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22. In this backdrop, the proponements put forth by Mr. 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 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 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 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 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 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 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 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 contemporaneous societal metamorphosis and if it is not applied to the language of Article 75(1), the élan 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 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 Sripadagalvaru v. State of Kerala and another14 to highlight that the applicability of the doctrine of implied limitation has been accepted by this Court.

25. Mr. Dwivedi has said that the situation “peril to democracy”, as visualized in Samsher Singh (supra, confers 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 M.P. and others23 wherein the Governor in an exceptional circumstance differed with the advice of the Council of Ministers and granted sanction for prosecution. Emphasising on the concept of constitutional trust in the Prime Minister which is inherent in the Constitution and which was a part of the Constituent Assembly Debates, Mr. Dwivedi has referred to the Debates in the Constituent Assembly. It is argued that a constitutional convention has (1974) 2 SCC 831 (2001) 7 SCC 231 (2004) 8 SCC 788 to be read into Article 75(1) which would convey that a person charged with serious crimes cannot be appointed as a 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 Hughs, “Constitutional and Administrative Law” by Hilaire Barnett (5th Edn.) and “Constitutional Practice”.

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, 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 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 court of law unless there is a constitutional prohibition or a statutory bar.

81. Having dealt with the concepts of “constitutional 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 the words “on the advice of the Prime Minister” in the backdrop 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 or an opinion expressed as to the wisdom of future conduct” (Abbot L. Dict.). In Webster Comprehensive Dictionary, 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 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 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 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 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 the Debates in the Constituent Assembly would show, after due deliberation, they thought it appropriate to leave it to the wisdom of the Prime Minister because of the intrinsic faith in the Prime Minister. At the time of framing of the Constitution, the debate pertained to conviction. With the change of time, the entire complexion in the political arena as well as in other areas has changed. This Court, on number of occasions, as pointed out hereinbefore, has taken note of the prevalence and continuous growth of criminalization in politics and the entrenchment of corruption at many a level. In a democracy, the people never intend to be governed by persons who have criminal antecedents. This is not merely a hope and aspiration of citizenry but the idea is also engrained in apposite executive governance. It would be apt to say that when a country is governed by a Constitution, apart from constitutional provisions, 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: -