This article is by Shivani Panda from Amity Law School, Delhi and Kritika Garg, from National Law University Odisha. This is an exhaustive article that explains the judgement pronounced by the Apex Court in the case of B.R. Kapur v. State of Tamil Nadu- the Jayalalitha case. She also discusses the appointment and disqualification of a non-member as a Minister in accordance with this case.
Table of Contents
Appointment of an individual as a Minister or the Chief Minister under Article 164(1) and Article 164(4) was being called into question in the case of B.R Kapur v. State of Tamil Nadu. While the aforementioned articles do not mention any qualification or disqualification that are required for being a Chief Minister or a Minister, can a person who is appointed as a Chief Minister be called into question for not fulfilling the qualifications or incurring the disqualifications mentioned under the Constitution of India? Article 173 of the Constitution lays down the qualifications that are required for being a Minister or a Chief Minister whereas Article 191 enumerates the disqualifications.
Jayalalitha having being convicted under Section 13 of the Prevention of Corruption Act, 1988 and sentenced for 3 years of imprisonment was the respondent in the case whose appointment as the Chief Minister of the State of Tamil Nadu was questioned as she was clearly disqualified under Article 191 and Section 8(3) of the Representation of the People Act, 1951. Section 8(3) states that any person who has been convicted of any offence and sentenced for not less than 2 years shall be disqualified from being a member of the Parliament or the State Legislative Assembly or the council from the date of conviction to six years of his/her release.
This article enumerates the main issues that were being raised in the case, the arguments that were put forth by both the parties and the judgement that was passed by the apex court.
B.R. Kapur v. State of Tamil Nadu & Anr.
The facts of B.R. Kapur v. State of Tamil Nadu & Anr. presented before the court was that:-
- The elections to the Legislative Assembly in the State of Tamil Nadu were held in 2001, in which J. Jayalalitha from All India Dravida Munnetra Kazhagam (AIADMK) secured a landslide majority and was granted candidature for the Chief Ministerial election, however, she was denied permission to contest the elections.
- In the year 2000, she was convicted and sentenced to imprisonment in two separate cases, firstly under Section 409 of the Indian Penal Code, 1860 (hereinafter IPC) for three years and under Section 13 of the Prevention of Corruption Act, 1988 (hereinafter PCA) for two years, for offences committed during her earlier tenure as Chief Minister of the State between 1991-1996.
- The Election Commission of India (ECI) rejected her nomination papers for disqualification under provisions of Representation of People’s Act, 1951 (hereinafter RPA), thereby denying her permission to contest elections. Section 8(3) of the RPA disqualifies any person who is convicted of any offence and sentenced to rigorous imprisonment for more than two years. The person is not permitted to contest elections from the date of such elections to a period of six years from his release. However, she still contested election and after a landslide victory of AIADMK she took oath as the Chief Minister of Tamil Nadu. Further, she had gone on appeal against her conviction to the High Court, who at that time suspended the sentences of imprisonment under Section 389(3) of the Code of Criminal Procedure, 1973 (hereinafter CrPC) and released the respondent on bail, however, the final judgment was still pending.
- Whether a person who is disqualified to be a member of the State Legislature can be appointed as the Chief Minister under Article 164(4)?
- Whether the will of people plays a significant role while barring them from contesting elections?
- Whether the Governor’s decision under Article 361 of the Constitution attracts judicial review?
- Firstly, it was argued by the State that there is a lack of prescription of qualifications or disqualifications for the Chief Minister and the Council of Ministers under Section 164(2). The respondents further argued that the Court does not have the power to import qualifications and disqualifications upon a candidate since the Constitution does not contemplate the credentials of a person a non-member minister. In other words, it is not appropriate for the Court to incorporate such disqualifications that are not enumerated in the Constitution of India.
- Secondly, in a Parliamentary Democracy, the will of the people must prevail under any circumstances. Since the election of the respondent was supported by the majority of the people in the state, the ECI or the Court cannot bar the appointment of such a person.
- Lastly, it was contended that a Governor is immune to judicial review under Article 361, that is, he is not answerable to the judiciary for any decision taken by him in the exercise of performance of the powers and duty of his office. Thus, the appointment of Jayalalitha by the Governor cannot be challenged in the Court of law.
