ORDER
M.S. Liberhan, CJ
1. In public interest litigation, office bearers of the Congress Party, a major opposition party in the Assembly, sought a writ of quo warranto or any other writ, order or direction for removal of the Chief Minister and his other Ministers, for having violated the constitutional mandate of Part IX-A of the Constitution by not holding elections to Nine Municipalities around Hyderabad within the stipulated period. Petitioners are Legislators and are concerned for governance of the State in consonance with the Constitutional mandate, consequently the writ.
2. Respondent No.1 was elected as the leader of the A.P. Legislative Assembly and was appointed as Chief Minister of Andhra Pradesh on 1-9-1995. Elections to the Legislative Assembly and the Parliament were notified on 11-7-1999 and the present writ petition was presented on 12-7-1999. The Chief Minister holds the constitutional office, performs the public duty and is a public servant. Violation of the constitutional mandate and the duty has rendered him to be unfit, disqualified and ineligible to hold the constitutional post.
3. The petitioner averred that the elections for the Corporation and the Municipalities of Kukatpally, Qutbullapur, Alwal, Malkajgiri, Kapra, Uppal Kalan, L.B. Nagar, Rajendra Nagar, Seri Lingampally were not held since 1991, though the term to the Municipal Council and the Municipalities expired in 1991 and 1996 respectively.
4. The Executive Officers/Special Officers were appointed for discharging the functions of the Municipalities or the Corporation by issuance of Ordinance and Act from 1991 onwards. By Act No.XVIII of 1991 the State has introduced Section 70-G to the A.P. Municipal Act to run the Municipality with the Special Officer and the tenure of the Special Officer was extended by Act No.XVIII of 1992, Act No.IV of 1993, Act No.X of 1994, Act No.XXV of 1995, Act No.V of 1996 and finally by Act No.XIX of 1997.
5. By seventy fourth amendment to the Constitution, Chapters IX and IX-A were incorporated with effect from 20-4-1993, with an object to obliterate the evil of local bodies becoming weak and ineffective on account of innumerable reasons including of not holding regular elections and their inability to perform effectively as vibrant democratic units.
6. It would be expedient to notice the scheme of the Constitution – providing for Fundamental Rights, Directive Principles of State Policy, Union of India for State Executive and Legislature, the State Executive and Legislature and for local bodies i.e., the Municipalities. Part IX-A provided for constitution of Municipalities by the State with exception of Industrial Township. It provides election and nomination of members representing wards in it, with a fixed tenure of five years, subject to its dissolution earlier under the law. Holding of elections beyond 1-6-1994 provided by any laws is invalid. The functioning of the Municipality at the time of coming into force of the Constitutional provision was saved. The Municipality is to function as institution of self-Government, in relation to the matters listed in Schedule XII or provided by statutes. Nothing was provided for legalising or rectifying any such default. The most relevant provisions of the Constitution, relied and referred to may be reproduced as under:
”Article 243ZA. Elections to the Municipalities :–(1) The Superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in Article 243-K.
(2) Subject to the provisions of the Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities.
Article 243ZF. Continuance of existing laws and Municipalities :–Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State
immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier:
Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State, in the case of a State having a Legislative Council, by each House of the Legislature of that State.”
7. By reading of the scheme and the provisions in Part IX-A, it emerges that (i) there shall be Municipal Committee, Corporation etc., with an exception for the areas provided and the committee to be constituted for a period of five years; (ii) elections to it be held every five years; (iii) the superintendence, direction and control of the preparation of electoral rolls and the conduct of the elections were vested in the State Election Commission; (iv) subject to a provision of the Constitution, the Legislature is to make provision in matters relating to or in connection with election to Municipalities; (v) all laws until amended or repealed by a competent Legislature, or other competent authority, after the expiration of one year from the commencement of Part IX-A shall cease to be operative. There are neither expressly nor impliedly any provisions to rectify or legalise any default in holding election after five years or rendering the election void.
8. The Counsel for the petitioner submitted that the State has violated the
Constitutional provisions, by avoiding to hold elections to nine Municipalities thereby obliterating the Constitutional mandate, and in order to cover up the violations, the executive did several acts, thus preventing the Constitutional authority i.e., the State Election Commission from discharging its Constitutional function, for which the Chief Minister and his Ministers are personally, jointly and severally responsible for Constitutional violation, per the Constitutional principle of joint responsibility under parliamentary system, Constitutional conventions and cabinet responsibility. The Chief Minister in person is especially responsible, being the Head of the Government and High Constitutional Office holder, for breach of the Constitutional mandate, thus failed to govern the State in conformity with the Constitution. Motives were attributed to him, who schemed up the constitution of Greater Hyderabad Corporation.
9. Democracy is not only the organic concept and process of governance but is the soul of our Constitution. Sovereignty with the people, rule of law, the creed for ensuring freedom to all are the basic features of our Constitution. People govern themselves through their representatives. The Governments and representatives are accountable to the people for their functioning. Our Constitution provided for establishing a welfare State, providing social justice, equality, liberty, rule of law and other objects enshrined in Preamble, Directive Principles without articulating the democracy or its fineness or niceties of the philosophy of democracy. In its letter and spirit, it is the Government of the people, by the people, for the people. Freedom of public opinion provides a democratic counterweight to the undemocratic independence of conduct of the representatives and Governmental functioning. The check provided is, there being periodical elections when the representatives are held to account for their
past actions and performance, and the command for future as to what they would like them to do. This is the only process and system where the elector designate and dismiss their rulers i.e., their Government, which is constituted of judiciary, executive and legislative institutions. The State is a provider from cradle to grave, through its Government and governance by the above institutions.
