is holding of E
free and fair election by adult franchise in a periodical manner
as has been held in Mohinder Singh Gill and another v. Chief
Election Commissioner, New Delhi and others5 , for it is the
heart and soul of the parliamentary system. In the said case,
Krishna Iyer, J. quoted with approval the statement of Sir F
Winston Churchill which is as follows: -
"At the bottom of all tributes paid to democracy is the little
man, walking into a little booth, with a little pencil, making
a little cross on a little bit of paper - no amount of rhetoric G
or voluminous discussion can possibly diminish the
overwhelming importance of the point."
5. (1978) 1 sec 405. H
980 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 4. In Raghbir Singh Gill v. S. Gurcharan Singh Tohra 6 ,
the learned Judges, after referring to Mohinder Singh Gill's
case, stated that nothing can diminish the overwhelming
importance of the cross or preference indicated by the dumb
sealed lip voter. That is his right and the trust reposed by the
B Constitution in him is that he will act as a responsible citizen
choosing his masters for governing the country.
5. This Court has laid emphasis on the purity of elections
in Union of India v. Association for Democratic Reforms and
C another and, in that context, has observed that elections in this
country are fought with the help of money power which is
gathered from black sources and once elected to power, it
becomes easy to collect tons of black money which is used for
retaining power and for re-election. The Court further observed
that if on an affidavit a candidate is required to disclose the
D assets held by him at the time of election, the voter can decide
whether he should be re-elected. Thereafter, as regards the
purity of election, the Court observed that to maintain purity of
elections and, in particular, to bring transparency in the process
of election, the Commission can ask the candidates about the
E expenditure incurred by the political parties, and the voters
would have basic elementary right to know full particulars of a
candidate who is to represent them in Parliament where laws
to bind their liberty and property may be enacted because the
right to get information in a democracy is recognised all
F throughout and it is a natural right flowing from the concept of
democracy. Elaborating further, the Court opined that a voter
has c1 right to know the antecedents including the criminal past
of his candidate contesting election for MP or MLA as it is
fundamental and basic for the survival of democracy, for he may
G think over before making his choice of electing law-breakers
as law-makers. Eventually, the Court directed the Election
Commission to exercise_ its power under Article 324 of the
6. AIR 1980 SC 1362.
H 7. (2002) s sec 294.
MANOJ NARULA v. UNION OF INDIA 981
[DIPAK MISRA, J.]
Constitution requiring the candidate to furnish information A ·
pertaining to the fact whether the candidate has been convicted/
acquitted/discharged of any criminal offence in the past, if any,
and whether he has been punished with imprisonment or fine;
whether the candidate is accused in any pending case of any
offence punishable with imprisonment for two years or more, B
and in which charge is framed or cognizance is taken by the
court of law; and certain other information.
6. From the aforesaid authorities, it is perceivable that
while giving emphasis on the sanctity of election, the Court has C
expressed its concern with regard to various facets of the
candidates who contest the election and seek votes.
CRIMINALISATION OF POLITICS
7. Criminalisation of politics is an anathema to the D
sacredness of democracy. Commenting on criminalization of
politics, the Court, in Dinesh Trivedi, M.P. and others v. Union
of India and others8 , lamented the faults and imperfections
which have impeded the country in reaching the expectations
which heralded its conception. While identifying one of the E
primary causes, the Court referred to the report of N.N. Vohra
Committee that was submitted on 5.10.1993. The Court noted
that the growth and spread of crime syndicates in Indian society
has been pervasive and the criminal elements have developed
an extensive network of contacts at many a sphere. The Court,
F
further referring to the report, found that the Report reveals
several alarming and deeply disturbing trends that are prevalent
in our present society. The Court further noticed that the nexus
between politicians, bureaucrats and criminal elements in our
society has been on the rise, the adverse effects of which are
increasingly being felt on various aspects of social life in India. G
Indeed, the situation has worsened to such an extent that the
President of our country felt constrained to make references to
the phenomenon in his addresses to the Nation on the eve of
a. (1997) 4 sec 306. H
982 SUPREME COURT REPORTS [2014] 9 S.C.R.
A the Republic Day in 1996 as well as in 1997 and hence. jt
required to be handled with extreme care and circumspection.
8. In Anukul Chandra Pradhan, Advocate Supreme Court
v. Union of India and others9 , the Court, in the context of the
8 provisions made in the election law, observed that they have
been made to exclude persons with criminal back!}round of the
kind specified therein from the election scene as candidates
and voters with the object to prevent criminalization of politics
and maintain propriety in elections. Thereafter, the three-Judge
C Bench opined that any provision enacted with a view to
promote the said object must be welcomed and upheld as
subserving the constitutional purpose. In K. Prabhakaran v. P.
Jayarajan 10, in the context of enacting disqualification under
Section 8(3) of the Representation of the People Act, 1951 (for
brevity "the 1951 Act"), it has been reiterated that persons with
0 criminal background pollute the process of election as they
have no reservation from indulging in criminality to gain
success at an election.
9. It is worth saying that systemic corruption and sponsored
E criminalization can corrode the fundamental core of elective
democracy and, consequently, the constitutional governance.
The agonized concern expressed by this Court on being moved
by the conscious citizens, as is perceptible from the authorities
referred to hereinabove, clearly shows that a democratic
F republic polity hopes and aspires to be governed by a
Government which is run by the elected representatives who
do not have any involvement in serious criminal offences or
offences relating to corruption, casteism, societal problems,
affecting the sovereignty of the nation and many other offences.
G There are recommendations given by different committees
constituted by various Governments for electoral reforms. Some
of the reports that have been highlighted at the bar are (i)
Goswami Committee on Electoral Reforms (1990), (ii) Vohra
9. (1997) a sec 1.
H 10. AIR 2005 SC 688.
MANOJ NARULA v. UNION OF INDIA 983
[DIPAK MISRA, J.]
Committee Report (1993), (iii) lndrajit Gupta Committee on A
State Funding of Elections (1998), (iv) Law Commission Report
on Reforms of the Electoral Laws (1999), (v) National
Commission to Review the Working of the Constitution (2001 ),
(vi) Election Commission of India - Proposed Electoral
Reforms (2004), (vii) The Second Administrative Reforms B
Commission (2008), (vii) Justice J.S. Verma Committee Report
on Amendments to Criminal Law (2013), and (ix) Law
Commission Report (2014).
10. Vohra Committee Report and other Reports have been C
taken note of on various occasions by this Court. Justice J.S.
Verma Committee Report on Amendments to Criminal Law
has proposed insertion of Schedule 1 to the 1951 Act
enumerating offences under IPC befitting the category of
'heinous' offences. It recommended that Section 8(1) of the
1951 Act should be amended to cover, inter alia, the offences D
listed in the proposed Schedule 1 and a provision should be
engrafted that a person in respect of whose acts or omissions
a court of competent jurisdiction has taken cognizance under
Section 190(1 )(a), (b) or (c) of the Code of Criminal Procedure
or who has been convicted by a court of competent jurisdiction E
with respect to the offences specified in the proposed
expanded list of offences under Section 8(1) shall be
disqualified from the date of taking cognizance or conviction,
as the case may be. It further proposed that disqualification in
case of conviction shall continue for a further period of six years F
from the date of release upon conviction and in case of
acquittal, the disqualification shall operate from the date of
taking cognizance till the date of acquittal.
11. The Law Commission, in its 244th Report, 2014, has G
suggested amendment to the 1951 Act by insertion of Section
88 after Section 8A, after having numerous consultations and
discussions, with the avowed purpose to prevent criminalization
of politics. It proposes to provide for electoral reforms. Though
it is a recommendation by the Law Commission, yet to
H
984 SUPREME COURT REPORTS [2014] 9 S.C.R.
A understand the existing scenario i'n which the criminalization of
politics has the effect potentiality to create a concavity in the
highly treasured values of democracy, we think it apt to
reproduce the relevant part of the proposed amendment. It
reads as follows: -
B
"88. Disqualification on framing of charge for certain
offences. -.(1) A person against whom a charge has been
framed by a competent court for an offence punishable by
at least five years imprisonment shall be disqualified from
the date of framing the charge for a period of six years, or
c till the date of quashing of charge or acquittal, whichever
is earlier.
(2) Notwithstanding anything contained in this Act, nothing
in sub-section (1) shall apply to a person:
D
(i) Who holds office as a Member of Parliament, State
Legislative Assembly or Legislative Council at the ·
date of enactment of this provision, or
(ii) Against whom a charge has been framed for an
E offence punishable by at least five years
imprisonment;
(a) Less than one year before the date of
scrutiny of nominations for an election under
F Section 36, in relation to that election;
(b) At a time when such person holds office as
a Member of Parliament, State Legislative
Assembly or Legislative Council, and has
been elected to such office after the
G enactment of these provisions;
(3) For Members of Parliament, State Legislative
Assembly or Legislative Council covered by clause (ii) of
sub-section (2), they shall be disqualified at the expiry of
H
MANOJ NARULA v. UNION OF INDIA 985
[DIPAK MISRA, J.]
one year from the date of framing of charge or date of A
election, whichever is later, unless they have been
acquitted in the said period or the relevant charge against
them has been quashed."
12. The aforesaid vividly exposits concern at all quarters 8
about the criminalisation of politics. Criminalisation of politics,
it can be said with certitude, creates a dent in the marrows of
the nation.
CORRUPTION IN THE PRESENT SCENARIO
c
13. Criminality and corruption go hand in hand. From the
date the Constitution was adopted, i.e.: 26th January, 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 o
Hemchandra Sashittal and another v. State of Maharashtra 11
the Court has observed: -
"It can be stated without any fear of contradiction that
corruption is not to be judged by degree, for corruption
mothers disorder, destroys societal will to progress, E
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 energy of the F
people believing in honesty, and history records with agony
how they have suffered. The only redeeming fact is that
collective sensibility respects such suffering as it is in
consonance with the constitutional morality."
G
14. Recently, in Dr. Subramanian Swamy v. Director,
Central Bureau of Investigation & Anr. 12 , the Constitution
11. (2013) 4 sec 642.
12. Writ Petition (Civil) No. 38 of 1997 etc. pronounced on May 06, 2014. H
986 SUPREME COURT REPORTS [2014] 9 S.C.R.
A Bench, speaking through R.M. Lodha,. C.J., while declaring
Section 6A of the Delhi Special Police Establishment Act,
1946, which was inserted by Act 45 of 2003, as
unconstitutional, has opined that:-
B "lt seems to us that classification 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
finding prima facie truth into the allegations of graft, which ·
amount to an offence under the PC Act, 1988. Can there
be sound differentiation between corrupt public servants
c based on their status? Surely not, because irrespective of
their 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
D 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
offence under the PC Act, 1988." ·
E And thereafter, the larger Bench further said:-
"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 difficult to
justify the classification which has been made in Section
F
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."
G
And again:
"70. Office 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
H
MANOJ NARULA v. UNION OF INDIA 987
[DIPAK MISRA, J.]
there are allegations of corruption of graft or bribe taking A
or criminal· misconduct under the PC Act, 1988 can be
made to be treated differently because one happens to be
a junior officer and the other, a senior decision maker.
71. Corruption is an enemy of nation and tracking down 8
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 C
segregate corrupt officers into two classes as they are
common crime doers and have to be tracked down by the
same process of inquiry and investigation."
From the aforesaid authorities, it is clear as noon day that
corruption has the potentiality to destroy many a progressive D
aspect and it has acted as the formidable enemy of the nation.
PROVISIONS RELATING TO QUALIFICATIONS AND
DISQUALIFICATION OF MPs AND MLAs/MLCs
15. Having stated about the significance of democracy E
under our Constitution and holding of free and fair elections as
a categorical imperative to sustain and subserve the very base
of democracy, and the concern of this Court on being moved
under various circumstances about criminalization of politics,
presently we shall look at the constitutional and the statutory F
provisions which provide for qualifications and disqualifications
of Members of Parliament and that of the State Legislature.
16. Article 84 of the Constitution provides for qualifications
for membership of Parliament. The said Article lays down that G
a person shall not be qualified to be chosen to fill a seat in the
Parliament unless he is a citizen of India, and makes and
subscribes before a person authorised in that behalf by the
Election Commission an oath or affirmation according to the
form set out for the purpose in the Third Schedule; and further H
988 SUPREME COURT REPORTS [2014] 9 S.C.R.
A in the case of a seat in the Council of States, not less than thirty
years of age and, in the case of a seat in the House of the
People, not less than twenty five years of age; and that apart,
he must possess such other qualifications as may be
prescribed in that behalf by or under any law made by
B Parliament.
17. Article 102 provides for disqualifications for
membership. It provides that a person shall be disqualified for
being chosen as, and for being, a member of either House of
C Parliament if he holds any office of profit under the Government
of India or the Government of any State, other than an office
declared by Parliament by law not to disqualify its holder; if he
is of unsound mind and stands so declared by a competent
court; if he is an undischarged insolvent; if he is not a citizen of
India, or has voluntarily acquired the citizenship of a foreign
D State, or is under any acknowledgement of allegiance or
adherence to a foreign State; and if he is so disqualified by or
under any law made by Parliament. The explanation expressly
states what would be deemed not to be an office of profit under
the Government of India or the Government of any State. That
E apart, the said Article prescribes that a person shall be
disqualified for being a member of either House of Parliament
if he is so disqualified under the Tenth Schedule.
