A.P. Mukundan, - Advocate,
18/21, W.E.A., Karol Bagh, Arya Samaj Road, New Delhi. - Petitioner
1. Shri V.C. Shukla, Minister of External Affairs, New Delhi.
2. Shri Sarvar Hussain, Minister for Food & Civil Supplies, New Delhi.
3. Dr. Shakeelur Rehman, Minister of State for Health, New Delhi.
4. Shri Basavaraj Patel, Minister of State for Steel & Mines, New Delhi.
5. Shri Bagey Govardhan, Minister of Human Resources, New Delhi.
6. Union of India through Secretary, New Delhi.
Writ petition under Article 226 of the Constitution on - Quawarranto/prohibition or any other writ or direction and declaring the continuance of the respondents as Ministers illegal from the date of their disqualification as Members of Lok Sabha.
MOST RESPECTFULLY SHOWETH:
The petitioner above named is a practising advocate and is a citizen of the country. By way of this writ petition, the petitioner is challenging the legality of the above mentioned five respondents continuing as Ministers in their respective portfolios despite their having lost their respective membership to the Lok Sabha by virtue of the disqualification order passed by the Hon'ble Speaker of Lok Sabha on 11.1.91. The facts material to the petition are as under:
1. That in the ninth General Lok Sabha Elections held some time in November, 1989, the above mentioned five respondents were elected to the Lok Sabha in their respective constituencies. Thereafter, under Schedule III of the Constitution, they had taken their oath to faithfully and conscientiously discharge their duties as a Member of Parliament and that they will bear true faith and allegiance to the Constitution of India as per law established. They are all elected to the Parliament under the Janta Dal party symbol. That some time in September, 1990, the country was passing through a serious law and order problem during which period communal disturbances throughout the country became the order of the day. The Janta Dal was in power during the said period and they had sustained their support in the Parliament with the assistance of Bhartiya Janta Party and the Leftists.
2. That due to the sudden arrest of the then Bhartiya Janta Party President Shri L.K. Advani, the political course in the country took an entirely different direction with the BJP withdrawing their support and thereafter they moved No Confidence Motion in the Parliament against the then Prime Minister Shri Vishwanath Pratap Singh. The then Prime Minister Shri Vishwanath Pratap Singh made a representation to the President that he would prove his majority on the floor of the House on the scheduled date namely, 7th November, 1990. Meanwhile owing to various circumstances, the Janta Party led by Shri Vishwanath Pratap Singh was facing a serious problem from some of its own members who decided to float a different party in the name of Janta Dal (Socialist) group. Accordingly on 5.11.90 batch of some members of parliament broke away from the main party Janta Dal and formed their own group in the parliament. Thereafter when the No-confidence Motion was to be voted, the then existing various opposition parties voted against the Janta Dal Government and among those who voted against Shri Vishwanath Pratap Singh included the break away group led by the present Prime Minister Shri Chandrashekhar and Shri Devi Lal the present Deputy Prime Minister.
3. That in the No Confidence Motion it is relevant to mention that about 8 members of Parliament who had not initially joined the break away group, also voted against the Janta Dal party despite the issuance of Whip by the party. The political events took an entirely a different turn with the Janta Dal President expelling from the party the break away group led by Shri Chandrashekhar and Shri Devi Lal and also the group which had voted against the mandate of the Whip issued by the Janta Dal party President Shri Bhommai.
4. The question of disqualification of the members who left the parent Janta Dal party came up before the Hon'ble Speaker as a result of the petition submitted by a member of the Parliament. The issue was finally resolved by the Speaker on 11.1.91 vide his order in which the Speaker recognised the break away group as a separate party/faction but disqualified 8 members of Parliament namely, Shri Basavraj Patil, Shri Hemendra Singh Banera, Shri Vidya Charan Shukla, Dr. Bengali Singh, Shri Sarwar Hussain, Shri Bhagey Gobardhan, Shri Devananda Amat and Dr.Shakeelur Rehman. out of the above 8 members, 5 of them are continuing to act as Cabinet Ministers. The operative portion of the order relevant for this petition is reproduced as under:
"In exercise of powers conferred upon me under paragraph 6 of the Tenth Schedule to the Constitution of India and the rules thereunder, I, Rabi Ray, Speaker, Lok Sabha, hereby declare that the following 7 members of Lok Sabha have incurred disqualification for being members of Lok Sabha in terms of paragraph 2(i)(b) of the said schedule:
1. Shri Basavraj Patil
2. Shri Hemendra Singh Banera
3. Shri Vidya Charan Shukla,
4. Dr. Bengali Singh
5. Shri sarwar Hussain
6. Shri Bhagey Gobardhan
7. Shri Devananda Amat.
Accordingly, the aforesaid members have ceased to be members of Lok Sabha with immediate effect, and their seats shall thereupon fall vacant.
In exercise of powers conferred upon me under paragraph 6 of the Tenth Schedule of the Constitution of India and the rules thereunder, I Rabi Ray, Speaker, Lok Sabha, hereby declare that Dr. Shakkelur Rehman, member Lok Sabha has incurred disqualification for being a member of Lok Sabha in terms of paragraph 2(i)(A) of the said schedule. Accordingly, Dr. Shakeelur Rehman has ceased to be a member of Lok Sabha with immediate effect. And his seat shall thereupon fall vacant.
