Reportable    

IN THE SUPREME COURT OF INDIA    

CIVIL ORIGINAL JURISDICTION    

WRIT PETITION (CIVIL) NO. 289 OF 2005    

Manoj Narula       ... Petitioner    

Versus    

Union of India             ...Respondent                

J U D G M E N T      

Dipak Misra, J. [for himself, R.M. Lodha, C.J., and       S.A. Bobde, J.]  

   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 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

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orderliness, positive propriety, dedicated discipline and  

sanguine sanctity by constant 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 in T.N.  

Seshan, CEC of India v. Union of India and ors.2. and  

Kuldip Nayar v. Union of India & Ors.3  It was  

pronounced with asseveration that democracy is the basic  

and fundamental 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 India  

and another4, 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  

                                                 1 AIR 1975 SC 2299  2 (1995) 4 SCC 611  3 AIR 2006 SC 3127  4 (2013) 10 SCC 1

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structure of the Constitution and, thereafter, proceeded to  

lay down that democracy being the basic feature of our  

constitutional set-up, 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 voters to  

participate 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 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 fair election and the necessity of the  

electorate to have candidates of high moral and ethical

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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 in the marrows of the  

collective is absolutely necessitous.   

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 publico  

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: -  

 “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  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

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learned Solicitor General, appearing for the Union  of India, and Mr. Gopal 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.  

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  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.  

The Prime Minister and some of the  Ministers in 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.  

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, 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.

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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 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 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 or voluminous  discussion can possibly diminish the  overwhelming importance of the point.”  

4. In Raghbir Singh Gill v. S. Gurcharan Singh  

Tohra6, the learned Judges, after referring to Mohinder  

Singh Gill’s case, stated that nothing can diminish the  

overwhelming importance of the cross or preference  

                                                 5 (1978) 1 SCC 405  6 AIR 1980 SC 1362

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indicated by the dumb sealed lip voter.  That is his right and  

the trust reposed by the 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 another7 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 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  

expenditure incurred by the political parties, and the voters  

would have basic elementary right to know full particulars  

                                                 7 (2002) 5 SCC 294

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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 throughout and it is a natural right flowing  

from the concept of democracy.  Elaborating further, the  

Court opined that a voter has a 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 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  

Constitution requiring the candidate to furnish information  

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, and in which charge is  

framed or cognizance is taken by the court of law; and  

certain other information.

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6. From the aforesaid authorities, it is perceivable that  

while giving emphasis on the sanctity of election, the Court  

has 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  

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 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, 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                                                    8 (1997) 4 SCC 306

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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. 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 the Republic Day in 1996 as well as in  

1997 and hence, it 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 provisions made in the election law, observed  

that they have been made to exclude persons with criminal  

background 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 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.  

                                                 9 (1997) 6 SCC 1

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Jayarajan10, 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 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 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 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.  There are  

recommendations given by different committees constituted  

by various Governments for electoral reforms.  Some of the  

                                                 10 AIR 2005 SC 688

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reports that have been highlighted at the bar are (i)  

Goswami Committee on Electoral Reforms (1990), (ii) Vohra  

Committee Report (1993), (iii) Indrajit Gupta Committee on  

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 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  

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 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

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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 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 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  

suggested amendment to the 1951 Act by insertion of  

Section 8B 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 understand the existing scenario in  

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

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relevant part of the proposed amendment.  It reads as  

follows: -  

“8B. 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  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:   

(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 offence punishable by at least five years  imprisonment;   

(a)   Less than one year before the date of  scrutiny of nominations for an election  under 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 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 one year from the date of framing of

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charge or date of 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  

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  

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 Hemchandra Sashittal and another v. State  

of Maharashtra11 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, 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  

                                                 11 (2013) 4 SCC 642

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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.”  

14. Recently, in Dr. Subramanian Swamy v. Director,  

Central Bureau of Investigation & Anr.12, the  

Constitution 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:-  

“It 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 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 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.”    

And thereafter, the larger Bench further said:-  

“Corruption is an enemy of the nation and  tracking down corrupt public servants and  

                                                 12 Writ Petition (Civil) No. 38 of 1997 etc. pronounced on May 06, 2014

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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 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.”  