10. Our Constitution, howsoever vibrant may be or attempted to be made, is exact and precise. Articulation by the vested interests of overstepping the boundaries of the institutions encompassed in the Constitution is not on their own peril but also at the cost of others and the peril of survival of the nation, the democracy, the Constitution, the rule of law itself. Our Constitution has basically provided for the fundamental rights, other rights, and the goal to be achieved for establishing a Welfare State. The rights cannot be violated. Checks and balances, accountability, mechanism for settlement of disputes, concepts of public service, its performance, right to judicial review are some of the features of the kaleidoscope of our Constitution.
11. Power of the Legislature and Executive springs from the Constitution, and the elected representatives are the delegates of peoples’ sovereignty, for their service. To be their representative is the privilege of the elector, which cannot be deprived of in exercise of judicial process. To elect the leader of the Legislative House, to be appointed as the Chief Minister by the Governor, is the privilege of the Legislators elected by the people, thus their representatives and holder of their authority, which cannot be subjected to judicial review in the collateral proceedings in Court as accountable for the actions or functions of Legislators, though their actions are always subject to judicial review. The duly elected representative
of the people can only be removed through the process of law connected with the Constitution irrespective of the fact howsoever his act may be immoralistic or unethical.
12. In the terminology of today, democracy with the universal suffrage in the representative system of Government resulting in peoples being a larger entity, inspite of the Government by the people, of the people, for the people through democratically elected persons, and scholars like Marx to Schumpter, demystifying democracy as representatives system of Government placing it in the hands of the people as a myth, is undeniably an accomplished fact with multi-dimensional consequences where the independence of judiciary is assured, so also of executive and Legislature.
13. No power to recall the representative is vested in the elector, which ensured the independence of the elected to act without fear and favour with freedom of thought viz., political, economic, social etc., having larger knowledge about the needs of the people and feedback from them. The counterweight of the public opinion for their undemocratic, immoral, unethical conduct provides them the opportunity for adventurous developmental schemes and take the nation ahead, rather rendering themselves accountable at each and every step as a quick measure before judiciary, apart from Assembly, Governor, Union of India, President of India and the people at large at the hustings, though they have got no privilege for their conduct or action not subjected to judicial review or they being treated unequal or above law. They are bound by statutory or Constitutional law as an ordinary citizen. Their criminal acts punishable under any law Courts are subject to judicial review and appropriate writ for their prosecution and awarding of punishment can be resorted to.
14. It is axiomatic that a writ of quo warranto can be issued to a person, albeit the usurper of office or to one who has forfeited his right to office by incurring any disqualification. Aid of the judiciary is to ensure that public office is not usurped in democracy. It is neither meant to see the authority of the person to exercise franchise nor for punishment or forfeiture of his authority for misdemeanor etc., nor to enforce ethics or moral obligations or for trifles. It is not for prescribing, guiding, managing, hedging powers, or framing schemes for discharge of official duties. It is well established that it is intended to ascertain whether a person is rightfully entitled to exercise the functions claimed. Justice Smith while considering the scope of writ of quo warranto, in Attorney General v. Barstow. 4 Wis 659 at Page 773, observed:
“It is foreign to the objects and functions of the writ of quo warranto to direct any officer what to do. It is never directed to an officer as such, but always to the person – not to dictate to him what he shall do in his office, but to ascertain whether he is constitutionally and legally authorised to perform any act in, or exercise any functions of the office which he lays claim.”
15. Authority of elected public holder in democracy emanates from the powers of the people, which are regarded as inherent right of his sovereignty. He holds the office or the franchise or the authority which is derived from the will of the people through the agency of ballot to whom he is accountable for his misdemeanors, misadventures, periodically at the husting; though if we may hasten to add that his right to exercise the authority is hedged by Constitutional limitations provided in the form of fundamental or other Constitutional rights. Justice Sanderson, Chief Justice, observed in People v. Holden, 28 Cal 123.
“To elect is one remedy which is distinct, one belonging to the elector in his individual capacity as a power granted and the other to the people in the right of their sovereignty. Title to office comes from the will of the people, as expressed through the ballot box. They have a prerogative right to enforce their will when it is open so expressed by excluding usurpers and putting in power such as has been chosen by them. The complaint can be made against any person who usurps and intrudes into or unlawfully holds or exercises any public office. It matters not upon what number of individual persons a right analogous in its results when exercised may have been bestowed, for the power in question nonetheless remain in the people in their sovereign capacity. It has been shared with the elector but not parted with altogether.”
