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K.S. Haja Shareff Vs. the Governor of Tamil Nadu, Madras and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberW.P. No. 10621 of 1981
Judge
Reported inAIR1985Mad55
ActsConstitution of India - Articles 3, 34, 43, 103(1),103(2), 132(l), 188, 191, 191(l), 191(2), 192(1), 192(2),217(3), 226 and 248
AppellantK.S. Haja Shareff
RespondentThe Governor of Tamil Nadu, Madras and ors.
Appellant AdvocateK.K. Venugopal, Adv. for;K. Nagarathnam, Adv.
Respondent AdvocateR. Desabandhu, Spl. Govt. Pleader, ;Adv. General Assisted by,;R. Thyagarajan, Sr. Central Govt. Standing Counsel, ;S.R.L Narayanan, ;V. Subramaniam, ;V. Selvaraj, ;K. handru, ;Muthu Perumal, ;S. Radha
Cases ReferredUnion of India v. Jyoti Prakash Mitter
Excerpt:
constitution - disqualification - articles 3, 34, 43, 103 (1), 103 (2), 132 (1), 188, 191, 191 (1), 191 (2), 192 (1), 192 (2), 217 (3), 226 and 248 of constitution of india - petitioner was member of legislative assembly of tamil nadu - simultaneously he was appointed as honorary counsel of turkey - petitioner debarred from being member of legislative assembly under article 192 (1) as he attracted disqualification under article 192 (1) (d ) - petitioner contended that article 191 (1)(d) can be invoked only at time of war or belligerency existing between two governments - belligerency or emergency is not prerequisite to invoke article 19 (1)(d) - petitioner attracted disqualification under article 191 (1) (d) - no illegality in order debarring petitioner from being member of legislative.....k.b.n. singh, c.j.1. in this writ petition the petitioner has challenged the order passed on the 10th november 1981 by the governor of tamil nadu, respondent 1 under art. 192(l) of the constitution, published in gazette, s. o. m. s. no. 2026 of the even date, disqualifying the petitioner from continuing as a member of the tamil nadu legislitive assembly, as he has incurred disqualification under art. 191(l)(d). of the constitution on his assumption of charge of the office of the honorary consul general of turkey at madras on the 29th october 1980.2. mr. justice ramanujam, while admitting the writ petition, referred it to a full bench in view of the importance of the question that fell for consideration in this writ application, and that is, how this matter is before us.3. the facts.....
Judgment:

K.B.N. Singh, C.J.

1. In this writ petition the petitioner has challenged the order passed on the 10th November 1981 by the Governor of Tamil Nadu, respondent 1 under Art. 192(l) of the Constitution, published in Gazette, S. O. M. S. No. 2026 of the even date, disqualifying the petitioner from continuing as a Member of the Tamil Nadu Legislitive Assembly, as he has incurred disqualification under Art. 191(l)(d). of the Constitution on his assumption of charge of the office of the Honorary Consul General of Turkey at Madras on the 29th October 1980.

2. Mr. Justice Ramanujam, while admitting the writ petition, referred it to a Full Bench in view of the importance of the question that fell for consideration in this writ application, and that is, how this matter is before us.

3. The facts necessary for the disposal of this writ petition lie in a, narrow compass. The petitioner was elected to the Tamil Nadu Legislative Assembly from the Thiruvallikkeni constituency in the general election held in May 1980, and was duly sworn as a Member of the Assembly in June 1980. He was appointed as Honorary Consul General of Turkey at Madras, after approval of the Government of India, given on the 11th August 1980, which office he assumed on the 29th October 1980. The petitioner is the Leader of the Congress (1) Party in the Legislative Assembly.

4. Two Advocates, namely, respondents 4 and 5 and respondents 6 to 12, who are Members of the Legislative Assembly of different political parties, and respondent 12, who is a member of the Lok Sabha, on different dates filed petitions before the Governor of Tamil Nadu (hereinafter referred to as respondent 1 to decide the question as to whether the petitioner had incurred disqualification on his assumption of the office of the Honorary, Consul General of Turkey at Madras, as required under Art. 192(2) of the Constitution. Respondent 1 referred the matter to the Election Commission (Respondent 2) for its opinion. On 2nd April 1981, the Election Commission, on hearing the concerned parties, gave its opinion and, in consonance thereof respondent 1 passed the impugned order.

5. The petitioner has contended in the writ petition that being appointed as Honorary Consul General of Turkey (hereinafter referred to as the Consul for the sake of brevity), has not resulted in the petitioner owing any allegiance or acknowledging any adherence to the Government of Turkey, since he continues to be a citizen of this country and has taken oath as a member of the Tamil Nadu Legislative Assembly (hereinafter referred to as the Assembly), under Art. 188 of the Constitution of India and has never functioned detrimental to the interests of this country. It is further alleged that the norms laid down by respondent 2 in the impugned order show that it has acted in excess of its jurisdiction and, being a Consul, has not interfered with the free discharge of his duties as a member of the Assembly, and the decision of respondent, 2 is based on surmises and conjectures. It is also contended that the error of law committed is in holding, that by being appointed as the Consul by the Government of Turkey, the petitioner has, acknowledged adherence to the Government of Turkey, when the relationship between the said country and the Government of India is cordial.

6. The, petitioner has alleged that Art. 191(l)(d) of the Constitution could be invoked only at the time of the war or belligerency existing between the two Governments. When the Turkey Embassy has stated on the 4th June 1981 that the petitioner had not acknowledged adherence or allegiance, to the Government of Turkey it ought not to have been rejected. The distinction between a Career Consul and an Honorary Consul and the functions for which the petitioner had been appointed had not been properly comprehended. The said appointment does not interfere with his domestic functioning in the Assembly and that the petitioner has not functioned in any manner detrimental to the Government of India. The impugned order having proceeded on the basis that accepting the order of appointment has itself resulted in disqualification only reflects the patent error on the face of the order, and, in the circumstances the petitioner has prayed for quashing on the aforesaid order.