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 there are allegations of  corruption of graft or bribe taking 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 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 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 aspect and it has acted as the formidable enemy  

of the nation.

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PROVISIONS RELATING TO QUALIFICATIONS AND  DISQUALIFICATION OF MPs AND MLAs/MLCs  

15. Having stated about the significance of democracy  

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 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 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 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

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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 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 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 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  

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.

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18. Similarly, Article 173 provides for qualification for  

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.   

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 potentiality to destroy the  

core values of a healthy democracy, 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: -   

“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

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and shall continue to be disqualified for a  further period of six 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  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.”  

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  

others13 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 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  

                                                 13 (2013) 7 SCC 653

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Section 8 of the Act to defer 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)  

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 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 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

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State Legislature, is beyond the 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  

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.  

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  

criminal activities is unfit to be a representative of the  

people. Criminal activities that result in disqualification are  

related to various spheres pertaining to the interest of the  

nation, common citizenry interest, communal harmony, and  

prevalence of good governance.  It is clear that the 1951 Act  

lays down that the commission of serious criminal offences

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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 public office thereby  

preserving the probity of representative government.    

SUBMISSIONS OF THE COUNSEL  

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

25

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

26

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.  

                                                 14 (1973) 4 SCC 225

27

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, is not constitutionally 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 “institutional integrity”  

so that the faith of the people at large is 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  

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 qualifications and disqualifications

28

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 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 in Centre for  

PIL and another v. Union of India and another15, N.  

Kannadasan v. Ajoy Khose and others16, Inderpreet  

Singh Kahlon v. State of Punjab17, Arun Kumar  

Agarwal v. Union of India18, State of Punjab v. Salil  

Sabhlok and others19 and Centre for Public Interest  

Litigation and another v. Union of India and another20.  

                                                 15 (2011) 4 SCC 1  16 (2009) 7 SCC 1  17 (2006) 11 SCC 356  18 (2014) 2 SCC 609  19 (2013) 5 SCC 1  20 (2005) 8 SCC 202

29

24. 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

30

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 another21 and B. R. Kapur v. State of T.N. and  

another22  

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  

                                                 21 (1974) 2 SCC 831  22 (2001) 7 SCC 231  23 (2004) 8 SCC 788

31

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”.   

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 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, 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

32

he is bound by the unwritten code pertaining to morality  

and philosophy encapsulated in the Preamble of the  

Constitution.  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 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 counsel has  

placed reliance on S.P. Gupta v. Union of India and  

another24 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  

absence of any express provision for qualification of a  

Minister in the Union Cabinet under Article 75 of the                                                    24 1981 Supp SCC 87  25 (2006) 8 SCC 212

33

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 requirement of his antecedent,  

there is no legal restriction under the Constitution for a  

person unless convicted of an offence as provided under  

Section 8A 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 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.  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.  

28. Mr. Andhyarujina has further submitted that Section  

44(4)(ii) of the Australian Constitution puts a limitation on

34

the member of the House which travels beyond conviction in  

a criminal case, for the said provision provides that any  

person 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 senator or a member of the House of  

Representatives.  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 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  

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

35

vacated.  Mr. Andhyarujina has also referred to the House of  

Commons Library paper on disqualification for membership  

of the House 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 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 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 if he is facing prosecution for a serious offence.   

Submission of learned amicus curiae is that there is no

36

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 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 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  

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 Minister.

37

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.  

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 Act and the rules framed thereunder and in the  

present mosaic of democracy such a controversy, in the

38

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 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  

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 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

39

ethical 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 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 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 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 into it to

40

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  

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 under the Constitution.  For the  

aforesaid purpose, he has placed reliance on the decision in  

U.N.R. Rao v. Smt. Indira Gandhi26.  It is urged by him  

that if anything is added to Article 75(1), that would  

tantamount to incorporating a disqualification which is not  

present and the principle of judicial review does 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  

                                                 26 (1971) 2 SCC 63

41

to the Constitution Bench decision in G. Narayanaswami  

v. G. 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 inspiration from certain passages  

from Samsher Singh (supra).  

34. It is his further submission that if the stage of framing  

of charge of any offence is introduced, it would frustrate  

and, 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 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 Maharashtra30, S.  

