Francis v. Karunakaran Nambiar — 1994 DIGILAW 316 (KER)

Judgment :- Petitioner seeks to issue a writ of quo warranto calling upon the first respondent to show cause to satisfy as under what authority he is holding the post of Additional Advocate General (Taxes) of the State. According to the petitioner, the first respondent was not appointed pursuant to a decision taken by the Cabinet. It is contended that on 22nd July, 1994 there was a meeting of the Council of Ministers presided over by the Chief Minister but the appointment of first respondent was not in the agenda and, therefore, no discussion took place in the meeting of the Council of Ministers regarding the appointment of the first respondent. The further case of the petitioner is that the second respondent, the Chief Secretary, Government of Kerala forwarded the name of the first respondent to the Governor of Kerala as a Cabinet decision for issuing appointment order tinder Art.165(1) of the Constitution of India. Petitioner relies on certain newspaper reports to prove that there was no such Cabinet decision. Petitioner alleges that the appointment of Additional Advocate General is to be made under Art.165(1) of the Constitution of India and the Governor can act only in accordance with the advice given by the Council of Ministers and, therefore, the appointment of the first respondent is not constitutionally valid and, hence, this original petition. 2.1 heard petitioner's counsel and also the Advocate General Shri. S. Narayanan Poti. Counsel for the petitioner argued that the appointment of the first respondent as Additional Advocate General was not on the basis of any decision taken by the Council of Ministers and, therefore, it is illegal. Learned Advocate General denied this fact and contended that under Art.163(3) of the Constitution this Court shall not inquire into the decision taken by the Council of Ministers. 3. A Division Bench of this Court in Padmanabhan v. State of Kerala (1977 KLT 916) held that the appointment of Additional advocate-general is to be made in accordance with the provisions contained in Art.165 of the Constitution and the office of Additional advocate-general is a Constitutional post and the appointment is to be made by the Governor of the State. 4. 4. The Supreme Court in a number of decisions while considering the width of power exercised by the President of India held mat the President is the Head of the State and only a formal executive and in all functions vested in him he acts on the advice of the Ministers and the President is a symbol used to formulate the decisions arrived at by the Ministers and the Cabinet. The effective executive power lies with the Prime Minister and the Ministers should constitute the real executive carrying on the entire burden of conducting the administration of the Union (See the decision reported in R. C. Cooper v. India A.I.R 1970 SC 564). 5. Our Constitution had adopted the English system of Parliamentary executive that the President was a constitutional head of the executive and the real power lies with the Ministers of the Cabinet. Conventions operating in England governing the relationship between the Crown and the Ministers are precedent to the Indian Constitution as well. Art.164 of the Constitution says that the Chief Minister shall be appointed by the Governor and other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of Governor and Art.166 states that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. The duties of Chief Minister in respect of furnishing of information to Governor are enumerated in Art.167 of the Constitution. They are as follows: "It shall be the duty of the Chief Minister of each State - (a) to communicate to the Governor of the State all decision of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation; (b) to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and (c) if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council". 6. As already noticed, the contention of the petitioner is mat there was no decision of. the Council of Ministers to appoint first respondent as Additional Advocate General. But this contention is without any basis. 6. As already noticed, the contention of the petitioner is mat there was no decision of. the Council of Ministers to appoint first respondent as Additional Advocate General. But this contention is without any basis. Petitioner relies on some newspaper reports to show that two of the Ministers on the Floor of Assembly stated that they were not aware of the decision of the Cabinet. I do not think that any such statement was made by any of the Ministers. Admittedly, the first respondent was appointed by the Governor of the State by virtue of the powers conferred on him under Art.165 of the Constitution. So, the appointment must have been preceded by the communication of the decision of the Council of Ministers as envisaged under Art.167(a) of the Constitution. On the basis of the principles of collective responsibility every member of the Cabinet has a responsibility to support the decision. Regarding collective responsibility the renowned Author Sir Ivor Jennings in his book "Cabinet Government" observed: (Third Edition at page 277) It is only on the principle that absolute responsibility is undertaken by every member of the Cabinet who, after a decision is arrived at, remains a member of it, dial the joint responsibility of Ministers to Parliament can be upheld, and one of the most essential principles of* Parliamentary responsibility established. Perhaps Mr. Joseph Chamberlain's definition is better, for he had occasion to study the matter both as enfant terrible under Mr. Gladsone and in his middle age under Lord Salisbury: Absolute frankness in our private relations and full discussion of all matters of common interest... the decisions freely arrived at should be loyally supported and considered as the decisions of the whole of the Government. Of course there may be occasions in which the difference is of so vital a character that it is impossible for the minority ... to continue their support, and in this case the Ministry breaks up or the minority member or members resigns". The learned author when discussed the subject of collective responsibility says that, "the Cabinet Ministers are expected not merely not to oppose a Cabinet decision but also to support it" and, at page 284, the duties of the Minister in respect of speeches as stated by Lord Parlmerston in a letter to Mr. The learned author when discussed the subject of collective responsibility says that, "the Cabinet Ministers are expected not merely not to oppose a Cabinet decision but also to support it" and, at page 284, the duties of the Minister in respect of speeches as stated by Lord Parlmerston in a letter to Mr. Gladstone in 1864: "A member of the Government when he takes office necessarily divests himself of that perfect freedom of action which belongs to a private and independent member of Parliament, and the reason is this, that what a member of the Government does not says upon public matters must to a certain degree commit his colleagues, and the body to which he belongs if they by their silence appear to acquiesce; and if any of them follow his example and express as publicly opposite opinions, which in particular cases they might feel obliged to do, differences of opinion between of the same Government are necessarily brought out into prominence and the strength of the Government is thereby impaired". 7. On the basis of the principles of collective responsibility whatever decisions taken by the Council of Ministers is to be taken as the Cabinet decision. It may be that some members of the Cabinet supported it and other dissented from it at the time when the matter was discussed; but- once the decision is taken, it is taken as Cabinet decision. 8. The main contention of the petitioner centres round the plea that there was no decision of the Cabinet to appoint the first respondent as Addl. Advocate General and hence the appointment is constitutionally invalid. To answer this question there must naturally be some enquiry as to whether there was any such decision and, U so, what was the decision of the Cabinet. It may be noticed that the petitioner has no case that the Governor of the State appointed first respondent under Art.165 of the Constitution without there being an aid and advice of the Council of Ministers. So, the crucial question is whether there was any advice and what was such advice tendered by the Chief Minister to the Governor. The mandate of Art.163 becomes relevant at this juncture. Art.163(3) inhibits this Court from making any inquiry regarding the decision of the Cabinet. So, the crucial question is whether there was any advice and what was such advice tendered by the Chief Minister to the Governor. The mandate of Art.163 becomes relevant at this juncture. Art.163(3) inhibits this Court from making any inquiry regarding the decision of the Cabinet. Art.163(3) of the Constitution reads as follows: "The question, whether any, and if so what advice was tendered by Ministers to the Governor shall not be inquired into in any court". A reading of Art.163(3) of the Constitution makes it clear that this Court shall not make inquiry as to whether any decision was tendered by the Ministers to the Governor and this Court also shall not inquire as to what decision was tendered by the Ministers to the Governor. 8. The scope of Art.163(3) was considered by a Full Bench of the Patna High Curt in Ram Nagina Singh v. S.V. Sohni ( A.I.R 1976 Pat. 36). That was a case in which the appointment of respondent No.1 therein as Lokayukta was challenged. One of the contentions raised by the petitioner therein that no aid and advice was obtained from the Council of Ministers by the Governor in making appointment of respondent No. 1. It was alleged that the aid and advice of the Council of Ministers was a necessary prerequisite and the aid and advice not having been obtained the appointment of respondent No.1 made was not valid in law. The Court held: "Art.163(3) of the Constitution prevents the Court from enquiry whether any advice was given by the Council of Ministers to the Governor in the exercise of his functions. Clause (3) of Art.163 prohibits inquiry in respect of two matters. They are, (a) Whether any advice was given to the Governor by t he Council of Ministers and (b) If an advice was given what was that advice. It cannot be said that it is only when an advice has been given that this clause applies and that it does not apply to a situation where no advice has been given. There is no reasonable basis for making the differentiation in the two situations". 10. Art.74 is the relevant provision dealing with the Union Government. Under Art.74(2) exactly similar prohibition is there- and the court is not empowered to question whether any, and if so what, advice was tendered by Ministers to the President. There is no reasonable basis for making the differentiation in the two situations". 10. Art.74 is the relevant provision dealing with the Union Government. Under Art.74(2) exactly similar prohibition is there- and the court is not empowered to question whether any, and if so what, advice was tendered by Ministers to the President. The scope of this Article was considered by the Honourable Supreme Court in S.R. Bommai and others v. Union of India and others (1994) 3 SCC 1). In paragraph 320, their Lordships (B.P. Jeevan Reddy and S.C. Agrawal, JJ) held: "The idea behind clause (2) of Art. 74 is this: The court is not to enquire -it is not concerned with-whether any advice was tendered by any Minister or Council of Ministers to the President, and if so, what was mat advice. That is a matter between the President and his Council of Ministers. What advice was tendered, whether it was required to be reconsidered, what advice was tendered after reconsideration, if any, what was the opinion of the President, whether the advice was changed pursuant to further discussion, if any, and how the ultimate decision was arrived at, are all matters between the President and his Council of Ministers. They are beyond the ken of the court. The court is not to go into it. It is enough that there is an order/act of the President in appropriate form. It will take it as the order/act of the President. It is concerned only with the validity of the order and legality of the proceedings or action taken by the President in exercise of his functions and not with what happened in the inner councils of the President and his Ministers. No one can challenge such decision or action on the ground that it is not in accordance with the advice tendered by the Ministers or that it is based on no advice. If, in a given case, the President acts without or contrary to, the advice tendered to him, it may be a case warranting his impeachment,' but so far as -the court is concerned, it is the act of the President". (Emphasis supplied) 14. From the above passage it is clear that this court cannot inquire into the decision of the Cabinet or the mode in which the aid and advice was tendered to the Governor. (Emphasis supplied) 14. From the above passage it is clear that this court cannot inquire into the decision of the Cabinet or the mode in which the aid and advice was tendered to the Governor. Petitioner has no contention that the first respondent is not competent to be appointed as Additional advocate-general. Petitioner has also no case that the first respondent does have the qualifications prescribed under the Constitution. The only grievance of the petitioner is that the appointment is not preceeded by the aid and advice given by the Chief Minister and the petitioner's case is that the Governor appointed the first respondent on the basis of a letter sent by the Chief Secretary. These allegations are without any factual foundation and purely on conjectures and surmises. Counsel for the petitioner further contended that the petitioner has got a right to know as to how the important appointment like that of Additional Advocate General is made by the State and, according to the petitioner, the decision in S.R. Bomniai's case is no bar to divulge materials that are to be considered by the State while taking a decision. It is true that the Court can consider such materials, but in this case, even according to the petitioner, there are no such materials that have to be considered by the Court. This original petition is filed without any bonafides and it is liable to dismissed and I do so.