18. Similarly, Article 173 provides for qualification for
F membership of the State Legislature and Article 191
enumerates the disqualifications similar to Article 102.
19. The Parliament by the 1951 Act has prescribed further
qualifications and disqualifications to become a member of
Parliament or to become a member of Legislative Assembly.
G Section 8 of the Act stipulates the disqualification on conviction
for certain offences. We need not state the nature of the
offences enumerated therein. Suffice it to mention Section 8(1)
covers a wide range of offences not only under the Indian Penal
Code but also under many other enactments which have the
H
MANOJ NARULA v. UNION OF INDIA 989
[DIPAK MISRA, J.]
potentiality to destroy the core values of a healthy democracy, A
safety of the State, economic stability, national security, and
prevalence and sustenance of peace and harmony amongst
citizens, and many others. Sub-sections 8(3) and 8(4), which
have been a matter of great debate, are reproduced below: -
B
"8(3) A person convicted of any offence and sentenced to
imprisonment for not less than two years other than any
offence referred to in sub-section (1) or sub-section (2)
shall be disqualified from the date of such conviction and
shall continue to be disqualified for a further period of six C
years since his release.
(4) Notwithstanding anything in sub-section (1), Sub-section
(2) or sub-section (3), a disqualification under either sub-
section shall not, in the case of a person who on the date
of the conviction is a member of Parliament or the D
Legislature of a State, take effect until three months have
elapse from that date or, if within that period an appeal or
application for revision is brought in respect of the
conviction or the sentence, until that appeal or application
is disposed of by the court." E
20. At this juncture, it is apposite to mention that the
constitutional validity of sub-section (4) of Section 8 of the 1951
Act was challenged before this Court under Article 32 of the
Constitution in Lily Thomas v. Union of India and others 13
F
wherein the Court, referring to the decision in K Prabhakaran
(supra) and Articles 102(1 )(e) and 191 (1 )(e) of the Constitution,
held that once a person who was a Member of either House of
Parliament or House of the State Legislature becomes
disqualified by or under any law made by Parliament under
Articles 102(1)(e) and 191(1)(e) of the Constitution, his seat G
automatically falls vacant by virtue of Articles 101 (3)(a) and
190(3)(a) of the Constitution and Parliament cannot make a
provision as in sub-section (4) of Section 8 of the Act to defer
13. c2013) 1 sec 653. H
990 SUPREME COURT REPORTS [2014] 9 S.C.R.
A the date on which the disqualification of a sitting Member will
have effect and prevent his seat becoming vacant on account
of the disqualification under Article 102(1 )(e) or Article
191 (1 )(e) of the Constitution. Eventually, the Court ruled that the
affirmative words used in Articles 102(1 )(e) and 191 (1 )(e)
B confer power on Parliament to make one law laying down the
same disqualifications for a person who is to be chosen as
Member of either House of Parliament or as a Member of the
Legislative Assembly or Legislative Council of a State and for
a person who is a sitting Member of a House of Parliament or
c a House of the State Legislature and the words in Articles
101 (3)(a) and 190(3)(a) of the Constitution put express
limitations on such power of the Parliament to defer the date
on which the disqualifications would have effect and, therefore,
sub-section (4) of Section 8 of the Act, which carves out a
0 saving in the case of sitting Members of Parliament or State
Legislature from the disqualifications under sub-sections (1 ),
(2) and (3) of Section 8 of the Act or which defers the date on
which the disqualification will take effect in the case of a sitting
Member of Parliament or a State Legislature, is beyond the
E powers conferred on Parliament by the Constitution. Thereafter,
dealing with sitting members of the Parliament and State
Legislature, the two-Judge Bench ruled that if any sitting
Member of Parliament or a State Legislature is convicted of
any of the offences mentioned in sub-sections (1), (2) and (3)
of Section 8 of the Act, and by virtue of such conviction and/or
F sentence, suffers the disqualifications mentioned in sub-
sections (1), (2) and (3) of Section 8 of the Act, his membership
of Parliament or the State Legislature, as the case may be,
would not be saved by sub-section (4) of Section 8 of the Act.
G 21. Thus, the scheme of disqualification upon conviction
laid down by the 1951 Act clearly upholds the principle that a
person who has been convicted for certain categories of
c'riminal activities is unfit to be a representative of the people.
Criminal activities that result in disqualific~tion are related to
H various spheres pertaining to the interest of the nation, common
MANOJ NARULA v. UNION OF INDIA 991
[DIPAK MISRA, J.]
citizenry interest, communal harmony, and prevalence of good A
governance. It is clear that the 1951 Act lays down that the
commission of serious criminal offences renders a person
ineligible to contest in elections or continue as a representative
of the people. Such a restriction does provide the salutary
deterrent necessary to prevent criminal elements from holding B
public office thereby preserving the probity of representative
government.
SUBMISSIONS OF THE COUNSEL
22. In this backdrop, the proponements put forth by Mr. c
Dwivedi, learned senior counsel, who was appointed as amicus
curiae, are to be noted and considered. It is his submission that
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. Though D
qualifications and disqualifications for the Members of
Parliament and Members of the State Legislative Assembly or
the State Legislative Council are provided under the
Constitution, and they basically relate to the election process
and continuance in the House and the further disqualifications E
which have been enumerated under the 1951 Act have been
legislated by the Parliament being empowered under the
specific provisions of the Constitution, yet when the Ministers
are appointed who constitute the spectrum of collective
responsibility to run the Government, a stronger criteria has to F
be provided for. A Minister is appointed by the President on
the advice of the Prime Minister as per Article 75(1) of the
Constitution and a Minister enters upon his Office after the
President administers him oath of office and secrecy according
to the form set out for the said purpose in the Third Schedule G
and, therefore, submits Mr. Dwivedi, 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
H
992 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 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. It is
propounded by him that the same would serve the spirit and
core values of the Constitution, the values of constitutionalism
B and the legitimate expectations of the citizens of this country.
The power conferred on any constitutional authority under any
of the Articles of the Constitution may not be circumscribed by
express or obvious prohibition but it cannot be said that in the
absence of use of any express phraseology in that regard, it
c would confer an unfettered and absolute power or unlimited
discretion on the said constitutional authority: Learned senior
counsel would contend that 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
0 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. It is urged by him that
judiciary, as the final arbiter of the Constitution, is under the
constitutional obligation to inject life to the words of the
E Constitution so that they do not become stagnate or sterile. In
this context, Mr. Dwivedi has commended us to the views of
the learned Judges in His Holiness Kesavananda Bharati
Sripadaga/varu v. State of Kera/a and another14 to highlight
that the applicability of the doctrine of implied limitation has
been accepted by this Court.
F
23. Relying on the said principle, it is contended by him
that the same has to be read into the language of Article 75(1)
of the Constitution to state that the Prime Minister, while giving
advice to the President for appointment of a person as Minister,
G is not con~itutionally permitted to suggest the name of a person
who is facing a criminal trial and in whose case charge/charges
have been framed. Learned senior counsel has further
submitted that high constitutional offices have to possess
H 14. (1973) 4 sec 22s. ·
MANOJ NARULA v. UNION OF INDIA 993
[DIPAK MISRA, J.]
"institutional integrity" so that the faith of the people at large is A
not shaken. He has emphasised on the office of the President,
the Governors, Judges of the High Courts and of the Supreme
Court of the country and the Comptroller and Auditor General
of India. Such offices, as contended, are offices of high public
trust and, therefore, it is a natural necessity that in such B
appointments, the incumbent should be of impeccable integrity
and character and it cannot be conceived that such a person
would be involved in any kind of criminal offence. Mr. Dwivedi
has made a distinction with regard to the eligibility of a person
for becoming a Member of Parliament as that is controlled by c
qualifications and disqualifications and the absence of
disqualifications, but to be a Minister in the Council of Ministers
which is done solely on the advice of the Prime Minister,
absence of criminal antecedents has to be a condition
precedent. It is canvassed by him that when parliamentary
0
democracy is a basic feature of the Constitution and the
Council of Ministers exercise all the powers as per the
democratic conventions, it has to be treated as an important
constitutional institution of governance of the nation and,
therefore, it cannot be allowed to be held by persons involved
in criminal offences. He has placed reliance upon the authorities E
in Centre for PIL and another v. Union of India and another15,
N. Kannadasan v. Ajoy Khose and others16 , lnderpreet Singh
Kah/on v. State of Punjab 17, Arun Kumar Agarwal v. Union of
lndia 16 , State of Punjab v. Sali/ Sabhlok and others19 and
Centre for Public Interest Litigation and another v. Union of F
India and anotheti0 .
24. Laying stress on the word "advice", apart from referring
15. (2011) 4 sec 1
16. (2009) 7 sec 1
G
17. (2006) 11 sec 356
1s. (2014) 2 sec 609
19. (2013) 5 sec 1
20. (2005) a sec 202
H
994 SUPREME COURT REPORTS [2014] 9 S.C.R.
A to the dictionary meaning, the learned senior counsel has urged
that 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
8 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
C 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. Learned senior counsel would submit
that the President, in exercise of his constitutional prerogative,
0
may refuse to accept the advice of the Prime Minister, if he finds
that the name of a Member of Parliament is suggested to
become a Minister who is facing a criminal charge in respect
of serious offences. To buttress the said submission, he has
drawn inspiration from the decisions in Samsher Singh v.
E State of Punjab and anothef 1 and B. R. Kapur v. State of T.N.
and anothef 2
25. Mr. Dwivedi has said that the situation "peril to
democracy", as visualized in Samsher Singh (supra, confers
F the discretion on the President and he may not accept the
advice. Learned senior counsel would submit that the decision
in Samsher Singh (supra) has been followed in M.P. Special
Police Establishment v. State of MP. and others2 3 wherein the
1
Governor in an exceptional circumstance differed with the
G advice of the Council of Ministers and granted sanction for
prosecution. Emphasising on the concept of constitutional trust
21. (1974) 2 sec 831.
22. c2001) 7 sec 231.
H 23. (2004) 8 sec 788.
MANOJ NARULA v. UNION OF INDIA 995
[DIPAK MISRA, J.]
in the Prime Minister which is inherent in the Constitution and A
which was a part of the Constituent Assembly Debates, Mr.
Dwivedi has referred to the Debates in the Constituent
Assembly. It i$ argued that a constitutional convention has to
be read into Article 75(1) which would convey that a person
charged with serious crimes cannot be appointed as a B
Minister, for the individual responsibility of the Cabinet is always
comprehended as a facet of collective responsibility. For the
aforesaid purpose, he has found the stimulus from
"Constitutional Law" by Loveland, "Constitutional and
Administrative Law" by David Polland, Neil Parpworth David c
Hughs, "Constitutional and Administrative Law" by Hilaire
Barnett (5th Edn.) and "Constitutional Practice".
26. Mr. Anil Kumar Jha, learned counsel who has preferred
the writ petition on behalf of the petitioner, supplementing the
arguments of Mr. Dwivedi, contended that though the choice D
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, E
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. F
Learned counsel has· emphasised on the purposive
interpretation of the Constitution which can preserve, protect
and defend the Constitution regardless of the political impact.
It is contended by him that if a constitutional provision is silent
on a particular subject, this Court can necessarily issue G
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. Learned H
996 SUPREME COURT REPORTS [2014] 9 S.C.R.
A counsel has placed reliance on S.P. Gupta v. Union of India
and anothei24 and M. Nagaraj and others v. Union of India and
others25 •
27. Mr. T.R. Andhyarujina, learned senior counsel, who was
requested to assist the Court, has submitted that in the
8
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
C requirement of his antecedent, there is no legal restriction under
the Constitution for a person unless convicted of an offence as
provided under Section BA of the 1951 Act to be appointed
as a Minister. It is his submission that Article 84 specifies
certain qualifications for filling up the seats of Parliament, but
D it does not state anything as to the character and qualification
of a person qualified to sit in the Parliament. Apart from the
disqualifications prescribed under Article 102(i)(e) and the
provisions under the 1951 Act, there is no other disqualification
for a Member of Parliament to hold the post of a Minister.
E Therefore, the criminal antecedents or any disqualification that
is going to be thought of to hold the post of a Minister after the
charge is framed, as contended by the petitioner, may be in
the realm of propriety but that cannot be read into the
constitutional framework.
F
28. Mr.. Andhyarujina has further submitted that Section
44(4)(ii) of the Australian Constitution puts a limitation on the
member of the House which travels beyond conviction in a
criminal case, for the said provision provides that any person
G who has been convicted and is under sentence, or subject to
be sentenced, for any offence punishable under the law of the
Commonwealth or of a State by imprisonment for one year or
longer, would be incapable of being chosen or of sitting as a
24. 1981 Supp sec 87.