                                                 27 (1972) 3 SCC 717  28 (2006) 2 SCC 682  29 (2004) 10 SCC 699  30 (2005) 5 SCC 294

42

Ganesan v. Rama Ranghuraman31, State of U.P. v.  

Naresh32 and Kailash Gour & ors. v. State of 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 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  

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 are centripodal to  

the controversy.  Articles 74 and 75 read as follows: -  

                                                 31 (2011) 2 SCC 83  32 (2011) 4 SCC 324  33 (2012) 2 SCC 34

43

“74. (1) There shall be a Council of Ministers with  the Prime Minister at the head to aid and advise  the President who 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 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.  

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 Minister, in the Council of Ministers shall  not exceed fifteen per cent of the total number of  members of the House of the People.  

(1B) A member of either House of Parliament  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 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 the President.  

(3) The Council of Ministers shall be collectively  responsible to the House of the People.

44

(4) Before a Minister enters upon his office, the  President shall administer to him the oaths of  office and of secrecy 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 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.”  

 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  

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  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 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.

45

(3) The question whether any, and if so what,  advice was tendered by Ministers to the Governor  shall not be inquired into in any court.  

37. The relevant part of Article 164 is extracted below: -  

“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:  

xxx   xxx   xxx  

(2) The Council of Ministers shall be collectively  responsible to the 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 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 provides the forms of Oaths or Affirmations of the  

Constitution: -  

“Form of oath of office for a Minister for the  Union: -  

“I, A.B., do swear in the name of God/  solemnly affirm that I will bear true faith and  allegiance to the Constitution of India as by law

46

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 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: -  

 “I, A.B., do swear in the name of God/  solemnly affirm 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 I will do right to all  manner of people 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 Union  

is as follows: -  

“I, A.B., 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 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

47

pertains 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.  

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, 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 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 aid of the doctrine of “implied limitation”.   

In Kesavananda Bharati’s case, Sikri, CJ, while

48

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 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 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” 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 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 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.”  

42. Shelat and Grover, JJ., in their opinion, while  

speaking about the executive power of the President, have

49

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 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 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 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.  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  elements are not abrogated or denuded of their  identity.”

50

43. Hegde and Mukherjea, JJ., while discussing about  

implied limitations, opined thus: -  

“655. Implied limitations on the powers conferred  under a 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  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: -   

“656. Lord Wright in James v. Commonwealth of  Australia34 stated the law thus:  

“The question, then, is one of construction,  and in the 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 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 limitations though those powers are  expressed in general terms or even in absolute  terms.”  

And further proceeded to state thus: -  

                                                 34 1936 AC 578

51

“.... though plenary powers of legislation have  been 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 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 be implied limitations on other  powers conferred under the 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.  

45. Palekar, J., has opined thus: -  

“Some more cases like Ranasinghe’s case35 Taylor  v. Attorney General of Queensland36; Mangal  Singh v. Union of India37, were cited to show that  constitutional laws permit 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 by observing that: -  

                                                 35 1965 AC 172  36 23 CLR 457  37 (1967) 2 SCR 109

52

“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, 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 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  Amendments which are in question here must be  deemed 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 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 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: -  

“1444. Learned counsel for the petitioners has  addressed us at some length on the point that

53

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 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 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 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: -  

“1446. So far as the first facet is concerned  regarding 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 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.”  

48. Be it clarified, in subsequent paragraphs, the learned  

Judge expressed the view that though the Parliament has

54

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 feature of the Constitution.  

49. In Minerva Mills Ltd. And Others v. Union of India  

and Others38, the Constitution Bench was dealing with the  

validity of Sections 4 and 55 of the Constitution (42nd  

Amendment) 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:-   

“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  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 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  

                                                 38 (1980) 3 SCC 625

55

“amendment of the Constitution”, in spite of the  width of their sweep and in spite of their  amplitude, could not have the effect of  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 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 majority view.”  

 Thereafter, the learned Chief Justice proceeded to state  

thus:-  

“16. ...The theme song of the majority decision in  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”.”   

