Kerala High Court
Alappey Asharaf vs Chief Minister on 16 November, 2017
Author: Antony Dominic
Bench: Antony Dominic, A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE ACTING CHIEF JUSTICE MR.ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY,THE 24TH DAY OF NOVEMBER 2017/3RD AGRAHAYANA, 1939
WP(C).No. 37510 of 2017 (S)
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PETITIONER :
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ALAPPEY ASHARAF,
S/O. MAMU, AGED 64 YEARS, 42 B,
PENTA MENAKA APARTMENTS,PADIVATTAM,
COCHIN -25.
BY ADVS.SRI.K.A.SALIL NARAYANAN
SRI.T.S.RAJAN
RESPONDENT(S):
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1. CHIEF MINISTER,
GOVT. SECRETARIAT,
THIRUVANANTHAPURAM -695 001
2. STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY,
GOVT. SECRETARIAT, THIRUVANANTHAPURAM -695 001
3. E. CHANDRASEGHARAN,
MINISTER FOR REVENUE, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM -695 001
4. K.RAJU, MINISTER FOR FOREST,
GOVT. SECRETARIAT,THIRUVANANTHAPURAM -695 001
5. P.THILOTHAMAN,
MINISTER FOR CIVIL SUPPLIES,
GOVT. SECRETARIAT, THIRUVANANTHAPURAM -695 001
6. V.S SUNIL KUMAR,
MINISTER FOR AGRICULTURE, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM -695 001
BY ADDL.ADVOCATE GENERAL SRI.RENJITH THAMPAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 24-11-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
WP(C).No. 37510 of 2017 (S)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE REPORT PUBLISHED IN HINDU DAILY
DATED 16-11-2017
RESPONDENT(S)' EXHIBITS: NIL
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/TRUE COPY/
P.S.TO JUDGE
sts
"C.R."
ANTONY DOMINIC, Ag.C.J.
&
A.MUHAMED MUSTAQUE, J.
=========================
W.P.(C).No.37510/2017
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Dated this the 24th day of November, 2017
J U D G M E N T
Antony Dominic, Ag.C.J.
1. In this writ petition filed in public interest, the petitioner invokes the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India against respondents 3 to 6 stating that they are the Ministers in the State Cabinet, who have taken oath in terms of the Third Schedule to the Constitution of India. According to the petitioner, the Chief Minister had convened a Cabinet meeting at 8 a.m. on 15/11/2017, and the Cabinet had taken several important policy decisions, it is alleged that the aforesaid respondents abstained/boycotted from the Cabinet due to political reasons. It is alleged that the third respondent had also handed over a letter to the Chief Minister stating that their party had decided to abstain from the meeting of the Cabinet. Exhibit P1, a news report that appeared in the Hindu daily dated 16/11/2017 is WPC 37510/2017 -:2:- produced in support of the aforesaid averments. The petitioner states that the aforesaid alleged act of abstinence/boycotting amounts to breach of oath of office taken by respondents 3 to 6, entitling him to seek the following reliefs from this Court:
"i.To declare that respondents 3 to 6 by collectively abstaining themselves on the orders of their party boss and extra constitutional authority from the Cabinet meeting held on the 15th of November, 2017 have committed brazen breach of the oath sworn to by them at the time of appointment as ministers and rendered themselves liable to be proceeded with for breach of oath.
ii) To issue a Writ of Quo warranto calling upon respondents 3 to 6 under what authority of law they are continuing to hold the position of ministers in the Kerala Cabinet in view of the admitted breach of oath committed by them in collectively abstaining from the meeting on the 15th of November, 2017.
iii) To issue a writ of mandamus commanding the 1st respondent to immediately take such actions as are required under the provisions of the Constitution of India for commission of the breach of oath by respondents 3 to 6, forthwith, in public interest and uphold the Constitution of India.
iv) To issue such other writs, orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case."