Copies of the order be forwarded to the petitioners, the members in relation to whom the petitions are made and to the leaders of the janata Dal and Janata Dal (S)."
4. That under Article 74 of the Constitution, there has to be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall in the exercise of his functions, act in accordance with such advice. That under Article 74 of the Constitution, before a Minister enters upon his office, it is the mandatory requirement for the President to administer to the concerned Minister the oath of office and secrecy according to the forms set out for the purpose in the Third Schedule. That for the sake of convenience, the relevant oath is produced hereinbelow:
"I, swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will faithfully and conscientiously discharge my duties as Minister for the Union and that I will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or illwill."
The oath taken by the elected Member of Parliament for the sake of conveneince is reproduced hereinbelow:
"I, having been elected for nomination as the member of the Council of States or the House of People, do swear in the name of god/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duties upon which I am about to enter."
5. That the disqualified members of the Parliament had violated the Anti-Defection Law which owes its origin to the Constitution of India and forms part of the Constitution as Schedule X and to that extent these Members had not borne true faith and allegiance to the Constitution of India as by law established. The Hon'ble Speaker in his wisdom, rightly disqualified the above members for violation of a law enacted by the parliament, namely, the Anti-Defection Act which as submitted herein above owes its origin and sustenance to the Constitution of India.
6. That despite the above members being disqualified by the Hon'ble Speaker of Lok Sabha, they, for reasons best known to them, are continuing in their office as Ministers purportedly under the protection provided under Article 75(5) of Constituion which provides for a Minister to continue as a Minister for a period of six consecutive months though not a member of either House of Parliament. (that after the aforesaid period in the event of the Minister not being a member, he shall cease to be Minister).
7. That once a Member of the Lok Sabha has been disqualified as a member for whatever be the reasons, it is implicit that he has violated the oath of secrecy and allegiance to Constitution administered to him at the time he became a Member of the Parliament. By the same analogy, once a Member of Parliament had violated his oath, it would tantamount to violating his oath as a Minister in the Cabinet and in such an event he is debarred for acting as Minister henceforth. To have a proper understanding of the legal position, it is relevant to revert back to the Constituent Assembly debate at the time the Constitution was being drafted.
8. Shri T.T. Krishnamachari had sought to make certain amendments on the views expressed by Shri K.Santanam on the period from which the six months was to be counted. In the course of the discussion, it was also debated as to whether a person who is Minister after having been duly elected was later on, during four or five months after original election, disqualified owing to some irregularity in the elction, entitled to the benefits of six months. It was specifically stated that such persons would not be covered. That for the sake of convenience, the relevant portion of the debate is being reproduced hereinbelow:
"Shri M.V.Kamath: (C.P. & Berar: General): May I suggest that for the word "after" which Mr. Santhanam suggests, the word "from" would be more appropriate? After" is not correct.
The Honourable Shri K. Santhanam: "From" may mean that for the first six months he should be member and afterwards if he ceases to be member he may continue to be minister. That is the lacuna which we are trying to fill up.
Shri T.T. Krishnamachari: There is only one point I would like to mention in respect of Mr. Santhanam's amendment. His amendment is practically the same, except for a minor difference, namely, in a position where a person is a Minister who after having been elected duly and later on during four or five months after the original election is set aside. Mr. Santhanam's amendment would not cover such a case. So I would suggest that we should err on the safe side and that the House should accept the amendment moved by me."
9. That the reply to some of the discussions on the aforesaid issue by the Chairman of Drafting Committee of the Constitution, Dr. Ambedkar, which acts as the Statement of Objects and Reasons for this enactment is also reproduced herein below:
"With regard to the second point, namely, the qualifications of minister, we have three amendments. The first amendment is by Mr. Mohd. Tahir. His suggestion is that no person should be appointed a Minister unless at the time of his appointment he is an elected member of the House. He does not admit the possibility of the cases covered in the proviso, namely, that although a person is not at the time of his appointment a member of the House, he may nontheless be appointed as a minister in the cabinet subject to the condition that within six months he shall get himself elected to the House. The second qualification is by Prof. K.T. Shah. He said that a Minister should belong to a majority party and his third qualification is that he must have a certain educational status. Now, with regard to the first point, namely, that no person shall be entitled to be appointed a minister unless he is at the time of his appointment an elected member of the House. I think it forgets to take into consideration certain important matters which cannot be overlooked. First is this, - it is perfectly possible to imagine that a person who is otherwise competent to hold the post of a Minister has been defeated in a constituency for some reason which, although it may be perfectly good, might have annoyed the constituency and he might have incurred the displeasure of that particular constituency. It is not a reason why a member so competent as that should be not permitted to be appointed a member of the Cabinet on the assumption that he shall be able to get himself elected either from the same constituency or from another constituency. After all the privilege that is permitted is a privilege that extends only for six months. It does not confer a right to that individual to sit in the House without being elected at all. My second submission is this, that the fact that a nominated Minister is a member of the Cabinet, does not either violate the principle of collective responsibility nor does it violate the principle of confidence, because if he is a member of the Cabinet, if he is prepared to accept the policy of the Cabinet, stands part of the Cabinet and resigns with the Cabinet, when he ceases to have the confidence of the House, his membership of the Cabinet does not in any way cause any inconvenience or breach of the fundamental principles on which parliamentary government is based. Therefore, this qualification, in my judgment, is quite unnecessary."