H 2s. c2ooa) 8 sec 212.
MANOJ NARULA v. UNION OF INDIA 997
[DIPAK MISRA, J.]
senator or a member of the House of Representatives. A
Learned counsel has commended us to Lane's Commentary
on the Australian Constitution, 1986 to highlight that this is an
exceptional provision in a Constitution which disqualifies a
person from being a Member of Parliament even if he is not
convicted but likely to be subject to a sentence for the B
prescribed offence, but in the absence of such a provision in
our Constitution or in law made by the Parliament, the Court
cannot introduce such an aspect on the bedrock of propriety.
Learned counsel has also referred to the U.K. Representation
of Peoples Act, 1981 which provides that a person who is c
sentenced or ordered to be imprisoned or detained indefinitely
or for more than one year is disqualified and his election is
rendered void and the seat of such a member is vacated. Mr.
Andhyarujina has also referred to the House of Commons
Library paper on disqualification for membership of the House
0
of Commons wherein the practice is that the existence of a
criminal record may not disqualify a person from ministerial
office, but convictions for offences involving corruption,
dishonesty, serious violence or serious sexual misconduct
would jeopardize a person's prospect of a ministerial career.
Learned senior counsel has also drawn our attention to a E
publication by Professor Rodney Brazier "Is it a Constitutional
issue: Fitness for ministerial office" in Public Law 1994 wherein
it has been stated that whether a criminal record should
disqualify a person from membership of Government is unclear,
however, conviction for serious offences could impede a F
ministerial appointment. He has also referred to a passage from
Constitutional and Administrative Law by Hilaire Barnett 4th
Ed. P. 354, to show that by an unwritten rule of constitutional
propriety, in United Kingdom, a person is unlikely to be made
a Minister if he has been convicted of a serious offence or even G
if he is facing prosecution for a serious offence. Submission
of learned amicus curiae is that there is no implied prohibition
in our Constitution on appointment of a Minister in case of a
pending prosecution of a serious offence except conviction
and, therefore, the principle of implied prohibition that a person H
998 SUPREME COURT REPORTS [2014] 9 S.C.R.
A who is not convicted but is being prosecuted or charge sheeted
for a criminal offence is to be debarred from being a Member
of the Legislature and, consequently, a Minister would not be
attracted. Learned senior counsel would contend that the
jurisprudence is based on innocence of the accused until he is
B proved guilty which is in tune with Article 14(2) of the
International Covenant on Civil and Political Rights and it
cannot be brushed aside. Learned amicus curiae contended
that in respect of certain constitutional officials like President
of India, Judges of courts including superior courts, Attorney
c General of India, Comptroller and Auditor General of India and
Governor of a State, implied prohibition is implicit. It is urged
by him that this Court, while interpreting Article 75(1 ), cannot
introduce the concept of rule of law to attract the principle of
implied prohibition as rule of law is an elusive doctrine and it
cannot form the basis of a prohibition on the appointment of a
0
Minister.
29. Mr. Andhyarujina, while submitting about the absence
of an express constitutional prohibition or a statutory bar
founded on the basis of the 1951 Act prescribing conviction,
E has also submitted that despite the absence of a legal
prohibition, there are non-legal requirements of a constitutional
behavior implicit in the character of an appointment. He has
referred to a passage from Constitutional and Administrative
Law by ECS Wade and AW Bradley as well as the
F Constitutional Debates and urged that a convention should be
developed that persons facing charge for serious criminal
offences should not be considered for appointment as a
Minister, but the Court cannot form a legal basis for adding a
prohibition for making such an appointment justiciable in the
G court of law unless there is a constitutional prohibition or a
statutory bar.
30. Mr. K. Parasaran, learned senior counsel, who was
also requested to render assistance, has submitted that the
area of election in a democratic set-up is governed by the 1951
H
MANOJ NARULA v. UNION OF INDIA 999
[DIPAK MISRA, J.]
Act and the rules framed thereunder and in the present mosaic A
of democracy such a controversy, in the absence of
constitutional impediment or statutory prohibition, would not
come within the parameters of judicial review. It is his
proponement that the Prime Minister, in certain circumstances,
regard being had to the political situations, may have certain B
political compulsions to appoint a Minister so that the frequent
elections are avoided. It is his submission that any kind of
additional prohibition under Article 75(1) by way of judicial
interpretation is impermissible as the Prime Minister is the sole
repository of power under the Constitution to advise the c
President as to who should become a Minister if he is otherwise
constitutionally eligible and there is no statutory impediment.
Learned senior counsel would contend that the 1951 Act
includes certain offences and specifies the stage, i.e.,
conviction and, therefore, if anything is added to it in respect 0
of the stage, it would be travelling beyond the text which would
be contrary to the principles of statutory interpretation.
31. Mr. Parasaran, learned amicus curiae, has drawn a
distinction between the two concepts, namely, constitutional
morality and constitutional propriety on one hand and ethical E
acceptability on the other and, in that regard, he has submitted
that the advice of the Prime Minister, as has been stated by
the framers of the Constitution, to the Head of the Executive
for appointment of a Minister should conform to the standards
of constitutional morality, regard being had to the constitutional F
norms, democratic polity and the sanctity of democracy. In
essence, the submission of Mr. Parasaran is that the framers
of the Constitution have bestowed immense trust on the Prime
Minister as would be seen from the Constitutional Debates, and,
therefore, this Court should reiterate the principle of G
constitutional trust and that would be a suggestive one in terms
of Article 75(1) of the Constitution.
32. Mr. Paras Kuhad, learned Additional Solicitor General,
in his turn, has contended that the doctrine of implied limitation
H
1000 SUPREME COURT REPORTS [2014] 9 S.C.R.
A has not been accepted in Kesavananda Bharati case by the
majority of Judges and, therefore, the interpretation put forth by
the learned friend of the Court for the petitioner is impermissible.
It is urged by him that while interpreting Article 75(1) of the
Constitution, the principle of implied limitation cannot be read
B into it to curtail the power of a high constitutional functionary like
the Prime Minister.
33. It is his further submission that in the absence of a
constitutional prohibition or restriction, nothing should be
C engrafted into it or implanted. It is put forth by him that the
submission of learned amicus curiae to the effect that the
President can exercise his discretion by not accepting the
recommendations of the Prime Minister or by not acting on the
advice of the Prime Minister is contrary to the constitutional
norms and the parliamentary system prevalent in our country
D under the Constitution. For the aforesaid purpose, he has
placed reliance on the decision in U.N.R. Rao v. Smt. Indira
Gandhi2 6 • It is urged by him that if anything is added to Article
75(1 ), that would tantam'ount to incorporating a disqualification
which is not present and the principle of judicial review does
E not conceptually so permit, for such a disqualification could have
been easily imposed by the framers of the Constitution or by
the Parliament by making a provision under the 1951 Act. To
bolster the said submission, he has commended us to the
Constitution Bench decision in G. Narayanaswami v. G.
F Pannerselvam and others27 and a three-Judge Bench decision
in Shrikant v. Vasantrao and others28 . The choice of the Prime
Minister is binding on the President and a Minister holds the
office till he enjoys the confidence of the House. Learned
Additional Solicitor General, for the said purpose, has drawn
G inspiration from certain passages from Samsher Singh (supra).
34. It is his further submission that if the stage of framing
·26. (1971) 2 sec 63.
21. (1972) 3 sec 111.
H 28. c2006) 2 sec 682.
MANOJ NARULA v. UNION OF INDIA 1001
[DIPAK MISRA, J.]
of charge of any offence is introduced, it would frustrate and, A
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 B
the prosecution by adducing reliable and cogent evidence. In
this regard, reliance has been placed on Narendra Singh v.
State of M.P. 29 , Ranjitsing Brahmajeetsing Sharma v. State
of Maharashtra 30 , S. Ganesan v. Rama Ranghuraman 3 1,
State of UP. v. Naresh 32 and Kai/ash Gour & ors. v. State of c
Assam33 . Learned counsel would suggest that the stage would
affect the concept of democratic legitimacy and a person
cannot become ineligible on the basis of perceived
seriousness of the crime without providing a protection despite
the person being otherwise eligible, efficient and capable of
0
being chosen as a Minister by the Prime Minister.
CONSTITUTIONAL PROVISIONS
35. Having regard to the aforesaid submissions which
have been put forth from various perspectives, we shall proceed E
to deal with the ambit and scope of the constitutional provisions
which are relevant in the present context and how they are to
be interpreted on the parameters of constitutional interpretation
and on the bedrock of the precedents of this Court. We think it
seemly to refer to the relevant Articles of the Constitution which F
are centripodal to the controversy. Articles 74 and 75 read as
follows: -
"74. (1) There shall be a Council of Ministers with the Prime
Minister at the head to aid and advise the President who
G
29. (2004) 10 sec 699.
30. c2oos) s sec 294.
31. c2011) 2 sec 83.
32. c2011 > 4 sec 324.
33. c2012) 2 sec 34. H
1002 SUPREME COURT REPORTS [2014] 9 S.C.R.
A shall, in the exercise of his functions, act in accordance with
such advice:
Provided that the President may require the Council
of Ministers to reconsider such advice, either generally or
otherwise, and the President shall act in accordance with
B
the advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was
tendered by Ministers to the President shall not be inquired ·
into in any court.
c
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
D Minister, in the Council of Ministers shall not exceed fifteen
per cent of the total number of members of the House of
the People.
(1 B) A member of either House of Parliament belonging
E 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
F 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
G the President.
(3) The Council of Ministers shall be collectively
responsible to the House of the People.
H (4) Before a Minister enters upon his office, the President
MANOJ NARULA v. UNION OF INDIA 1003
[DIPAK MISRA, J.]
shall administer to him the oaths of office and of secrecy A
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 B
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." C
From the aforesaid Articles, it is vivid that they deal with
the Council of Ministers for the Union of India.
36. Article 163 pertains to the Council of Ministers of State
0
who aid and advise the Governor. It reads as follows:-
"163. (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 functions, except in so far as he is
by or under this Constitution required to exercise his E
functions or any of them in his discretion.
(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
F
of the Governor in his discretion shall be final, 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.
(3) The question whether any, and if so what, advice was G
tendered by Ministers to the Governor shall not be inquired
into in any court.
37. The relevant part of Article 164 is extracted below: -
H
1004 SUPREME COURT REPORTS [2014] 9 S.C.R.
A "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:
B
xxx xxx xxx
(2) The Council of Ministers shall be collectively
responsible to the Legislative Assembly of the State.
c (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
D is not a member of the Legislature of the State shall at the
expiration of that period cease to be a Minister."
38. At this juncture, it is apt to refer to the nature of oath
which is meant for the office of a Minister. The.Third Schedule
E provides the forms of Oaths or Affirmations of the Constitution:
"Form of oath of office for a Minister for the Union: -
"I, AB., do swear in the name of God/ solemnly affirm
F that I will bear true faith and allegiance to the Constitution
of India as by law established, that I will uphold the
sovereignty and integrity of India, that I will faithfully and
conscientiously discharge my duties as a Minister for the
Union and that I will do right to all manner of people in
G accordance with the Constitution and the law, without fear
or favour, affection or ill-will."
39. The Form of Oath for office of a Minister of State is
as follows: -
H
MANOJ NARULA v. UNION OF INDIA 1005
[DIPAK MISRA, J.]
"I, A.B., do swear in the name of God/ solemnly affirm A
that I will bear true faith and allegiance to the Constitution
of India as by law established, that I will uphold the
sovereignty and integrity of India, that I will faithfully and
conscientiously discharge my duties as a Minister for the
State of ....... and that l"Will do right to all manner of people B
in accordance with the Constitution and the law without fear
or favour, affection or ill-will."
40. The form of oath of secrecy for a Minister for the U!"lion
is as follows: -
c
"I, A. 8., do swear in the name of God/solemnly affirm that
I will not directly or indirectly communicate or reveal to any
person or persons any matter which shall be brought under
my consideration or shall become known to me as a
Minister for the Union except as may be required for the D
due discharge of my duties as such Minister."
Similar is the oath of secrecy for a Minister for a State.
We have reproduced the forms pertaining to oath as Mr.
Dwivedi stressed on the concept of sanctity of oath that pertains E
to allegiance to the- Constitution, performing of duties without
fear or favour and maintenance of secrecy. It is urged by him
that a person with criminal antecedents taking such an oath
would violate the fundamental values enshrined in the
Constitution.
F
DOCTRINE OF IMPLIED LIMITATION
41. It has been highlighted before us by Mr. Dwivedi, as
noted earlier, that regard being had to the nature ,of office a
Minister holds in a democratic set-up under the Constitution, G
persons with criminal antecedents especially charged for
heinous and serious offences cannot and should not hold the
said office. 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 H_
1006 SUPREME COURT REPORTS [2014] 9 S.C.R.
A stage in trial needs to be introduced to the phraseology 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
B aid of the doctrine of "implied limitation". In Kesavananda
Bharati's case, Sikri, CJ, 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
c Constitution. He has further held: -
"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
D 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"
E in the widest sense.
