1. According to the petitioner, on May 25, 1985, at a public meeting at Ernakulam, the respondent, then a Minister in the Kerala Cabinet, incited the people to resort to terrorism and to wage a war against the Union of India on the 'Punjab model', to achieve their objectives. On June 4, 1985, the petitioner, who is stated to be a citizen who believes in upholding the sovereignty and integrity of the country, filed this writ for the issue of an information in the nature of quo warranto preventing the respondent from exercising the authority of his office, on the ground that the public speech alleged to have been made by him on May 25, 1985, amounted to breach of oath taken by him at the time of his assuming the office of the Minister, and, therefore, he had forfeited his right to continue in that office. On June 5, 1985, the learned Judge before whom the writ petition came up for admission, ordered issue of notice, making, at the same time, some observations. On the same day, the respondent tendered his resignation which was accepted by the Governor. In the counter-affidavit filed by the respondent, he has denied the allegation that he incited the people to wage a war against the Union of India on the 'Punjab model', for achieving their objective. Ext. P1 is a copy of the 'Financial Express' dated 3-6-1985 carrying the report of the speech alleged to have been made by the respondent on May 25, 1985.
2. The main questions that fall for decision in this writ petition are: (i) whether breach of oath committed by a Minister would be a constitutional impediment for his continuance in office; and (2) whether, in such circumstances, a writ of quo warranto or an information in the nature of quo warranto would be issued from this Court.
3. Article 164(3) of the Constitution lays down:
'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.'
Article 191 of the Constitution prescribes disqualification for membership in the Legislative Assembly of the States and Article 192 details the procedure for deciding the disputes in respect of those disqualifications. The power of the Governor under Article 192 is thus attracted only in those cases where Article 191 could be applied. Articles 191 and 192, therefore, constitute a composite machinery for the purpose of disqualifying a member of the Legislature under the Constitution.
4. So far as a member of the Legislative Assembly or Legislative Council is concerned, penalty for sitting and voting before making oath of affirmation under Article 188, is provided in Article 193 of the Constitution, which lays down, inter alia, that such a person shall be liable in respect of each day on which he so sits or votes, to a penalty of five hundred rupees to be recovered as a debt due to the State. The Constitution, however, is silent as to the penalty to which a Minister would be liable if he enters upon office without taking oath. So also, there appears to be no express provision in the Constitution which attaches specifically any disqualification to the Minister who commits breach of his oath.
5. In fact, as far as we could see, breach of oath of office is not a disqualification specified in the Constitution or under any law made by Parliament. Even then, it could not be assumed that there is no sanctity to the oath taken before assumption of office or that there is no authority to take action if there is violation of that oath. Article 164(3) insists that no Minister could enter upon his office unless the Governor administers to him the oaths of office and of secrecy. The constitutional requirement of an oath before assumption of office could not thus be treated merely as 'an additional moral obligation' (as stated by Willoughby in Vol. III, II Edn. of The Constitutional Law of the United States) without any legal consequences whatsoever. The oath of office insisted upon under the Constitution is the prescription of a fundamental code of conduct in the discharge of the duties of these high offices. The oath binds the person throughout his tenure in that office, and he extricates himself from the bonds of the oath only when he frees himself from the office he holds. Breach of this fundamental conduct of good behaviour may result in the deprivation of the very office he holds. When posts are held, not at the pleasure of the President or the Governor, but during 'good behaviour' breach of the oaths of office and of secrecy may attract the impeachment clauses and when posts are held at the pleasure of the President or the Governor, the termination, at their will, of the tenure may be the possible outcome of such breach.
6. Oath of office is not an empty formality with no constitutional significance. In the debates in the Constituent Assembly on Article 56, Dr. Ambedkar is reported to have said that the phrase 'violation of the Constitution' is a large one and may well include treason, bribery or other high crimes and misdemeanours, because treason is certainly violation of the Constitution and bribery will be violation of the Constitution because it wilt be violation of the oath by the President. In the Judges' transfer case, S.P. Gupta v. President of India, AIR 1982 SC 149 Pathak J., observed thus :
'When a Judge permits his judgments in a case to be influenced by the irrelevant consideration of caste and creed, of relationship or friendship, of hostility or enmity, he commits a breach of his oath. It is a case where justice is not done and is denied. It is a case of misbehaviour to which the provisions of Article 218 read with Clauses (4) and (5) of Article 124 are attracted.'
7. Breach of oath may thus be a betrayal of faith. The appointing authority, the Governor, in such cases, can consider whether there was, in fact, any breach of oath. It is not for this Court to embark on any such enquiry.
8. Breach of oath is different from absence of oath. Absence of oath prevents entry into office while breach affects the continuance after a valid entry. If no oath is taken before assumption of office as enjoined by the Constitution, there is no legal title to hold that office and a writ of quo warranto will naturally go from this Court. Similarly, 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. This is the mandate of Article 164(3) of the Constitution. A person without authority cannot function; and the jurisdiction under Article 226 could be invoked to prevent that usurper in office from functioning.
