1. The writ appeal is directed against the judgment of a learned single Judge of this Court dismissing in limine a writ petition filed by the petitioners.
2. The 3rd respondent was, and respondents 4 to 6 are, Ministers in the State of Kerala. They belong to the 'Kerala Congress', one of the constituents of the 'ruling front' which has formed the Ministry. Kerala Congress had a patty convention at Ernakulam on the 25th of May, 1985. These respondents participated and spoke in that meeting. The appellants-petitioners alleged that the 3rd respondent in his speech, aggressively exhorted for a 'Punjab model' agitation, directed against the Central Government. According to them, that speech was the result of an 'anti-centre' conspiracy hatched by many including respondents 4 to 6. Respondents 4 to 6 even encouraged the 3rd respondent in his speech, and had stood by him even subsequent to his resignation from the Ministry. The speech undermines the sovereignty and integrity of the Indian Union. It therefore subverts the Constitution as by law established. In so acting, they have violated the oath taken, by them under Article 164(3) as Ministers before the assumption of office. They have also violated the oath as Members of the Legislative Assembly taken under Article 188 of the Constitution. Such a wanton violation of the constitutional oath entails a forfeiture of their position both as Ministers and as Members of the Assembly. They are therefore usurpers of office. A Writ of Quo Warranto is therefore sought seeking ouster of the usurpers of office. The acts also constitute a serious offence of sedition punishable under Section 124-A of the Indian Penal Code. No effective steps have been taken either by the Union or by the State for prosecution for that serious offence. A writ of mandamus is sought to compel the Central and State Governments to perform their statutory duty to bring to book the offenders involved in such a serious crime.
3. The writ petition was dismissed mainly on the ground that the pleadings did not make out a case for entertaining a petition for Quo Warranto. In as much as the approach to the Court for a writ of mandamus was not preceded by a prior demand, the prayer in that behalf is not maintainable, according to the learned Judge.
4. We consider that a far more fundamental question involved in the writ petition, and in the writ appeal, is about the availability of a Writ of Quo Warranto in a situation as the present one, even on the assumption of the correctness of the factual averments. We shall consider that aspect at the outset.
5. The Writ of Quo Warranto is one on information afforded in a judicial enquiry into the question whether the holder of a public office occupies that office without legal authority. The Court is enabled by such a writ to control executive action in the matter, of making appointments to public offices against the relevant statutory provisions. See University of Mysore v. Govinda Rao, AIR 1965 SC 491. It is also available to have the holding of an office declared forfeited, 'if, having once been rightfully possessed and enjoyed, it has become forfeited for misuser or nonuser.' (See 'Extraordinary Legal Remedies' by Ferris, Page 125).
6. Under Article 164 of the Constitution, the Chief Minister is to be appointed by the Governor and Ministers other than the Chief Minister are to be appointed by the Governor on the advice by the Chief Minister. It is not disputed that respondents 4 to 6 became Ministers in accordance with this constitutional provision. The contention is that they became subsequently disqualified for the reasons alluded to above. The correctness of the contention has to be evaluated by a reference to the constitutional scheme in that behalf.
7. A pivotal role is played by the high functionary of the State, the Governor. Article 164(1) is explicit that the Ministers shall hold office during the pleasure of the Governor. Consistent with the constitutional provisions and democratic conventions, it is open to the Governor to withhold his pleasure and dismiss the Ministry or any member of the Council of Ministers.
8. It is conceivable that situations may arise where a person enters office as a Minister lawfully and properly, but forfeits the right to continue so by the operation of the disqualifying provisions of the Constitution. Thus, for example, a person can become a Minister even if he is not the member of the Legislature of the State. But he can function so -- as one not duly elected -- only for a period of six months. At the expiration of that period, he would cease to be a Minister, if, by that time, he is not a member of the Legislature. That is the effect of Article 164(4) of the Constitution.