7. Respondent 4 herein on the 25th February 1981, addressed respondent 1, claiming that the petitioner has suffered a disqualification under Art. 191(l)(d) of the Constitution, by assuming office as Honorary Consul for Turkish Government on the 29th October 1980. This was followed by petitions filed by respondents No. 5 to 12 herein, on different dates, setting forth more than one ground, and requesting respondent 1 to give his decision. Respondent 1 referred these petitions to respondent 2 under Art. 191(2) of the Constitution, which resulted in respondent 2, passing orders in reference Case No. 1 of 1981 on, the 2nd November 1981, holding that the petitioner has suffered the disqualification as claimed against him.

8. The sequence of events in some detail, so far as relevant, as disclosed by documents placed before the Court, goes to show that one Mrs. N. D. Mustafa Dilgen was functioning as the Honorary Consul General of Turkish Government at Madras, and on her resignation, the Government of Turkey addressed the Government of India, to forward names of three persons who could be considered for the said post. On the 4th March 1978, the Government of India sent the name of the petitioner along with two others, to the Embassy of Turkey in New Delhi. On tee 4th February 1980, the Turkish Embassy informed the Government of India, that it has decided to nominate the petitioner to the said post, and has sought for its concurrence. On the 5th April 1980, the Letters Patent by the President of the Republic of Turkey was forwarded to the Government of India, so that necessary formalities may be complied with. In May 1980, elections were held to the Tamil Nadu Assembly and in June 1980, the petitioner took Oath under Art. 188 of the Constitution as a member of the Assembly.

9. On the 11th July 1980, the Government of India conveyed its approval of the proposed appointment of the petitioner as Honorary Consul General of the Republic of Turkey at Madras and stated that as the Commission of Appointment was received on the 5th April 1980, signed by the former President of Turkey, and since the approval is conveyed only now, a fresh Commission of Appointment may be issued by the Head of the State of Republic of Turkey in his favour. On the 3rd August 1980, a fresh Commission of Appointment was issued and in turn the Government of India gave its approval on the 11th August 1980. After exchange of certain letters, on the 17th October 1980, the petitioner wrote to the Turkish Embassy stating that he would be glad to assume office on the 28th or 29th ,October 1980. On the 29th October 1980, he took charge as Honorary Consul General. On the 25th November 1980, he was informed of the guidelines of what he will have t'0 do with an explanatory note annexed to it.

10. On the 25th February 1981, a petition was filed by the respondents alleging that the petitioner, on being appointed as Honorary Consul General, was disqualified to be a Member of the Assembly under Art. 191(l) of the Constitution and sought a declaration to that effect. On 4-6-1981, the petitioner secured a letter from Turkish Embassy that he had not owed allegiance or adherence to the Government of Turkey, nor governed by the laws of Turkey and that the post carries no remuneration or perquisites or honorarium, and it is purely honorary in character and has no political affiliation of any kind. On 2-11-1981, respondent 2 gave its decision, and in turn, respondent 1, passed G. O. Ms. No. 2026 Public (Elections III) dated 10-11-1981, which was published in the Gazette on the same day, disqualifying the petitioner. Writ petition was filed on 12-11-1981, and the petitioner secured an order of interim stay. On 8-1-1982, during the pendency of the writ petition, he resigned his Honorary Consulship.

11. Learned Advocate General appearing for respondent 1 raised a preliminary objection regarding the maintainability of the writ petition. Mr. Sadiq Ali, the then Governor, in the counter affidavit, had stated that the impugned order was passed strictly in accordance with the provisions of the Constitution of India. On behalf of respondent 2, in the counter affidavit it is claimed that the Constitution of India having vested exclusive jurisdiction in the Governor and the Election Commission to decide the question of a post-election disqualification of a sitting member of a State Legislature, and of that of a member of Parliament in the President, the petitioner cannot invoke the, writ jurisdiction of this Court. Learned Advocate General appearing for respondent 1, refers to the decision in Brundaban Nayak v. Election Commission of India : [1965]3SCR53 , wherein it was held that the Governor alone could take decision under Art. 192(l), and that his decision cannot fall within the jurisdiction of courts. Even though the decision is to be pronounced by the Governor, it must be in accordance with the opinion of the Election Commission, and its opinion, in substance, is decisive. There is no need for the Governor to hold the enquiry, which has to be done only by the Election Commission. The disqualification referred to in Art. 191(l) must be incurred subsequent to the election of the member. Any citizen is entitled to make a complaint to the Governor claiming that a member of the Legislative Assembly has incurred any one of the disqualifications mentioned therein, and on the Governor being put on notice, he has to take the decision in accordance with Art. 192(2). Following the said decision in R. Sivasankara Mehta v. Election Commission of India, : AIR1968Mad234 . A Division Bench of this court held, that the jurisdiction to decide the question of disqualification envisaged in Art. 191(l), vests exclusively in the Governor and no Court has got jurisdiction to go into it, whether in writ proceedings or otherwise. When the Governor acts upon the opinion of the Election Commission, neither the merits of, the matter nor the plea of lack of opportunity, could be entertained, when the Election Commission had given the necessary opportunity, One of the learned Judges, who constituted the Division Bench in the aforesaid decision, in G. Vasanthapai v. S. Ramachandra Iyer, now holding (Sic) of the Hon'ble the Chief Justice of Madras, : (1967)2MLJ151 , in respect of a matter which arose pertaining to the age of a High Court Judge, being determined under Art. 217(3) by the President of India, held that the jurisdiction and powers to determine the question of age of a learned Judge of a High Court is vested exclusively in the President of India, and it cannot be exercised by any Court including High Courts and Supreme Court, even if they are called upon to exercise writ provisions, embodied in the Constitution. The words 'shall be decided, by the President' in Art. 217(3) are sufficiently peremptory in character, to support an interference or conferment of exclusive jurisdiction on the President and exclusion of all other jurisdictions, including that of Art. 226.