16. Some of the litmus tests for issuance of writ of quo warranto got imbibed in the precedents : First is the source of office, which should be very sovereign authority, second is the tenure, which may be fixed or permanent and third is the duties which should be public in nature. There is a presumption of continued existence of qualification necessary for appointment of a holder of an office. Ordinarily, no action would lie against a person, who holds elected office by virtue of an election and one who is not removable by the elector cannot be removed by issuance of a writ in the nature of quo warranto, unless one has incurred the disqualification to hold the elected office specifically provided by the Constitution or any statutory law enacted thereunder. Disqualification cannot be read into the Constitution implicitly or by process of reasoning and presumptions, howsoever moralistic, ethical, desirable, high-sounding, they may be. Judicial restraint is the only weapon in the armory of judiciary to protect itself from entering into the political thicket and make a person accountable to itself
under the cloak of the Constitution, if we may hasten to add, especially when one has not committed any offence in law, be it Constitutional or statutory. Each institution is independent within its sphere of powers, though co-ordinate. Justice Smith stated :
“So long as the Constitution has prescribed certain qualifications for the Executive Office and the people have hedged it about with inhibitory safeguards, I unhesitatingly affirm that if the writ of quo warranto could reach an intruder into no other office, that writ or some other adequate process, should reach the office of the Governor.”
17. A person duly elected cannot be ousted in quo warranto from his office through the process of Court. The alternative remedy, as he is holding office at the pleasure of the Governor, is provided by Article 356, where when a person fails to govern in accordance with the Constitution, the power is vested in Union of India to remove the person or dissolve the Assembly and hold fresh elections as provided for. Mere misdemeanor would not ipso facto result in the forfeiture from acting in office. The actions of the public officer are subject to judicial review, which is the accepted basic feature of the Constitution. If he fails to perform his Constitutional duty or refuses to perform his duty, the Court will be within its right to issue appropriate writ or mandamus or injunction forcing the person to discharge his Constitutional duty. The Courts would not disturb the affairs of the institution especially when all the elected representatives participated in Legislation and having failed on the Floor of the House or before the Court of the people i.e., the electors, cannot use the Courts as a lever to achieve their political ends.
18. The office held by the first
respondent is not for his personal benefit.
It is for the benefit of the people who
elected him. A person cannot be ousted
from his office held by him, having been duly elected, for the wrangling or non-achieving or the thought or the perception that a particular act or Legislation or statute is violative of Constitution. It cannot be termed that any act declared to be ultra vires of the Constitution or in violation of the Constitution would amount to non-performance of Governmental functions or failing to govern in consonance with the Constitution. Doing so would be nothing but throwing the institution into confusion and disorder, apart from disrepute and resulting in tyranny.
19. It is again a well recognised principle that where one neglects to perform a duty he is enjoined to perform by law, the grievance can be remedied by issuance of appropriate writ and cannot be remedied by quo warranto. Even the judgment of a person having failed to discharge his Constitutional duty does not disqualify him or his franchise or renders him ineligible for future election attached to it. It neither creates any right nor extinguishes. Right to be elected or to represent the people is created by law, ascertainable, definite and fixed, which vests in the party sought to be ousted without creating any right in the successful party. It would be a futile exercise to declare that a person has failed to discharge his Constitutional duty and therefore he has become unfit to hold the Constitutional office, when he has not been rendered ineligible to seek re-election and when the majority is with him, which cannot be decided in the Courts. It is neither a disqualification under Constitution or under any other statutory law debarring the respondent to hold an elected office.
20. It emerges from the consideration of all the cases and the dicta on the subject, to issue a writ of quo warranto, which lay against a person, who claimed or usurped an office, or franchise, to inquire by what authority he supported his claim, in order that the right to office or franchise may be
determined, including the case of non-user, abuse, non-neglect of franchise. The principle has been culled out from Halsbury, Vol.II (3rd Edition), R. v. Speyer, (1916) 1 KB 595, etc. Article 226 of the Constitution confers jurisdiction upon the High Court for issuance of orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. Larger the discretion or its format or the power, the greater restraint is demanded or required for its exercise. Issuance of writ is subject to limitations inherent in the exercise of discretion. With the development of exercise of writ jurisdiction James L. High in his “Treatise on Extraordinary Legal Remedies” observed that the legal disqualification, if any, flowing from abuse, misuse or non use with reference to an office not being permanent and being held during the pleasure of the Crown was never a matter of writ of a quo warranto but could be corrected by a mandamus to perform a duty or writ of certiorari to rectify the abuse. The principle holds good in today’s era of Indian democracy under the written Constitution and separation of powers.
21. De Smith in his treaties “Judicial review of administrative actions” observed with regard to Members of Parliament:
“The question of qualification to sit as a Member of either House of the Parliament within the scope of the Parliament privilege and is not therefore cognizable by Courts of law, except insofar as the Parliament has expressly provided for judicial determination. The relevant statutory provisions do not empower the Courts to award injunctions against Members from sitting.”
22. Disqualification to be the Member of the Parliament or Legislative Assembly
has been provided for under the Constitution or the Representation of People Act and similar such other statutes. Nothing has been pointed out at the Bar, during the course of arguments, that there is any Constitutional or statutory disqualification provided for holding an elected public office in the democracy representing the will of the majority of the electors. Disqualification cannot be inferred or read into either the Constitution or in a statute by implication, by interpretative law, howsoever immoral, unethical, undesirable the act and conduct of the elected person may be.