9. Breach of oath requires a termination of the tenure of office. This power can be exercised by the appointing authority under the Constitution, and according to the procedure, if any, prescribed therein. The termination of that tenure is not the function of a Court; and it would not be apporpriate to exercise jurisdiction under Article 226 in such cases. Proceedings under Article 226 in such cases do not lie. It was Jefferson who said:
'Our peculiar security is in the possession of a written Constitution; let us not make it a blank paper by construction' (Government by Judiciary -- Raoul Berger -- p. 304).
10. The question as to whether there was breach of oaths of office and of secrecy committed by a Minister is outside judicial review under Article 226 of the Constitution. It is to be decided mother appropriate forums; and in the case of the Minister in a State, it falls within the discretionary domain of the Chief Minister and/or the Governor. Breach of oath prescribed by the Constitution may, in certain circumstances, attract the penal provisions under the Indian Penal Code. When the Criminal Law is set in motion, it is of course for the criminal Court to decide whether an offence has been committed or not. That is an independent remedy which does not affect the Constitutional power, of withdrawing the pleasure to continue in office, ingrained in Article 164(1). As Raoul Berger refers in 'Government by Judiciary' at page 293: 'Judiciary was designed to police constitutional boundaries, not to exercise supra constitutional police making decisions' -- (Hamilton).
11. Sir Ivor Jennings in his book 'Cabinet Government', states thus:
'A Prime Minister has an undoubted right to request any of his colleagues whose presence in his Cabinet, is, in his opinion or judgment, prejudicial to the efficiency or policy of the Government, to resign his office.
There is a tradition -- a kind of public school function -- that no Minister desires office but that he is prepared to carry on for the public, good. The tradition implies a duty to resign where a hint is given.'
'The pardon of the perpetrator of apolitical crime, such as political assassination, treason, riot, unlawful assembly and seditious libel might involve political questions of the first order of magnitude.'
Said Sir Patrick Hastings: 'When the public interest may conflict with the strict exercise of his duty, it is not only the right but the duty of the Attorney-General to consult the Cabinet. Every law officer who is undertaking a prosecution in the interest of the State must possess himself not only guidance of technical law; said the Prime Minister, 'but must possess himself of guidance on the question, whether, if a prosecution is initiated, the effect of the prosecution will be harmful or beneficial to the State in whose interests it has been taken.' (Cabinet Government -- Sir Ivor Jennings --(1951) p. 218.) S. A. De Smith speaks of the Prime Minister as 'primus inter pares' -- first among equals and states thus:
'The authority of a Prime Minister will depend necessarily on such variables as the confidence and popularity he commands as a leader, his intellectual grasp of the problems of Government, his tactical acumen, his performances as an orator and on the floor of the house, his ability to make quick and acceptable decisions and to carry his senior colleagues and his party with him, the stature of those colleagues, the state of the Country's economy, sheer luck and the often fickle mood of public opinion.' (S. A. De Smith 2nd Edn. page 163). In 1887 Gladstone wrote to the Queen thus:
'I have no general jurisdiction over the speeches of my colleagues and no right to prescribe their tone and colour. When they offend against an assurance which, with their authority, I have given to the Queen, they then afford me a title to interfere upon which I have been, I hope, not unduly slow to act.'
To this, the Queen replied:
'The Queen thinks and maintains that the Prime Minister has and ought to have that power, and that former Prime Ministers did exercise it.'
Mr. Gladstone's answer was:
'Your Majesty is well aware that there is no code on record from which he (Mr. Gladstone) may learn the powers of his office in such matters; and he has formed his estimate simply according to such knowledge as he had gathered under the heads of the Cabinets in which he has served. As he would be very sorry to exaggerate the rights appertaining to his office, so he should deem it a serious offence knowingly to allow any of them to fall into abeyance. He does not doubt that there are many cases in which the Prime Minister can interfere, both as to acts and language; for instance, cases which affect duty to the Crown or cases where a Minister undertakes to commit his colleagues' I Cabinet Government -- Sir Ivor Jennings).
12. The next question that would naturally arise would be whether a writ of quo warranto would be issued if a Minister is found to have committed breach of oath. For our limited purpose it might not be necessary to trace the historical background of the writ of quo warranto. Suffice it to examine whether a writ of quo warranto can issue in respect of an appointment held at the pleasure of the appointing Authority. In one of the earliest cases, Darley v. The Queen, (12 Clause & F. 520 (537)), Tindal, C.J. expressed thus:
'This proceeding by information in the nature of quo warranto will lie for usurping an office, whether created by charter alone, or by the Crown, with the consent of Parliament, Provided the office be of a public nature, and a substantive office, not merely the function or employment of a deputy or servant held at the will and pleasure of others, for with respect to such an employment, the Court certainly will not interfere and the information will not properly lie.' and proceeded to hold in that case thus:
'The function of the treasurer were clearly of a public nature.....and it is equally clear that though appointed by the Magistrate, he is not removable at their pleasure, and not, we think, be treated not as their servant, but as an independent officer.'