12. Mr. V. Subramaniam respondent 5 herein, relies upon the decision in Election Commission of India v. N. G. Ranga, : [1979]1SCR210 to plead that when the President and the Election Commission discharge their Constitutional obligations, the opinion arrived at under Art. 103(l) being final, it cannot be challenged in courts. The point which came up for consideration in the said decision was, whether the Election Commission had jurisdiction to issue notice to respondent 1, therein to submit his explanation, on a reference made by the President of India under Art. 103(2), on the basis of a petition presented by respondent 2 therein. Setting aside the order of the High Court issuing a writ of prohibition preventing the Election Commission from taking further steps, the Supreme Court held, that the Election Commission was well within its rights in holding an enquiry on a reference made to it under Art. 103(2). This decision does not deal with the maintainability or otherwise of a writ petition on a decision arrived at under Art. 103(1)

13. Mr. K. K. Venugopal, learned counsel for the petitioner, would first refer to the decision in Himansu Kumar v. Jyoti Prokash, : (1966)IILLJ155SC , wherein a learned Judge of the Calcutta High Court, who retired with effect from 27-12-1961 preferred a writ petition against the then Chief Justice of that Court for issue of a writ of Mandamus for recalling the order passed, and when it was dismissed, in limine, it was held by the Supreme Court that when the matter is of great importance and the decision involved is vitally connected with the status, dignity and independence of the Judiciary and when other incidental points involved being, questions of law; the writ petition ought to have been entertained. This decision was pronounced at a time when the Fifteenth Constitution Amendment came into force and when the matter was being argued in the Supreme Court, but, it was rendered without reference to the said Amendment Act, and on the basis of the

law as it stood, when the writ petition was filed. Once again when the same matter came up before the Supreme Court after the Fifteenth Constitution Amendment, in Jyoti Prokash v. Chief Justice, Calcutta : [1965]2SCR53 , it was held that the decision of the President under Art. 217(3) is final, and its propriety, correctness or validity is beyond the reach of the jurisdiction of courts. Art. 217(3) as amended, is as follows: -

'217(3). If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final,'

Article 192(l) is as follows : -

'192(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in cl. (1) of Art. 191, the question shall be referred for the decision of the Governor and his decision shall be final'.

14. Considerable reliance is placed by learned counsel for the petitioner on Union of India v. Jyoti Prakash Mitter, : (1971)ILLJ256SC , which dealt with the scope of Art. 217(3) and it was held therein that, when taking a decision under the said Article the President performs a judicial function of grave importance under the scheme of the Constitution, and notwithstanding the declared finality of the order of the President, the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed (i) on collateral considerations or (ii) the rules of natural justice were not observed or (iii) that the President's judgment was coloured by the advice or representation made by the Executive, or (iv) it was founded on no evidence; and that Courts will not sit in appeal over the judgment of the President nor determine the weight that should be attached to the evidence, since appreciation of evidence is entirely left to the President and it Is not for Court to hold that, on the evidence placed before the President on which the conclusion was founded, if they were called upon to decide they would have reached some other conclusion. A larger Bench of the Supreme Court by a later decision in Union of India v. Jyoti Prakash Mitter, : (1971)ILLJ256SC , having dealt with, as to what can be the finality that could be claimed when a decision is taken by a Constitutional functionary the preliminary objection taken on behalf of respondents 1 and 2 and also adopted by respondents 5 and 7, has to be rejected. If it be made out that, any of the vitiating factors as enumerated in the said decision could be made out, in a decision arrived at under Art. 192(1), then, such a decision could be set aside by filing a writ petition under Art. 226. Therefore, it cannot be held that merely because a decision had been arrived under Art. 192(l), no writ petition could be filed. But, to what extent in such proceeding, on being initiated, a petitioner could secure relief, would depend upon himself establishing about the existence of the vitiating factors, spelt out ' in Union of India v. Jyoti Prakash Mitter, : (1971)ILLJ256SC . Hence, as against a decision pronounced under Art. 192(l), a writ petition could be entertained under Art. 226 by a High Court.

15. The next point is, to what extent there could be judicial review of the decision arrived at under Art. 192(l) by a Governor of a State. Mr. K. K. Venugopal, learned counsel for the petitioner, submits that judicial review being a basic requirement of the Constitution, he would state that merely because the word 'final' is used in the said Article, it would not deprive Courts of their power to set aside orders by a writ of certiorari if it be shown that apart from the factors spelt out in Union of India v. Jyoti Prakash Mitter, : (1971)ILLJ256SC the impugned order is vitiated because of mala fides, or infested with several errors of law, on the face of it, or if there is an erroneous interpretation of the Constitution spelt out in the order and the like, and hence, it is open to the petitioner to exemplify as to how far the impugned order passed had totally misconceived what has been envisaged under Art. 191(l)(d). He submits that the four factors spelt out in Union of India v. Jyoti Prakash Mitter, : (1971)ILLJ256SC , are not exhaustive, and hence, this Court can go into the question as to whether scope of Art. 191(l)(d) has been properly understood by respondent 1 or not. He has not placed any other authority arising in respect of Art. 103(l) or 192(l) or 217(3), to substantiate his contention that, except for the four factors referred to in Union of India v. Jyoti Prakash Mitter, : (1971)ILLJ256SC , other aspects would be gone into, in a petition filed under Art. 226.