50.  In B. 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 power on Parliament, Parliament could not in the  

exercise of that limited power, enlarge that very power into

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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, under Article 368, expand its  

amending power so as to acquire for itself the right to repeal  

or abrogate the Constitution or to 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 I.R. Coelho (Dead) by Lrs. v. State of Tamil  

Nadu39,  the Nine-Judge Bench, while dealing with the  

doctrine of implied limitation, ruled thus:-                          

“96.....In 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 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, 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  

                                                 39 (2007) 2 SCC 1

57

not part of basic structure. Khanna, J. however,  does not 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 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 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 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 original Constitution could not be amended by taking  

recourse to the plenary power of amendment under Article

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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 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  

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 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 Lordship then was),

59

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-B of the Indian Penal Code and sentenced to undergo  

rigorous 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 hold the post of the Chief Minister.  A  

submission was advanced that it was not open to the Court  

to read anything into Article 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 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

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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 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 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.  

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  

interpretative process, it is difficult to read the prohibition  

into Article 75(1) or, for that matter, into Article 164(1) to

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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 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.  

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 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 establish the rights of the have-nots or to  

prevent damages and protect environment is one such  

feature.  Similarly, laying down guidelines as procedural

62

safeguards in the matter of adoption of Indian children by  

foreigners in the case of Laxmi Kant Pandey v. Union of  

India40 or issuance of guidelines pertaining to arrest in the  

case of D.K. Basu v. State of West Bengal41 or directions  

issued in Vishakha and others v. State of Rajasthan  

and others42 are some of the instances.    

55. In this context, it is profitable to refer to the authority  

in Bhanumati and others v. State of Uttar Pradesh  

through its Principal Secretary and others43 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 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 struck  

down as the said provision diluted the principle of stability  

                                                 40 AIR 1987 SC 232  41 AIR 1997 SC 610  42 (1997) 6 SCC 241  43 (2010) 12 SCC 1

63

and continuity which is the main purpose behind the object  

and reason of the constitutional amendment in Part IX of  

the Constitution.  The Court, after referring to Articles 243-

A, 243-C(1), (5), 243-D(4), 243-D(6), 243-F(1), (6), 243-G,  

243-H, 243-I(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 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  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 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 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)”

64

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  

inevitable negative, for there are express provisions stating  

the disqualifications and second, it would tantamount to  

crossing the boundaries of judicial review.    

DOCTRINE 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 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 person against whom charge has been  

framed for heinous or serious offences or offences pertaining

65

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 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.  

58. In this regard, inclusion of many a facet within the  

ambit of Article 21 is well established.  In R. Rajagopal  

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  

others45, inherent rights under Articles 21 and 22 have  

been stated.  Likewise, while dealing with freedom of speech  

and expression and freedom of press, the Court, in Romesh  

Thappar v. The State of Madras46, has observed that  

freedom of speech and expression includes freedom of  

propagation of ideas.  

                                                 44 (1994) 6 SCC 632  45 AIR 1994 SC 1349  46 AIR 1950 SC 124

66

59. There is no speck of doubt that the Court has applied  

the doctrine of implication to expand the constitutional  

concepts, but the context in which the horizon has been  

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 in  

serious and heinous criminal offences or offences relating to  

corruption.  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  

Commonwealth47, Dixon, J opined that constitutional  

implication should be based on considerations which are  

compelling.  Mason, CJ, in Political Advertising Case48,  

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 of interpretation must find some  

                                                 47 (1974) 74 CLR 31  48 (1992) 177 CLR 106

67

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 of articles cohesively,  

for that will be in the domain of substantive legitimacy.   

60. Dixon, J, in Australian National Airways Pty Ltd. v  

Commonwealth49, said: ‘I do not see why we should be  

fearful about making implications’.  The said principle has  

been approved in Lamshed v Lake50, and thereafter, in  

Payroll Tax Case51.  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 to have a base in the  

Constitution.  The Court cannot re-write a constitutional  

provision.  In this context, we may fruitfully refer to Kuldip  

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  

                                                 49 (1945) 71 CLR 29, 85  50 (1958) 99 CLR 132, 144-5  51 (1971) 122 CLR 353, 401  

68

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-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 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.  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: -

69

“421. It follows that for “secret ballot” to be  the norm, it must 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.”  

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 and serious offences including corruption cases  

under the criminal law.  

OTHER RELEVANT CONSTITUTIONAL CONCEPTS –  CONSTITUTIONAL MORALITY, GOOD GOVERNANCE  AND CONSTITUTIONAL TRUST  

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.  