23. Issuance of a writ of quo warranto against a Minister or Chief Minister for violating the Constitutional oath or non-discharge of Constitutional function is not res Integra. Conspectus of law on the subject emerges from the decisions in Darley v. The Queen, 12, Cl & Fin. 520 and R v. Speyer, (supra) referred to in K.C. Chcmdy v. R. Balakrishna, , that once the office is held under a valid title and the continuance of the person in the office depends upon the pleasure doctrine, quo warranto does not run; and no such writ, which can be defeated immediately by the mere exercise of an executive will, will therefore issue. The principle was followed in K. Sukumar v. Union of India, AIR 1987 SC 212. The Madras High Court in Ramachandran v. M.G. Ramachandran, , Andhra Pradesh High Court in D. Satyanarayana v. N.T. Rama Rao, and the Punjab and Haryana High Court in Hardwari Lal v. Ch. Bhajan Lal, , came to the conclusion that a writ of quo warranto against the Chief Minister of a State, who is appointed by the Governor and holds the office during his pleasure, cannot be issued as the power to terminate the tenure of the office of the Chief Minister being solely vested in the Governor under Article 164(1) of the Constitution. Emphasis may be laid on the following observations :
“Ordinarily, the Governor allows, or may have to tolerate, the continuation in the office of the Chief Minister so long as he enjoys the majority of the Members of the Legislative Assembly unless, in the meanwhile, he suffered any specific disqualification for holding that office. This is so in keeping with the well-established democratic values and conventions, inspite of the fact that Article 164(1) of the Constitution permits the Chief Minister to continue in office only during the pleasure of the Governor. The Governor might nevertheless face extraordinary situations where he would be constrained for promoting public good and safeguarding the interest of the State to invoke the pleasure doctrine and terminate the tenure of the office of the Chief Minister, though such instances would be few and rare. There being many imponderable, the circumstances under which a Chief Minister or a Minister would render himself unfit to hold the office and is liable to be removed from the post could not be exhaustively enumerated in the Constitution, or for that matter, even in any law made by the Parliament. Presumably, it is for that reason the discretion in the matter is vested exclusively in a high dignitary like the Governor by the Constitution. No Governor could, however, afford to exercise that high prerogative in a casual manner without foreseeing the future, the political overtones of the momentous decision and the other repercussions. Often than not, it is a complex question, not merely a legal issue; and the decision should reflect the wordly wisdom and statesmanship of the person who, by the Constitution, is charged with the onerous responsibility in the matter.”
24. As we have referred in the earlier part of the judgment that the Chief Minister or the Ministers hold the office during the pleasure of the Governor and he being the appointing authority can alone have a right
to dismiss him in reality only when the person has earned or incurred any of the disqualification provided by the Constitution or the statute or no longer enjoys the confidence of the Legislative Assembly to which ultimately he is responsible. Even on the principle of joint and several liability of the Cabinet in the Parliamentary system of democracy, the Governor is not competent to dismiss the Chief Minister or his Cabinet for breach of Constitutional oath, malfeasance and misfeasance. Courts in exercise of their power of judicial review would not be competent to issue such a writ especially when it is likely to result in Constitutional vacuum and when neither the Constitution nor any statutory enactment disqualifies a person to hold elected public office, one holds office under the Constitution providing for no disqualification to hold the Constitutional posts for violation of the Constitution, especially when the violation can be rectified by issuance of appropriate writ, order or direction and the result would be an exercise in futility as the person ousted if carries the majority will be reappointed.
25. We find further support from the observation made in Haridwari Lal’s case (supra) wherein writ of quo warranto was sought in exercise of the realm of accountability of a rapacious executive to the people through the judiciary after attributing various allegations and misdeeds of the Chief Minister demonstrating the violation of oath of office and running of the Government not in conformity with the Constitution. The Court after noticing the politically motivated adventures in Courts and remarking as an abuse of the process of the Court and Court’s time, observed that the disqualification of the Member of the House or Legislature is provided by Articles 190, 191 and 192 and from which it was held that the appointment of the Chief Minister is by the Governor, he holds the office during his tenure, he is required to subscribe to oath of office and the grounds
on which a person shall be disqualified for being chosen as the Member of the Legislative Assembly are specifically provided. Running of the Government not in conformity with the Constitution is no ground, which is provided under the Constitution, as the disqualification. It may be a betrayal of faith reposed by the person, which if made as a basis for issuance of writ would be adding the disqualification to the Constitution. Similar is the situation with respect to the malfunctioning, which are matters to be assessed and judged at the political level and finally by the people to whom he is ultimately accountable. The Governor is well within the jurisdiction in exercise of power under Article 192 to intervene and bring about the correction. Failure on the part of the Chief Minister to comply with alleged Constitutional obligation, on recommendation of the Governor, would entitle the President to take action under Article 356 of the Constitution. Morality or propriety or undesirability of a person is predominantly the political questions. Taken the specific note to the observation of Frankfurter, J., in Charles W. Baker v. C. Carr, (1962) 369 US 186, “there is not under our Constitution a judicial remedy for every political mischief.” Reference was made to observations made by Dr. B.R. Ambedkar in his speech during the Constituent Assembly Debates to the effect: “the Ministry is to hold office during such lime as it holds the confidence of the majority.” In our considered view, these are the basic tenets and the principle of the Constitution of such a large democracy as India where the Constitution and its elected representative have to work. There is no scope for judicial intervention in exercise of basic power of judicial review of their actions, especially when their actions can be set at right in exercise of writ jurisdiction by issuance of an appropriate writ, order or direction. Taking a contrary view would result in assuming limitless jurisdiction by the Court with no yardstick to measure the functioning
of the Executive in exercise of complex administrative, executive functions by a Government and in particular circumstances may serve as an ignition point for functional anarchy, which has to be avoided at all costs in public interest. It is the people who hold a watching brief to prevent mis-performance, mis-rule by their elected representatives. We are fully in agreement with the observation made by the Division Bench of Punjab and Haryana High Court and have no ground to take a different view.