16. As for the impugned order, the pleas raised by the petitioner are not to the effect that the impugned order passed is vitiated because respondent 1 has taken into account collateral considerations or that it was coloured by the advice or representations by the Executive or otherwise it was founded on no evidence, or that respondent 2 has not extended an opportunity to the petitioner of his being heard, before it gave its opinion. Therefore, in the light of the decision, rendered in Union of India v. Jyoti Prakash Mitter, : (1971)ILLJ256SC the petitioner cannot seek for re-appreciation of evidence, even if there is a possibility of a different conclusion being arrived at on the evidence placed before respondents 1 and 2. If it is to be held that no other factor other than those enumerated in the said decision could be taken into account, this petition deserves to be dismissed without going into other points taken by Mr. K. K. Venugopal.

17. Since he has argued as to what could be the constitutional interpretation that could be put on Art. 191(l)(d), it is being considered hereunder, because, if there had been a Wrong interpretation placed on a Constitutional provision, then, the finality ascribed to such an order cannot exist.

18. He refers to the following passage at page 322 in the Third edition of Judicial Review of Administrative Action by S. A. De Smith :

'The King's Bench, however, held that a general finality clause was insufficient to deprive the courts of their power to award the beneficial remedy of certiorari for patent error of law or for jurisdictional defects, unless the right to a certiorari had itself been conferred by statute. Those precedents were followed in modern cases, and it was settled law before the 1958 Act that a finality clause did not restrict in any way whatsoever the power of the Court to issue certiorari to quash either for jurisdictional defects or for errors of law on the face of the record. It is clear, furthermore, that a finality clause does not affect their power to award a declaration that a decision or order made by a statutory body is invalid. Even such words as 'final and conclusive' are ineffective to abridge or attenuate judicial review. The only practical effects of a finality clause appear to be to take away a right of appeal where one already exists, e.g. right of appeal to the High Court by way of case stated from inferior courts and to preclude a body from rescinding or rectifying one of its own valid decisions'.

In Regina v. Medical Appeal Tribunal ex parte Gilmore' (1957) 1 QB 574, it was held as follows -

'The second point is the effect of S. 36(3) of the Act of 1946, which provides that any decision of a claim or question ..... shall be final'. Do those words preclude the court of Queen's Bench from issuing a certiorari to bring up the decision?

This is a question which we did not discuss in Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw, 1952 1 K.B. 338 because it did not there arise. It does arise here, and on looking again into the old books I find it very well settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words. The word 'final' is not enough. That only means 'without recourse to certiorari. It makes the decision final on the facts, but not final on the law. Notwithstanding that the decision is by a statute made 'final', certiorari can still issue for excess of jurisdiction or for error of law on the face of the record.'

19. The decision in State of Rajasthan v. Union of India, : [1978]1SCR1 is relied upon to contend that so long as a question arises whether an authority under the Constitution has acted within the limits of power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so.

20. If a Constitutional functionary, in whom power had been conferred to take a decision which has the seal of finality, wrongly interprets the Constitutional provisions, then, the decision so arrived at will have to be set aside by issue of a writ of certiorari, because it would not be a valid order in the eye of law. Hence, we are of the view that there can be a judicial review of an order passed under Act. 192(1) on this ground also.

21. This now leads to the next point taken, as to what could be the meaning that could be ascribed to the Word 'adherence' in Art. 191(l)(d). Learned counsel for the petitioner contends, that it is a term of art, and it has a peculiar meaning in International Law, and that even when the Article was passed in the debates in the Constituent Assembly. Dr. B. R. Ambedkar had stated that it would apply only when there is belligerency between warring countries, and when the said provision had been copied front Australian Constitution, except for the deletion of the word 'obedience', the said Article cannot be invoked at a time when the Country which has appointed the petitioner as Honorary Consul is having friendly relations with India. Before dealing With the contentions raised by him, reliance was placed by him on the meanings to be given to the Word adherence as found in dictionaries and other books are extracted hereunder :

Stroud volume 1, page 64 : -

'Adhering to King's (Queen's) enemies.

(1) Everyone commits high treason who being a person owing allegiance to the King, actively assists, in the realm or without it, a public enemy at war with the King'-

(Note - including a rival; De Jager v. A. G. of Natal 1907 AC 326; (Steph Cr. 8th Edn 58) Oxford Dictionary: Oxford Companion To law, David M. Walker, 1980 -

'Adherence' - In the British Law of Treason, being adherent to the Queen's enemies in the realm or elsewhere is treason. Treason Act 1351, - (R v. Casement, 1917 (1) K. B. 98; Joyce v. D. P, P. 1946 AC 347.

Dictionary of English law (Earl Jowitt 1939 Edn) P. 55 : Adherent -- Being adherent to the Queen's enemies in the realm giving them aid; for comfort in the realm or elsewhere is treason (Treason Act 1351) R v. Casement (1917) 1 KB 98.

Words and Phrases -- Permanent Edition, Vol. 2, 1953 Edn page 584 : -

'Adhere'

'Adhere' as used in the US, CA Constitution Art. 3. para 3, making it treason to levy war against the United States or to adhere to its enemies, construed to 'include-every act which, with regard to it domestic rebellion, would constitute a levying of war'. U.S. v. Greathouse, 26 Fed. Case 18.21.'

Adhering to the King's enemies must, of necessity, be against the King and, therefore, if an Englishman assists the French, being at War with them and fight against the King of Spain, who is an allay of the King of England, this is treason, as adhering to the King's enemies against the King. Cruising is a sufficient over act of adhering, its if Englishmen would list themselves and march. This is sufficient without going to battle. In Re Vaughan 2 Salk 635.

