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R.K. Nokulsana Singh v/s Rishang Keising


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    Civil Rule No. 87 of 1981

    Decided On, 30 January 1981

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE K.N. SAIKIA

    For the Petitioner: R.K. Nokulsana Singh, Advocate. For the Respondent: ---



Judgment Text

Saikia, J.

1. The writ petitioner prays for writs of quo-warranto to remove from office respondents No. 1 to 8 being the Chief Minister and Ministers of Manipur, on the ground that their Government no longer enjoys support of majority in the Legislative Assembly.

2. Unicameral State of Manipur has a Legislative Assembly of 60 members. After the last Assembly Election, the partywise strength emerged as:

(a) Congress (I) ... 13.

(b) Congress (U) ... 6.

(c) C.P.I. ... 5.

(d) Janata ... ... 10.

(e) C.P.I. (M) ... 1.

(f) Independents ... 21.

(g) M.P.P. (Manipur Peoples Party) ... 3.

As no party secured absolute majority, three parties, namely, the Congress (I), the Congress (U), and the M.P.P. formed a United Front and a coalition Ministry, several independent members, meanwhile, having joined Congres (I), enabling the Ministry to enjoy majority support. Shri R.K. Dorendra Singh, as the Chief Minister and the Ministers were sworn in on 14.1.1980. Shri R.K. Dorendra Singh’s resignation was accepted on 19.11.1980 and he and the Ministers were asked by the Governor to continue in office until alternative arrangements were made. The United Front, which continued, elected Shri Rishang Keising, who was Deputy Chief Minister in the Dorendra Ministry, as its new leader and the Governor asked him to form Government. On 27.11.1980 he (respondent No. 1) as the Chief Minister, respondent 2 from Congress (U) and respondent No. 3 from Congress (I) and Shri Krishna Singh of M.P.P. were sworn in as Ministers and this coalition Ministry claimed support of 36 members out of 60. Subseqently, 2 M.L.As of the M.P.P. left their party and joined the Congress (I) where upon the M.P.P. withdraw from the coalition and consequently, 2 remaining M.P.P., M.L.As remained aloof from the Ministry. The other respondents were sworn later.

3. Petitioner states that on 15.1.1981, the Congress (U) also withdrew its support from the coalition Ministry and the news was published in the Simanta Patrika on 16.1.1981. The Ministry, however, continued and on 21.1.1981, the Chief Minister (respondent No. 1) announced that his Ministry by then was that of Congress (I) party alone. Hence this petition.

4. The petitioner, who is an Advocate, personally argues that after withdrawal of the Congress (U) and the M.P.P. the Government has been reduced to minority and the respondents have no right to continue in office and writs of quowarranto must issue to remove them. He relies on Article 164 of the Constitution of India and refers to the English Convention of formation of Government by majority party. He further submits that the Ministry having been reduced to minority, there is no Ministry in office in the eye of law and there is none to aid and advise the Governor. Article 164 of the Constitution may relevantly be quoted:

"164. Other provisions as to Ministers-(1) The Chief Minister shall be appointed by the Governor and the 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 the Governor:

*** *** ***

*** *** ***

(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. (3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.

(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.

(5) *** *** ***

*** *** ***

5. Article 163(1) of the Constitution deals with State Government and provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. This correspondsthe Article 74(1), which deals with the Union and provides that there shall 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. Article 75(1) deals with Central Government and provides that the Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister. Article 75(2) provides that the Ministers shall hold office during the pleasure of the President. Article 75(4) provides that before a Minister enters upon hisoffice, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.

6. Under Article 164, the Chief Minister is to be appointed by the Governor and the other Ministers shall be appointed by the Governor on advice of the Chief Minister. The choice of the Governor is not circumscribed by anything in the Constitution in terms of majority or minority party; and it is even open for him to choose a person who is not at the time of the appointment a member of the Legislature as the Chief Minister. If he is not a member of the Legislature, he shall cease to be the Chief Minister unless he becomes member of the Legislature within six months of his appointment. A Chief Minister may advise a non-member to be appointed Minister. Thus, there is no constitutional bar to the Governor appointing a person, who is not an elected person as Chief Minister or as a Minister if advised so by the Chief Minister. The only affective check is that the Ministry shall fall if it fails to command majority in the Legislative Assembly. But, once installed so long the Legislature is not in session, a Ministry may carry on without being sure of such majority. Even, after a Government is defeated and Ministry to be dissolved, the Governor may ask the Ministry to continue until alternative arrangements are made. Nobody can say that during such a period the Ministry is not a legal one or that writs of quo-warranto shall issue to remove the Ministers. As contemplated under sections 14 and 15 of the Representation of People Act, 1951, the Ministry may continue even on dissolution of the House of the People or the Legislative Assembly as the case may be. No quo-warranto may issue under such circumstances. It thus follows that whether on its own resignation or upon the dissolution of the House, the Council of Ministers may carry on if required by the President or the Governor, as the case may be, until its successor takes office under the Constitution and no quo-warranto will lie against the Prime Minister or the Chief Minister or any other Ministers to remove him or them from office on the ground of legal title. (U.N.R. Rao vs. Indira Gandhi, AIR 1971 SC 1002). Under Article 164(1), the Ministers shall hold office during the pleasure of the Governor. So long they enjoy that pleasure no quo warranto shall issue, on the ground that they do not command majority support of the Assembly without the Assembly itself deciding that matter on its floor. Nobody can say that the Council of Ministers does not enjoy confidence of the Legislative Assembly when it is prorogued. Even after it is so decided the Governor may ask the Ministry of State to continue until alternative arrangements are made and no quo-warranto shall issue during that period as well on that ground.