- According to the Court, all the sub-articles of Article 164 shall be read together, along with Articles 173 and 191. Article 173 lays down the conditions a person should satisfy to contest elections, while Article 191 talks about disqualifying a person from becoming or continuing as a member. Article 164 takes into account two significant stages, first the date of appointment of a person as a Minister and second as the date of becoming a member of the Legislative Assembly within six months. The Court interprets that Article 191 covers both the first and second stages mentioned under Article 164. Hence, it was held that J.Jayalalitha should not be allowed to contest elections for being disqualified under Article 191 of the Indian Constitution.
- The Court relied on the doctrine of Constitutional morality while addressing the second issue. It observed that people of this country electing a person to be their leader, who is disqualified from being a member of the Legislative Assembly is against the morals of the Constitution. The Constitution is a sacrosanct document, having special legal sanctity that carves the rules and framework within which different organs of the Constitution operate. Therefore, when the legislative or executive commit an act that goes against the values of the Constitution it must be held unconstitutional and illegal.
- In this issue, the Apex Court held that the power bestowed upon the Governor under Article 356(1) is conditional, and the court is qualified as well as entitled to examine whether the condition has been satisfied or not. Moreover, the issuance of a quo warranto writ petition makes the individual liable who is illegally holding the office. The writ protects the public from the exploitation of power by an individual presiding in a public office. Thus, in this case, the decision of the Governor was not under scrutiny but, the person holding the office was examined, and the immunity granted to the Governor under Article 361 cannot stand as a bar from issuing a writ of quo warranto to that individual.
Previous interpretations of Article 164(4)
Harsharan Verma case(s)
The scope of Article 164 has been previously interpreted multiple times by the Supreme Court. It was first discussed in the case of Harsharan Verma v. Tribhuvan Narain Singh, Chief Minister U.P. & Anr. in 1971, wherein the appointment of the U.P. Chief Minister was challenged on the ground that he was not a member of the Legislative Assembly at the time of his appointment, as Article 164(4) applied only to the cases where a sitting member lost his seat and he was given six months to get re-elected in the Legislative Assembly. He further contended that with this clause, a Governor might appoint a Chief Minister and the Council of Ministers, where none of them are members of the Legislative Assembly.
The Supreme Court rejected these contentions and held that the provision governing the appointment of a non-member for a limited time has an ancient lineage, and there is no requirement to interpret this plain provision in a restrictive way. While rejecting the other argument of the appellant, the Court held that the appointment of Ministers in that way is illegal, and the Council of Ministers will be collectively responsible for this act. Despite this judgment by the Supreme Court, Harsharan Verma approached the apex Court twice challenging this Article. Firstly, in Harsharan Verma v. State of U.P., against the appointment of K.P Tewari as a minister in the U.P. in 1985. Secondly, in Harsharan Verma v. Union of India, challenging the appointment of Sitaram Kesari as a Minister of State in the Union of India. In both cases, the Court upheld the same view as of the bench in the Tribhuvan Narain Singh case.
H.D. Deve Gowda case
The appointment of H.D. Deve Gowda as Prime Minister was challenged in 1996 in the case of S.P. Anand v. H.D. Deve Gowda, on the ground that he was not a Member of Parliament at the time of his appointment. The Parliamentary equivalent of Article 164, that is Article 75 was in question in this case. In this case, the Court quoted B.R. Ambedkar’s view expressed in the Constituent Assembly Debates while defending Article 164(4). According to him, the idea underlying this provision is that due to political exigencies or to avail the services of an expert in the field, a person has to be appointed as a minister without his being a member of State Legislation at the time. The person should not be disqualified from the election to the legislature for the same reason. Moreover, The section is not intended for the induction of a minister in the Council of someone ineligible to stand for election in the state legislature. Thus, the Court rejected the petition and concluded that for Article 75(4), there was no distinction between a ‘Minister’ and ‘Prime Minister’ and endorsed the view expressed by the Court in the previous cases.
S.R. Chaudhuri case
In S.R. Chaudhuri v. State of Punjab, the question that was raised was whether a non-Member of a legislature, who fails to get elected during six consecutive months, can take the advantage of this extraordinary provision again. The respondent argued that by reading the plain text of the article, it should be concluded that there is no express prohibition of such reappointment during the term of the same Legislative Assembly. While rejecting this contention the Court observed that the privilege is a one-time slot granted to an individual under this article, and the repeated use of it by the same person would be a fraud on the Constitution.