63. The Constitution of India is a living instrument with  

capabilities of enormous dynamism.  It is a Constitution

70

made for a progressive society.  Working of such a  

Constitution depends upon the prevalent atmosphere and  

conditions.  Dr. 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 learn it.   Democracy in India is only a top-dressing on an  Indian soil, which is essentially undemocratic.52”  

64. The principle of constitutional morality basically  

means to bow down to the norms of the Constitution and  

not to act in a manner which would become violative of the  

rule of law or reflectible of action 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 successful where the  

people at large and the persons-in-charge of the institution  

are strictly guided by the constitutional parameters without  

paving the path of deviancy and reflecting in action the  

                                                 52 Constituent Assembly Debates 1989: VII, 38.

71

primary concern to maintain institutional integrity 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 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, 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 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.  

                                                 53 James Madison as Publius, Federalist 51  54 Laurance H. Tribe, THE INVISIBLE CONSTITUTION 29 (2008)

72

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, Perambalur and others55, the Court observed  

that the doctrine of good governance requires the  

Government to rise above 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  

Deshmukh and Ors.56, the Court, referring to the object of  

the provisions relating to corrupt practices, elucidated as  

follows:  

“Clean, efficient and benevolent administration  are the essential features of good governance  which in turn depends upon persons of  competency and good character.”   

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                                                    55 (2009) 15 SCC 351  56 (2001) 3 SCC 594  57 (1995) 6 SCC 289

73

Maharashtra and others v. Jalgaon Municipal  

Corporation and others58, 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 U.P. Power Corporation Ltd.  

and Anr. v. Sant Steels & Alloys (P) Ltd. and Ors.59, the  

Court 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 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 rights in any  

governmental action, deference for unwritten constitutional  

values, veneration for institutional integrity, and inculcation  

of accountability to the collective at large.  It also conveys  

that the decisions are taken by the decision making                                                    58 (2003) 9 SCC 731  59 AIR 2008 SC 693

74

authority with solemn sincerity and policies are framed  

keeping in view the welfare of the people, and including all  

in a homogeneous compartment.  The concept of good  

governance 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 service orientation.    

CONSTITUTIONAL TRUST  

70. Having stated about good governance, we shall proceed  

to deal with the doctrine of “constitutional trust”.  The 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  

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

75

State.  Well, so far as his intention is concerned,  it is no doubt 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 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 general public  holding a watching brief upon them.  I therefore  say that these amendments are unnecessary.”  

[Emphasis supplied]  

71. The trust reposed in the Prime Minister is based on his  

constitutional status.  In Rai Sahib Ram Jawaya Kapur  

and others v. The State of Punjab60, B.K. Mukherjea, CJ,  

while referring to the scope of Article 74, observed that  

under Article 53(1) of the Constitution, the executive power  

of the Union is vested in the President but under Article 74,  

there is to be a Council of Ministers with the Prime Minister  

at the head to aid and advise the President in the exercise of  

his functions.  The President has, thus been, made a formal  

                                                 60 AIR 1955 SC 549

76

or constitutional head of the executive and the real  

executive powers are vested in the Ministers or the Cabinet.  

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 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 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  

advice.  Krishna Iyer, J., speaking for himself and  

Bhagwati,J., opined that under the Constitution, the  

President and Governor, custodian of all executive and other

77

powers under various Articles, are to exercise their formal  

constitutional powers only upon and in accordance with the  

due advice of their Ministers, save in few well-known  

exceptional situations.  The learned Judge has carved out  

certain exceptions with which we are really presently not  

concerned with.  

73. In Supreme Court Advocates-on-Record Association  

and another v. Union of India61, 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 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 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.  

                                                 61 AIR 1994 SC 268

78

74. We have referred to these authorities singularly for the  

purpose 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  

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 Constitutional Law62, observed: -  

“But 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 wisely  exercised. It can be said equally that the  Constitution confers power but it gives no  guarantee that it will be worked by men of high  character, capacity and integrity.  If the  Constitution is to be successfully worked, 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.”  

[Emphasis added]  

                                                 62 H.M. Seervai, Constitutional Law of India, vol. 2, 4th Ed.  Pg. 2060

79

76. In Constitutional and Administrative Law63, the  

learned authors while dealing with individual responsibility  

of Ministers, have said:-  

“3. THE INIDIVIDUAL RESPONSIBILITY OF  MINISTERS  

The individual responsibility of ministers  illustrates further Professor Munro’s  continuum  theory.  Ministers are 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 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 Law64, Hilaire  

Barnett, while dealing with the conduct of Ministers,  

referred to the Nolan Committee65  which had endorsed the  

view that:-  

“public is entitled to expect very high standards  of behaviour from ministers, as they have  profound influence 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-I, 1995, Lodon HMSO, Chapter 3, para 4.

80

78. In Constitutional Practice66, 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 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: -  

“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.”  

80. This Court, in re Art. 143, Constitution of India and  

Delhi Laws Act (1912)67, opined 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 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 the same has  

signification in the present context, for in a representative  

                                                 66 Constitutional Practice (Second Edition) (pg. 146-148)  67 AIR 1951 SC 332

81

democracy, the doctrine of constitutional trust has to be  

envisaged in every high constitutional functionary.  

ANALYSIS OF THE TERM “ADVICE’ UNDER ARTICLE 75 (1)  

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

82

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

83

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

84

Westminster and Dominion Status” (fourth edition) and we  

quote: -  

“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.”  

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.  

83. I. Lovehead, in Constitutional Law – A Critical  

Introduction69, 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.  

84. In the Constituent Assembly Debates, Dr. Rajendra  

Prasad, in his speech as President of the Constituent  

                                                 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

85

Assembly, while moving for the adoption of the Constitution  

of India, had observed: -  

“Many things which cannot be written in a  Constitution are 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  

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 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 constitutional functionary  

like the Prime Minister under the Constitution does not end  

there.  That the Prime Minister would be giving apposite

86

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 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 of constitutional governance which would  

gradually grow to give rise to constitutional renaissance.    

85-A. It is worthy to note that 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 expected that the Prime Minster should act in the  

interest 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

87

hinder the canons of constitutional morality or principles of  

good governance and eventually diminish the constitutional  

trust.  We have already held that 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  

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 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 less.

88

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) 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.   

89. The writ petition is disposed of accordingly without any  

order as to costs.  

........................................C.J.I.  [R.M. Lodha]      

.............................................J.  [Dipak Misra]      

.............................................J.  [S.A. Bobde]      

New Delhi;  August 27, 2014  

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 1 of 27    

REPORTABLE    

IN THE SUPREME COURT OF INDIA    

CIVIL ORIGINAL JURISDICTION    

WRIT PETITION (CIVIL) NO. 289 OF 2005    Manoj Narula              .……Petitioner   

 versus  

 Union of India             ……Respondent  

 J U D G M E N T  

 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.  

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 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

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 2 of 27    

unconstitutional. This is based, inter alia, on the averment that  

these respondents have ‘criminal antecedents’. Subsequently by an  

order passed on 24th March, 2006 these 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.”   

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.  

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 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.  

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 3 of 27    

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  

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  

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 –    (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;     (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 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 context, it is  

worth quoting the President of the Constituent Assembly Dr.

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 4 of 27    

Rajendra Prasad, who said on 26th November, 1949, before formally  

putting the motion moved by Dr. Ambedkar to vote, as follows:1     

“There are only two regrets which I must share with the  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 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 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 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.  

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 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 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;  

                                                            1http://parliamentofindia.nic.in/ls/debates/vol11p12.htm  

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 5 of 27    

 (c) if he is an undischarged insolvent;    (d) if he is not a citizen of India, or has voluntarily acquired the  

citizenship 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 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 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 the Tenth  Schedule.”  

12. In S.R. Chaudhuri2 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 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 Constitution3 and  

                                                            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 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 backward  classes or any other work.  (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:

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 6 of 27    

is mentioned here since one of the issues raised during  

submissions related to the permissibility of reading implied  

limitations in the Constitution. It was submitted that implied  

limitations can be read into the Constitution and this is an  

appropriate case in which this Court should read an implied  

limitation in the appointment of 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 England,  

Canada and Australia and by reading an implied limitation,  

                                                                                                                                                                                                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 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 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 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 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.

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 7 of 27    

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 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 country,  are that invariably all 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 continue in office indefinitely unless he gets elected in  the meanwhile. 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 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 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 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 narrow and pedantic sense. The words used  may be 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-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

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 8 of 27    

that debates in the Constituent Assembly may be relied upon as an  aid 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 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 in B.  

R. Kapur.4 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 been projected as the Chief  

Ministerial nominee of the political party that obtained a majority 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 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.  

15. Answering the question in the negative, this Court held in                                                               4 B.R. Kapur v. State of Tamil Nadu, (2001) 7 SCC 231

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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 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 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 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 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 the 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.    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, and the authority of the appointee to hold  the appointment 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 - unsupported by any  authority - must be rejected.”

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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, 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.  

19. Implied limitations to the Constitution were also read in B.P.  

Singhal.5 In that case, an implied limitation was read into the  

pleasure doctrine concerning the removal of the Governor of a State  

by the President in terms of Article 156 of 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 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,  

                                                            5 B.P. Singhal v. Union of India, (2010) 6 SCC 331

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which can only be for valid reasons.  

20. Similarly, in Salil Sabhlok6 integrity and competence were  

read as implied in the appointment of the Chairperson of 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 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 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 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 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 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 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  injuries sustained by a person while serving under the State  Government and other matters. In such matters, the State Public  Service Commission is expected to act with independence from the  

                                                            6 State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1

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State Government and with fairness, besides competence and  maturity acquired through knowledge and experience of public  administration.”    

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 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, functional  and institutional requirements necessary for the appointment.”    

Conclusions on the first relief  

22. Therefore, the position as it stands today is this:  

(i) To become a Member of Parliament, a person  should possess the qualifications mentioned in  Article 84 of the Constitution;    

(ii) To become a Member of Parliament, 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, but  certain implied limitations have been read into the  Constitution by decisions rendered by this Court  regarding an unelected person becoming a Minister;   

 (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  of six months;   

 (v) Another implied limitation read into the  

Constitution  is that though a person can be

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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  Constitution 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;    

(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 in the Constitution concerning the appointment  

of a person as a Minister in the Government of India, particularly  

any implied limitation on the appointment of a person with a  

criminal background or having criminal antecedents?     

Issue of criminal antecedents  

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 of an 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

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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 Minister in the Central Government is  

really to convey an 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 – 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 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.  

25. Consequently, merely because a First Information Report is  

lodged against a person or a criminal complaint is filed against him  

or her or even if charges are framed against that person, there is no

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bar to that person being elected as a 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 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 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 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 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  (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 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 1967); 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  (g) Section 3 (offence of committing terrorist acts) or Section 4 (offence of committing disruptive activities) of the  Terrorist and Disruptive Activities (Prevention) Act, 1987 (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); 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

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restrictions placed by this provision is arguable. For example, a  

disqualification under this Section is attracted only if the sentence  

awarded to a convict is less than 2 years imprisonment. This raises  

an issue: What if the offence is heinous (say an attempt to murder  

                                                                                                                                                                                                (a) of sub‐section  (2) of Section 136  (offence of fraudulently defacing or fraudulently destroying any nomination  paper) of this Act, or  (j) 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,  (l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or  (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 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 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 release.  (4) Held unconstitutional  in  Lily Thomas v. Union of  India,  (2013) 7 SCC 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 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.—In this section—  (a) “law providing for the prevention of hoarding or profiteering” means any law, or any order, rule or notification  having the force of law, providing for—  (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;  (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 (10 of 1955);  (d) “food” has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of 1954).

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 17 of 27    

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 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?    

27. In Municipal Committee, Patiala8 this Court referred to  

Parent of a student of Medical College9 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 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.”    

28. More recently, V.K. Naswa10 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 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  

                                                            8 Municipal Committee, Patiala v. Model Town Residents Association, (2007) 8 SCC 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.   10 V.K. Naswa v. Union of India, (2012) 2 SCC 542

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 18 of 27    

directions to the legislature to enact the law in a particular  manner.”    

29. However, a discordant note was struck in Gainda Ram11  

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 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 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 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    

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.  

31. Assuming Parliament does decide to amend Section 8 of the  

Representation of the People Act, 1951 the content of the amended  

                                                            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.