Adherence : Term used in English law. Throughout the British Dominions, it is high treason punishable with death Whether within or without the realm, to adhere to the King's enemies. Such adherence means actively assisting an enemy at War with His Majesty (Harms) Ss. 121 to 123, IPC deal with 'adherence' and kindred offences against the State.

Judicial Dictionary-8th Edn-by K. J. Aiyer : -

Adherence : 'Term used in English law. Throughout the British dominions it is high treason, punishable with death, whether within or without the realm, to adhere to the King's enemies. Such adherence means actively assisting an enemy at war with His Majesty (Harms : Ss. 121 to 123, IPC) deal with 'adherence' and kindred offences against the State.'

22. On behalf of respondents 7, the following definitions in the Shorter Oxford English dictionary on Historical , Principles' ate relied upon :

Adhere : V 1597.

1. to stick fast, to cleave, to it substance as by grasping or being glued -- 1651.

2. to cleave to it person or party to be follower:

3. to cleave to, continue to main, an opinion, practice, etc,

4. without const. to 'hand together'; to agree 1605

5. Bot. to be it adnate - 1857

Adherer : One who adheres (to an act, etc)

Adhering: the act or process of sticking, clinging etc.

Adherence: 1612

1. The action of adhering

2. An instance of adhering; adherent matter, or circumstance

Adherency

1. The quality of state of being adherent.

2. That which is adherent, adhering matter; etc

3. An adhering party, a following.

23. The following are the relevant portions of the Constituent Assembly Debates, referred to by him : Constituent Assembly debates: Official report Volume VIII May 16th to 16th June 1949

Page 572 :- Shri Mahavir Tyagi : Sir, I hope you will not mind my saying a few words on this article we have already passed a number of them today. I would like to ask Dr. Ambedkar to make it expressly clear as to what the expression, allegiance or adherence to a foreign State occurring in his amendment signifies. Sir, 'adherence' is a very wide term. Its meaning is not very exact. I wonder if our adherence to the Commonwealth will disqualify any of us, particularly our Prime Minister who was instrumental in our agreeing to some little adherence to a foreign State like England. We have recognised a foreign king to some

extent by becoming a member of the Commonwealth. Now will not that adherence disqualify a lot of us? If it does, then it is only Dr. Ambedkar who will remain in the House. We would all be disqualified. We have adhered to the Commonwealth and to the King of England who is a foreigner . Since the word 'adherence' is extremely ambiguous. I think some change in the wording of the amendment should be made or a promise be given to by the Drafting Committee that it will not be left so ambiguous. Out relation with the Commonwealth and other Dominions may be interpreted as with a foreign State. This is not a matter of treaty. It is it question of permanent relationship that we have established. A treaty is a contract. Here it is not it treaty. It is actual adherence to foreign dominions. I would like Dr. Ambedkar to throw light on this issue. Either the wording, should be changed so as to enable us to retain in the Commonwealth, or an assurance be given that the commonwealth countries will not be deemed to be foreign States for the purpose of this Article. I am glad that Shri Mohanlal Gautam has not moved his amendment; otherwise many of us who have not passed the Matriculation examination would have been disqualified. I would be treated as disqualified if the Matriculation qualification were there. My education is hardly equal to the primary school. I only desire that such of our countrymen as are illiterate like me be not disqualified by these provisions.

Page 575. The Hon'ble Mr. B. R, Ambedkar : I rise only for, the sake of the friend, Mr. Tyagi, as he has asked me one or two pointed questions. As he himself says that he is an illiterate, I can very well understand his difficulty in understanding), 'the word 'adherence'. I would therefore explain to him what the word 'adherence' means when one country is invaded by another country, 'what happens is this that the local people either out of fear or out of material law sometimes gives obedience to the laws made by the military governor, who acts in the name of invading country. Such a conduct is often excused while the

invasion continues and the military occupation continues. It often happens that when there is no real necessity to obey the invader or the military governor, either because there has been a relaxation of control or because the hostility has ceased, certain people still continue to render obedience to the military governor or the invader. Their conduct under law is referred to as 'adherence'. It is distinct from allegiance. It is to protect this kind of case that the word 'adherence' has been used. My friend Mr. Tyagi, was also very, much agitated over the question of who are to be regarded as foreign countries. I am sure that it is not the intention of my friend, Mr. Tyagi, to involve me in any discussion about Commonwealth relationship which is a matter which has already been discussed and disposed of in the House, but I would like to tell him that I propose to introduce an amendment to Art. 303 sub-clause (1) to, define what would be regarded as foreign country, and if my friend, Mr. Tyagi has got volume II of the Printed List of Amendments, he will see what the proposed amendment is. The proposed amendment gives power to the President to declare what are not foreign countries, and that declaration would govern, whether A particular country is or is not a foreign country. For the benefit of my friend, Mr. Tyagi, I would also like to add one explanation. Many people seem to be rather worried that when a country is declared not to be a foreign, country under the proposed amendment, or the Commonwealth Agreement, all such people who are inhabitants of those countries would ipso facto acquire all the rights of citizenship which are being conferred by this ' Constitution upon the people of this country. I want to tell my friends that no such consequence need JbIlow. The position under Commonwealth relationship would be this : In all ' the Dominion countries, the residents would be divided into three categories, citizens, aliens and a third category of what may be called Dominion residents residing in a particular country. All that would mean is this, that the citizens of the Dominions residing in India would have some rights which aliens would not have but they would certainly not be entitled, in my judgment, to get the full rights of citizenship which we would be giving to the people of our country. I hope my friend Mr. Tyagi, has got something which will remove the doubts which he has in his mind.

Shri Mahavir Tyagi : I heartily thank you for the interesting speech that you have made.'