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
F 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.
284. In view of the above reasons, a necessary implication
G 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 suggested by the
respondents."
H
MANOJ NARULAv. UNION OF INDIA 1007
[DIPAK MISRA, J.]
42. Shelat and Grover, JJ., in their opinion, while speaking A
about the executive power of the President, have observed that
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 B
power vests in the Council of Ministers. 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 c
of the Constitution, as engrafted under Article 368 of the
Constitution, said the learned Judges: -
"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 D
leads to the result that the amending power under Article
368 is neither narrow nor unlimited. On the footing on which
we have proceeded 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. E
The insertion of Articles 13(4) and 368(3) and the other
amendments made will not affect 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 F
elements are not abrogated or denuded of their identity."
43. Hegde and Mukherjea, JJ., while discussing about
implied limitations, opined thus: -
"655. Implied limitations on the powers conferred under a G
statute constitute a general feature of all statutes. The
position cannot be different in the case of powers conferred
under a Constitution. A grant of power in general terms or
even in absolute terms may be qualified by other express
H
1008 SUPREME COURT REPORTS [2014) 9 S.C.R.
A provisions in the same enactment or may be qualified by
the implications of the context or even by considerations
arising out of what appears to be the general scheme of
the statute."
And again: -
B
"656. Lo;u Wright in James v. Commonwealth of
Australia 34 stated the law thus:
"The question, then, is one of construction, and in the
c 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
0 balance between all its parts."
Thereafter, the learned Judges proceeded to state that: -
"657. Several of the powers conferred under our
Constitution have been held to be subject to implied
E limitations though those powers are expressed in general
terms or even in absolute terms."
And further proceeded to state thus: -
" .... though plenary powers of legislation have been
F conferred on the Parliament and the State Legislatures in
respect of the legislative topics allotted to them, yet this
Court has opined that by the exercise of that power neither
Parliament nor the State Legislatures can delegate to other
authorities their essential legislative functions nor could
G 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
H 34. 1936 AC 578.
MANOJ NARULA v. UNION OF INDIA 1009
[DIPAK MISRA, J.]
be implied limitations on other powers conferred under the A
Constitution, there cannot be any implied limitations on the
amending power. We see no basis for this distinction."
44. Jaganmohan Reddy, J., in his separate opinion,
concurred with the view expressed by Sikri, C.J. 8
45. Palekar, J., has opined thus: -
"Some more cases like Ranasinghe's 35 case Taylor v.
Attorney General of Queensland36 ; Mangal Singh v. Union of
lndia 37, were cited to show that constitutional laws permit C
implications to be drawn where necessary. Nobody disputes
that proposition. Courts may have to do so where the
implication is necessary to be drawn."
After so stating, the learned Judge distinguished the cases
0
by observing that: -
"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, E
must be frightened by the fact that some superior and
transcendental character has been ascribed to them."
And eventually, ruled thus: -
"1318. On a consideration, therefore, of the nature of the F
amending power, the unqualified 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 G
Amendments which are in question here must be deemed
35. 1965 AC 172.
36. 23 CLR 457.
37. (1967) 2 SCR 109.
H
1010 SUPREME COURT REPORTS [2014] 9 S.C.R.
A to be valid. We cannot question their policy or their
wisdom."
46. Chandrachud, J., has observed that: -
"2087. In considering the petitioner's argument on inherent
B 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
c there is no implied prohibition."
47. Khanna, J., while speaking on implied limitation, noted
the submission of the learned counsel for the petitioner in the
following terms: -
D "1444. 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
E concerned, it has two facets. Under the first facet, they are
limitations which flow by necessary implications from
express provisions of the Constitution. The second facet
postulates limitations which must be read in the
Constitution irrespective of the fact whether they flow from
F 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
G 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."
Dealing with the same, the learned Judge ruled: -
H
MANOJ NARULA v. UNION OF INDIA 1011
[DIPAK MISRA, J.]
"1446. So far as the first facet is concerned regarding a A
limitation which flows 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 B
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." c
48. Be it clarified, in subsequent paragraphs, the learned
Judge expressed the view that though the Parliament has been
conferred 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 D
feature of the Constitution.
49. In Minerva Mills Ltd. And Others v. Union of India and
Others36 , the Constitution Bench was dealing with the validity
of Sections 4 and 55 of the Constitution (42nd Amendment) E
Act, 1976. Chandrachud, C.J., speaking for himself, Gupta,
Untwalia and Kailasam, JJ., referred to the majority opinion in
Kesavananda Bharati (supra) and referred to the opinion given
by Sikri, C.J., Shelat and Grover, JJ., Hegde and Mukherjea,
JJ., Jaganmohan Reddy, J. and Khanna, J. and opined thus:- F
"11. Khanna, J. broadly agreed with the aforesaid views
of the six learned Judges and held that 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 G
amendment of the Constitution. According to the learned
Judge, although it was permissible to the Parliament, in
exercise of its amending power, to effect changes so as
38. (1980) 3 sec 625. H
1012 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 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 effect of
B empowering the Parliament to destroy or abrogate the
basic structure or framework of the Constitution.
12. The summary of the various judgments in Kesavananda
Bharati was signed by nine out of the thirteen Judges.
Paragraph 2 of the summary reads to say that according
c 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 reflects the
D majority view."
Thereafter, the learned Chief Justice proceeded to state
thus:-
"16 .... The theme song of the majority decision in
E
Kesavananda Bharati 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
heritage; therefore, you cannot destroy its identity"."
F
50. In 8. R. Kapur (supra), the Constitution Bench, after
referring to the decision in Kesavananda Bharti (supra),
reproduced paragraph 16 from Minerva Mills case and opined
that since the Constitution had conferred a limited amending
G power on Parliament, Parliament could not in the exercise of
that limited power, enlarge 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,
H under Article 368, expand its amending power so as to acquire
MAN OJ NARULA v. UNION OF INDIA 1013
[DIPAK MISRA, J.]
for itself the right to repeal or abrogate the Constitution or to A
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.
51. In /.R. Coelho (Dead) by Lrs. v. State of Tamil Nadu 39,
B
the Nine-Judge Bench, while dealing with the doctrine of implied
limitation, ruled thus:-
"96 ..... ln the four different opinions six learned Judges
came substantially to the same conclusion. These Judges
read an implied limitation on the power of Parliament to C
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, D
that the Twenty-ninth Amendment will have to be examined
by a smaller Constitution Bench to find out whether the said
amendment violated the basic structure theory or not. This
gave rise to the argument that fundamental rights chapter
is not part of basic structure. Khanna, J. however, does not E
so say in Kesavananda Bharati case."
52. 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
F
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 G
heinous and serious offence and charges have been framed
against him by the trial Judge. Reading such an implied
limitation as a prohibition would tantamount to adding a
39. c2001) 2 sec 1. H
1014 SUPREME COURT REPORTS [2014) 9 S.C.R.
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
B 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
c Mills case, giving example, the Court held that by amendment,
the 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
0
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. In B.R. Kapur's case, the Constitution Bench ruled that
E a non-legislator can be made a Chief Minister or Minister under
Article 164(1) only if he has qualifications for membership of
the Legislature prescribed under Article 173 and is not
disqualified from the membership thereof by reason of the
disqualifications set out in Article 191. Bharucha, J. (as his
F Lordship then was), speaking for the majority, opined that as
.the second respondent therein had been convicted for offences
punishable under Sections 13(1 )( c), 13(1 )(d) and 13(2) of the
Prevention of Corruption Act, 1988 and Sections 409 and 120-
8 of the Indian Penal Code and sentenced tq undergo rigorous
G imprisonment of three years, she was disqualified under
Section 8(4) of the 1951 Act as the said respondent was
disqualified 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
H hold the post of the Chief Minister. A submission was advanced
MANOJ NARULA v. UNION OF INDIA 1015
[DIPAK MISRA, J.]
that it was not open to the Court to read anything into Article A
164, for a non-legislator could be sworn in as the Chief Minister,
regardless of the qualifications or disqualifications. The Court
placed reliance on Kesavananda Bharati's case and Minerva
Mills' case and opined that if a non-legislator is made a Chief
Minister under Article 164, then he must satisfy the qualification B
for membership of a legislator as prescribed under Article 173.
A specific query was made by the Court that even when the
person recommended, was, to the Governor's knowledge, a
non-citizen or under-age or lunatic or discharged insolvent,
could he be appointed as a Chief Minister. It was urged that c
he/she could only be removed by the vote of no-confidence 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
qualified to become a Member in view of Article 173, he cannot D
be appointed as a Chief Minister under Article 164(1). Be it
noted, there was disqualification 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 disqualification into Article 164(1) of the Constitution.
E
53. On a studied scrutiny of the ratio of the aforesaid
decisions, we are of the convinced opinion that 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 F
interpretative process, it is difficult to read the prohibition irtto
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 G
disqualification which has not been stipulated in the
Constitution. In the absence of any constitutional prohibition or
statutory embargo, such disqualification,·in our considered
opinion, cannot be read into Article 75(1) or Article 164(1) of
the Constitution. H
1016 SUPREME COURT REPORTS [2014] 9 S.C.R.
A PRINCIPLE OF CONSTITUTIONAL SILENCE OR
ABEYANCE
54. 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
8
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. Liberalization of the concept of locus standi for
the purpose of development of Public Interest Litigation to
C 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 the case of Laxmi Kant
Pandey v. Union of lndia 40 or issuance of guidelines pertaining
D to arrest in the case of D.K. Basu v. State of West Benga/4 1 or
directions issued in Vishakha and others v. State of Rajasthan
and others4 2 are some of the instances.
55. In this context, it is profitable to refer to the authority in
E Bhanumati and others v. State of Uttar Pradesh through its
Principal Secretary and others4 3 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-confidence motion in the detailed
F constitutional provision under Part IX of the Constitution and,
therefore, the incorporation of the said provision in the statute
militates against the principles of 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
G strucK down as the said provision diluted the principle of stability
and continuity which is the main purpose behind the object and
40. AIR 1987 SC 232.
41. AIR 1997 SC 610.
42. (1997) a sec 241.
H 43. c2010) 12 sec 1.
MANOJ NARULA v. UNION OF INDIA 1017
[DIPAK MISRA, J.]
reason of the constitutional amendment in Part IX of the A
Constitution. The Court, after referring to Articles 243-A, 243-
C(1 ), (5), 243-0(4), 243-0(6), 243-F(1), (6), 243-G, 243-H,
243-1(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-confidence is contrary to Part-IX of the 8
Constitution. In that context, it has been held as follows: -
"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 C
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 significant for the attitudes and
approaches to the Constitution that they evoke, rather than D
the content or substance of their strictures". (P. 10)
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 E
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 codified
components." (P. 82)"
F
56. 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 G
inevitable negative, for there are express provisions stating the
disqualifications and second, it would tantamount to crossing
the boundaries of judicial review.
H
1018 SUPREME COURT REPORTS [2014] 9 S.C.R.
A POCTRINE OF CONSTITUTIONAL IMPLICATIONS
57. 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
immense emphasis on the words "on the advice of the Prime
8 Minister" occurring in Article 75(1) of the Constitution. It is his
submission that these words are of immense significance and
apposite meaning from the said words is required to be
deduced to the effect that the Prime Minister is not
constitutionally allowed to advise the President to make a
C person against whom charge has been framed for heinous or
serious offences or offences pertaining to corruption, as Minister
in the Council of Ministers, regard being had to the
sacrosanctity of the office and the oath prescribed under the
Constitution. Learned senior counsel would submit that on many
D 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.
E 58. In this regard, inclusion of many a facet within the ambit
of Article 21 is well established. In R. Rajagopa/ alias R.R.
Gopal and another v. State of T. N. and others44, right to privacy
has been inferred from Article 21. Similarly, in Joginder Kumar
v. State of U.P. and others4 5 , inherent rights under Articles 21
F and 22 have been stated. Likewise, while dealing with freedom
of speech and expression and freedom of press, the Court, in
Ramesh Thappar v. The State of Madras46, has observed that
freedom of speech and expression includes freedom of
propagation of ideas.
G 59. There is no speck of doubt that the Court has applied
the doctrine of implication to expand the constitutional
44. (1994) 6 sec 632.
45. AIR 1994 SC 1349.
46. AIR 1950 SC 124.
H
MANOJ NARULA v. UNION OF INDIA 1019
[DIPAK MISRA, J.]
concepts, but the context in which the horizon has been A
expanded has to be borne in mind. What is suggested 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 disqualification, i.e., framing of charges irf serious
and heinous criminal offences or offences relating to corruption. B
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 Corporation v
Commonwealth 47 , Dixon, J opined that constitutional c
implication should be based on considerations which are
compelling. Mason, CJ, in Political Advertising46 Case, 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 D
of interpretation must find 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 number E
of articles cohesively, for that will be in the domain of
substantive legitimacy.
