(This is the first of a two-part guest series by Mihir Naniwadekar.)

I. The Facts and the Decision

Mr. Radhakrushna Vikhe Patil [“RVP”] was elected as a Member of the Maharashtra Legislative Assembly in the 2014 state elections, as a candidate of the Indian National Congress. He was Leader of the Opposition in the Assembly.

In early June 2019, he resigned from the Assembly; and ceased being Leader of the Opposition. Disqualification proceedings before the Speaker remain pending, where one of the issues would be whether the provisions of the Anti-Defection law can be avoided by resigning from the Assembly before being declared as a defector. Under the Representation of the People Act, 1951, it was not possible to hold a by-poll for RVP’s assembly seat (or any other by-poll). This was because the term of the Assembly itself was to get over in less than six months.

However, on 16th June 2019, RVP was appointed as a Cabinet Minister by the ruling alliance. There was no possibility that RVP would become a member of the Assembly for the remainder of the term of the Assembly, as there was no question of any by-election being held.

RVP’s appointment as a Minister (along with some other appointments) was challenged before the Bombay High Court in Civil Writ Petition 6996 of 2019 (Vijay Namdeorao Wadettiwar v State of Maharashtra). It was principally argued that (a) the procedure adopted to induct RVP into the Cabinet resulted in defeating the Anti-Defection Law; and (b) the provisions of the Constitution mandated that someone who is not a member of the Assembly but is nonetheless made a Cabinet Minister must be elected as a member of the Assembly within a period of six months: as there was no scope at all of elections being held or of RVP becoming a member of the present Assembly at all, his induction as Cabinet Minister was unconstitutional.

In a detailed judgment, a Division Bench of the Bombay High Court (S.C. Dharmadhikari & G.S. Patel JJ.) rejected these contentions. The Court held:

  • The question of whether RVP has ‘defected’ or not is pending before the Speaker. In those circumstances, given that there is no formal decision of the Speaker – the authority tasked with making such determination under the Tenth Schedule – it is not for the Court to proceed on the assumption that RVP is indeed a defector. [Paras 34, 40 to 45]
  • There is no express bar on induction as a Cabinet Minister in the present case. The only relevant bar is that the concerned person would cease to be a Minister if he is not elected within a period of six months from his appointment: but that cannot be interpreted to mean that a person cannot at all be appointed Minister. A ‘constitutional silence’ of this nature cannot be filled up by the Court. [Paras 53 to 58]
  • The Constituent Assembly Debates support this reading; as “the precise issue” came up for discussion in the Debates; but a relevant amendment was negatived on 1 June 1949 (Volume 8 CAD). [Paras 59 and 60]
  • Having rejected the Petitioner’s challenge to the induction for the above reasons, the Court also held that the refusal of the Court to interfere with the appointment does not mean that the Court in any manner ‘approves’ of the induction of the minister [Para 62]; and the Court ought not to be understood as having held that the Courts cannot at all intervene in these matters: “We are not in agreement with the extreme proposition that in no case of this nature will the Courts intervene; a court may, where the facts so warrant and where the law permits…” [Para 64]. At the same time, the Court also noted that “Where political leaders and parties betray the constitutional trust, then such matters are best left to the judgment of the people…” [Para 66]

Before proceeding further, one further facet of the judgment of the Bombay High Court is worth noting. This blog has often spoken of ‘judicial evasion’, when important issues of constitutional law are ‘footballed’ by the Courts such that a decision is essentially rendered academic. On the other hand, the present judgment of the Bombay High Court is, with great respect, a model of how constitutional adjudication can take place. The writ petition was filed on 19 June 2019. The Petition was heard first on 24 June 2019; and the Court issued notice on the petition. On 5 August 2019, the Court noted that one of the Respondents was not served because he was absent from his official residence. The Court directed the Bailiff of the local District Court to complete service within a further two weeks. The petition was directed to be listed in Court on 4 September 2019. Rule was issued; made returnable forthwith, and the Petition was finally heard: with the dictation of the oral judgment commencing in open Court on 9th September and concluding on 13th September 2019. The judgment demonstrates that even in India – with an explosion of the Court dockets resulting in extraordinary pressure on judges – it is possible for substantial questions of law of public importance to be adjudicated in a quick and efficient manner.

With that introduction, we can now proceed to try to understand the judgment more comprehensively.