2. On this petition, we heard the learned Senior Counsel Shri K.Ramakumar. According to Shri K.Ramakumar, this is a case where breach of oath of office is admitted and in such a situation WPC 37510/2017 -:3:- the petitioner is entitled to reliefs sought for. In support of his plea, the learned counsel referred to the judgments of the Apex Court in B.R.Kapur v. State of T.N. and Another [(2001) 7 SCC 231] and Amarinder Singh v. Special Committee, Punjab Vidhan Sabha and others [(2010) 6 SCC 113] and of the Full Bench of this Court in K.C.Chandy v. R.Balakrishna Pillai [1985 KLT 762].
3. We have considered the submissions made by him. In sum and substance, the case of the petitioner is that by abstaining/boycotting the Cabinet meeting of 15/11/2017 at the dictates of their political leaders, respondents 3 to 6 have violated the oath of office, by which they have sworn to act without fear, favour, affection or ill-will. To our mind, in this factual background, the first question to be considered is whether a writ petition filed with a prayer for writ of quo warranto can be entertained at all.
4. Insofar as this basic question is concerned, the issue is no longer res integra and is entirely covered by the full bench judgment of this Court in K.C.Chandy's case (supra). In the Full Bench judgment, the two questions that were considered by this Court were whether the breach of oath committed by a Minister would be a constitutional impediment for his continuance in his office and WPC 37510/2017 -:4:- whether in such circumstances a writ of quo warranto or an information in the nature of quo warranto could be issued from this Court. These questions were considered by this Court and answered thus:
"2. The main questions that fall for decision in this writ petition are: (1) whether breach of oath committed by a Minister would be a constitutional impediment for his continuance in office; and (2) whether, in such circumstances, a writ of quo warranto or an information in the nature of quo warranto would be issued from this Court.
3. Art.164 (3) of the Constitution lays down:
"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."
Article 191 of the Constitution prescribes disqualification for membership in the Legislative Assembly of the States and Art.192 details the procedure for deciding the disputes in respect of those disqualifications. The power of the Governor under Art.192 is thus attracted only in those cases where Art.191 could be applied. Art.191 and 192, therefore, constitute a composite machinery for the purpose of disqualifying a member of the Legislature under the Constitution.
4. So far as a member of the Legislative Assembly or Legislative Council is concerned, penalty for sitting and voting before making oath of affirmation under Art.188, is provided in Art.193 of the Constitution, which lays down, inter alia, that such a person shall be liable in respect of each day on which he so sits WPC 37510/2017 -:5:- or votes, to a penalty of five hundred rupees to be recovered as a debt due to the State. The Constitution, however, is silent as to the penalty to which a Minister would be liable if he enters upon office without taking oath. So also, there appears to be no express provision in the Constitution which attaches specifically any disqualification to the Minister who commits breach of his oath.
5. In fact, as far as we could see, breach of oath of office is not a disqualification specified in the Constitution or under any law made by Parliament. Even then, it could not be assumed that there is no sanctity to the oath taken before assumption of office or that there is no authority to take action if there is a violation of that oath. Art.164 (3) insists that no Minister could enter upon his office unless the Governor administers to him the oaths of office and of secrecy. The constitutional requirement of an oath before assumption of office could not thus be created merely as 'an additional moral obligation' (as stated by Willoughby in Vol. III, II Edn. of 'The Constitutional Law of the United States') without any legal consequences whatsoever. The oath of office insisted upon under the Constitution is the prescription of a fundamental code of conduct in the discharge of the duties of these high offices. The oath binds the person throughout his tenure in that office, and he extricates himself from the bonds of the oath only when he frees himself from the office he holds. Breach of this fundamental conduct of good behaviour may result in the deprivation of the very office he holds. When posts are held, not at the pleasure of the President or the Governor, but during 'good behaviour', breach of the oaths of office and of secrecy may attract the impeachment clauses and when posts are held at the pleasure of the President or the Governor, the termination, WPC 37510/2017 -:6:- at their will, of the tenure may be the possible outcome of such breach.