60. Dixon, J, in Australian National Airways Pty Ltd. v
Commonwealth, 49 said: 'I do not see why we should be fearful
about making implications'. The said principle has been F
approved in Lamshed v Lake50 , and thereafter, in Payroll Tax
Case 51. Thus, the said principle 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
G
47. (1974) 74 CLR 31.
48. (1992) 177 CLR 106.
49. (1945) 71 CLR 29, 85.
50. (1958) 99 CLR 132, 144-5.
51. (1971) 122 CLR 353, 401. H
1020 SUPREME COURT REPORTS [2014] 9 S.C.R.
A to have a base in the Constitution. The Court cannot re-write a
constitutional provision. In this context, we may fruitfully refer to
Ku/dip Nayar's case 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
B Constitution thought it fit to do so, it has itself provided for
elections by secret ballot 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 of the President and the Vice-
C 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 office
and Members of both Houses of Parliament for the latter office
and in both cases, it was felt necessary by the framers of the
Constitution to provide that the voting at such elections shall be
0
by secret ballot through inclusion of the words "and the voting
at such election shall be by secret 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.
E 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: -
"421. It follows that for "secret ballot" to be the norm, it must
F 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."
G
61. 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 _
H
MANOJ NARULA v. UNION OF INDIA 1021
[DIPAK MISRA, J.]
and serious offences including corruption cases under the A
criminal law.
OTHER RELEVANT CONSTITUTIONAL CONCEPTS -
CONSTITUTIONAL MORALITY. GOOD GOVERNANCE
AND CONSTITUTIONAL TRUST
B
62. Though we have not accepted the inspired arguments
of Mr. Dwivedi to add a disqualification 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. c
63. 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. D
Ambedkar had, throughout the Debate, felt that the Constitution
can live and grow on the bedrock of constitutional morality.
Speaking on the same, he said: -
"Constitutional morality is not a natural sentiment. It has to
be cultivated. We must realize that our people are yet to E
learn it. Democracy in India is only a top-dressing on an
Indian soil, which is essentially undemocratic52 ."
64. The prin~iple of constitutional morality basically means
to bow down to the norms of the Constitution and not to act in F
a manner which would become violative of the rule of law or
reflectible of actio,n 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 G
successful where lhe people at large and the persons-in-charge
of the institution are strictly guided by the constitutional
parameters with_out paving the path of deviancy and reflecting
in action the primary concern to maintain institutional integrity
52. Constituent Assembly Debates 1989: VII, 38.
H
1022 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 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: -
"If men were angels, no government would be necessary.
If angels were to govern men, neither external nor internal
B controls on government would be necessary. In framing a
government which is to be administered by men over men,
the great difficulty lies in this: you must first enable the
government to control the governed; and in the next place
oblige it to control itself. A dependence on the people is,
c no doubt, the primary control on the government; but
experience has taught mankind the necessity of auxiliary
precautions. 53"
65. Regard being had to the aforesaid concept, it would
D 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 profitable to remember the famous line of Laurence
H. Tribe that a Constitution is "written in blood, rather than ink". 54
E GOOD GOVERNANCE
66. Having stated about the aspect of constitutional
morality, we presently proceed to deal with the doctrine of good
governance. In A. Abdul Farook v. Municipal Council,
F Perambalur and others55 , the Court observed that the doctrine
of ~o~d11 go11iEJrnpnce requires the Government to rise above
1
'their :political interest and act only in the public interest and for
the welfare of its people.
67. In Patangrao Kadam v. Prithviraj Sayajirao Yadav
G Deshmukh and Ors. 56, the Court, referring to the object of the
53. James Madison as Publius, Federalist 51.
54. Laurance H. Tribe, THE INVISIBLE CONSTITUTION 29 (2008).
55. (2009) 15 sec 351.
H 56. (2001) 3 sec 594.
MANOJ NARULA v. UNION OF INDIA 1023
[DIPAK MISRA, J.]
provisions relating to corrupt practices, elucidated as follows: A
"Clean, efficient and benevolent administration are the
essential features of good governance which in turn
depends upon persons of competency and good
character." B
68. In M.J. Shivani and others v. State of Karnataka and
others57, it has been held that fair play and natural justice are
part of fair public administration; non-arbitrariness and absence
of discrimination are hall marks for good governance under the
rule of law. In State of Maharashtra and others v. Jalgaon C
Municipal Corporation and others 56 , it has been ruled that one
of the principles of good governance in a democratic society
is that smaller interest must always give way to larger public
interest in case of conflict. In UP. Power Corporation Ltd. and
Anr. v. Sant Steels & Alloys (P) Ltd. and Ors. 59, the Court D
observed that in this 21st century, when there is global economy,
the question of faith is very important.
69. In a democracy, the citizens legitimately expect that the
Government of the day would treat the public interest as primary E
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
F
rights in any governmental action, deference for unwritten
constitutional values, vene.ration for institutional integrity, and
inculcation of accountability to the collective at If rge. It 1 al$o
conveys that the decisions are takJn1 by the' decision making
authority with solemn sincerit~f"~hd policies are framed keeping
in view the welf.~rE\l o'f' the people, and including all in a G
homogeneous compartment. The concept of good governance
57: (1'995) 6 sec 289.
58. (2003) 9 sec 731.
59. AIR 2008 SC 693.
H
1024 SUPREME COURT REPORTS (2014] 9 S.C.R.
A 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
B service orient~tion.
CONSTITUTIONAL TRUST
70. Having stated about good governance, we shall
proceed to deal with the doctrine of "constitutional trust". The
C 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 suggested by Prof. K.T. Shah with regard to the
D introduction of a disqualification of a convicted person
becoming a Minister, Dr. B.R. Ambedkar had replied: -
"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
E
I do not think any Member of this House would like to differ
from him on that proposition. But the whole question is this
whether we should introduce all these qualifications and
disqualifications in the Constitution itself. Is it not desirable,
is it not sufficient that we should trust the Prime Minister,
F
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
G Legislature with the general public holding a watching brief
upon them. I therefore say that these amendments are
unnecessary."
[Emphasis supplied]
H
MANOJ NARULA v. UNION OF INDIA 1025
[DIPAK MISRA, J.]
71. The trust reposed in the Prime Minister is based on A
his constitutional status. In Rai Sahib Ram Jawaya Kapur and
others v. Th-e State of Punjab 60 , B.K. Mukherjea, CJ, while
referring toJ).ie scope of Article 74, observed that under Article
53(1 l·of the Constitution, the executive power of the Union is
vestedi i~he President but under Article 74, there is to be a B
Co\.'lrteil of Ministers with the Prime Minister at the head to aid
aFid 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 Cabinet. c
72. In Samsher Singh (supra), Ray, CJ, speaking for the
majority, opined that the President as well as the Governor is
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 D
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 E
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 F
adv.ice. 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, G
save in few well-known exceptional situations. The learned
Judge has carved out certain exceptions with which we are
really presently not concerned with.
60. AIR 1955 SC 549. H
1026 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 73. In Supreme Court Advocates-on-Record Association
and another v. Union of lndia 61 , 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 effective head of the
B 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
confidence of the House of the People, individually and
collectively. The Court further observed that the powers of the
c President are exercised by him on the advice of the Prime
Minister and the Council of Ministers which means that the said
powers are effectively exercised by the Council of Ministers
headed by the Prime Minister.
74. We have referred to these authorities singularly for the
D P.Urpose that the Prime Minister has been conferred an
extremely special status under the Constitution.
75. As the Prime Minister is the effective head of the
Government, indubitably, he has enormous constitutional
E 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
F Constitutional Law6 2 , observed: -
"Bl1t 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
G wisely exercised. It can be said equally that the
Constitution confers power but .lt gives no guarantee that
it will be worked by men of high character. capacity and
61. AIR 1994 SC 268.
H 62. H.M. Seervai, Constitutional Law of India, vol. 2, 4th Ed. Pg. 2060.
MANOJ NARULA v. UNION OF INDIA 1027
[DIPAK MISRA, J.]
integrity. If the Constitution is to be successfully worked, A
an attempt must be made to improve the political
atmosphere and to lay down and enforce standards of
conduct required for a successful working of our
Constitution."
B
[Emphasis added]
76. In Constitutional and Administrative Lav·/33, the learned
authors while dealing with individual responsibility of Ministers,
have said:-
c
"3. THE INIDIVIDUAL RESPONSIBILITY OF
MINISTERS
The individual responsibility of ministers illustrates further
Professor Munro's continuum theory. Ministers are
0
individually accountable for their own private conduct, the
general running of their departments and acts done, or
omitted to be done, by their civil servants; responsibility
in the first two cases is clearer than in others. A minister
involved in sexual or financial scandals particularly those
having implications for national security, is likely to have E
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."
77. In Constitutional & Administrative Law 64, Hilaire F
Barnett, while dealing with the conduct of Ministers, referred
to the Nolan Committee 65 which had endorsed the view that:-
"public is entitled to expect very high standards of
behaviour from ministers, as they have profound influence G
over the daily lives of us all"
63. Constitutional and Administrative Law, 2nd Ed. Pg 368-370, David Polland ...
Neil Parpworth David Hughs.
64. 5th Edition, pg 297-305.
65. Nolan Report, Standards in Public Life, Cm 2850-1, 1995, Ledon HMSO,
Chapter 3, para 4. · H
.
1028 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 78. In Constitutional Practice 66 , Rodney Brazier has
opined:-
"... 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
B
journalism of its more serious rivals will make a wayward
Minister's continuance in office impossible."
79. Centuries back what Edmund Burke had said needs
to be recapitulated: -
c
"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."
D 80. This Court, in re Art. 143, Constitution of India and
Delhi Laws Act (1912) 67 , opineo that the doctrine
of constitutional trust is applicable to our Constitution since it
lays the foundation of representative democracy. The Court
further ruled that accordingly, the Legislature cannot be
E 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 t~e same has signification in the
present context, for in a representative democracy, the doctrine
of constitutional trust has to be envisaged in every high
F constitutional functionary.
'-
ANALYSIS OF THE TERM "ADVICE' UNDER ARTICLE 75
ill
81. Having dealt with the concepts of,"constitutional
G morality", "good governance", "constitutional trust" and the
special status enjoyed by the Prime Minister under the scheme
of the Constitution; we are required to appreciate and interpret
66. Constitutional Pralflice (Second Edition) (pg. 146-148).
H 67. AIR 1951 SC 332,
MANOJ NARULA v. UNION OF INDIA 1029
[DIPAK MISRA, J.]
the words "on the advice of the Prime Minister" in the backdrop A
of the aforestated concepts. As per the New Shorter Oxford
English Dictionary, one of the meanings of the word "advice"
is "the way in which a matter is looked at; opinion; judgment".
As per P. Ramanatha Aiyer's Law Lexicon, 2nd Edition, one
of the meanings given to the word "advice" is "counsel given B
or an opinion expressed as to the wisdom of future conduct"
(Abbot L. Diet.). In Webster Comprehensive Dibtionary,
International Edition, one of the meanings given to the word
"advice" is "encouragement or dissuasion; counsel;
suggestion". Thus, the word "advice" conveys formation of an c
opinion. The said formation of an opinion by the Prime Minister
in the context of Article 75(1) is expressed by the use of the
said word because of the trust reposed in the Prime Minister
. under the Constitution. To put it differently, it is a "constitutional
advice". The repose of faith in the Prime Minister by the entire
0
nation under the Constitution has expectations of good
governance which is carried on by 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 offences or offences E
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 different, 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 F
another thing. Framing of charge in a trial has its own
significance and consequence. Setting the criminal law into
motion by lodging of an FIR or charge sheet being filed by the
investigating agency is in the sphere of investigation. Framing
of charge is a judicial act by an experienced judicial mind. As G
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 H
1030 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 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 criminalization in politics and the entrenchment of
corruption at many a level. In a democracy, the people never
B 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. It would be apt to say that when a country is
governed by a Constitution, apart from constitutional provisions,
c and principles constitutional morality and trust, certain
conventions are adopted and grown. In Supreme Court
Advocates-on-Record Association (supra), the Court
reproduced a passage from K.C. Wheare's Book "The Statute
of Westminster and Dominion Status" (fourth edition) and we
quote: -
0
'The definition of conventions may thus be amplified by
saying that their purpose is to define the use of
constitutional discretion. To put this in slightly different
words, it may be said that conventions are non-legal rules-
E regulating the way in which legal rules shall be applied."
82. I. Jennings, in The Law and the Constitution68 , stated
that a convention exists not only due to its non-enforceability
but also because there is a reason for the rule.
F 83. I. Lovehead, in Constitutional Law - A Critical
lntroduction 69 , 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 government and other
G constitutional authorities.
68. I. Jennings, The law and the Constitution (5th Edn., ELBS: London, 1976)
in his Chapter "Conventions" at 247.
69. I. Lovehead, Constitutional Law-A Critical Introduction (2nd edn.,
H Butterworths: London, 2000) at 247
MANOJ NARULA v. UNION OF INDIA 1031
[DIPAK MISRA, J.]