II. On ‘Justiciability’

There appears to be some tension in saying that there may be some extreme cases where the Courts may intervene [Para 64], and at the same time maintaining that such matters are best left to the people [Para 66]. The Court explains that this tension arises because the Courts must ‘strike a balance’ [Para 68]. In the same paragraph, the Court suggests that sometimes, all that the Court can do is to bring the facts and relevant constitutional principles on record and then leave the decision to the voters. But is doing this the entire extent of the “intervention” possible for Courts? Or are there may be some type of cases where the Court will actually intervene in the form of quashing the relevant appointment?

It is respectfully submitted that the better understanding of the Court’s decision is not that its ‘intervention’ will always be limited only to bringing the facts to the notice of the voters. The Court must be taken, instead, as having held that while in a majority of cases of this type the Court’s ‘intervention’ will be limited (in the sense of concisely placing on record the relevant facts without striking down the impugned action), there may be instances where actual intervention is justified. This reading is to be preferred, because the Court did take note of other judgments where the Courts had intervened in the form of striking down an action. One illustration is SR Chaudhari v State of Punjab where an appointment as a Cabinet Minister for the second time during the term of the same legislature was struck down by the Supreme Court. The other illustration is where the Court suggests (Para 75) it would interfere if a person “comes back again and again by taking, for illustration a day’s or a month’s gap…”. These are all situations of a fraud on the Constitution – DC Wadhwa’s case on ordinances read with Krishna Kumar Singh v State of Bihar is another illustration of a somewhat similar concept – where the Court does indeed retain the power to intervene. Thus, the Court’s decision to not intervene in RVP’s case is understood not as a case of holding the issue to be non-justiciable, but as holding that the facts while not meriting ‘approval’ of the Court did nonetheless not rise to the threshold of a fraud on the Constitution.

On that basis, I will now seek to understand further the Court’s reasoning in the facts of this particular case, to see why the Court thought that the balance in this case fell on the side of non-intervention; and the next post will consider what test can be applied by the Courts in such matters to determine when the balance will tip over to the side of judicial intervention as opposed to non-intervention.

III. The Reasoning of the Court

We have seen (in section I above) that the Bombay High Court relied on essentially three strands of reasoning: (a) the question of ‘defection’ was one for the Speaker and not the Court; (b) ‘silence’ in the Constitutional text, and (c) the history of the Constituent Assembly Debates.

Insofar as the first strand is concerned, the Court’s reasoning in paras 40 to 45 is comprehensive. The only quibble could perhaps be that there are situations in law where if no time limit for a certain action is prescribed, then the Court presumes that the action must nonetheless be taken within a “reasonable” time. Hence, one possibility – if the Speaker does not decide at all on defections – is to hold that the Speaker is bound to decide in a reasonable time. There will still be difficulties on what is reasonable time in such situations and also, a larger issue may be whether such implication of reasonable time can at all be imported given that the issue relates essentially to the proceedings in the Legislature: the Speaker is typically understood to be the master of what goes on in the legislature. To go into this aspect of time-lines for the Speaker would take us too far from the central issues on merits being considered in this note; and is therefore left to one side for now.

Insofar as the question of “constitutional silence” is concerned, the point the Court seems to be making is that in respect of who can and cannot become a minister, the Constitution expressly considers that aspect and provides that it is not necessary to be a minister on the date of appointment. If that is so, then it would not be permissible for the Court to add a further disqualification over and above what the text prescribes. In this context, the Court relied heavily on the decision of the Supreme Court in Manoj Narula v Union of India, which was considered to be a case raising a “somewhat comparable” [Para 56] issue. The issue there was – in the backdrop of severe criminalisation of politics – whether a person with criminal antecedents could be appointed as a Minister. The Supreme Court held that there could be no bar in law – although condemnable, there was no actionable illegality: and it was not the function of the Courts to add a disqualification where none exists.

With great respect, that issue is not really comparable. The point ultimately is that there is an express provision in the Constitution which provides that a minister must become a member of the Assembly within six months in order to continue. The question is whether one can be appointed as Minister when there is no possibility whatsoever of that condition being complied with. The comparison with Manoj Narula may not be entirely appropriate in view of this. It cannot be a “fraud on the Constitution” or against constitutional morality to appoint a criminal as a Minister when the Constitution indicates absolutely nothing in that regard. But in the case of RVP, the Constitution does indicate that there is to be ministerial responsibility to the legislature and there is indeed a requirement that within six months, a minister must become a member of the Assembly. In that scenario, is it or is it not a fraud on the Constitution to appoint someone who has no chance whatsoever of complying with the mandate? That question is, with great respect, not concluded by Manoj Narula.