9. There may also arise situations where a member of the Assembly becomes subsequently disqualified in any one of the modes made mention of in Article 191. That, in turn, has a direct impact on such a person continuing as a Minister, as a result of the conjoint operation of Articles 164(4) and 191. It is to be noted that under Article 191, the disqualification not only extinguishes the existing membership but also operates as a bar for further or future choice of the person as a member of the Assembly. Such a situation has not arisen in the present case: for, the eventualities in which a disqualification attaches itself for being a member of the Assembly are: (1) the holding of any office of profit as referred to in Clause (a), (2) the declaration by a competent Court of the person being of unsound mind, (3) undischarged insolvency, (4) ceasing to be a citizen of India, voluntarily acquiring the citizenship of a foreign State, or being under acknowledgment of allegiance or adherence to a foreign State, and (5) the disqualification which may be provided by any law made by Parliament in that behalf under Clause (a). It is agreed that the only law so made by the Parliament as visualised in Clause (e) is the Representation of the People Act, 1951. The corrupt practices and other grounds of disqualification are referred to in Sections 8, 8A, 9, 9A and 11A of that Act. The Constitution itself nominates the authority competent to decide about the disqualification referred to in Article '191. That authority is the Governor. The modality of his action is also regulated by the constitutional provision. Before giving any decision on disqualification, the Governor shall obtain and act according to the opinion of the Election Commission, (vide Article 192). The provisions referred to forcefully suggest that the Constitution exhaustively deals with and provides for the heads of disqualification. They are such of those expressly referred to in the Constitution itself and those to be notified by law in that behalf. When the constitutional scheme thus indicates the existence of an exhaustive scheme regarding the heads of disqualification, it is not ordinarily for this Court to expand the scope of disqualification or increase the heads of disqualification. What was observed by the Supreme Court of Maryland, though in a different context, affords a guidance in the present situation. The Supreme Court held that 'where the Constitution defined the qualifications of an officer, it was not in the power of the legislature to change or superadd to them, unless the power to do so was expressly or by necessary implication conferred by the Constitution itself.' (See 'A Treatise on the Constitutional Limitations' by Thomas M Cooley, 1972, page 64). Here is a similar case. The Constitution defined the disqualifications of a member of the Assembly. It is not in. the power of the Court to change or superadd to them, there being no power either expressly conferred or inferable by necessary implication by the Constitution.
10. Yet another aspect pressed in this connection, which according to the appellants, operates as disqualification, is the violation of the oaths taken by respondents 3 to 6. To accept this contention would be to add to the grounds of disqualification provided under the Constitution. For the reasons aforesaid, we hold that it is impermissible for the Court to import an additional ground, or to imply an additional disqualification in the manner suggested by the appellants.
11. The argument is fraught with other anomalous consequences. In the case of a minister for a State, the oath relates to the following matters: (1) bearing true faith and allegiance to the Constitution, (2) upholding the sovereignty and integrity of India, (3) faithful and conscientious discharge of duties as a Minister, and (4) doing right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will. In the case of a member of the Assembly, many matters which are special and peculiar to a Minister who wields power, are absent. However, bearing true faith and allegiance to the Constitution and upholding the sovereignty and integrity of India are the high-lights of that oath too. The form and content of the oaths would certainly demonstrate the solemnity and seriousness of the matters covered thereby. They are not to be looked upon or treated in a casual or light hearted manner. The question, however, is whether being unfaithful to the oaths or any portion thereof, would operate as a disqualification as a member of the Assembly or as a member of the Council of Ministers. A divagation from the oath can happen in respect of many a matter referred to therein. Take for example the case where it is established that a Minister omits to faithfully or conscientiously discharge his duties as a Minister; or again, his acting under fear of an extra-constitutional authority, or out of motive to favour a partisan. Take even the case where actions arise out of affection, or are the projections of a pronounced ill-will. Will anyone of these violations of oath spell in the realm of a disqualification as Minister? We are of the view that it will not. A mal-functioning of a Minister or by a member of Assembly would be primarily a matter for assessment and judgment at the political level. That assessment and that judgment would have to be made by the party to which the erring members belong or by the people to whom he has, under our constitutional scheme, an established accountability. May be, in situations warranting drastic action, the constitutional functionaries such as the Chief Minister or the Governor, could intervene in the matter and bring about a corrective to the situation. Even if the Chief Minister of the State or the Governor fail in that behalf, the Constitution still has the safety valve of a Presidential action under Article 356 of the Constitution, whereunder, the President is enabled to act on receipt of a report from the Governor or otherwise on his satisfaction that there is a break-down of the constitutional machinery in the State.
12. The morality or propriety of an undesirable person continuing as a Minister is essentially a political question to be eminently dealt with and at any rate initially, at the political level, such as by the Chief Minister, by the Legislature, and 'the general public holding a watching brief over them', and later by the constitutional functionaries as provided in the Constitution itself. Such was the reaction of Dr. Ambedkar when he referred to this topic. (Constituent Assembly Debates Vol. VII, page 1160). If that be so, that is an area where the High Court's jurisdiction under Article 226 is hardly attracted. This view has the support of the decision of the Delhi High Court in Inder Mohan v. Union of India, AIR 1980 Delhi 20. Whether Sri. Bahuguna could with propriety continue as a Minister of the Union Government was not a matter for the Court to decide -- it was held. The idea is cogently and forcefully expressed by Frankfurter J. in Charles W. Baker v. Joe C. Carr, (1962) 369 US 186 : 7 Led 2d 663 at p. 716:
'.....there is not under our constitution a judicial remedy for every political mischief..... In this situation, as in others of like natures, appeal for relief does not belong here. Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people's representatives.'
