'Appointment of disqualified persons can be questioned'

By Our Legal Correspondent

NEW DELHI, SEPT. 21. The Supreme Court while setting aside the appointment of Ms. Jayalalithaa as the Chief Minister of Tamil Nadu has held that if a Governor appointed a disqualified person, contrary to the provisions of the Constitution, the authority of the appointee could be challenged in quo warranto proceedings.

Disposing of a batch of petitions challenging the appointment of Ms. Jayalalithaa, a five-Judge Constitution Bench observed ``that the Governor has made the appointment does not give the appointee any higher right to hold the appointment. If the appointment is contrary to constitutional provisions it will be struck down. The submission to the contrary - unsupported by any authority - must be rejected''.

Referring to the argument that the Governor's action could not be questioned in view of the immunity granted under Article 361 of the Constitution, Mr. Justice G.B. Pattanaik, speaking for the Bench said ``judicial review is the basic and essential feature of the Indian constitutional scheme entrusted to the judiciary''.

The Bench further said ``it is the essence of the rule of law that the exercise of power by the State whether it be the legislature or the executive or any other authority, should be within the constitutional limitation and if any practice is adopted by the executive, which is in violation of its constitutional limitations, then the same could be examined by the courts''. The Bench said that it must be noted that in this case, the Governor was not being made amenable to answer the court. ``But it is the appointee (Ms. Jayalalithaa) who is duty bound to satisfy that there has been no illegal usurpation of public office. Quo warranto protects public from illegal usurpation of public office by an individual.''

The Bench observed ``it is too clear for argument that constitutional law is not a matter of majority vote.....the Constitution is the supreme document which should bind people of India as well as all other constitutional authorities, including the Governor''.

The Bench said ``therefore, if Ms. Jayalalithaa is found to have been appointed as the Chief Minister, contrary to the constitutional prohibition and prohibition under the relevant law of the Representation of the People Act, there should be no inhibition on the court to issue a writ of quo warranto and the so-called immunity of the Governor will not stand as a bar''. Drawing a distinction from the law prevailing in the U.K. and India, the Bench pointed out that in the U.K., where there was an unwritten Constitution the legislature was supreme. But in India, where there was a written Constitution, the action of the majority of the elected members of a political party in choosing their leader to head the Government, if found to be contrary to the laws, the Constitution must prevail over such unconstitutional decision.

The Bench was of the view that in a democratic society there were important reasons for obeying the law, which did not exist in other forms of Government. ``Our political system still is not perfect and there is always the scope for many legislative reforms to be made. But the maintenance of life in modern society requires a willingness from most citizens for most of the time to observe laws, even when individually they may not agree with them'', the Bench added.

The Bench observed ``having regard to the mass scale corruption which has corroded the core of elective democracy, it is high time Parliament considered the question of bringing conviction under the Prevention of Corruption Act, as a disqualification under Sec. 8(1) of the RP Act, so that a person on being convicted of an offence, punishable under the RP Act, could be disqualified for being chosen as a member of the Assembly or Parliament'' and expressed the hope that the representatives in Parliament would bestow due thought on this issue.

Mr. Justice Brijesh Kumar, in his separate judgment, speaking for the Bench observed ``even in a written Constitution, it is not possible to provide each and every detail. Practices and conventions do develop for certain matters. That is how democracy becomes workable. It is also true that the choice of the majority party regarding its leader for appointment as Chief Minister is normally accepted, and rightly''.

But, the Bench said ``the contention that in all eventualities whatsoever the Governor is bound by the decision of the majority party is not a correct proposition. The Governor cannot be totally deprived of element of discretion in performance of duties of his office, if ever any such exigency may so demand its exercise. The argument about implementing the `will' of the people is misconceived and misplaced''.

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