7. In the case of failure of the constitutional machinery, Article 356 of the Constitution of India, enables the President on receipt of report from the Governor of a State or otherwise to act thereunder if he is satisfied that a situation has arisen in which the Government of the State can not be carried on in accordance with the provisions of this Constitution.

8. The petitioner relies on the English Conventions of formation of Government by the majority party and appointment of the Prime minister and the Ministers. It is true that in the working of the Cabinet system of Government, our Constitution has adopted the English system, and the English precedents, when available, may be followed. As observed by Ivor Jennings in his Cabinet Government (3rd Edition-page 51). 'It is the Queen’s primary duty to find a Government. It is no less the duty of political leaders to assist her to find one.' We may remember the Duke of Wellington’s famous phrase; 'the King’s service must be carried on.' As Seervai observes, the basis of political evolution in England in forming a Ministry is that the king’s Government must go on and that the party which commands the widest support in the House of Commons, must be called upon to form the Government. Jennings emphasises that if the official opposition succeeds in defecting the Government and so causing its resignation, it is the duty of its leader to form a new Government or to advise the Queen as to an alternative; and it is the duty of the Government to remain in office so long it can do so without infringing the constitutional principles. He further points out that party politics is not just a game. It is not even a mere rivalry in politics. It is a contest between two or more groups for the favour of forwarding their rival policies. There are times when opposition is undesirable or even unpatriotic. There may be occasions when opposition for the sake of opposition is justified. Normally, according to him, an opposition party in the House of Commons does not expect to defeat the Government. It hopes that it will persuade enough people outside to give it a majority at an election in the not-too-distant a future. Its opposition is part of its propaganda, but it must take responsibility of its arguments and it must be ready to accept office if it does succeed in defeating the Government either in the House or in the Constituencies.

9. The requirement that the Government must be carried on is the basis for providing that there shall be a Council of Ministers with the Prime Minister at the Head in Article 74, and a Council of Ministers with the Chief Minister at the Head in Article 163 of the Constitution of India. It is the duty of the President at the Centre and the Governor in the State to find a Government, while the choice of the Prime Minister rests with the President, that of the Chief Ministers rests with the Governor. The selection of the state Ministers rests with the Chief Minister and their appointment with the Governor. This corresponds to the English Convention where it is the prerogative of the sovereign to appoint the Prime Minister, Convention limits the range of choice to that of a party leader who can command a majority in the House of Commons. As Professor E.C.S. wade in his Introduction of Dicey’s law of the Constitution, writes, this convention, to some extent, lacks the binding force, which conventions in other fields possessed. This does not mean that the rule can normally be disregarded, but that unforeseen circumstance may deprive them of their force on a particular occasion and departure from the normal would have to conform to recognising the supremacy of the electorate and not to serve autocratic ends.

10. Thus, so long the Chief Minister and the Ministers enjoy the pleasure of the Governor, a writ Court will not issue quo-warranto to remove them. The notification appointing the Chief Minister and the Council of Ministers is a complete shield protecting them from any quo-warranto attack, in the absence of any constitutional violation. In the words of Ivor Jennings (Cabinet Government, 3rd Edition, page 20): 'The Government is a body of party-politicians selected from among the members of that party or group of parties, which has a majority or can secure a majority in the House of Commons. By this device the operations of Government and the Legislature are integrated. Public opinion controls the Government through the House of commons; and the Government through its majority controls the House of Commons. But the members of the Government are not elected by the House of Commons. They are nominated by the Prime Minister'. According to Bagehot, the main function of the House of Commons is to choose a Prime Minister. According to Ivor Jennings, it is not the House but the electorate that chooses the Prime Minister deciding the majorities in majority of the Constituencies.

11. The choice of the Chief Minister of a State under the Indian Constitution is necessarily limited by political conditions. The Chief Minister must be able to secure colleagues, and with his colleagues he must be able to secure the collaboration of the Legislative Assembly. Frequently, there may be no choice at all. If a party has a majority no Government can be formed without its support. If it has a recognised leader, he must become the Chief Minister unless it is

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, for some reasons, prepared to follow a leader other than its own. At other times, however, the succession may be obscured and the real choice may be made among several possible candidates belonging to the same or different groups, or parties (AIR 1980 Calcutta 95, Verma vs. Chowdhury Charan Singh). This is not the field where a Writ Court can venture to issue writs of quo-warranto, in absence of any constitutional violation. No such violation has been shown by the petitioner. 12. A writ of quo-warranto may not be issued for another reason. When the Assembly remained prorogued, nobody can say that the Ministry does not enjoy the support of majority. The petitioner admits that the Assembly is not in session. No writ can be claimed on basis of reports appearing in newspapers, not authenticated by the Speaker or the members of the Assembly concerned. 13. A writ of quo-warranto under such circumstances may also be defeated by the members of the Assembly changing sides. There being no constitutional bar, the members belonging to non-coalition parties may effect into the coalition or the party in power converting it to majority and in such an event a writ may be rendered futile; and the Court will not issue a futile writ. 14. For the foregoing reasons, I did not find any merit in the petition and it was dismissed in limine on 30.1.1981 and this reasoned judgment delivered on the next sitting on 23.2.1981.
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