Insofar as the Constituent Assembly Debates are concerned, the Court notes [Paras 59 and 60] that the “precise issue” was deliberated and negatived in the Constituent Assembly. But the issue which as deliberated and negatived in the Constituent Assembly was the issue of whether a person must be a member of the Assembly at the time of his induction to the Cabinet. With great respect, that is not the “precise issue” – the “precise issue” is whether a person who cannot possibly become a member of the legislative assembly for the rest of its term can be made a Cabinet Minister. There is an important distinction between “not being a member at the time of appointment” and “not being a member at the time of the appointment and not possibly being a member for the rest of the term of the Assembly”.

As the Court notes, the relevant provision here – Article 164(4) – was introduced in the Constituent Assembly as Draft Article 144(3). It is true that an amendment was proposed by Mohd. Tahir, which was negatived. This proposed amendment sought to provide that “A Minister shall, at the time of his being chosen as such, be a member of the Legislative Assembly…” It is respectfully submitted that neither the rationale stated by Mohd. Tahir for introducing this amendment nor the debate on Draft Article 144 provide any indication that the Constituent Assembly contemplated a situation of appointment of a minister who could not even theoretically become a member of the state Assembly at any point in the remaining term of the Assembly.

In fact, the High Court only noted the debate on the day (1 June 1949) the amendment proposed by Mohd. Tahir had been negatived. However, with great respect, some further light on this subject can be thrown by reference to the decision of the Supreme Court in BR Kapur v State of Tamil Nadu. In Kapur, the Court held that a person disqualified to be a member of the Assembly could not be appointed as Chief Minister. In the course of its discussions, the Supreme Court extracted a reply given in the Constituent Assembly in the course of the debate by Dr. Ambedkar (Volume 7 CAD) on 31 December 1948. The reason why Mohd. Tahir’s proposed amendment was opposed was this:

with regard to the first point, namely, that no person shall be entitled to be appointed a Minister unless he is at the time of his appointment an elected member of the House. I think it forgets to take into consideration certain important matters which cannot be overlooked. First is this, – it is perfectly possible to imagine that a person who is otherwise competent to hold the post of a Minister has been defeated in a constituency for some reason which, although it may be perfectly good, might have annoyed the constituency and he might have incurred the displeasure of that particular constituency. It is not a reason why a member so competent as that should not be permitted to be appointed a member of the Cabinet on the assumption that he shall be able to get himself elected either from the same constituency or from another constituency. After all the privilege that is permitted is a privilege that extends only for six months. It does not confer a right to that individual to sit in the House without being elected at all

In other words, the Constituent Assembly Debates indicate that one of the reasons for negativing the proposed amendment may have been the assumption that the minister “shall be able to get himself elected…”. For this assumption to apply, the possibility of being elected should be open. In the circumstances, it is submitted that the negativing of Mohd. Tahir’s amendment does not in itself lead to the conclusion that the Bombay High Court draws.

Indeed, it could be argued that the reason for the requirement of becoming elected within six months is to ensure that the flexibility to the Chief Minister comes coupled with ministerial responsibility to the Legislature. If a person is required to be elected as a member of the legislature in six months, then (a) the Minister remains responsible to the electorate, and (b) the Minister once elected can be questioned as to all actions on the floor of the house. But if a person is appointed as a minister without any possibility of standing for election or becoming elected as a member, then there is no ministerial responsibility to either the electorate or the legislature at all. It could be argued that appointing a person who has no intention whatsoever of facing the electorate or the legislature in six months is a fraud on the Constitution. So too, it can be argued that appointing someone who cannot possibly face elections in the period of six months is also a fraud on the Constitution. The answer turns on what exactly the term “fraud on the Constitution” is: and the particular Constituent Assembly Debates noted by the High Court do not provide any indication on this one way or the other.

The question then is: when does one say – in cases of such type – that there is indeed a fraud on the Constitution? That is the question to which we will turn to in the next post.

[The author is grateful to Gautam Bhatia for his comments on a draft version of this essay.]