84. In the Constituent Assembly Debates, Dr. Rajendra A
Prasad, in his speech as President of the Constituent
Assembly, while moving for the adoption of the Constitution of
India, had observed: -
"Many things which cannot be written in a Constitution are B
done by conventions. Let me hope that we shall show
those capacities and develop those conventions."
. CONCLUSION
85. From the aforesaid, it becomes graphically vivid that C
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 D
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, as
has been held in B.R. Kapur's case. That is in the realm of
disqualification. But, a pregnant one, the trust reposed in a high
E
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 i~ a paramount constitutional
concern. In a controlled Constitution like ours, the Prime Minister
F
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 G
of constitutional governance which would gradually grow to give
rise to constitutional renaissance.
85A. It is worthy to note that the Council of Ministers has
the collective responsibility to sustain the integrity and purity of H
1032 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 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 .;3Ct in the interest of the national polity of the
B 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
c 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.
86. Thus, while interpreting Article 75(1 ), definitely a
disqualification cannot be added. However, it can always be
,D 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
E 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. We say nothing more, nothing
F less.
87. 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)
G of the Constitution of India.
88. Before parting with the case, we must express our
unreserved and uninhibited appreciation for the assistance
rendered by Mr. Rakesh Dwivedi, Mr. Andhyarjina and Mr.
Parasaran, learned senior counsel.
H
MANOJ NARULA v. UNION OF INDIA 1033
89.The writ petition is disposed of accordingly without any A
order as to costs.
MADAN B. LOKUR, J. 1. While I agree with the draft
judgment of my learned brother Justice Dipak Misra, I find it
necessary to express my view on the issues raised.
8
2. The question in the amended writ petition filed under
Article 32 of the Constitution is rather narrow, but the
submissions were quite broad-based.
3. Two substantive reliefs have been claimed in the writ c
petition. The first relief is for a declaration that the appointment
of Respondent Nos. 3 to 7 as Ministers in the Government of
India is unconstitutional. This is based, inter a/ia, on the
averment that these respondents have 'criminal antecedents'.
Subsequently by an order passed on 24th March, 2006 these 0
respondents (along with respondent No. 2) were deleted from
the array of parties since the broad question before this Court
was "about the legality of the persons with criminal background
and/or charged with offences involving moral turpitude being
appointed as ministers in Central and State Governments."
E
4. As far as the first substantive relief is concerned, the
expressions 'criminal background' and 'criminal antecedents'
are extremely vague. Nevertheless the legal position on the
appointment of a Minister is discussed hereafter.
F
5. The second substantive relief is for the framing of
possible guidelines for the appointment of a Minister in the
Central or State Government. It is not clear who should frame
the possible guidelines, perhaps this court.
6. As far as this substantive relief is concerned, it is entirely G
for the appropriate Legislature to decide whether guidelines are
necessary, as prayed for, and the frame of such guidelines. No
direction is required to be given on this subject.
H
1034 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 7. For the sake of convenience, reference is made only to
the relevant Articles of the Constitution and the law relating to
the appointment and continuance of a Minister in the Central
Government. The discussion, of course, would relate to both a
Minister in the Central Government and mutatis mutandis in the
B State Government.
Qualifications and disqualifications for being a legislator
8. Article 84 of the Constitution negatively provides the
qualification for membership of Parliament. This Article is quite
C simple and reads as follows:
"84. Qualification for membership of Parliament. - A
person shall not be qualified to be chosen to fill a seat in
Parliament unless he -
D (a) is a citizen of India, and makes and subscribes before
some person authorized in that behalf by the Election
Commission an oath or affirmation according to the form
set out for the purpose in the Third Schedule;
E (b) is, in the case of a seat in the Council of States, not
less than thirty years of age and, in the case of a seat in
the House of the People, not less than twenty-five years
of age; and
(c) possesses such other qualifications as may be
F
prescribed in that behalf by or under any law made by
Parliament."
9. The qualifications postulated by clause (c) of.Article 84
have not yet been prescribed by law by Parliament. In this
G context, it is worth quoting the President of the Constituent
Assembly Dr. Rajendra Prasad, who said on 26th November,
1949, before formally putting the motion moved by Dr.
Ambedkar to vote, as follows 1 :
H 1. http://parliamentofindia.nic.in/ls/debates/vol11p12.htm .
MAN OJ NARULA v. UNION OF INDIA 1035
[MADAN B. LOKUR, J.]
"There are only two regrets which I must share with the A
honourable Members. I would have liked to have some
qualifications laid down for members of the Legislatures.
It is anomalous that we should insist upon high
qualifications for those who administer or help in
administering the law but none for those who made it B
except that they are elected. A law giver requires
intellectual equipment but even more than that capacity to
take a balanced view of things to act independently and
above all to be true to those fundamental things of life - in
one word - to have character (Hear, hear). It is not possible c
to devise any yardstick for measuring the moral qualities
of a man and so long as that is not possible, our
Constitution will remain defective. The other regret is that
we have not been able to draw up our first Constitution of
a free Bharat in an Indian language. The difficulties in both D
cases were practical and proved insurmountable. But that
does not make the regret any the less poignant."
10. Hopefully, Parliament may take action on the views
expressed by Dr. Rajendra Prasad, the first President of our
Republic. E
11. Article 102 provides the disqualifications for
membership of either House of Parliament. This Article too is
quite simple and straightforward and reads as follows:
"102. Disqualifications for membership. - (1) A person
F
shall be disqualified for being chosen as, and for being, a
member of either House of Parliament-
(a) if he holds any office of profit under the Government of
India or the Government of any State, other than an office G
declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a
competent court;
(c) if he is an undischarged insolvent; H
1036 SUPREME COURT REPORTS [2014] 9 S.C.R.
A (cf) if he is not a citizen of India, or has voluntarily acquired
the citi2.enship of a foreign State, or is under any
acknowledgement of allegiance or adherence to a foreign
State;
(e) if he is so disqualified by or under any law made by
B
Parliament.
Explanation. - For the purposes of this clause a person
shall not be deemed to hold an office of profit under the
Government of India or the Government of any State by
c reason only that he is a Minister either for the Union or for
such State.
(2) A person shall be disqualified for being a member of
either House of Parliament if he is so disqualified under
D the Tenth Schedule."
12. In S.R. Chaudhun'2 the following question arose for
consideration: 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
E a legislator, be reappointed as a Minister, without being elected
to the Legislature after the expiry of the period of six
consecutive months? This question arose in the context of
Article 164 of the Constitution and is mentioned here since one
of the issues raised during submissions related to the
F permissibility of reading implied limitations in the Constitution.
It was submitted that implied limitations can be read into the
Constitution 3 and this is an appropriate case in which this Court
2. S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126.
3. 164. Other provisions as to Ministers.-(1) The Chief Minister shall be
G 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:
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
H backward classes or any other work.
MANOJ NARULA v. UNION OF INDIA 1037
[MADAN B. LOKUR, J.]
should read an implied limitation in the appointment of a 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.
13. In S.R. Chaudhuri this Court examined the law in B
(1-A) The total number of Ministers, including the Chief Minister, in the
Council of Ministers in a State shall not exceed fifteen 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: C
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-first Amendment) Act, 2003 exceeds the said
fifteen per cent or the number specified in the first 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 D
date as the President may by public notification 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 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 E
term of his office 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 F
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 G
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 specified in the
Second Schedule.
Note: The Article is reproduced as it is today. H
1038 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 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 period of six months. During that period the Minister
would either have to get elected to the Legislature or quit his
B or her position. That person cannot again be appointed as a
Minister unless elected. It was said:
"32. Thus, we find 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
c country, are that invariably a// 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
0 continue in office indefinitely unless he gets elected in the
mec:inwhile. The scheme of Article 164 of the Constitution
is no different, except that the period of grace during which
the non-member may get elected has been fixed as "six
consecutive months", from the date of his appointment. (In
E 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
F the very root of parliamentary democracy. According to
learned counsel for the respondent, there is no bar to 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
G term of the same Legislative Assembly. We cannot
persuade ourselves to agree.
"33. Constitutional provisions are required to be
understood and interpreted with an object-oriented
approach. A Constitution must not be construed in a
H
MANOJ NARULA v. UNION OF INDIA 1039
[MADAN B. LOKUR, J.]
narrow and pedantic sense. The words used may be A
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- B
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 c
to interpret a constitutional provision because it is the
function of the court to find 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 D
sufficient degree of cohesion and its successful working
depends upon the democratic spirit underlying it being
respected in letter and in spirit. The debates clearly
indicate the "privilege" to extend "only" for six months."
14. An implied limitation in the Constitution was also read E
in B. R. Kapur. In that case, the second respondent was not
even eligible to become a legislator (having earned a
disqualification 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 F
been projected as the Chief Ministerial nominee of the political
party that obtained a r)llajority 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 offence and whose conviction has G
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.
4. B.R. Kapur v. State df Tamil Nadu, (2001) 7 SCC 231. H
1040 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 15. Answering the question in the negative, this Court held
in paragraph 30 of the Report:
"We hold, therefore, that a non-legislator can be made a
Chief Minister or Minister under Article 164 only if he has
the qualifications for membership of the Legislature
B
prescribed by Article 173 and is not disqualified from the
membership thereof by reason of the disqualifications set
out in Article 191 ."
16. This was reiterated by this Court in paragraph 45 of
C the Report in the following words:
"Our conclusion, therefore, is that on the date on which the
second respondent was sworn in as Chief Minister she
was disqualified, by reason of her convictions under the
D 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."
17. Finally, in paragraphs 50 and 51 of the Report, this
E Court held:
"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 qualified to be a member of
F :he Legislature or who is disqualified to be such, the
Governor must, having due regard to the Constitution and
the laws, to which he is subject, decline, and the exercise
of discretion by him in this regard cannot be called in
question.
G 51. If perchance, for whatever reason, the Governor does
appoint as Chief Minister a person who is not qualified to
be a member of the Legislature or who is disqualified.to
be such, the appointment is contrary to the provisions· of
Article 164 of the Constitution, as we have interpreted it,
H
MANOJ NARULA v. UNION OF INDIA 1041
[MADAN B. LOKUR, J.]
and the authority of the appointee to hold the appointment A
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 - B
unsupported by any authority - must be rejected."
18. 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,
c
nor can such a person be repeatedly appointed as a Minister.
Secondly, the person should not be under any disqualification
for being appointed as a legislator. If a person is disqualified
from being a legislator, he or she cannot be appointed as a
Minister. D
19. Implied limitations to the Constitution were also read
in B.P. Singhaf5. In that case, an implied limitation was read
into the pleasure doctrine concerning the removal of the
Goyernor of a State by the President in terms of Article 156 of E
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 office. However,
where the rule of law prevails, the "fundamentals of
constitutionalism" cannot be ignored, meaning thereby that the F
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.
20. Similarly, in Sali/ Sabhlok6 integrity and competence G
were read as implied in the appointment of the Chairperson of
;
5. B.P. Singhal v. Union of India, (2010) 6 SCC 331.
6. State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1. H
1042 SUPREME COURT REPORTS [2014] 9 S.C.R.
A the State Public Service Commission. It was held in paragraph
45 of the Report as follows:
"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
B
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
c 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
D 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
E 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
F appointments to the services of the State. Under clause
(3) of Article 320, the State Public Service Commission
has to be consulted by the State Government on matters
relating to recruitment and appointment to the civil services
and civil posts in the State; on disciplinary matters affecting
G a person serving under the Government of a State in a civil
capacity; on claims by and in respect of a person who is
serving under the State Government towards costs of
defending a legal proceeding; on claims for award of
, pension in respect of injune-s-sustained by a person while
serving under the State Government and other matters. In
H
MANOJ NARULA v. UNION OF INDIA 1043
[MADAN B. LOKUR, J.]
such matters, the State Public Service Commission is A
expected to act with independence from the State
Government and with fairness, besides competence and
maturity acquired through knowledge and experience of
public administration."
B
21. Thereafter in paragraph 99 of the Report, it was said:
"While it is difficult 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 C
beyond reproach and his or her appointment should inspire
confidence among the people in the institution. The first
"quality" can be ascertained through a meaningful
deliberative process, while the second "quality" can be
determined by taking into account the constitutional, D
functional and institutional requirements necessary for the
appointment."
Conclusions on the first relief
22. Therefore, the position as it stands today is this: E
(i) To become a Member of Parliament, a person
should possess the qualifications mentioned in
Article 84 of the Constitution;
F
(ii) To become a M'?.mber <1f :- ...irliament, 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, G
but certain implied limitations have been read into
the Constitution by decisions rendered by this Court
regarding an unelected person becoming a
Minister;
H
1044 SUPREME COURT REPORTS [2014] 9 S.C.R.
A (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 ohsix months;
(v) Another implied limitation read into the Constitution
B
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
c (;onstitution 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;
D (vii) In other words, any person, not subject to any
disqualification, can be appointed a Minister in the
Central Government.