B.R. Kapur examined three issues at hand, and the author implores to critically discuss these issues in detail and analyze the ratio decidendi and obiter dicta of the case. On the face of it, the judgment is justified, however, the rationale behind it poses conflicts within itself. Bharucha J. insisted on reading the sub-clauses of Article 164 together, along with Article 173 and 191. He strikes a difference between the date of appointment of a non-member as a Minister and the date on which such Minister seeks to become a member of the Legislature, that is, within six months. The disqualifications which are imposed on the first date shall also flow to the second date. However, when the respondent argued that these ‘implied qualifications’ cannot be read into a constitutional provision, he gave two responses, which are as below:
- He denied any such implied qualifications and said that Article 164 has been interpreted ‘on its own language’ in the context of sub-articles (1) and (2). However, the author respectfully submits that, when the meaning of the Article is under observation, interpreting the article ‘on its own language’ is oxymoronic.
- Secondly, he acknowledged the permissibility of reading in implied limitations and said that the court is permitted to implicitly interpret the bare language of the Constitution, like the judgment of Keshavnanda Bharati v. State of Kerala and its interpretation in Minerva Mills Ltd. v. Union of India. Thus, the court stated that the rationale behind the interpretation of sub-article (4) is based on sub-article (1) and (2) is the permissibility of reading in implied qualifications.
As can be seen, the Court resorted to the implied qualification, despite first stating that the Article is interpreted in its own language. It can be implied from this justification that the Court acknowledges the futility of the text of the Article and its interpretation based on that very language.
Further, Section 389 of CrPC states that the ‘execution of the sentence’ can be suspended by the court at the time of the appeal, however, the High Court in its order ‘suspended the sentence of imprisonment’. The apex court held that the High Court erroneously worded the order while granting bail to the accused and distinguished between the suspension of the ‘execution of the sentence’ and ‘sentence of imprisonment’. The author respectfully implores that the court has wrongly observed the distinction between these two statements. When a person is sentenced to imprisonment by the Court, nothing else is needed for the sentence to be executed. There is no procedure established in any legislation to turn the sentence of imprisonment into the execution of the sentence since it is implied that when a court orders the person to be sentenced to imprisonment it means the execution of the sentence is bound to happen. There is no distinction possible between these two. Moreover, the interpretation given by the Court can lead to the possibility that a person under a sentence of life imprisonment may be leading a free life because ‘to be sentenced to imprisonment’, according to Bharucha, J. does not require a person to go to prison until the order of execution is passed by the Court.
The Supreme Court decision declaring Jayalalitha’s appointment as Chief Minister of Tamil Nadu being void and unconstitutional was based on her conviction by the Trial Court in the R. Sai Bharat v. J. Jayalalitha (TANSI land acquisition case), after which she was replaced by O. Paneerselvam. Fathima Beevi, who was the Governor of Tamil Nadu at that time had administered the oath of Jayalalitha, was asked to step down from her post by the Minister of Law after the judgment. She resigned and sent a report to the President of India justifying her decision, after which the then Governor of Andhra Pradesh Dr C. Rangarajan was appointed as the acting Governor of Tamil Nadu. Her conviction was reversed by the High Court in 2001 on the ground of lack of evidence, and she again became the Chief Minister of Tamil Nadu by winning the 2002 Tamil Nadu assembly by-election. In an appeal to the Supreme Court in 2003 for the land acquisition case, it upheld the view of the High Court and acquitted Jayalalitha.
The case of Jayalalitha is not a unique one. Many such Ministers have abused their position and the loopholes of the bare text of the Constitution. In these cases, the Court has intervened to provide justice to people and penalize those committing fraud against the Constitution. However, while doing so it is also important for the Court to keep in mind to give the proper rationale behind their judgment. The court in this case said that “any dangerous or absurd interpretation has to be rejected out of hand”, however the Court in this very case incorporated absurd interpretation while pronouncing the judgment. The author respectfully states that Article 164(4) is redundant and should be done away with to maintain consistency and avoid conflicts that arise from time to time.
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