6. Oath of office is not an empty formality with no constitutional significance. In the debates in the Constituent Assembly on Art.56, Dr. Ambedkar is reported to have said that the phrase "violation of the Constitution" is a large one and may well include treason, bribery or other high crimes and misdemeanours, because treason is certainly violation of the Constitution and bribery will be violation of the Constitution because it will be a violation of the oath by the President. In the Judges' transfer case, S.P. Gupta and others . v. President of India and others (AIR 1982 S.C. 149) Pathak, J., observed thus:
"When a Judge permits his judgments in a case to be influenced by the irrelevant considerations of caste and creed, of relationship or friendship, of hostility or enmity, he commits a breach of his oath. It is a case where justice is not done and is denied. It is a case of misbehaviour, to which the provisions of Art.218 read with clauses (4) and (5) of Art.124 are attracted."
7. Breach of oath may thus be a betrayal of faith. The appointing authority, the Governor, in such cases, can consider whether there was, in fact, any breach of oath. It is not for this Court to embark on any such enquiry.
8. Breach of oath is different from absence of oath. Absence of oath prevents entry into office while breach affects the continuance after a valid entry. If no oath is taken before assumption of office as enjoined by the Constitution, there is no legal title to hold that office and a writ of quo warranto will naturally go from this Court. Similarly, 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, WPC 37510/2017 -:7:- cease to be a Minister. This is the mandate of Art.164 (3) of the Constitution. A person without authority cannot function; and the jurisdiction under Art.226 could be invoked to prevent that usurper in office from functioning.
9. Breach of oath requires a termination of the tenure of office. This power can be exercised by the appointing authority under the Constitution, and according to the procedure, if any, prescribed therein. The termination of that tenure is not the function of a Court; and it would not be appropriate to exercise jurisdiction under Art.226 in such cases. Proceedings under Art.226 in such cases do not lie. It was Jefferson who said:
"Our peculiar security is in the possession of a written Constitution; let us not make it a blank paper by construction" (Government by Judiciary Raoul Berger p.304).
10. The question as to whether there was breach of oaths of office and of secrecy committed by a Minister is outside judicial review under Art.226 of the Constitution. It is to be decided in other appropriate forums; and in the case of the Minister in a State, it falls within the discretionary domain of the Chief Minister, and/or the Governor. Breach of oath prescribed by the Constitution may, in certain circumstances, attract the penal provisions under the Indian Penal Code. When the Criminal Law is set in motion, it is of course for the Criminal Court to decide whether an offence has been committed or not. That is an independent remedy which does not affect the Constitutional power, of withdrawing the pleasure to continue in office, ingrained in Art.164(1). As Raoul Berger refers in 'Government by Judiciary' at page 293: 'Judiciary was designed to police constitutional boundaries, not to exercise supra constitutional police making decisions' (Hamilton).
WPC 37510/2017 -:8:-
11. Sir Ivor Jennings in his book 'Cabinet Government' states thus:
"A Prime Minister has an undoubted right to request any of his colleagues whose presence in his Cabinet, is, in his opinion or judgment, prejudicial to the efficiency or policy of the Government, to resign his office.
There is a tradition--a kind of public school function--that no Minister desires office but that he is prepared to carry on for the public good. The tradition implies a duty to resign where a hint is given."
"The pardon of the perpetrator of a political crime, such as political assassination, treason, riot, unlawful assembly and seditious libel might involve political questions of the first order of magnitude."
Said Sir Patrick Hastings: "When the public interest may conflict with the strict exercise of his duty, it is not only the right but the duty of the Attorney-General to consult the Cabinet. Every law officer who is undertaking a prosecution in the interest of the State must possess himself not only guidance of technical law; said the Prime Minister, "but must possess himself of guidance on the question, whether, if a prosecution is initiated, the effect of the prosecution will be harmful or beneficial to the State in whose interests it has been taken." (Cabinet Government Sir Ivor Jennings (1951) P.218).