Given this position in law, is it necessary to read any other
implied limitation i.n the Constitution concerning the appointment
E of a person as a Minister in the Government of India, particularly
any implied limitation on the appointment of a person with a
criminal beckground or having criminal antecedents?
Issue of criminal antecedents
F
23. The expression 'criminal antecedents' or 'criminal
background' is extremely vague and incapable of any precise
definition. Does it refer to a person accused (but not charged
or convicted) of an offence or a person charged (but not
convicted) of an offence or only a person convicted cf an
G offence? No clear answer was made available to this question,
particularly in the context of the presumption of innocence that
is central to our criminal jurisprudence. Therefore, to say that a
person with criminal antecedents or a criminal background
ought not to be elected to the Legislature or appointed a
H
MANOJ NARULA v. UNION OF INDIA 1045
[MADAN B. LOKUR, J.]
Minister in the Central Government is really to convey an A
imprecise view.
24. 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 -
B
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 Criminal
Procedure Code 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 C
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. D
25. Consequently, merely because a First Information
Report is lodged against a person or a criminal <::omplaint 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 E
Member of Parliament or being appointed as a Minister in the
Central Government.
26. 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
F
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 G
Representation·of the People Act, 1951.7 The adequacy of the
7. 8. Disqualification on conviction for certain offences.-(1} A person
convicted of an offence punishable under-(a) Section 153-A (offence of
promoting enmity between different groups on ground of religion, race, place
of birth, residence, language, etc., and doing acts prejudicial to H
1046 SUPREME COURT REPORTS [2014] 9 S.C.R.
A restrictions placed by this provision is arguable. For example,
a disqualification under this Section is attracted only if the
maintenance of harmony) or Section 171-E (offence of bribery) or Section
171-F (offence of undue influence or personation at an election) or sub-
section (1) or sub-section (2) of Section 376 or Section 376-A or Section
B 376-B or Section 376-C or Section 376-D (offences relating to rape) or
Section 498-A (offence of cruelty towards a woman by husband or relative
of a husband) or sub-section (2) or sub-section (3) of Section 505 (offence
of making statement creating or promoting enmity, hatred or ill-will between
classes or offence relating to such statement in any place of worship or in
any assembly engaged in the performance of religious worship or religious
ceremonies) of the Indian Penal Code (45 of 1860); or
c (b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for
punishment for the preaching and practice of "untouchability", and for the
enforcement of any disability arising therefrom; or
(c) Section 11 (offence of importing or exporting prohibited goods) of the
Customs Act, 1962 (52 of 1962); or
(d) Sections 10 to 12 (offence of being a member of an association declared
D unlawful, offence relating to dealing with funds of an unlawful association
or offence relating to contravention of an order made in respect of a notified
place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1g67); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985);
or
E
(g) Section 3 (offence of committing terrorist acts) or Section 4 (offence of
committing disruptive activities)· of the Terrorist and Disruptive Activities
(Prevention) Act, 1g87 (28 of 1987); or
(h) Section 7 (offence of contravention of the provisions of Sections 3 to 6)
of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988);
F or
(i) Section 125 (offence of promoting enmity between classes in connection
with the election) or Section 135 (offence of removal of ballot papers from
polling stations) or Section 135-A (offence of booth capturing) or clause
(a) of sub-section (2) of Section 136 (offence of fraudulently defacing or
fraudulently destroying any nomination paper) of this Act, or
G Q) Section 6 (offence of conversion of a place of worship) of the Places of
Worship (Special Provisions) Act, 1991, or
(k) Section 2 (offence of insulting the Indian National Flag or the Constitution
of India) or Section 3 (offence of preventing singing of National Anthem) of
the Prevention of Insults to National Honour Act, 1971 (69 of 1971) or,
(I) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or
H
MANOJ NARULA v. UNION OF INDIA 1047
[MADAN B. LOKUR, J.]
sentence awarded to a convict is less than 2 years A
(m) the Prevention of Corruption Act, 1988 (49 of 1988); or
(n) the Prevention of Terrorism Act, 2002 (15 of 2002);
shall be disqualified, where the convicted person is sentenced to-
(i) only fine, for a period of six years from the date of such conviction;
(ii) imprisonment, from the date of such conviction and shall continue to be
B
disqualified for a further period of six years since his release.
(2) A person convicted for the contravention of-
(a) any law providing for the prevention of hoarding or profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961);
and sentenced to imprisonment for not less than six months, shall be
c
disqualified from the date of such conviction and shall continue to be
disqualified for a further period of six years since his release.
(3) A person convicted of any offence and sentenced to imprisonment for not
less than two years other than any offence referred to in sub-section (1) or
sub-section (2) shall be disqualified from the date of such conviction and
shall continue to be disqualified for a further period of six years since his D
release.
(4) Held unconstitutional in Lily Thomas v. Union of India, (2013) 7 sec 653
Notwithstanding anything in sub-section (1), sub-section (2) or sub-section
(3) a disqualification under either sub-section shall not, in the case of a
person who on the date of the conviction is a member of Parliament or the
Legislature of a State, take effect until three months have elapsed from E
that date or, if within that period an appeal or application for revision is
brought in respect of the conviction or the sentence, until that appeal or
application is disposed of by the court.
Explanation.-ln this section-
(a) "Jaw providing for the prevention of hoarding or profiteering" means any law,
or any order, rule or notification having the force of law, providing for-
F
(i) the regulation of production or manufacture of any essential commodity;
(ii) the control of price at which any essential commodity may be bought or
sold;
(iii) the regulation of acquisition, possession, storage, transport, distribution,
disposal, use or consumption of any essential commodity;
(iv) the prohibition of the withholding from sale of any essential commodity
ordinarily kept for sale; G
(b) "drug" has the meaning assigned to it in the Drugs and Cosmetics Act,
1940 (23 of 1940);
(c) "essential commodity" has the meaning assigned to it in the Essential
Commodities Act, 1955 (1 O of 1955);
(d) "food" has the meaning assigned to it in the Prevention of Food Adulteration
Act, 1954 (37 of 1954). H
1048 SUPREME COURT REPORTS [2014] 9 S.C.R.
A imprisonment. This raises an issue: What if the offence is
heinous (say an attempt to murder punishable under Section
307 of the Indian Penal Code (IPC) or kidnapping punishable
under Section 363 of the IPC or any other serious offence not
attracting a minimum punishment) and the sentence awarded
B by the Court is less than 2 years imprisonment. Can such a
convict be a member of a Legislature? The answer is in the
affirmative. Can this Court do anything about this, in the form
of framing some guidelines?
C 27. In Municipal Committee, Patiala 8 this Court referred
to Parent of a student of Medical Col/ege 9 and held that
legislation is in the domain of the Legislature. It was said:
"It is so well settled and needs no restatement at our hands
that the legislature is supreme in its own sphere under the
D Constitution subject to the limitations provided for in the
Constitution itself. It is for the legislature to decide as to
when and in what respect and of what subject-matter the
laws are to be made. It is for the legislature to decide as
to the nature of operation of the statutes."
E
28. More recently, V.K. Naswa 10 referred to a large number
of decisions of this Court and held that the Court cannot
legislate or direct the Legislature to enact a law. It was said:
"Thus, it is crystal clear that the court has a very limited role
F and in exercise of that, it is not open to have judicial
legislation. Neither the court can legislate, nor has it any
competence to issue directions to the legislature to enact
the law in a particular manner."
G
8. Municipal Committee, Patiala v. Model Town Residents Association, (2007)
8 sec 669.
9. State of Himachal Pradesh v. Parent of a student of Medical College, (1985)
3 SCC 169. This was a judgment delivered by a Bench of three learned
Judges.
H 10. V.K. Naswa v. Union of India, (2012) 2 SCC 542.
MANOJ NARULA v. UNION OF INDIA 1049
[MADAN B. LOKUR, J.]
29. However, a discordant note was struck in Gainda A
Ram 11 wherein this Court issued a direction to the Legislature
to enact legislation before a particular date. It was so directed
in paragraphs 70 and 78 of the Report in the following words:
"70. This Court, therefore, disposes of this writ petition and B
all the IAs filed with a direction that the problem of hawking
and street vending may be regulated by the present
schemes framed by NDMC and MCD up to 30-6-2011.
Within that time, the appropriate Government is to legislate
and bring out the law to regulate hawking and hawkers'
fundamental right. Till such time the grievances of the C
hawkers/vendors may be redressed by the internal dispute
redressal mechanisms provided in the schemes.
"78. However, before 30-6-2011, the appropriate
Government is to· enact a law on the basis of the Bill D
mentioned above or on the basis of any amendment
thereof so that the hawkers may precisely know the
contours of their rights. This Court is giving this direction
in exercise of its jurisdiction to protect the fundamental
rights of the citizens." 12 E
30. The law having been laid down by a larger Bench than
in Gainda Ram it is quite clear that the decision, whether or
not Section 8 of the Representation of the People Act, 1951 is
to be amended, rests solely with Parliament.
F
31. Assuming Parliament does decide to amend Section
8, of the Representation of the People Act, 1951 the content of
the amended Section cannot be decided easily. Apart from the
difficulty in fixing the quantum of sentence (adverted to above),
there are several other imponderables, one of them being the G
nature of the offence. It has been pointed out by Rodney Brazier
11. Gainda Ram v. MCD, (2010) 10 SCC 715. This was a judgment delivered
by a Bench of two learned Judges.
12. The Street Vendors (Protection of Livelihood and Regulation of Street
Vending) Bill was eventually passed and notified as an Act in 2014. H
1050 SUPREME COURT REPORTS (2014] 9 S.C.R.
A in "Is it a constitutional issue: fitness for ministerial office in the
1990s"13 that there are four categories of offences. The learned
author says:
~·sut four types of crime may be distinguished. First, minor
convictions would not count against a politician's
B
worthiness for office. Minor driving offences, for example,
are neither here nor there. Secondly, and at the other
extreme, convictions for offences involving moral turpitude
would dash any ministerial career. No one could remain
in the Government who had been convicted of any offence
c of corruption, dishonesty, serious violence, or sexual
misconduct. Thirdly, and most difficult, are offences the
seriousness of which turn on the facts. A conviction for
(say) assault, or driving with excess alcohol in the blood,
could present a marginal case which would turn on its own
D facts. Fourthly, offences committed from a political motive
might be condoned. Possibly a person who had refused
to pay the poll tax might be considered fit."
32. Therefore, not only is the quantum of sentence relevant
E but the nature of the offence that might disqualify a person frpm
becoming a legislator is equally important. Perhaps it is
possible to make out an exhaustive list of offences which, if
committed and the accused having been found guilty of
committing that offence, can be disqualified from contesting an
F election. The offences and the sentence to be awarded for the
purpose of disqualifying a person from being elected to a
Legislature are matters that Parliament may like to debate and
consider, if at all it is felt necessary. Until then, we must trust
the watchful eye of the people of the country that the elected
G representative of the people is worthy of being a legislator.
Thereafter we must trust the wisdom of the Prime Minister and
Parliament that the elected representative is worthy of being a
Minister in the Gentral Government. In this context, it is
H 13. Public Law 1994, Aut, 431-35.
MANOJ NARULA v. UNION OF INDIA 1051
[MADAN B. LOKUR, J.]
appropriate to recall the words of Dr. Ambedkar in the A
Constituent Assembly on 30th December, 1948. He said:
"His [Hon'ble K.T. Shah] 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 8
very laudable and I do not think any Member of this House
would like to differ from him on that proposition. But the
whole question is this whether we should introduce all
these qualifications and disqualifications in the
Constitution itself. Is it not desirable, is it not sufficient that C
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 D
general public holding a watching brief upon them. I
therefore say that these amendments are unnecessary." 14
33. That a discussion is needed is evident from the
material placed by the learned Additional Solicitor General. He E
referred to the 18th Report presented to the Rajya Sabha on
15th March, 2007 by the Department-Related Parliamentary
Standing Committee On Personnel, Public Grievances, Law
And Justice on Electoral Reforms (Disqualification Of Persons
From Contesting Elections On Framing Of Charges Against F
Them For Certain Offences). The Report acknowledges the
criminalization of our polity and the necessity of cleansing the
political climate and had this to say:
"At the same time, the Committee is deeply conscious of
the criminalization of our polity and the fast erosion of G
confidence of the people at large in our political process
of the day. This will certainly weaken our democracy and
will render the democratic institutions sterile. The
14. Constituent Assembly Debates, Volume VII. H
1052 SUPREME COURT REPORTS [2014] 9 S.C.R.
A Committee therefore feels that politics should be cleansed
of persons with established criminal background. The
objective is to prevent criminalisation of politics and
maintain probity in elections. Criminalization of politics is
the bane of society and negation of democracy. But the
B arguments against the proposal of the Election
Commission are overwhelming. As stated in the foregoing
paras the Courts frame charges even when they are
conscious that the case is ultimately bound to fail.
Appreciation of evidence at the stage of framing charges
c being more or less prohibited, charges are still framed
even when the court is convinced that the prosecution will
never succeed. There are many glaring illustrations which
are of common knowledge and any criminal lawyer can
multiply instances of such nature. Hence the proposal can
not be accepted in its present form as the country has
D
witnessed in the past misuse of MISA, TADA, POTA etc."