13. This statement of the law was approved in the leading case, R. v. Speyer, (1916) 1 KB 595 and it has been cited in all the important cases relating to quo warranto jurisdiction. A writ of quo warranto or a writ by way or information in the nature of quo warranto cannot issue in these cases when a post is held 'at pleasure'. This is the normal rule. Even in those cases, however, the non-fulfilment of the conditions prescribed for assumption of office or the absence of the required qualification to hold that office affecting the title to that office will give rise to the issuance of this writ. Once the office is held under a valid title, and the continuance depends on the pleasure doctrine, the writ of quo warranto does not run; and no such writ, which can be defeated immediately by the mere exercise of an executive will, will therefore issue.
14. It would be appropriate at this stage to advert to the ruling of the Division Bench of this Court in Sukumaran v. Union of India, 1985 Ker LT 567 : (AIR 1986 Ker 122). The Division Bench ruling cannot be understood to lay down a proposition that breach of oath will not entail a termination of the tenure in office. The decision only held that breach of oath is not a disqualification under Article 191. To that extent we agree. Even apart from Article 191, if the Constitution provides and clearly indicates that the breach of oath may give rise to proceedings and actions for removing the alleged offender from the scene of activity, the Court cannot hold that Article 191 alone provides for the disability to continue as member of the Legislative Assembly. We hold that in the present case, the question as to whether there was a breach of oaths of office and of secrecy, is a matter to be decided under Article 164(1) for the purpose of the 'pleasure doctrine' applicable to the time in office of a Minister. The Minister holds office only 'at the disposal' of the Chief Minister and/or Governor and his office is held 'durante bene placito' of the Chief Minister and/or Governor.
15. The Division Bench placed reliance on the doctrine of political question enunciated in Baker v. Carr, (1962) 369 US 186. We notice that even in the country of its birth, this doctrine has only little application, as observed in Powell v. Mccormack, (1969) 395 U.S. 486. There is a lucid discussion of this subject in Seervai's Constitutional Law of India, III Edn. Vol. II at p. 2205. In the view we have taken, it is not, however, necessary to go into the details of this aspect of the matter. To compel the Court to decide a political question may be 'to charge the judiciary with duties beyond its equipments,' as stated by Frankfurter J., in (1950) 341 US 494 at 551.
16. In this case, the pleadings would go to show that the Chief Minister had sought clarification from and explanation of the respondent with respect to the public speech alleged to have been made by him. While no quo warranto will go from this Court on the allegation that the Minister had committed breach of his oath, it would not be even expedient for this Court to exercise the discretion for the issuance of the writ asked for when the Chief Minister is already seized of the matter. In this view, we are taking, we arc not thus according to the request of the petitioner to allow him to adduce evidence to prove the allegations. The question whether the burden of proof lies exclusively in the relator in quo warranto proceedings also need not detain us in this case for the reasons already stated.
17. Petitioner's counsel submits that the writ petition has become infructuous, as the respondent has resigned his Ministership immediately after the writ petition was admitted He also submits that he has no claim to the post that has fallen vacant consequent on the resignation, and that he has obtained the reliefs sought in this writ petition. He has also submitted that any further enquiry will be futile; hence the original petition has become infructuous. He is not, however, prepared to withdraw the same. On the other hand, the counsel for the respondent submits that the very wide language in which the prayer is couched in the writ petition, and the resignation after the writ petition, will not make the Original Petition infructuous. The counsel for the petitioner submits that the resignation of the respondent was of his own accord, while the counsel for the respondent submits that the resignation was on the basis of certain observations made by this Court. It is not necessary for us to pursue this controversy in the light of what we have stated earlier, though we see considerable force in the petitioner's contention. We need only state the jurisdiction of the Judge to make observations at the time of admission is beyond doubt. Some decisions have been placed before us to show that even at the time of admission, observations have been made by the Supreme Court and the High Courts. It is not necessary in this case to pursue this aspect any further as we are disposing of the original petition itself.
18. Subject to the observations we have made above, we dismiss the writ petition, but without any order as to costs.
19. I have had the benefit of going through the judgment prepared by the learned Chief Justice. I agree that the writ petition has only to be dismissed. I agree with all the conclusions except the one contained in the penultimate para of the judgment regarding the observations made by the learned Judge in the order issuing notice on the writ petition. The golden rule is that if a writ petition is to be dismissed in limine, the reasons must be stated but when notice is ordered only the word 'Notice' need be there with the initials of the Judge. It is true that some decisions were cited at the Bar where reasons were given in the order issuing notice on the writ petition but they need only be taken as exceptions to the golden rule. At any rate, the observations made in this case should not have been made because the danger is that it will create an impression in the mind of the respondent that he was condemned without a hearing.
20. I wish to add a few words on the resignation of the respondent pending the writ petition. Even if the writ petition is maintainable, it has been rendered infructuous by the resignation of the respondent, because the petitioner in the writ petition got the relief for which he approached the Court. A respondent cannot press for a decision on the merits in a writ petition which has become infructuous, and hence by his registration pending the writ petition, the respondent by his own conduct lost the opportunity to refute the allegations made against him and justify his stand before this Court.