24. As to what extent, Debates of, the Constituent Assembly be relied upon, in K. P. Varghese v. I.T. Officer,

Ernakulam, : [1981]131ITR597(SC) it was held that speeches made by members in the Legislature on the floor of the House are inadmissible for interpreting the statutory provisions, but the speech made by the mover of the bill explaining the reasons for its introduction can be referred to for ascertaining the mischief sought to be remedied and the object and purpose for which it is enacted. The decision in AIR 1972 SC 106 is relied upon to show that the Court takes into account the debates in the Constituent Assembly. In the said decision, the debates in the Constituent Assembly have been extracted to show that the interpretation arrived at by the Supreme Court on the scope of Art. 248, was in accord with what was intended. In Waman Rao v. Union of India, : AIR1981SC271 of the judgment it is stated as follows : -

'Conscious as we are that though extraneous aids to constitutional interpretation are permissible the views of the mover of a Bill are not conclusive on the question of its objects and purposes, we will consider for ourselves the question independently whether the first and the fourth Amendments damage or destroy the basic structure of the Constitution in any manner.'

It is undisputed fact, that while drafting the Constitution the provisions of the Australian Constitution had been taken into account. There are no decided cases of Australian Courts on the said provisions. But learned counsel for the petitioner relies upon the view expressed by R. D. Lumb and K. W. Ryan 'On the Constitution of the Commonwealth of Australia' which is to the following effect :

'The Act must be one which clearly establishes allegiance to the foreign country. To act as an 'Honorary' Consul would not be of this nature nor could acceptance of a foreign award or honour'.

25. The expression 'adhere' is referable to a person who follows and maintains loyalty, steadily or consistently, to a person, group or State. On being appointed as a, Consul, the petitioner has agreed to bind himself to observe the conditions stipulated by the Government of Turkey, to the extent to which he had been appointed to carry out his functions. Adherence is different from allegiance, and that was why in the impugned order it has been held, that no case of allegiance had been made out, but there has been an acknowledgment of adherence committed by the petitioner, when he assumed office on 29-10-1980, he continued to be so till the impugned order was passed. He resigned the office only on 8-1-1982, during the pendency of the writ petition.

26. As to whether founding, Fathers of the Constitution intended a restrictive meaning, or also envisaged the harm that could be, caused to this country, by persons who owe adherence to a foreign State, being elected or continue to be the members of Assemblies, or Legislative Councils of States. If it could be invoked only if belligerency exists or war is declared with the Country which has appointed the Honorary Consul, then short of such development, even during the times of peace, by having adherence to a foreign State, a member of the Assembly could start functioning against the interests of this country. If the other

clauses of the Article are looked at, it will be noticed that even if a member holds an, office of profit under Government of India or Government of any State as specified in First Schedule other than an office declared by the Legislature of the State by law not to disqualify its holder, it becomes a valid ground for disqualifying a member. If deriving profits from Central or State Governments in this country is considered as a disqualification, naturally owning any allegiance or adherence to a foreign State cannot be underestimated. Be it noted that the petitioner became an appointee under the Government of Turkey and functioned as its diplomatic servant as an Honorary consul. As pointed out in the impugned order, for an effective democratic functioning, a member of the Assembly should have no connection whatsoever with a Foreign State, by virtue of any appointment made by the foreign Government, On behalf of the petitioner it is claimed that membership of Associations of Friendship Societies existing with Foreign countries could then be treated as having adherence to a foreign State. They would be placed on the different plank, because there is no question of appointment made by the foreign Government. Before declaration of War, several things happen, leading to deterioration of relationship, sometimes lasting for several years, and they occur during times of peace. Warring country prepares the necessary grounds through its agents, and strikes at the defending country at its weakest moment, when it has been quite unaware of what was happening within its territory. As soon as war is declared, apart from taking into custody citizens of the warring country residing in the defending country, several nationals of the defending country who had indulged in spying activities are also taken into custody in the interests of the Nation. Therefore a close association with a foreign country brought about by virtue of appointment made by a foreign country as Honorary Consul cannot be belittled as of no consequence, pertaining to the membership in Legislatures and Parliament in this country.

27. In Art. 191(l)(d), four categories are mentioned, they being that a member would be disqualified if (i) he is not a citizen of India; (ii) has voluntarily acquired the citizenship of a foreign country; (iii) he is under an acknowledgment of allegiance and (iv) adherence to a foreign State. There is nothing to indicate in the said Article, that only in respect of adherence to foreign State existence of belligerency is a prerequisite, and not in respect of other disqualifications prescribed therein. The dictionary meaning relied upon by the petitioner in Shorter Oxford Dictionary relates to what adherence means with reference to Queen's enemies, and in Oxford Dictionary it is with reference to laws obtaining in England, and as for the meaning given in permanent Edition, description portion of it clearly indicates that it was restricted to what it could mean, during times of war.

28. Whereas the word 'adherence' used in this Article is not restricted to the meanings given in the said dictionaries, but it could only be the ordinary meaning to be ascribed to this expression, in the context of maintaining purity of composition in Legislatures irrespective of existence of belligerency or otherwise. Adherence means that a person must follow or hold or maintain loyalty steadily and consistently to a person, body, group of State. As would be pointed out later on, by virtue of appointment made by Government of Turkey, the petitioner, as the dutiful and obedient Honorary Consul of Turkish Government, has agreed to abide by the directives of the foreign State, to the extent to which the Honorary Consul will have to function in this country. He will have to defend Turkish Nationals in this country, when actions are taken against them by the Governments in this country. A conflict of interest would arise, and such a person cannot be expected to be a member of the legislature. If the contention of the petitioner is to be accepted, that till war is declared with turkey, he could be a member of this Assembly, because he is only concerned with development of trade or commerce to the benefit of Turkey, then, the time is not far off for the State Legislatures and Parliament, to have representatives of different foreign countries participating in debates, which involve development of trade and commerce and get this Nation adversely bound by financial commitments or strings being attached in commercial deals and the like, and each one of the representatives would be canvassing for exporting strategic and essential products to the country to which they are accredited rather than take care of the requirements of this Nation. After all, when trade and commerce come into play, the main criterion is to help the country to which he is accredited to make money, and not to look after the interests of the Nation.

29. Regarding reliance placed on what had been said by Mr. Ambedkar, it is not exhaustive, but it is mainly confined to clarify a point taken by Mr. Tyagi as to whether commonwealth countries could be deemed to be foreign states for the purpose of the Article. The reply by Dr. B. R. Ambedkar was more or less restricted to the query raised by Mr. Tyagi and not a complete or exhaustive reply to the various situations that are contemplated, when a member of a Legislature develops adherence to a foreign state. An attempt was made by him how it would have relevance during times of occupation by a foreign army, and soon thereafter. Adherence to a foreign state during times of peace is highly detrimental since what is being done to the detriment of this Nation is not under keen surveillance. At least, if war is declared, the activities of such persons could be put an end to. What is harmful should be nipped in the bud, instead of waiting till a war is declared, and then only disqualify them from membership. Such appointment results in binding involvement with foreign Nations and they have to function to the dictates of foreign country in the discharge of their duries. It is the intention behind the, provisions of our Constitution suited to our genius and requirements, which will have to be ascertained and not strictly on the basis of what is found in certain dictionaries. As far as Australian' Constitution is concerned, no decided case of the Courts in that country is available, and he opinion of the authors of the book on the Constitution of the Commonwealth of 'Australia' cannot be given any greater weight than what should be treated as paramount in the interests of the Nation. On the petitioner accepting the officer of Honorary Consulship consequent to appointment made by the Government of Turkey, he has acknowledged the adherence to a foreign state and, therefore, has suffered the disqualification, and had thus forfeited his rights to membership, on the date on which he assumed office, i.e., on 29-10-1980 itself.

30. It was contended that the petitioner was not appointed as a Career Consul, but only as an Honorary Consul, and therefore, it had not resulted in any adherence to a foreign State, and furthermore he had been assigned only very limited role to play, and hence what had been done by him cannot be adherence under any circumstances, even assuming an ordinary meaning is to be ascribed to this word, as used in the Constitution. Ay referring to correspondence exchanged between the Government of India and the Government of Turkey, as above referred to it is claimed that the petitioner, assumed office only after securing approval of the Government of India, The approval given by the Government of India is of least consequence, because, as could be seen his name was suggested at a time when he had not become a member of Tamil Nadu Assembly. A warrant of appointment was issued in April 1980 itself. By the time approval could be given by the Government of India, the President of the Republic of Turkey, who had signed it had ceased to be in office, and, therefore, a fresh warrant came to be issued. It was by that time, petitioner was elected and became a member of the Assembly. There is nothing to indicate in the correspondence, that he had ever brought to the notice of the Government of India, that he had since become a member of the Assembly, and as to whether he could take up the assignment as already proposed. Without being aware of what had developed subsequently, the proposal initiated earlier was further pursued with, and the petitioner assumed office on 29-10-1980. Even if the Government of India had approved of such appointment, being fully aware of his membership of the Legislature, even then it cannot cure the disqualification contemplated under the Constitution.

31. The other plea is that, he was appointed only for limited purposes pertaining to the following : -

(1) Legislation of copies of all kinds of contracts' deeds documents and registration;

(2) Legislation of transactions as well as copies of documents in foreign language.

(3) Legislation of signatures and seals on documents and deeds delivered by the local authorities or by other foreign authorities located in the host countries for presentation to the Turkish authorities or delivery by the Turkish authorities for presentation to the local or foreign authorities of the country in which the applicant is located.

(4) Legislation of manifests and legislation of declarations certificates, official records, documents and annotations concerning administrative matters.

What is claimed would be of no assistance to the petitioner, on the view already taken that, by accepting the office of Honorary Consul, he has adhered to a foreign state, irrespective of whether he had a limited role to play or whether he had done anything or not. It may be that, at the inception of appointment, like a probationer not being e9trusted with full responsibilities, only limited functions might have been assigned to him. But, by virtue of the said appointment, what all he could discharge will have to be taken into account. The Constitutional disqualification would not depend upon the extent of commissions or omissions done by the incumbent. In fact, by letter-dated 26-111980, he has been forwarded with a copy of the guidelines, as to what an Honorary Consul will have to do. He has been directed to take custody of three Turkish flags, one small Turkish flag (car) one Indian flag, two seals two National Anthem tapes and one National Anthem record from the brother-in-law of previous Honorary Consul at Madras. The guidelines state that, for all disputes arising between the Honorary Consul and local authority, he will have to correspond with Turkish Diplomatic Mission. He will have to, represent the interests of the Turkish State and all Turkish nationals. Clause 2(d) states 'on miscellaneous subjects', which means such other aspects, which from time to time he may be called upon to do in the interests of Turkish Government.