34. On the issue of criminalization of politics, the learned
Additional Solicitor General also referred to the 244th Report
of the Law Commission of India on "Electoral
E Disqualifications" presented in February, 2014. Though the
Report concerns itself primarily with the disqualification to be
a member of a Legislature, it does give some interesting
statistics about the elected representatives of the people in the
following words:
F
"In.the current Lok Sabha, 30% or 162 sitting MPs have
criminal cases pending against them, of which about half
i.e. 76 have serious criminal cases. Further, the
prevalence of MPs with criminal cases pending has
increased over time. In 2004, 24% of Lok Sabha MPs had
G
criminal cases pending, which increased to 30% in the
2009 elections.
The situation is similar across states with 31 % or 1,258
out of 4,032 sitting MLAs with pending cases, with again
H about half being serious cases. Some states have a much
MANOJ NARULA v. UNION OF INDIA 1053
[MADAN B. LOKUR, J.]
higher percentage of MLAs with criminal records: in Uttar A
Pradesh, 47% of MLAs have criminal cases pending. A
number of MPs and MLAs have been accused of multiple
counts of criminal charges. In a constituency of Uttar
Pradesh, for example, the MLA has 36 criminal cases
pending including 14 cases relat~d to murder. B
From this data it is clear that about one-third of elected
candidates at the Parliament and State Assembly levels
in India have some form of criminal taint. Data elsewhere
suggests that one-fifth of MLAs have pending cases which C
have proceeded to the stage of charges being framed
against them by a court at the time of their election. Even
more disturbing is the finding that the percentage of
winners with criminal cases pending is higher than the
percentage of candidates without such backgrounds.
While only 12% of candidates with a "clean" record win on D
average, 23% of candidates with some kind of criminal
record win. This means that candidates charged with a
crime actually fare better at elections than 'clean'
candidates. Probably as a result, candidates with criminal
cases against them tend to be given tickets a second time. E
Not only do political parties select candidates with criminal
backgrounds, there is evidence to suggest that untainted
representatives later become involved in criminal activities.
The incidence of criminalisation of politics is thus
pervasive making its remediation an urgent need." F
While it may be necessary, due to the criminalization of
our polity and consequently of our politics, to ensure that certain
persons do not become Ministers, this is not possible through
guidelines issued by this Court. It is for the electorate to ensure G
that suitable (not merely eligible) persons are elected to the
Legislature and it is for the Legislature to enact or not enact a
more restrictive law.
H
1054 SUPREME COURT REPORTS [2014] 9 S.C.R.
A Conclusions on the second relief
35. The discussion leads to the following conclusions:
(i) To become a legislator and to continue as a
legislator; a person should not suffer any of the
B 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
c 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
D 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
E 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 inthe Central Government;
F
36. 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
G be appointed as a Minister but must quit as soon as he or she
earns a disqualification either under the Constitution or under
Section 8 of the Representation of the People Act, 1951. 15 In
B.P. Singha/ this Court observed that "a Minister is hand-
H 15. Lily Thomas v. Union of India, (2013) 7 SCC 653.
MANOJ NARULA v. UNION OF INDIA 1055
[MADAN B. LOKUR, J.]
picked member of the Prime Minister's team. The relationship A
between the Prime Minister and a Minister is purely political."
37. In addition to the above, how long a Minister should
continue in office is best answered by the response to a
question put to the British Prime Minister John Majot who was 8
asked to "list the circumstances which render Ministers
unsuitable to retain office_." His written reply given to the House
of Commons on 25th January, 1994 was: "There can be a
variety of circumstances but the main criterion should be
whether the Minister can continue to perform the duties of office . C
. effectively." 16 ·
38. 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 D
Constitution makers intended, notwithstanding the view
expressed by Shri H.V. Karnath in the debate on 30th
December, 1948. He said:
"My Friend, Prof. Shah, has just moved amendment E
No.1300 comprising five 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 (2E) of amendment No. 1300 moved
by Prof. Shah. I have suggested my amendment No. 46
F
seeking to delete all the words occurring after the words
"moral turpitude" because I think that bribery and corruption
are offences which involve moral turpitude. I think that moral
turpitude covers bribery, corruption and many other
cognate offences as well. Sir, my friends here will, I am
sure, agree with me that it will hardly redound to the credit G
of any government if that government includes in its fold
any minister who has had a shady past or about whose
16. http://hansard.millbanksystems.com/written_answers/1994/jan/25/
ministers-unsuitability-for office#S6CV0236P0_19940125_CWA_172. H
1056 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 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
8 Bombay dated the 8th September 1948 relating to the ****
Ministry. The relevant portion of the article runs thus:
"The Cabinet (the * * * * Cabinet) includes one
person who is a convicted black marketeer, and
although it is said that his disabilities, resulting from
c 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." 17
D 39. 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
E as a Minister is not one which enables this Court to read
implied limitations in the Constitution.
Epilogue
40. It is wise to remember the words of Dr. Ambedkar in
F the Constituent Assembly on 25th November, 1949. He had this
to say about the working of our Constitution:
"As much defence as could be offered to the Constitution
has been offered by my friends Sir Alladi Krishnaswami
G 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
H 17. Constituent Assembly Debates, Volume VII.
MANOJ NARULA v. UNION OF INDIA 1057
[MADAN B. LOKUR, J.]
be a bad lot. However bad a Constitution may be, it may A
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 B
factors on which the worRihg of those organs of the State
depend are the p'eople 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 purposes or will they prefer revolutionary methods of c
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 judgement upon the Constitution without reference to
the part which the people and their parties are likely to D
play."1s
41. This sentiment was echoed in the equally memorable
words of Dr. Rajendra Prasad on 26th November, 1949. He
had this to say:
E
"Whatever the Constitution may or may not provide, the
welfare of the country will depend upon the way in which
the country is administered. That will depend upon the men
who administer it. It is a trite saying that a country can have
only the Government it deserves. Our Constitution has F
provision in it whi<.;h appear to some to be objectionable
from one point or another. We must admit that the defects
are inherent in the situation in the country and the people
at large. If the people who are elected are capable and
men of character and integrity, they would be able to make G
the best even of a defective Constitution. If they are lacking
in these, the Constitution cannot help the country. After all,
a Constitution like a machine is a lifeless thing. It acquires
life because of the men who control it and operate it, and
18. http:l/parliamentofindia.nic.in/ls/debates/vol11 p11.htm. H
1058 SUPREME COURT REPORTS [2014] 9 S.C.R.
A India needs today nothing more than a set of honest men
who will have the interest of the country before them." 19
42. The writ petition is disposed of but with no order as to
costs. It must, however, be stated that all learned counsels
appearing in the case have rendered very useful and able
8
assistance on an issue troubling our polity.
KURIAN, J.: 1. I agree with the beautiful and erudite
exposition of law made by my esteemed brother. Yet why to
pen something more, one may naturally ask. The only answer
C is: in Kerala, there is a saying: when you make a special tea,
even if you add a little more milk, don't reduce even a bit of
sugar!
2. The surviving prayer in the public interest litigation reads
0 as follows:
"(c) Issue appropriate writ/writs, order/orders, direction/
directions, including the writ of mandamus and
frame possible guidelines, for appointment of
Minister for the UOI as well as for the State,
E especially, in view of the provisions, terms of
schedule 111. Article 75(4), 164(3), basic features,
aims and objects of the Constitution etc. as the
Hon'ble Court may deem fit and proper for the
perseverance and protection of the Constitution of
F India in both letters and spirit."
3. 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
G in the ethical sense of morality but in the constitutional sense.
Conscience does not speak to endorse one's good conduct;
but when things go wrong, it always speaks; whether you listen
or not. It is a gentle and sweet reminder for rectitude. That is
H 19. http://parliamentofindia.nic.in/ls/debates/vol11p12.htm.
MANOJ NARULA v. UNION OF INDIA 1059
[KURIAN, J.]
the function of conscience. When things go wrong A
constitutionally, unless the conscience speaks, it is not good
conscience; it will be accused of as numb conscience.
4. One cannot think of the Constitution of India without the
· preambular principle of democracy and good governance. B
Governance is mainly in the hands of the Executive. The
executive power of the Union under Article 53 and that of the
States under Article 154 vests in the President of India and the
Governor ofthe State, respectively. Article 74 for the Union of
India and Article 163 for the State have provided for the Council C
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.
5. Before entering office, a Minister has to take oath of
office (Article 75/164). In form, except for the change in the D
words 'Union' or particular 'State', there is no difference 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, affection or ill-will". E
6. Allegiance to the Constitution of India, faithful and
conscientious discharge of the duties, doing right .to people and
all these without fear or favour, affection or ill-will, carry heavy
weight. 'Conscientious' means "wishing to do what is right,
F
relating to a person's conscience" (Ref.: Concise Oxford
English Dictionary). The simple question is, whether a person
who has come in conflict with law and, in particular, in conflict
with law on offences involving moral turpitude and laws
specified by the Parliament under Chapter Ill of The
Representation of the People Act, 1951, would be in a position G
to conscientiously and faithfully discharge his duties as Minister
and that too, without any fear or favour?
7. When does a person come in conflict with law? No
quarrel, under criminal jurisprudence, a person is presumed to H
1060 SUPREME COURT REPORTS [2014] 9 S.C.R.
A be innocent until he is convicted. But is there not a stage when
a person is presumed to be culpable and hence called upon
to face trial, on the court framing charges?
8. Under Section 228 of the Code of Criminal Procedure,
1973 (hereinafter referred to as 'Cr.PC'}, charge is framed by
8
the court only if the Judge (the Magistrate - under Section 240
Cr.PC) is of the opinion that there is ground for presumption
that the accused has committed an offence, after consideration
of opinion given by the police under Section 173(2) Cr.PC
C (challan/police charge-sheet) and the record of the case and
documents. It may be noted that the prosecutor and the
accused person are heard by the court in the process. Is there
not a cloud on his innocence at that stage? Is it not a stage
where his integrity is questioned? If so, is it not a stage where
the person has come in conflict with law, and if so, is it desirable
D in a country governed by rule of law to entrust the executive
power with such a person who is already in conflict with law?
Will any reasonably prudent master leave the keys of his chest
with a servant whose integrity is doubted? It may not be
altogether irrelevant to note that a person even of doubtful
E integrity is not appointed in the important organ of the State
which interprets law and administers justice; then why to speak
of questioned integrity! What to say more, a candidate involved
in any criminal case and facing trial, is not appointed in any civil
service because of the alleged criminal antecedents, until
F acquitted.
9. 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
G 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
H
MANOJ NARULA v. UNION OF INDIA 1061
[KURIAN, J.]
be well advised and guided by such unwritten yet constitutional A
principles as well. According to Dr. B. R. Ambedkar, as
specifically referred to by my learned brother at pargraph-70
of the leading judgment, such things were only to be left to the
good sense of the Prime Minister, and fJ;>r that matter, the Chief
Minister of State, since it was expected that the two great B
constitutional functionaries would not dare to do any infamous
thing by inducting an otherwise unfit 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. C
Ambedkar and other great visionaries in the Constituent
Assembly have been bailed out. Qualification has been wrongly
understood as the mere absence of prescribed disqualification.
Hence, it has become the bounden duty of the court to remind
the Prime Minister and the Chief Minister of the State of their D
duty to act in accordance with the constitutional aspirations. To
quote Dr. Ambedkar:
"However, good a Constitution may be, it is sure to turn
E
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
F
Constitution."
10. 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. G
Kautilya, one of the great Indian exponents of art of government,
has dealt with qualification of king and his councillors at Chapter
IX in Arthasastra, said to be compiled between BC 321-296.
To quote relevant porti~n:
H
1062 SUPREME COURT REPORTS [2014] 9 S.C.R.
A "CHAPTER IX
THE CREATION OF COUNCILLORS AND PRIESTS
NATIVE, born of high family, influential, well trained in arts,
possessed of foresight, wise, of strong memory, bold,
eloquent, skilful, intelligent, possessed of enthusiasm,
B dignity and endurance, pure in character, affable, firm in
loyal devotion, endowed with excellent conduct, strength,
health and bravery, free from procrastination and
ficklemindedness, affectionate, and free from such
qualities as excite hatred and enmity-these are the
C qualifications of a ministerial officer."
11. The attempt made by this court in the above
background history of our country and 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
0 not wreck it. Beauty of democracy depends on the proper
exercise of duty by those who work it.
12. No doubt, it is not for the court to issue any direction
to the Prime Minister or the Chief Minister, as the case may
E 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
F holders about their role in working the Constitution. Hence, I am
of the firm 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
G consider avoiding any person in the Council of Ministers,
against whom charges have been framed by a criminal court
in respect of offences involving moral turpitude and also
offences specifically referred to in Chapter II I of The
Representation of the People Act, 1951.
H Bibhuti Bhushan Bose Writ petition disposed of.
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