Research › Browse › Judgment

Karnataka High Court · body

1987 DIGILAW 145 (KAR)

A. K. SUBBAIAH v. RAMAKRISHNA HEGDE

1987-06-09

CHANDRAKANTARAJ URS

body1987
CHANDRAKANTARAJ URS, J. ( 1 ) THIS petition is filed by the petitioner inter alia seeking a writ or order or direction declaring that the 1st respondent-Ramakrishna Hegde, Chief Minister of Karnataka, has violated the oath of office taken under Article 164 (3) of the Constitution of India and a further writ that the said 1st respondent-Chief Minister stands disqualified to continue in office as Chief Minister. ( 2 ) THE substance or the material placed before the Court in support of the prayers aforementioned essentially rests on the findings recorded in the observations made in certain judgments of this Court and the Supreme Court. It is contended that the 1st respondent-Chief minister of Karnataka by showing favouritism, allotted or approved the allotment of bottling of arrack contract to a select few in whom he was interested and therefore he acted in order to favour such persons thereby committing breach of oath of office under Article 164 (3) of the constitution. The breach of course is dependent on the language of the oath administered by the governor in accordance with item V in the III Schedule to the Constitution of India. ( 3 ) IN Rudraiah Raju's case, ILR1986 KAR 587 a Division Bench of this court set aside the contract for bottling of arrack granted to some of the respondents therein on more than one ground which it has recorded. That in so far as the specific allegation concerning the mala fides of the Chief Minister in the award of contract was concerned, those allegations were withdrawn and regret expressed by the Counsel appearing for some of the petitioners who had made specific allegation against the Chief Minister and therefore the Court did not find it necessary to go into those allegations. ( 4 ) HOWEVER, on the appeal filed by one of the awardees of the contract - Chaitanya Kumar, the supreme Court examining the entire question once again in the light of the arguments advanced for the appellants, at para 10 of the Judgment, ILR 1986 1723 at 1737 speaking through chinnappa Reddy, J. , has stated as follows: "we were told by Shri Venugopal that the preliminary hearing of the writ petitions was postponed twice and that a Rule Nisi was issued only after an amendment of one of the Writ petitions by the inclusion of an allegation of mala fides against the Chief Minister whose son-in-law was stated to be interested in some of the firms to whom the contracts had been awarded. The allegation against the Chief Minister has been found to be unfounded and false. According to Shri Venugopal while the institution of Public Interest Litigation is a good thing in itself, those professing to be public spirited citizens cannot be encouraged to indulge in wild and reckless allegations besmirching the character of others and so the Court must refuse to act at the instance of such pseudo-public spirited citizens. We agree with Mr. Venugopal. But simultaneously, the Court cannot close its eyes and persuade itself to uphold publicly mischievous executive actions which have been so exposed," Thereafter, the Supreme Court proceeded to confirm the writ issued by this Court quashing the award of the bottling contract to a select few. ( 5 ) EVEN as extracted by the petitioner, the Supreme Court recorded one more finding in chaitanya Kumar's case, ILR 1986 1723 at 1737 supra at 1731 is as follows : "but there the Excise Commissioner was, excluding from consideration for the award of the bottling contracts those persons who were eligible for the grant of bottling licences and recommending such persons as were not eligible for the grant of bottling licences under the rules, as unusual, wilful and perverse way of exercising the power of distributing State largesse. " ( 6 ) FROM the above it is clear that the executive mischief spoken of by the Supreme Court was committed initially by the Excise Commissioner by resorting to the elimination process to which the Supreme Court has made reference as indicated in the passage extracted above. ( 7 ) THE Chief Minister was in no way concerned with that process of elimination. ( 7 ) THE Chief Minister was in no way concerned with that process of elimination. ( 8 ) THIS was countered by the petitioner who argued the case in person by pointing out the observations of this Court in Rudraiah Raju's case, ILR 1986 KAR 587 as extracted in para 34 of the Judgment. It is observed there that as could be seen from the tetter, the Excise Commissioner said that Hon'ble the Chief Minister made the. enquiry, the records in the said enquiry were not made available. The Court asked the learned Counsel for the State as to where those records were, how the Excise Commissioner was made known of the contents of the report of the enquiry. The Court recorded that the Government Advocate was not in a position to give any definite reply about the records. But as regards the mode of communication of the information to the Excise Commissioner, the Government Advocate for the State said that being an administrative matter, the matter might have been discussed in person or even on telephone. From that an inference is sought to be drawn that this Court gave a finding that the Chief minister had made his own confidential enquiry and communicated the same to the Excise commissioner. ( 9 ) IT is difficult to accede to that contention, because this Court did no more than record what the government Advocate stated but did not reach any independent conclusion on the material placed before it. On the other hand, the Court recorded the noting of the Secretary which was to the following effect: "the process of establishing bottling plants at different places would inevitably involve financial outlays and time. There are no details forthcoming regarding the credit worthiness of these individuals who are to be entrusted with the bottling work. No information is forthcoming regarding the infrastructure facilities available with them and the time frame within which they can set the bottling plants. The same may kindly be furnished. " It was thereafter that the Excise Commissioner furnished some information which was called for, though not all. No information is forthcoming regarding the infrastructure facilities available with them and the time frame within which they can set the bottling plants. The same may kindly be furnished. " It was thereafter that the Excise Commissioner furnished some information which was called for, though not all. As noticed by this Court in Rudraiah Raju's case, M, ilr1986 KAR 587 Minister for Excise passed an order on 26-9-1984 in so far as it related to the objections of the Secretary and the Minister overruled the same and accepted the recommendations of the Excise Commissioner regarding individuals and firms to be appointed as the bottling agents. He further noted that he had already discussed those proposals with the chief Minister who had given his concurrence to those proposals and therefore orders could be issued immediately approving the proposals of the Excise Commissioner in order to expedite the bottling of arrack. The petitioner relied firmly on the assertions that the Chief Minister had given his approval found in the note and therefore the Chief Minister must be pinned with the responsibility for having awarded the contract. It is difficult to accept the noting of the Excise minister as the gospel truth without any corroborating evidence to point out any complicity of the Chief Minister, if approval was given in the normal course of administration. More so, when the allegations of mala fide against the Chief Minister by some of the petitioners who were before this Court earlier had been proved to be false, and those who made them had expressed their regret and this Court declined to go into questions of mala-fides of the Chief Minister. ( 10 ) IN any event, the High Courts are enabled to issue prerogative writs, orders or directions under Article 226 of the Constitution. ( 11 ) IN fact, in an appropriate case it may pass any order that is warranted by the situation. But courts will not clutch at jurisdiction it does not have. ( 12 ) EARLIER the prayers of the petitioner have been extracted. The second of the prayers is for a declaration that the Chief Minister stands disqualified on account of the breach of oath of office. Such a situation was indeed examined in detail by the Kerala High Court in the case of sukumaran v. Union of India, 1987 Kerala Law Times 227. The second of the prayers is for a declaration that the Chief Minister stands disqualified on account of the breach of oath of office. Such a situation was indeed examined in detail by the Kerala High Court in the case of sukumaran v. Union of India, 1987 Kerala Law Times 227. After examining the scope and contents of Article 164 (3) of the Constitution with reference to Article 226, A Division Bench of the Kerala High Court held that what constituted the breach of oath of office by a Minister was a question which was out-side the purview of judicial review of the High Court. It also held that under Article 226 of the Constitution, the High Court cannot declare the appointment of a minister as unconstitutional. In examining that question the learned Chief Justice of Kerala High court made a pointed reference to the decision of the Supreme Court in the case of Minerva mills Ltd. v. Union of India, AIR1980 SC 1789 , (1980 )3 SCC625 , [1981 ]1 SCR206 , 1980 (12 )UJ727 (SC ) which had pointed out that the Courts will not and should not shirk to decide even questions that may give rise to political questions or bear political overtones when it comes to question of dispensing justice and interpretation of the constitution. But pointed out that the High Court was declining to interfere not merely because there were political overtones or involved political question, but on sound legal theory that appointment and removal of the Minister which is the prerogative of the Chief Minister is a matter of exercising discretion vested in the Chief Minister by authority of the Constitution and therefore such discretion exercised absolutely by the Chief Minister in the appointment could not be interfered with by the High Court by removing that Minister by a writ issued under Article 226 of the Constitution. That proposition of law is supported by numerous authorities to which reference has been made by Their Lordship of the Kerala High Court. I need not repeat them. It suffices to state that l am in respectful agreement with their reasoning and conclusions. ( 13 ) IN the Parliamentary system of Government, our Country has adopted, the mode of selection, and appointment of Prime Minister and Chief Minister is clearly provided for in the Constitution and conventions. I need not repeat them. It suffices to state that l am in respectful agreement with their reasoning and conclusions. ( 13 ) IN the Parliamentary system of Government, our Country has adopted, the mode of selection, and appointment of Prime Minister and Chief Minister is clearly provided for in the Constitution and conventions. First, election is held to the Lok Sabha or the State Assemblies. Generally, the elections are contested by political parties with definite programme and policy issued as manifestoes of that particular political party. The party which succeeds and secures the majority of the seats in the Lok Sabha or the State Assembly, is permitted by convention to elect a leader for itself in the Legislature. It is that leader who has the task of selecting his Cabinet colleagues. Such leader is invited by the President or the Governor to form the Government. When that leader has exercised his discretion in selecting his team of Ministers, [the Council of Ministers under Article. 164 (3) as rightly pointed out, he discretion cannot be interfered with directly or ndirectly by the Court exercising power under Article 226 of the Constitution. ( 14 ) ALL that Article 164 (3) of the Constitution provides or is a bar to a Minister to act as such in that office unless e has taken the oath of office as well as the oath of ecrecy administered by the president or the Governor of he State as the case may be. ( 15 ) ARTICLE 164 (3) of the Constitution does not provide any mode of removal for breach of oath of office. It necessarily has to be a political act to be performed by the one who is empowered to perform that act namely, the Prime Minister or the Chief Minister himself as the case may be. If the Chief Minister does not ask for the dismissal of his cabinet colleagues or one of them, then nobody has the authority to remove such Minister muchless can any citizen move this Court under Article 226 of the Constitution for the removal of the Chief Minister himself who must hold office as long as he enjoys the majority of the House of which he is the leader or subject to the pleasure of the Governor as provided for in the Constitution. [see Article 164 (1)]. [see Article 164 (1)]. ( 16 ) THEREFORE, the second prayer cannot be granted by this Court at all. ( 17 ) THE first prayer on mere allegations unsupported by any proof or material should also be declined. ( 18 ) THE argument of the petitioner that a prima facie case has been made out and therefore Rule should issue and matter investigated further, in my opinion, is not correct. I am convinced that no prima facie case has been made out. On the other hand, the case is strongly in favour of the 1st respondent, as this Court and the Supreme court has not found fault with him though it has found fault with the award of bottling contract with which we are concerned. In any event, that bottling contract has been quashed. There is no action of the executive which survives and if there is no action as on the date of this petition then the question of there being breach of oath of office does not arise. Mere error in discharging of duties does not constitute breach of oath of office. If that were so, every Judgment of the High court reversed by the Supreme Court would entail the Judges of the High Court with the guilt of having committed breach of oath of office. ( 19 ) IN the type of Government which our Constitution has given to us the Chief Minister or the prime Minister is in the same position as the Prime Minister in Great Britain. Tenure of office of that high office is best expressed in the words of Harold Wilson: "the Prime Minister is leader of his party, not only in Parliament but in the Country. Without the support of his party he is nothing. If he loses the support of the majority of his parliamentary party he is out. If he loses the support of his party in the Country he is in danger. In saying this I do not necessarily identify the party in the Country with the party machine. He may have clear support in his party in the Country and here it is sometimes necessary to draw a distinction between party activists and the broader mass of party supporters. If he loses the support of the party machine he is in trouble. He may have clear support in his party in the Country and here it is sometimes necessary to draw a distinction between party activists and the broader mass of party supporters. If he loses the support of the party machine he is in trouble. If he loses the support of his party in the Country, and cannot get it back, he should contemplate cultivating roses. " Chapter VIII, Governance of Great Britain. ( 20 ) THERE is no other legitimate manner by which the incumbent of the high office can be got rid of ( 21 ) FOR the above reasons, there is no merit in this writ petition and it is rejected at the stage of preliminary hearing.