S.A.De Smith speaks of the Prime Minister as "Primus inter pares" first among equals and states thus:
"The authority of a Prime Minister will depend necessarily on such variables as the confidence and popularity he commands as a leader, his intellectual grasp of the problems of Government, his tactical acumen, his performances as an orator and on the floor of the house, his ability to make quick and acceptable decisions and to carry his senior colleagues and his party with him, the stature of those colleagues, the state of the country's WPC 37510/2017 -:9:- economy, sheer luck and the often fickle mood of public opinion." (S. A. De Smith 2nd Edn. page 163).
In 1887 Gladstone wrote to the Queen thus:
"I have no general jurisdiction over the speeches of my colleagues and no right to prescribe their tone and colour. When they offend against an assurance which, with their authority, I have given to the Queen, they then afford me a title to interfere upon which I have been, I hope, not unduly slow to act."
To this, the Queen replied:
"The Queen thinks and maintains that the Prime Minister has and ought to have that power, and that former Prime Ministers did exercise it."
Mr. Gladstone's answer was:
"Your Majesty is well aware that there is no code on record from which he (Mr. Gladstone) may learn the powers of his office in such matters; and he has formed his estimate simply according to such knowledge as he had gathered under the heads of the Cabinets in which he has served. As he would be very sorry to exaggerate the rights appertaining to his office, so he should deem it a serious offence knowingly to allow any of them to fall into abeyance. He does not doubt that there are many cases in which the Prime Minister can interfere, both as to acts and language; for instance cases which affect duty to the crown or cases where a Minister undertakes to commit his colleagues" (Cabinet Government Sir Ivor Jennings)."WPC 37510/2017 -:10:-
12. The next question that would naturally arise would be whether a writ of quo warranto would be issued if a Minister is found to have committed breach of oath. For our limited purpose it might not be necessary to trace the historical background of the writ of quo warranto. Suffice it to examine whether a writ of quo warranto can issue in respect of an appointment held at the pleasure of the appointing Authority. In one of the earliest case, Darley v. The Queen (12 Cl. & F. 537), Tindal, C.J., expressed thus:
"This proceeding by information in the nature of quo warranto will lie for usurping an office, whether created by charter alone, or by the crown, with the consent of Parliament, provided the office be of a public nature and a substantive office, not merely the function or employment of a deputy or servant held at the will and pleasure of others, for with respect to such an employment, the Court certainly will not interfere and the information will not properly lie."
and proceeded to hold in that case thus:
"The functions of the treasurer were clearly of a public nature.........and it is equally clear that though appointed by the Magistrate, he is not removable at their pleasure, and not, we think, be treated not as their servant, but as an independent officer."
13. This statement of the law was approved in the leading case, R.v. Speyar ((1916) 1K.B. 595) and it has been cited in all the important cases relating to quo warranto jurisdiction. A writ of quo warranto or a writ by way of information in the nature of quo warranto cannot issue in these cases when a post is held 'at pleasure'. This is the normal rule. Even in those cases, however, the non-fulfilment of the conditions prescribed for assumption of office or the absence of the required qualification to hold that office affecting the title to that office will give rise to the issuance of this writ. Once the office is held under a valid title, and the WPC 37510/2017 -:11:- continuance depends on the pleasure doctrine, the writ of quo Warranto does not run; and no such writ, which can be defeated immediately by the mere exercise of an executive will, will therefore issue.