10. From a perusal of the above discusion, it is evident that the benefit of permitting a non-member to continue as a Minister in the Council of Ministers, could be extended only to those who have, for some reasons, not contested the elections or having contested had lost the elections. It nowhere provides that a disqualified Member of the Parliament is entitled to the said privilege.
11. Therefore, the sum and substance of Article 75(5) of the Constitution would not apply to a Minister who has been disqualified as a Member of either House of Parliament.
12. That once a member has lost his membership in the Parliament for a valid reason then automatically all rights that would accrue to him as a Member of the Parliament including the right of being considered to be appointed as a Minister also disappears as the substratum of his appointment has been found to be invalid. That in public life it is of utmost importance to ensure that the laws as enshrined by the State are complied with by the people of the country and more specifically important members of the public who are conferred with public offices.
13. That in the present context the continuance of the Ministers after having been disqualified by the Hon'ble Speaker for valid reasons is nothing short of a mockery of the Constitutional provisions. Hence this writ petition is filed in the public interest on, the following amongst other GROUNDS:
A. Because the continuence of the respondents as Ministers in the Council of Ministers after having been disqualified by the Hon'ble Lok Sabha Speaker of their membership to the Parliament is illegal and ultra vires the provisions of the Constitution.
B. Because the effect of the verdict of the Hon'ble Speaker would in sum and substance, tantamount to the Member of Parliament having violated his oath of office as a member of Parliament and since the ingredient of the oath of Parliament are similar to the oath taken as that of a Minister, it would by implication mean that the disqualified Member of Parliament has violated his oath of office as a Council of Minister and therefore, there has been a violation of Article 75(4) of the Constitution of India.
C. Becuase the concerned respondents are not entitled to the benefits provided under Article 75(5) of the Constitution to continue as a Minister for a period of six consecutive months of either house of Parliament without being a member because the said exemptions are permitted only for the benefit of those persons who were not initially members including those who had contested the elections but had lost the same.
D. Because the continuance of the Ministers after their disqualification as Members of Parliament, is contrary to all norms of fair play and justice as once the substratum of the appointment disappears all consequential benefits arising out of that appointment automatically terminate.
E. Because the respondents have since the date of disqualification wrongly usurped office and in all fairness he should be prevented from continuing in office as such because the office in question is a public office and is held by the respondents without legal authority and that necessarily leads to the enquiry as to whether the appointment of the said-respondents has been made in accordance with law or not.
F. Because the legality of the appointment to the office held by the respondents which is of a public nature is in question in this writ petition as the aforesaid respondents have usurped the office from the date of disqualification of their membership.
G. Because out of the 8 members disqualified 3 of them by virtue of their not being ministers have no right even to enter the Parliament in their earlier capacity, while the respondents who were also disqualified for the same reasons are permitted to address both houses of Parliament and rank even higher than the duly qualified Members of Parliament.
H. Because by virtue of the respondents continuing as Ministers there has been a nullification of the impact of the punishment.
I. Because their continuance as Ministers in their respective portfolios has created a rather ridiculous situation as on the one hand they are found unfit to continue as members of Parliament, while on the other they retain the elevated status of a Minister.
J. Because the act of the respondents is a gross abuse of the provisions of Article 75(5) of the Constitution of India.
In the above mentioned circumstances, it is prayed that this Hon'ble Court may graciously be pleased to.
(a) Issue writ direction in the nature of quowarranto or any other appropriate writ for ousting the respondents from the public offices as Ministers held by them in the Cabinet;
(b) declare the continuance of the respondents as Ministers since their date of disqualification as illegal; and
(c) Such other order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
A.P.Mukundan - Petitioner
Shri V.C. Shukla & Ors. - Respondents
The petitioner above named, has filed in this Hon'ble Court the above mentioned writ petition and the stay application should be treated as part and parcel of the writ petition and for the sake of convenience, the same are not repeated herein.
2. The respondents were disqualified by the Hon'ble Speaker from their membership of the Lok Sabha vide his order dated 11th January, 1991. Despite the afore-said order, the respondents are continuing to act as Ministers in their respective Ministries without the authority of law.
3. That their continuance as Ministers in the respective Ministries is contrary to the mandate of the Constitution and therefore, is illegal and such continuance is virtually a mockery of the constitutional provisions.
In the interest of Justice, it is therefore prayed that (i) the respondents 1 to 5 be restrained from acting/usurping/officiating as Ministers in their respective ministries until the disposal of this writ petition;
(ii) Ex-parte orders in terms of the above; and
(iii) such other relief or reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
The University of Regensburg neither approves nor disapproves of the opinions expressed here. They are solely the responsibility of the person named below.Gerald_Huber@r.maus.de
Last update: 22 July 1998