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SUBMISSIONS OF THE COUNSEL 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 another[14] to highlight that the applicability of the doctrine of implied limitation has been accepted by this Court.

Laying stress on the word “advice”, apart from referring 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 be a considered, deliberate and informed one, especially taking note of the absence of criminal antecedents and lack of integrity. A Minister, though holds the office during the pleasure of the President, yet as per the law laid down by this Court and the convention, the advice of the Prime Minister binds the President. However, the President, being the Executive Head of the State, can refuse to follow the advice, if there is constitutional prohibition or constitutional impropriety or real exceptional situation that requires him to act to sustain the very base of the Constitution. Learned senior counsel would submit that the President, in exercise of his constitutional prerogative, 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. State of Punjab and another[21] and B. R. Kapur v. State of T.N. and another[22] 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 others[23] 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 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”.

“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 regulating the way in which legal rules shall be applied.” I. Jennings, in The Law and the Constitution[68], stated that a convention exists not only due to its non-enforceability but also because there is a reason for the rule.

I. Lovehead, in Constitutional Law – A Critical Introduction[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 constitutional authorities.

[66] Constitutional Practice (Second Edition) (pg. 146-148) [67] AIR 1951 SC 332 [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., Butterworths: London, 2000) at 247 [71]http://parliamentofindia.nic.in/ls/debates/vol11p12.htm [73] S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126 [75] 164. Other provisions as to Ministers.—(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: