Constitution of India - Articles 164 - Appointment of Chief Minister - Governor's power - Person convicted and sentenced to more than two years' imprisonment - Her party winning large majority in general election - Party electing her as their leader - Governor appointing her as the Chief Minister - Held, a person convicted for a criminal offence and sentenced to imprisonment for a period not less than two years cannot be appointed the Chief Minister - Hence her appointment quashed - Representation of the People Act, 1951 - Section 8(3).

Constitution of India - Articles 164, 173 and 191 - Chief Minister/Minister - Qualifications for appointment - Held, person appointed as Chief Minister/Minister should possess qualifications enumerated in Article 173 and should not be disqualified from seeking membership of legislature under Article 191.

Constitution of India - Article 164(4) - Appointment of Ministers for six months - Held, cannot be used to induct short term Ministers who do not fulfil the requirements of Articles 173 and 191 - Person appointed as Chief Minister though convicted and sentenced for more than two years - Held, such appointment is illegal for being appointed under Article 164(4) the person should be qualified to be a member of the legislature under Article 173 and should not be disqualified under Article 191 - Articles 173 and 191.

Constitution of India - Article 164 - Governor's power under - Not obliged to appoint the nominee of the majority party as Chief Minister if the nominee is ineligible to be appointed as Chief Minister - Governor cannot do anything contrary to the Constitution and laws - Will of the People - Held, cannot prevail over the constitutional mandate.

Constitution of India - Article 361 - Scope of Judicial Review - Illegal appointment made by Governor not protected - Appointment of a person to the post of Chief Minister/Minister made by the Governor can be challenged in quo warranto proceedings - Quo warranto proceeding lie against the appointee to show by what authority is he entitled to hold the office - Appointing authority may not be made party to such proceeding - Articles 226 and 32.

Constitution of India - Articles 226 and 32 - Writ of quo warranto - Meaning of.

Doctrines - De facto doctrine - Meaning of - Setting aside of the appointment of Chief Minister - Serious consequences resulting from - De facto doctrine used to validate the acts of the Chief Minister, cabinet and the government from the date of appointment to the date of judgment.

Code of Criminal Procedure, 1973:

Section 389 - Power of appellate court - Sentence cannot be stayed by appellate court - Appellate court can suspend only execution of sentence - Order of suspension of execution of sentence does not alter the conviction of the accused.

Section 374 - Appeal - Pendency - Effect of.

Representation of the People Act, 1951 - Section 8(3) - Held, Presumption of innocence comes to end on conviction by the trial court - Conviction and sentence operate against accused until set aside in appeal - Accused filed appeal against her conviction - Execution of sentence suspended by the appellate court - In the meanwhile she filed nomination for election - Her party wins Assembly elections and she was elected leader of her party - She was sworn in by Governor as Chief Minister - Held, as she was convicted for an offence and sentenced to more than two years imprisonment she could not have been appointed Chief Minister/Minister.

Respondent No. 2, who was the Chief Minister of the State of Tamil Nadu, was convicted of offences punishable under section 120B of the Penal Code read with sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act and for offence punishable under section 409 of the Indian Penal Code. She was sentenced to undergo three years' rigorous imprisonment and a fine of Rs.10,000 in the first case and to undergo two years' rigorous imprisonment and a fine of Rs.5000/- in the second case. 

Against her conviction, respondent No. 2 filed appeals before the High Court. By order dated 3.11.2000, the High Court, under Section 389(2) of the Code of Criminal Procedure suspended the sentences of imprisonment pending the criminal appeals and directed the release of respondent No. 2 on bail.

As the High Court had only suspended the sentences of imprisonment against respondent No. 2 without staying the order of conviction, respondent No. 2 filed another application seeking stay of the operation of the judgments of the trial court which was rejected by the High Court. Respondent No. 2 did not challenge the order of the High Court.

In the meanwhile the general elections to the Tamil Nadu Assembly were announced. Respondent No. 2 filed nomination papers in four constituencies. Her nomination papers were rejected in three constituencies on account of her disqualification under section 8(3) of the Representation of the People Act. The fourth nomination paper was rejected for the reason that she had filed her nomination for more than two seats. These orders rejecting her nominations were not challenged by respondent No. 2.

The party of respondent No. 2 won by a large majority in the assembly elections and elected respondent No. 2 as its leader. On 14.5.2001, respondent No. 2 was sworn in as the Chief Minister of Tamil Nadu by the Governor of the State. The appointment of respondent No. 2 as the Chief Minister was challenged by the petitioner by way of a writ petition under Article 32 of the Constitution of India contending that respondent No. 2 could not have been sworn in as the Chief Minister as she was disqualified to be elected as a member of the State Legislature on account of her disqualification under section 8(3) of the Representation of the People Act read with Article 191 of the Constitution of India. Another writ petition filed before the High Court of Madras, raising the same contention, was dismissed by the High Court against which Special Leave Petition was filed in this court. A third writ petition pending before the High Court of Madras was transferred to this court to be heard along with the writ petition filed under Article 32 of the Constitution of India.

The contentions raised by respondent No. 2 and the State of Tamil Nadu before this Court were :-

1. Article 164 of the Constitution of India does not provide any qualification or disqualification for being appointed as a Chief Minister or a Minister. It was not open to the Court to read into Article 164 of the Constitution of India the qualificati!-lns enumerated under Article 173 or the disqualifications enumerated under Article 191 of the Constitution of India.

2. The people, who are the ultimate sovereign, had expressed their will through their elected representatives. The people's will should prevail for six months in a true parliamentary democracy especially when there is no provision for adjudicating the alleged disqualifications. The Governor does not have the power or the machinery for adjudicating alleged disqualifications. Therefore, the Governor cannot ignore the will of the people and is bound to call the leader of the majority party to be the Chief Minister irrespective of the fact that the said person does not possess the qualifications for being a member of the Legislature. The appointment is made by the Governor on the basis of conventions of the Constitution. By deciding that the Chief Minister appointed by the Governor should demit office, the Court would be entering in.to political thicket, arrogating to itself a power never intended by the Constitution of India.

3. The Governor of a State, in view of Article 361 of the Constitution of India, is not answerable to any court for performance of the powers and duties of his office. As respondent No. 2 was appointed as Chief Minister by the Governor in exercise of powers of the Governor under Article 164 of the Constitution of India, the said appointment as well as the exercise of discretion by the Governor is immune from being challenged and is not open to judicial review. 

4. The disqualification under section 8(3) of the Representation of the People Act would be attracted only when a person is convicted as well as sentenced to imprisonment for not less than two years. For the purpose of section 8(3) of the Representation of the People Act, sentence alone is relevant. As the High Court has suspended the sentences passed against respondent No. 2, her disqualification also stands suspended. 

5. Under section 8(3) of the Representation of the People Act the disqualification is attracted on the date on which a person was convicted of any offence and sentenced to imprisonment for not less than two years. Law contemplates that the conviction and the sentence could be on different dates. It is unworkable that the disqualification should operate from the date of conviction which could be separate from the date of sentence and therefore, the conviction referred to in Section 8(3) of the Representation of the People Act should be taken to be that confirmed by the appellate court because it was only in the appellate court that the date of conviction and sentence would be the same.

6. Under Section 8(4) of the Representation of the People Act, the disqualification does not operate against a sitting member of Parliament or the Legislature of the State until three months or, if an appeal, application or revision is filed until that appeal, application or revision is disposed of. The principle underlying Section 8(4) of the Representation of the People Act had to be extended to a non-legislator also as otherwise Article 14 of the Constitution of India would be violated for presumption of innocence would apply to the sitting member till the conviction was finally affirmed whereas in case of a non-legislator the disqualification would operate on conviction by the court of first instance.