32. Vienna Convention on Consular relations, to the extent, as listed in the guidelines, conferring privileges and immunities upon him, are available to the petitioner. Clause 4 deals with Turkish National Holidays, when, as its representative at Madras, he has to hoist the National Flag of Turkey and play its National Anthem while celebrating those days. When he partakes in such functions, he would be doing so as an appointee and representative of the Turkish Government and not as an Indian National associating in the celebrations of a friendly nation. He has acquired the right to fly National flag, of Turkey in his residence in his office and in his car, though he claimed that he had restricted it only to the display of its coat of Arms in his office, as a mark of identification. What he may claim has to be looked into is, what an Honorary Consul of a foreign State is entitled to do by virtue of the appointment. He gets a compensation for services -rendered, dependent on revenue collections, but subject to a maximum prescribed therein. He had stated before respondent 2, that 'the only transaction of money is in respect of collection of fees for the duties discharged by him, from and out of which, he is entitled to maintain a portion, towards his stationery and postal expenses'. As for Flags and privileges, which are available as per Vienna Convention, he would spurn them by stating that they are of trivial nature. Clause 2 under the heading 'Retainment of Consular revenues by Honorary Consul' in the guidelines issued to him, it is stated, that expenses of correspondence between Honorary Consul and the Ministry of Foreign Affairs, Diplomatic Missions, Career Consuls and other authorities and persons will be paid out from the yearly consular revenues. Therefore, the amount he received as compensation for functioning as Honorary consul, was to be utilised by him for his own purposes, and not confined only to defray expenses towards stationery and postal expenses. If revenue is not sufficient to meet the necessary expenses, Turkish 'Ministry of Foreign Affairs has undertaken to allocate appropriate funds from its own funds, in compliance with the Turkish, fiscal laws and relations. Hence, the nature of duties to be discharged by him as an Honorary Consul with attendant privileges, to the extent they are entitled under Vienna Convention, which he has himself relied upon before respondent 2, is to the effect that he would be entitled to be recognised and has acquired a limited diplomatic status, and governed and protected by definite, but somewhat restricted rules.

33. Of the various articles of the Vienna Convention which are made applicable to the petitioner under the guidelines issued, one or two alone are referred to hereunder, to show what form of immunity he could enjoy and the nature of duties he will have to discharge as Honorary Consul. Art. 43 deals with immunity from jurisdiction and it is to the effect that As an Honorary Consul he shall not be amenable to the jurisdiction of the Judicial or administrative authorities of the receiving state in respect of acts performed in the exercise of Consular functions. Art. 34, which is specifically made applicable to him, is to the effect that he would be under no obligation to give evidence concerning matters connected with the exercise of his functions or to produce official correspondence or documents and he can decline to give evidence as expert witness with regard to the law of Government of Turkey.

34. Though Mr. Selvaraj appearing for respondent 3, and Mr. Chandru, for respondent 4 would refer to certain passages in International Law by L. Oppenhein, when the guidelines issued themselves refer to the articles of Vienna Convention being applicable, it cannot any longer be contended by the petitioner that by being appointed as an Honorary Consul, he is not conferred with any displomatic privileges and that the office accepted by him had not resulted in himself having acquired a right to represent the interests of a foreign State. His plea is that he was directed to discharge only certain notarial functions and nothing more, is not acceptable, when the order of appointment has not prescribed any restrictive functioning; nor had he informed the Government of Turkey that he would not carry out what are found in the guidelines sent to him. He has gladly accepted the appointment by letter: dated 17-10-1980, without any reservation whatsoever. When guidelines themselves list out the Vienna Conventions which would be applicable, it is no longer necessary to find out as to what are the differences between an Honorary Consul and a Career Consul by reference to Oppenheim or what are, stated in Pavithran's 'Substance of Public International law, Western and Eastern'. The nature and the content of the appointment order and the acceptance letter of the petitioner, has resulted in an acknowledgment of adherence to a foreign State, within the meaning of Art.

191 (1) (d).

35. It is then pleaded that the Embassy, of Turkey has given a letter on 4-6-1981, that by accepting the Honorary Consul, Generalship of Turkey, he had not owed allegiance or adherence to the Government of Turkey. This certificate had come into existence after four months of the filing of the, petition by respondent 4 and it is of least relevance for analysing and ascertaining as to the nature of duties to be discharged by Honorary Consul and as to what would be its impact on the disqualification contemplated under Art. 191(l)(d).

36. Mr. Selvaraj, learned counsel for respondent 3, contended that judicial review is not barred and that subsequent disqualifications suffered after assuming membership results in forfeiture of membership as held in : [1953]4SCR1144 and that assuming office of Honorary Consul Generalship by itself is sufficient to constitute adherence within the meaning of Art. 191(l)(d), irrespective of the nature of functions to be discharged; and when respondent 1 had interpreted the nature of duties involved, even if another interpretation is available, the one interpretation which has been accepted will have to prevail; and lastly in view of the concept of Honorary Consul Generalship, that could be culled out from the treatises on International Law, the petitioner cannot claim that he had not acknowledged adherence to a foreign State by being appointed as Honorary Consul for the Government of Turkey.

37. Mr. Chandru appearing for respondent 4, contended that the writ petition is not maintainable and that the decision arrived at by respondent 1, is correct on merits and when the word 'adherence' used in the Constitution has to be understood by a liberal interpretation and by applying ordinary meaning, there is no scope for technical approach to be made based on certain peculiar meanings which are found in books which deal with laws as obtaining in England or in America.

38. Respondent 5 herein appearing in person has also relied upon certain passages in Oppenheim and referred to certain Vienna Conventions apart from relying upon the decisions in the Union of India v. Jyoti Prakash Mitter, : (1971)ILLJ256SC and : [1979]1SCR210 .

39. In the light of the analysis already made, the contentions is raised by them having been dealt with, respondent 1, had not given any erroneous interpretation of the Constitution calling for interference by this Court.

40. Since the impugned order does not suffer from any illegality nor had it resulted in a wrong interpretation having been put on Art. 191(l)(d), the writ petition is dismissed with costs payable to respondents 1, 2, 4 to 7 and 10 to 12, fixed at Rs. 200 each.

41. After the judgment was delivered, an oral prayer has been made on behalf of the petitioner for a certificate to appeal to the Supreme Court under Art. 132(l) of the Constitution. We are satisfied that this case does involve a substantial question of law as to the interpretation of Art. 191(d) of the Constitution certificate as prayed for is accordingly granted.

42. Petition dismissed.


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