26. The thrust of the arguments of the learned Counsel for the petitioners, relying upon the observations of the Supreme Court in Kasinath Jalmi v. The Speaker, , is that the High Court in exercise of powers under Article 226 of the Constitution is competent to issue a writ in the nature of quo warranto. The observations or the sentences relied upon by the learned Counsel for the petitioners, have been totally taken out of the text and the context of the case and the issue which was before the Supreme Court for determination. It was a case where the Chief Minister incurred disqualification under X Schedule to the Constitution, which is subject to judicial scrutiny. The entire basis of the contention for the exercise of power of judicial review was that the Legislature incurred disqualification under the statute; consequently not eligible to hold public office under the Constitution. Disqualification was provided by the Constitution itself. Since the writ petition was dismissed on the ground of laches and the case was remanded back to High Court for determining the question of fact as to whether one incurred the disqualification or not or the order of the Speaker reviewing the order of disqualification was a nullity. We have gone through the judgment carefully and are of the considered view that there is no such general proposition of law laid down by the Honourable Supreme Court i.e., to the effect that under all facts and
circumstances, a writ of quo warranto against the Chief Minister, for having violated the oath of office or constitutional mandates would render him unfit and disqualify to hold the office of the Chief Minister or constitutionally elected office, can be issued. We may hasten to add that it has not been observed by us that a writ of quo warranto would not be maintainable in any circumstances. There is no absolute bar for maintenance of writ of quo warranto, but it has to be determined on the facts and circumstances of each case.
27. The learned Counsel for the petitioners relied upon the decision of the Supreme Court in S.R. Bommai v. Union of India, , wherein the Supreme Court while dealing with the provisions of Article 356 of Constitution for promulgation of President’s rule and failure of the Constitutional machinery to run the State in accordance with the Constitution observed that the President on being satisfied on the basis of the report from the Governor and other information received by him that the Slate cannot run or carry out the functions in accordance with the provisions of the Constitution, can dismiss the Government and dissolve the Assembly. Whatever stanzas and sentences the learned Counsel for the petitioners has read out, either from the majority judgment or the judgment of K. Ramaswamy, J., are de hors the context they were made and not even remotely cover the facts and circumstances in hand. There is no gain saying that the judicial review is the basic structure of the Constitution and all actions of the Government or any other authority or holder of public office are open to judicial review, which would not mean that where the actions can be set at right by issuance of an appropriate writ, a writ of quo warranto is a must, especially when a person does not suffer from any infirmity in his eligibility to hold the office. We cannot restrain ourselves to make a reference to the observations made by Justice Sawant and
Justice Kuldip Singh in the case to the effect that whether in a particular situation the extent of powers used is proper and justifiable is the question which remains debatable and beyond the judicial discretion and manageable standards. There is every risk and fear of the Court undertaking upon itself the task of evaluating with fine scale through its own lenses, competitive merits, one is more meritorious than the other or whether there is violation of Constitutional provisions.
28. Taken at the face value of the contentions of the learned Counsel for the petitioners that the State has failed to run the Government in accordance with the Constitution, every act declared to be ultra vires of the Constitution by the judiciary, it would be reasonable to assume as put forth by the Counsel for the petitioners that the State has failed to govern in accordance with the Constitution, consequently liable to be dismissed which would be not only be gagging the governance, but taking away the right of the people to be governed by their representatives under the basic concept and percept of the democratic governance and vesting the power in the voter and it would be nothing else but entering into the political thicket. Every case has to be examined on the facts and circumstances of its own case and acknowledged parameters of judicial review. It has been further observed in the case that there are various innumerable situations full of many imponderables, implications and intricacies, ifs and buts, which are susceptible to judicial scrutiny and in such matters ultimate arbiters are the people. One particular test laid down in one appropriate decision in the facts and circumstances of that case cannot be lifted and made as a litmus test for judicial review in the facts and circumstances of the case which is diagonally different in its texture and context in its entirety. Merely a person challenging the holding of office on failing to discharge his Constitutional duties by itself would not,
even if assumed to be correct, call for issuance of a writ. It was categorically accepted in the said case that the scope of judicial review is limited and it is only the electoral verdict, which is the ultimate check. Judicial process has inherent limitations especially with the advancement of scientific knowledge, administering of the country becoming a most complex, intricate, organic, inextricable functions of the governance by the executive. It is they and they alone know how to administer. Emphasis has been again laid that judicial review is. in the facts and circumstances of a given case, and the power to suspend the Legislative Assembly by suspending the provisions of the Constitution relating to Assembly vests in the President alone on the recommendation of the Governor at the advice of the Union of India. The Courts cannot assume the jurisdiction in exercise of the powers of the judicial review especially when the act complained could be rectified by directing the respondents to hold the elections. This aspect will be dealt with in the later part of the judgment.