13. In this connection, the following passage dealing with disqualification of Members of Houseof Commons (as contained in DeSmith's Judicial Review of Administrative Action', 4th Edn. page 465) appears to be apposite:
'The question of qualification to sit as a member of either House of Parliament falls within the scope of parliamentary privilege and is not, therefore, cognisable by Courts of law except in so far as Parliament has expressly provided for a judicial determination. The relevant statutory provisions do not empower the Courts to award injunctions to restrain persons from sitting as members.'
14. The materials placed before us are Exts. P1 to P11 the press reports relating to the offending speech, its denial by the 3rd respondent, and certain comments concerning the same. No one can view with utter unconcern acts if true, tending to subvert the sovereignty and integrity of India; (Mark, those are matters given due prominence in the oath taken by the Ministers and the Members of the Assembly). When destabilising factors and factions, external or internal, appeal to operate against the Nation -- this island of democracy, as Chief Justice Chandrachud would term it -- no person, much less one who occupying a responsible position, could afford to indulge in any acts likely to endanger the security of the Nation and the supremacy of the Constitution. It is not a case where exercise of the freedom of expression so liberally guaranteed by the Constitution operates in permissible fields. Experiments with Ministers and Ministries, is a necessary sequel to a developing democracy. And as for Ministries, one may not particularly be perturbed by an unceasing procession of their cradles and coffins. That, however, is not the case when the integrity of the Nation and its existence are threatened. The Supreme Court of India frowned upon the vice of disintegration and fomenting fissiparous tendencies. Such tendencies have to be nipped in the bud, stated the Supreme Court clearly and categorically. Vide R. R. Dalavai v. State of T. N., AIR 1976 SC 1559. Clauses (c) and (e) of Article 51A of the Constitution introduced by the Forty-second, Amendment enjoin the duty on every citizen of India 'to uphold and protect the sovereignty, unity and integrity of India' and 'to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities.....'The anxiety of any citizen, including the appellants-petitioners, to safeguard the future of the Nation is therefore understandable. We have however no reason to assume that the Constitutional functionaries empowered to deal with such matters will be averse to their duties under the Constitution and the Laws, if an occasion for action has actually arisen.
15. No precedent has been brought to our notice, where, in a like situation, this ancient Writ of Quo Warranto (which had existed at common law before the time of the Crusades -- see Ferris in Extraordinary Legal Remedies, supra, at page 126) had been issued. Nor do we find the issuance of such a writ justifiable on principle in such a situation. The prayer for the issue of a Writ of Quo Warranto in the above circumstances, has to be declined.
16. We shall now consider the prayer for the issue of a Writ of Mandamus. We are not satisfied that the learned Judge was right in declining the relief on the technical ground of the prayer not being preceded by a prior demand. It is well known that the trammels of the English Courts in relation to the ancient writs do not fetter the jurisdiction of the High Court under Article 226 of the Constitution. Circumstances justifying, this Court could issue a writ or a direction, under that extraordinary and extensive power. The question, however, is whether a case has been made out at this stage, for the exercise of such a power.
17. The writ of mandamus sought for is to direct the Union and the State Governments to initiate necessary investigation into the offence said to have been committed by the 3rd respondent in making the seditious speech and by respondents 4 to 6 in abetting the commission of the offence, and also to prosecute them. The offence alleged is one falling under S. I24A of the Indian Penal Code, triable by a Court of Session and to be taken cognizance of by a Magistrate of the First Class under Section 190 of the Cr. P. C. (a) upon receiving a complaint of facts constituting the offence, or (b) upon a police report, or (c) upon information received from any person other than a Police Officer or upon his personal knowledge that such offence has been committed. The Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance is under Section 202, Cr. P. C. invested with jurisdiction to enquire into the case himself or direct an investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused persons. The petitioners have no case that the machinery provided for under the Criminal Law of the Country is not effective or adequate to bring the offender to book. No case is made out at present for the issue of a writ of mandamus and the prayer in that behalf is also rejected.
In the result, we dismiss the writ appeal.
Immediately on the pronouncement of the judgment, Counsel for the appellants made an oral submission for leave to appeal to the Supreme Court. We do not see that the case involves any substantial question of law of general importance that needs to be decided by the Supreme Court. The prayer for leave to appeal is accordingly rejected.