14. It would be appropriate at this stage to advert to the ruling of the Division Bench of this Court in Sukumaran v. Union of India (1985 K.L.T.567). The Division Bench ruling cannot be understood to lay down a proposition that breach of oath will not entail a termination of the tenure in office. The decision only held that breach of oath is not a disqualification under Art.191. To that extent we agree. Even apart from Art.191, if the Constitution provides and clearly indicates that the breach of oath may give rise to proceedings and actions for removing the alleged offender from the scene of activity, the Court cannot hold that Art.191 alone provides for the disability to continue as member of the Legislative Assembly. We hold that in the present case, the question as to whether there was a breach of oaths of office and of secrecy, is a matter to be decided under Art.164 (1) for the purpose of the 'pleasure doctrine' applicable to the tenure in office of a Minister. The Minister holds office only 'at the disposal' of the Chief Minister and/ or Governor and his office is held 'durante bene placito' of the Chief Minister and/or Governor.
15. The Division Bench placed reliance on the doctrine of political question enunciated in Baker v. Carr (369 U. S.186). We notice that even in the country of its birth, this doctrine has only little application, as observed in Powell v. McCormack (295 U. S.486). There is a lucid discussion of this subject in Seervai's Constitutional Law of India, III Edn. Vol. II at p. 2205. In the view we have taken, it is not, however, necessary to go into the details of this aspect of the matter. To compel the Court to decide a WPC 37510/2017 -:12:- political question may be 'to charge the judiciary with duties beyond its equipments" as stated by Frankfurter J., in (341 U. S.494 at 551.)."
5. Shri Ramakumar relied upon the judgment of the Apex Court in B.R.Kapur's case (supra) to contend that in that case the Apex Court had issued a writ of quo warranto and set aside the appointment of Ms.J.Jayalalitha as the Chief Minister of Tamil Nadu. We have considered the said plea. On a closer scrutiny of paragraph 45 of the judgment, we find that the writ of quo warranto in that case was issued on the basis of the conclusion of the Lordships that, on the date on which she was sworn as the Chief Minister, she was disqualified, by reason of her conviction under the Prevention of Corruption Act and the sentences of imprisonment of not less than two years, for becoming a member of the Legislature under Section 8(3) of the Representation of People Act. In other words, this judgment was rendered on the basis that, as on the date of her assumption of office as the Chief Minister, she was a disqualified candidate and therefore, she has usurped the public office, rendering herself liable to be ousted by issuance of a writ of quo warranto. In so far as this case is concerned, the petitioner does not have a case that any one of the WPC 37510/2017 -:13:- party respondents were disqualified in any manner as on the date of their entry into office or that they usurped their office as Ministers. In such a situation, the principles laid down by the Apex Court in its judgment in B.R.Kapoor's case (supra) have no applicability to this case.
6. Shri Ramakumar then relied upon the judgment of the Apex Court in Amarinder Singh's case (supra) to contend that even the actions of the Legislature are subject to judicial review. From paragraph 53, relied on by Shri Ramakumar, we find that many of the actions of the Legislature have been held to be subject to judicial review. However, in so far as this case is concerned, the petitioner is not challenging any action of the Legislature and on the other hand he is seeking a writ of quo warranto based on his assumption that there has been a breach of oath of office taken by the party respondents. For that reason, we are of the view that the judgment in Amarinder Singh's case (supra) also has no applicability in so far as this petition is concerned.
7. Shri Ramakumar finally contended that, if as a matter of fact the oath of office has been breached, then the Chief Minister has a constitutional duty to take action. According to him, the Chief WPC 37510/2017 -:14:- Minister has not taken any action in the matter, and hence the petitioner is entitled to a writ of mandamus to compel the Chief Minister to take action in the matter. It is elementary that when a writ of mandamus is sought, the petitioner is bound to show that he had made a demand for action with the person concerned and that the authority owing a statutory duty has failed to discharge that duty. In so far as this case is concerned, neither is there any pleading nor any material to indicate that there has been any demand or its refusal either from the Chief Minister or the Governor, as the case may be. Therefore, it is premature for the petitioner to even pray for such reliefs.
8. For the above reasons, we are not persuaded to think that the petitioner has made out a case for entertaining the writ petition. The writ petition therefore fails, and it is accordingly, dismissed.
Sd/-
ANTONY DOMINIC, ACTING CHIEF JUSTICE Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms