B. R. Kapur v State of Tamil Nadu (2001)

It answers the question that Art. 164 leaves open on its face: may the Governor appoint as Chief Minister a person who is not qualified, or is disqualified, to be a member of the Legislature? The answer is no; the appointment is contrary to Art. 164 and may be quashed on quo warranto. It is also the case that establishes that a constitutional appointment made by the Governor or the President is not immune from examination merely because of who made it.

Ms Jayalalitha had been Chief Minister of Tamil Nadu between 1991 and 1996. She was convicted in two criminal cases in respect of offences committed during that tenure, and was sentenced to three years' rigorous imprisonment and a fine of Rs 10,000 in one case and two years' rigorous imprisonment and a fine of Rs 5,000 in the other. The fines in both cases were paid. Her appeals were pending. At her instance the High Court had suspended the sentences of imprisonment and directed her release on bail; but her applications for stay of the operation of the judgments were rejected.

In April 2001 she filed nomination papers for four constituencies in the general elections to the Tamil Nadu Legislative Assembly. Three nominations were rejected on account of her disqualification under s. 8(3) of the Representation of the People Act 1951, by reason of the convictions; the fourth was rejected because she had filed for more than two seats. She did not challenge the rejections.

In the election her party secured 132 of the 234 seats in the Legislative Assembly and elected her its leader. She was accordingly sworn in as Chief Minister on 14 May 2001. That appointment was challenged in the Supreme Court.

That the Constitution nowhere prescribes a qualification for the person the Governor selects as Chief Minister; that Art. 164(1) contains no words such as from amongst members of the Legislature; that Art. 164(4) expressly allows a Minister who is not a member to continue for six months; and that the Governor's appointment, once made, could not be questioned.

The intervening submissions on Art. 164(4) put the counter-case in five propositions, and they are the best summary of the provision:

(a) the purpose of Art. 164(4) is to enable persons who are otherwise competent but are not members of the Legislature to work as Ministers for a limited period — it is basically a good governance provision, not to be read as allowing persons ineligible at the time of appointment to become Ministers;

(b) the provision itself postulates that the person ceases to be a Minister if he does not become a member within the short prescribed time, which necessarily means he was eligible to be a member at the time of appointment though not in fact one;

(c) Art. 164(4) must be read with Arts. 163, 173 and 191 and with the Representation of the People Act 1951;

(d) appointing a non-member is an exception to the normal rule that a Minister must be a member at the time of appointment; and

(e) it must be read subject to Art. 164(2), collective responsibility to the Legislative Assembly.

Har Sharan Verma v Tribhuvan Narain Singh (1971), a Constitution Bench, concerned the appointment of a Chief Minister of Uttar Pradesh who was not a member of either House. The Court there held that Art. 164(4) must be read with Arts. 163 and 164; that clause (1) prescribes no qualification for the person the Governor selects, and clause (2) makes collective responsibility to the Legislative Assembly the only condition the Constitution prescribes; and that there was no reason to cut down the plain words of clause (4) or confine it to a Minister who loses his seat. The Court found support in the Constituent Assembly proceedings and in the position in England, Australia and South Africa, observing that Art. 164(4) has an ancient lineage.

S. R. Chaudhuri v State of Punjab (2001) concerned Tej Parkash Singh, appointed a Minister of Punjab while not a member of the Assembly, who failed to be elected within six months and resigned — and was then reappointed during the same legislative term by a new Chief Minister. The Court said that the absence of the words from amongst members of the Legislature in Art. 164(1) shows that a non-legislator can be appointed, but that the appointment is governed by Art. 164(4), which restricts such a person from continuing unless he gets elected within six consecutive months; and that Art. 164(4) is not a source of power or an enabling provision.

The appointment was not legal and valid, and a writ of quo warranto must issue.

The reasoning in three moves:

1. A Governor's appointment does not cure a constitutional defect. If, for whatever reason, the Governor appoints as Chief Minister a person not qualified to be a member of the Legislature, or disqualified to be such, the appointment is contrary to Art. 164, and the appointee's authority to hold the appointment can be challenged in quo warranto proceedings. That the Governor made the appointment gives the appointee no higher right to hold it; if the appointment is contrary to constitutional provisions it will be struck down.

2. The point is settled by analogy. In Kumar Padma Prasad v Union of India a person had been appointed a Judge of the Gauhati High Court by a warrant signed by the President; before the oath could be administered, quo warranto proceedings were taken and an interim order restrained the warrant from being given effect. The Supreme Court held the appointee not qualified and quashed the appointment. So even where the President or the Governor has appointed a person to a constitutional office, the qualification of that person can be examined on quo warranto and the appointment quashed.

3. A political consequence is no reason to refuse to decide. It was urged that the Court should not enter a political thicket. The Court answered that the question before it was one of interpretation of the Constitution, which it is the Court's duty to perform regardless of political effect, and adopted Bhagwati J in State of Rajasthan v Union of India: merely because a question has a political complexion is no ground to shirk the constitutional duty; every constitutional question concerns the allocation and exercise of governmental power and so no constitutional question can fail to be political; so long as the question is whether an authority has acted within or exceeded its power, the Court can and must decide it, because the Constitution is suprema lex and no department or branch of Government is above or beyond it.

• A person convicted of a criminal offence and sentenced to imprisonment for not less than two years cannot be appointed Chief Minister under Art. 164(1) read with (4), and cannot continue to function as such.
• The appointment made on 14 May 2001 was declared not legal and valid, and was quashed and set aside.
• The Court refused to withhold relief on the ground that the six months under Art. 164(4) would expire in about two months, or that the criminal appeals might succeed: an appointment to the office of Chief Minister of a person not qualified to hold it should be struck down at the earliest.
• To protect third parties and the administration, it directed that all otherwise legal and valid acts performed between 14 May 2001 and the date of judgment by the second respondent as Chief Minister, by the Council of Ministers and by the State Government should not be adversely affected by the order.

Article 164(4) permits the appointment of a person who is not a member of the Legislature but is eligible to become one; it does not permit the appointment of a person who is disqualified. An appointment made in breach of that limit is quashed on quo warranto notwithstanding that the Governor made it.

• On Art. 164(4): state that it is a facility, not a source of power, and that its short six-month limit shows the person must be eligible at the outset.
• On disqualification: connect to Lily Thomas v Union of India, where s. 8(4) of the Representation of the People Act 1951 was struck down so that a sitting member's disqualification takes effect immediately on conviction. Together the two cases close both doors — the convicted person cannot sit and cannot be made Chief Minister.
• On remedies: this is the leading Indian illustration of quo warranto against a holder of high constitutional office, and of the prospective-protection order that limits the disruption of quashing.
• On the political question doctrine: the passage from State of Rajasthan quoted here is the standard Indian rejection of it; use it also in any Art. 356 answer.