29. The learned Counsel for the petitioners urged that the Constitutional provisions have been violated by the State in view of the facts and circumstances as enumerated above. Undisputedly in terms of Article 243ZA, the power for holding election, its superintendence, directions, control, preparation of electoral rolls, conduct and the law with respect to all matters relating to or in connection with the elections to Municipalities exists and vests in the State Election Commission. Concedingly, the State Election Commission was appointed and is functioning. There is no complaint with respect to holding of elections to Panchayats in terms of Part IX and holding of elections to other Municipalities or Municipal Corporations, other than the nine, which are in dispute. Appointment of administrative officer or executive officer was provided by the A.P. Municipalities Act before coming into force of
74th Amendment to the Constitution i.e., much prior to the present Chief Minister assuming the Office on 1-9-1995. All subsequent amendments in the Act have been passed by the Legislature, of which the petitioners were part and parcel and participated. Though they claimed that the said provisions of the Act are in violation to the Constitutional mandate and are nullity and they are the saviors of the people for governance of the Slate in accordance with the Constitution, they did not raise even a liltle finger till the eve of the elections to the State Assembly in 1999 from 1995. Establishment of Greater Hyderabad Corporation is not within the scope of the challenge of this writ petition. Establishment of Greater Municipal Corporation vide G.O. Ms. No.189 dated 24-4-1999 and its suspension on 28-4-1999 by ordering maintenance of status quo by this Court are not in dispute. There can be no gainsaying that in such a vacuum the State is duty bound to provide for authority to discharge the functions of the Corporation. In the eventuality of the provisions of creation of Greater Hyderabad Corporation being unconstitutional by itself would not provide that the State is not being governed in accordance with the Constitution. This stifling act of administration cannot be raised to the pedestal where it can be termed that the respondents have violated the Constitution and are not governing the State in accordance with the provisions of the Constitution. The act could very well be rectified by ordering of holding the elections by Courts in exercise of powers of its judicial review. We find nothing on record or able to reasonably infer from the averments made that the Election Commission was in any manner estopped from issuing a notification for holding the elections in terms of the existing municipal law and the procedure prescribed by Chapter IX of the Constitution. The respondents cannot be faulted for the conduct of the petitioners themselves prior to 1995. It would be too much to assume that the perception of administrative,
legislative-executive or the respondents for crealion of Greater Hyderabad Corporation is an adventure which cannot be undertaken under the Constitution by the State Government. It is a sheer articulation and travesty of facts to assert that creation of Greater Hyderabad Corporation is in fact running the Municipality not by its elected representatives in terms of the Constitution, or amounts to running them by appointing Special Officers or lapse of period of three years in formation of such a Corporation is a cloak for not holding elections. There are no complex and intricate questions in such inordinate delay, which can be termed as violation of the Constitution, especially when the petitioners are the Legislators of the major opposition party not only in the State but also in the nation and having not raised a little finger for getting the things set right including the final Act V of 1996 having been passed by the Legislature for extending the period of life of Officers.
30. The question of examining whether there is a provision under the Municipalities Act or the Municipal Corporation Act, defining Special Officer or his term is not within the scope of this writ petition as, in the facts and circumstances of the case, the questions raised and argued are only to the limited extent that a writ of quo warranto be issued removing the Chief Minister and his Cabinet colleagues from holding their posts for violation of the Constitutional provisions. It is, in our considered view, the prerogative of the Governor and on his recommendation to the Union of India on whose advice the President is required to act.
31. The main thrust of the argument of the learned Counsel for the petitioners, during the course of the arguments, has been the removal of the Chief Minister -respondent No.1 inter alia contending that he being the head of the Government is Constitutionally responsible for any breach
of the Constitution. By not holding the elections within the specified period by the Constitution, he violated the Constitution and took various steps to cover up the Constitutional violations and thus prevented the Constitutional authority from discharging its Constitutional functions positively. The submissions have been made in view of the peculiar facts of the case i.e., the Chief Minister was the Head of the Government and consequently he is individually and collectively responsible to the Constitution, he has a knowledge of postponing the elections which is in violation of the Constitution, various ordinances have been issued and Acts enacted violating the Constitution, resulting in postponing the elections on one plea or the other. The Chief Minister was duty bound, having his Office endowed upon him to hold elections in conformity with Part 1XA. Further he has obstructed the Election Commission from conducting elections in view of his approval, both as a Chief Minister and as a Head of the Cabinet, for creation of Greater Hyderabad Corporation, which includes nine Municipalities. In support of his submission the learned Counsel for the petitioners referred to the fact that the Chief Minister assumed Office in the year 1995 and there was no election from 1991 till date. The Election Commission requested the Secretary to Government to hold elections by addressing letter dated 25-3-1999 in reply to which the Secretary replied on 1-4-1999 that the idea of forming Greater Hyderabad is being mooted and the measures are being taken up for constituting the same and awaiting final notification, which finally resulted in issuance of G.O. Ms. No. 189 dated 24-4-1999.
32. We have gone through the letter dated 25-3-1999 with the assistance of the learned Counsel for the petitioners, which is nothing else but a DO letter referring to earlier letters dated 14-4-1998, 15-5-1998, 24-9-1998, 20-10-1998 and the minutes of the meeting held on 6-4-1998 in the Office
of the State Election Commissioner, pointing out that the elections were postponed as requested by the Government in view of the letter of the Cabinet dated 15-4-1999 resolving to constilute Greater Hyderabad Corporation encompassing Municipal Corporation of Hyderabad, nine surrounding Municipalities and Gaddiannaram Gram Panchayat. It was also pointed out that there are technical aspects, which require to be resolved before issuing notification for constituting the same. The State Election Commission expressed its desire of holding elections to the present Municipal Corporation of Hyderabad and other surrounding Municipalities preferably in the month of May, 1999. In response to the said DO letter, the State Government on 1-4-1999 informed that final notification would be issued soon. Resultantly the Election Commission did not issue any notification for holding the elections. In our considered view, by reading both the letters in totality, it would be reasonable to infer that the Election Commission was never prevented from holding the elections, though it is well within the jurisdiction of the State Government or representative Government or the Cabinet to bring to the notice of the Election Commission its desire of constituting the Greater Hyderabad Corporation consisting of nine Municipalities and request for postponing the elections. The petitioners cannot be permitted to articulate a simple request to the Election Commission, which is a statutory body under Hie Constitution having all the Constitutional protections, was debarred or prevented from holding the elections solely on the ground that a request was made by the Government. Even if it is assumed to be true, the request was for waiting for constitution of Corporation. As Gandhiji has said that to attribute facts or motives or allege facts is easy to make, but difficult to prove. From these facts as referred to above, we are unable to infer that the respondents with some ulterior motive or with malice or with intention of evading to hold elections
in conformity with the alleged Constitutional mandate, specially when there is no complaint with respect to holding of elections in other local bodies.
33. Undisputedly the State Election Commission is appointed by the Governor and shall not be removed from the Office except in the manner and on the alike grounds as a Judge of the High Court by way of impeachment. Thus, the independence of the State Election Commission is ensured. It is for him to act at the request of the respondents or not to act. For his non-action, if at all any, the respondents cannot be attributed that they have failed to administer the State in accordance with the Constitution. The respondents are not the appropriate authority to hold elections. The contention of the learned Counsel for the petitioners that the 1st respondent has violated the oath of Office by not conducting elections cannot be sustained on any touchstone of judicial review.
34. The appointment of the Executive Officers or the Special Officers was continuing since 1986 till 1-9-1995 when the first respondent took over. Prior to that it was the petitioners’ political party which was holding the office for a major period. Mere resolution of the Cabinet to postpone the elections to Hyderabad Municipal Corporation in order to constitute Greater Hyderabad does not bind the Election Commission. Even if the act is indiscreet, it cannot be termed sufficient in the context to throw out an elected representative of the people holding the office in accordance with the Constitution. We are unable to raise the inference, in view of the totality of the facts narrated above, that the elections were postponed and the Election Commission was prevented from holding elections. A mere request or a fact being brought to the notice of the Election Commission does not constitute any violation of the Constitution or any other statutory provision. There
cannot be any necessary corollary in view of the facts that the first respondent is responsible for violation of Constitutional duty, either personally or jointly with his Cabinet colleagues, and has failed to discharge his Constitutional functions. Constitutional authorities always are at liberty to take administrative decisions and sufficient play has to be allowed for the authority to take adventurous decisions, which may ultimately result in fiasco for which he is answerable to the electorate and such policy decision would not be subject to judicial review, unless the policy is violative of the Constitution and appropriate relief is sought for enforcing the Constitution in accordance with law. Removal of duly elected Government is no panacea when the act can be cured by issuance of an appropriate writ, order or direction.
35. When the writ petition was being argued at length, the assistance of the Advocate-General as Amiens curiae was taken. The learned Advocate-General submitted that the Chief Minister is not entrusted by the Constitution with the functions of conducting elections to local bodies. It is the Election Commission, which is the competent authority to conduct the elections. There are innumerable Constitutional obligations imposed on the State and the Constitutional functions, which cannot be held to be reached, the non-performance of which would result in incurring disqualification either under the Constitution or any statute. Referring to Article 191 it was submitted that the Chief Minister or the respondents did not incur any legal disqualification as envisaged by the Constitution or Chapter III of the Representation of People Act, 1951. No relief has been sought against the Election Commission. The Election Commission was never prevented from holding the elections. The matter virtually involves removing the Chief Minister, who is duly elected and appointed under the Constitution.
36. We may notice the facts that (i) elections to the State Legislative Assembly have already been held, (2) writ of quo warranto at the instance of the Members of the opposition party in the Legislative House on the ground that the Chief Minister has violated the oath of office under the Constitution cannot be issued, (3) the first respondent is holding the public office, which is no! of permanent nature, but at the pleasure of the Governor, (4) the wrong alleged to have been committed by the first respondent, assuming it to be a violation, can be set right by issuing an appropriate writ, though as observed earlier, the first respondent has never prevented the Election Commission from holding the elections. (5) it is the Election Commission, which has 10 lake decision in the totality of the facts and circumstances of the case, where Greater Hyderabad Corporation has been constituted, as to whether holding the elections to Municipal Corporation and Municipalities will be a futile exercise and waste of national resources, though the operation of the said order has been stayed and slat us quo has been directed to be maintained.
37. Before parting with the judgment, we have to determine whether the petitioners are entitled to invoke the writ jurisdiction of quo warranto in view of the various facts and circumstances of the case in hand. It is undisputed that the petitioners, who are the Members of the Legislative House, were able to pass various Acts, which are alleged to be violative of the Constitution. The Acts were not challenged for almost four and half years. The writ petition has been filed as public interest on the eve of elections, by giving prior publicity of the proposed writ petition, when the issuance of notification for holding elections was expected at any lime.
38. In view of the admitted facts that the Election Commission was bound to hold elections after 31-5-1995 when the statutory
period of one year has elapsed by efflux of time, the first respondent was not the Chief Minister and was not in power and as such he was under no obligation to conduct elections to the Corporation and nine Municipalities. In fact, it was the petitioners’ party which was in power in 1994 and which kept quiet from 1991 to 1994 for four years without holding elections to the Corporation. The entire thrust of the argument is that delay and laches, in any sense cannot be ground to decline the writ of quo warranto. But the inaction on the part of the so public spirited persons and Legislators, including the elected representatives, in approaching this Court and especially the timing cannot be lost sight of while invoking discretionary jurisdiction. Even today, the petitioners have not sought any mandamus for conducting elections to the local bodies. It would be reasonable to assume that the writ petition is an attempt to use the Courts as a platform or a stage for taking political advantage at the husting by playing the game of chess in Courts. The Courts cannot be permitted to be used as springboards for gaining political advantage in the husting or ensuring publicity, against the public office holder. Non-performance of the Chief Minister or he being guilty of Constitutional violation is well within the purview of the Governor, the President and the Union of India to take notice, though we may hasten to add that the judicial review cannot be ruled out. The State Election Commission is an independent institution, which cannot be removed except by impeachment proceedings and the Constitution is consciously silent with respect to the impeachment of the Prime Minister of Union, Chief Minister or Minister of the Slate. On a plain reading of the Constitution, the Chief Minister is holder of public office, subject to the doctrine of pleasure, and the only mode provided for his removal is either invoking the provisions of Article 356 or expressing vote of no confidence. His holding of office as elected person representing the electors, who are not before
the Courts and whose rights to be represented by their elected person, cannot be denied just on an excuse and thus the democracy cannot be rendered as a mockery and the justice system cannot be brought to be ridiculed. If we may say so, the judicial review is not a panacea for all evils, political, executive or others. l,arge number of situations are left by the Constitution to be dealt with by privileges, traditions, practices, statutes enacted, powers, sovereign relationship between the elector and the voter, relationship between the State Legislature and the Centre, keeping federal structure in view, the role of judiciary, which concedingly, cannot enact laws or legislate. For development of Constitution and Constitutional principles, precedents and necessities of political life it is desirable not to invoke writ jurisdiction for issuance of infructuous or futile declarations.
39. Before parting with the judgment, we may notice the contention of the learned Counsel for the petitioners that the rule of law is the basic structure of the Constitution. For maintenance of rule of law vesting judicial review in higher Constitutional authority inherently is again the basic structure of the Constitution. There can be no dispute with the submission made in isolation. We are of view that there is no force in the submission of the learned Counsel for the petitioners that in the situations stated above, the citizen has no other choice except to approach the Court and there is no other remedy, except under Article 226 of the Constitution, for issuance of a writ of quo warranto. We have earlier observed that violation of Constitutional provision can always be set at right by issuing an appropriate writ when sought. Judicial restraint is the best arm in the armory of the judiciary. Though every action of the Legislature, Executive or any of the authority is judicially reviewable depending on the facts and circumstances of each case.
40. The observations with respect to public interest litigation in a recent judgment in Mallik Brothers v. Narendra Dadhich, SLP (Civil) No.23607 of 1996 dated 25-8-1999, of the Supreme Court wherein the Apex Court has summarised the scope of public interest litigation may be referred to support the view for declining to invoke writ jurisdiction which read as under:
“….. It is necessary to bear in mind that
a public interest litigation is usually entertained by Court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the vindicating of the rule of law, effective access to justice to the economically weaker class and meaningful realisation of the fundamental rights. The directions and commands issued by the Courts of law in the public interest litigation are for the betterment of society at large and not for benefiting any individual. But if the Court finds that in the garb of PIL actually an individual’s interest is sought to be carried out or protected, it would be the bounden duty of the Court not to entertain such petition as otherwise the very purpose of innovation of public interest litigation will be frustrated. It is in fact a litigation in which a person is not aggrieved personally but brings an action on behalf of the downtrodden mass for the redressal of their grievance.'”
41. In view of the observations made above, the writ petition is dismissed. No order as to costs.