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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 nature of the offence. It has  

been pointed out by Rodney Brazier 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:  

“But four types of crime may be distinguished. First, minor  convictions would not count against a politician's 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 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 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 but  

the nature of the offence that might disqualify a person from  

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 election. The offences and the  

                                                            13 Public Law 1994, Aut, 431‐45

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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 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 Central Government. In this context, it is  

appropriate to recall the words of Dr. Ambedkar in the 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 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 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 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 referred to  

                                                            14 Constituent Assembly Debates, Volume VII

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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 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 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 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 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 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 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 Disqualifications”  

presented in February, 2014. Though the Report concerns itself

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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:  

“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 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 about half being  serious cases. Some states have a much higher percentage of MLAs  with criminal records: in Uttar 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 related to murder.     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 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 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. 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.”  

While it may be necessary, due to the criminalization of our  

polity and consequently of our politics, to ensure that certain

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 23 of 27    

persons do not become Ministers, this is not possible through  

guidelines issued by this Court. 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 enact a more  

restrictive law.   

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  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 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  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  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 in the Central Government;  

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 24 of 27    

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 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. Singhal this Court observed that “a Minister is  

hand-picked member of the Prime Minister's team. The relationship  

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 Major who was 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 effectively.”16  

                                                            15 Lily Thomas v. Union of India, (2013) 7 SCC 653  16http://hansard.millbanksystems.com/written answers/1994/jan/25/ministers‐unsuitability‐for  office#S6CV0236P0 19940125 CWA 172  

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 25 of 27    

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 Constitution makers intended,  

notwithstanding the view expressed by Shri H.V. Kamath in the  

debate on 30th December, 1948. He said:  

“My Friend, Prof. Shah, has just moved amendment 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 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 of any government if that  government includes in its fold any minister who has had a shady  past or about whose 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 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 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    

                                                            17 Constituent Assembly Debates, Volume VII

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 26 of 27    

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 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 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 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 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 Constitution. The Constitution can provide  only the organs of State such as the Legislature, the Executive and  the Judiciary. The factors on which the working of those organs of  the State depend are the people 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 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 play.”18  

                                                            18 http://parliamentofindia.nic.in/ls/debates/vol11p11.htm

Writ Petition (Civil) No.289 of 2005                                                                                                   Page 27 of 27    

 41. This sentiment was echoed in the equally memorable words of  

Dr. Rajendra Prasad on 26th November, 1949. He had this to say:  

“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 provision in it which 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 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 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 assistance on an issue  

troubling our polity.   

...……………………..J                                 (Madan B. Lokur)   New Delhi;  August 27, 2014        

                                                            19 http://parliamentofindia.nic.in/ls/debates/vol11p12.htm  

1  

IN THE SUPREME COURT OF INDIA    

CIVIL  APPELLATE  JURISDICTION    

 WRIT PETITION (CIVIL) NO. 289 OF 2005  

 MANOJ NARULA      …  PETITIONER (S)  

 VERSUS  

 UNION OF INDIA     …  RESPONDENT (S)  

 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 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  

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, especially, in view of the provisions,  terms of schedule III, 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  

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the perseverance and protection of the  Constitution of 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 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 the function of conscience. When things go wrong  

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.  

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 of the State, respectively. Article 74 for the Union of  

India and Article 163 for the State have provided for the Council  

of Ministers to aid and advise the President or the Governor, as

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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  

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”.    

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,  

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 III of The Representation of the  

People Act, 1951, would be in a position to conscientiously and

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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 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  

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  

(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 in a  

country governed by rule of law to entrust the executive power

5  

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 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  

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 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 be  

well advised and guided by such unwritten yet constitutional  

principles as well. According to Dr. B. R. Ambedkar, as

6  

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 for that matter, the Chief  

Minister of State, since it was expected that the two great  

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. 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  

duty to act in accordance with the constitutional aspirations. To  

quote Dr. Ambedkar:  

“However, good a Constitution may be, it is sure to turn  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 Constitution.”  

7  

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.  

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 portion:  

“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, 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 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 not wreck  

it. Beauty of democracy depends on the proper exercise of duty  

by those who work it.  

8  

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 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 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  

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 III of The Representation of  

the People Act, 1951.  

...……………………J.                     (KURIAN JOSEPH)  

New Delhi;  August 27, 2014.