ORDER
1. In this petition presented by the petitioner praying for the issue of writ of quo warranto against the respondent, who is the Minister of Public Works and Irrigation of the State of Karnataka, the following question arises for consideration :
Whether this Court has jurisdiction under Art. 226 of the Constitution of India to issue writ of quo warranto on the allegation that person who happens to be a Member of the Council of Ministers of the State had committed a breach of his oath which he had taken under Art. 164(3) of the Constitution of India ?
2. The petitioner is a practicing Advocate of this Court. The respondent is a Member of the Council of Ministers of the State. He took his oath of office and became a Minister on 16th Aug 1988. The petitioner has stated that the respondent was a Member of the Council of Ministers on an earlier occasion also and during the period when he was in office he had given recommendatory letters to several persons recommending to the Chairman of the City Improvement Trust Board, Mysore, to allot sites and that he had admitted on the Floor of the Legislature that he had given such letters and pursuant to those letters sites had been allotted to the persons in whose favour he had given letters of recommendation.
3. This admission, the learned Counsel for the petitioner contends, clearly discloses the breach of oath on the part of the respondent, which he is required to take and had taken under Art. 164(3) of the Constitution. The said Article reads: –
“164. Other provisions as to Ministers -(I) 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:
Provided that in the States of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes of any other work.
(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 oath 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) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule.
The form of oath which a Minister has to take is in Schedule III to the Constitution.
“I, A.B., do swear in the name of God solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will faithfully and conscienciously discharge my duties as a Minister for the State of. ……….and that I will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or illwill.”
The petitioner has contended that according to the oath, the Minister was required to do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or illwill, but by making recommendations in favour of individuals for allotments, he had violated the oath, in that, he did wrong to others and also favoured the persons in whose favour he had given recommendatory letters.
4 The question, therefore, for consideration is whether this Court has jurisdiction to issue a writ of quo warranto and remove a person from the office of a Member of the Council of Ministers in exercise of its powers under Art. 226 of the Constitution.
5.The matter is not res integra. The matter has been considered in great detail by a Full Bench of the Kerala High Court in K.C. Chandy v. R. Balakrishna, . The relevant portions of the Judgment in the above case read (at p. 119):
“8. Breach of oath is different from absence of oath. Absence of oath prevents entry into office while breach affects the continuance after a valid entry. If no oath is taken before assumption of office as enjoined by the Constitution, there is no legal title to hold that office and a writ of quo warranto will naturally go from this Court. Similarly, 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. This is the mandate of Art. 164(3) of the Constitution.
A person without authority cannot function; and the jurisdiction under Art. 226 could be invoked to prevent that usurper in office from functioning.
9. Breach of oath requires a termination of the tenure of office. This power can be exercised by the appointing authority under the Constitution, and according to the procedure, if any, prescribed therein. The termination of that tenure is not the function of a Court; and it would not be appropriate to exercise jurisdiction under Art. 226 in such cases. Proceedings under Art. 226 in such cases do not lie. It was Jeferson who said:
‘Our peculiar security is in the possession of a written Constitution; let us not make it a blank paper by construction’ (Government by Judiciary – Raoul Berger, p. 304).”
The matter was further considered by a Division Bench of the Kerala High Court in K. Sukumaran v. Union of India, Alp, 1987 Ker 212. Speaking for the Division Bench Malimath, C.J., held that (at pp. 218, 219: 220, 221):
“20. It is only necessary to note that there is no dispute that a speech was made by R. Balakrishna Pillai on 25-5-1985. There is, however, serious dispute regarding the contents of the speech and in the counteraffidavit in O.P. No. 4125 of 1986 dt. 26-81986. Shri Balakrishna Pillai has stated that the original petition is based on “absolutely untrue and distorted version of the speech” and asserted that there was no violation of oath. The contention of the petitioners is that by the speech made on 25-5-1985, he committed a breach of oath resulting in automatic forfeiture of the office and that his re induction as Minister on taking a fresh oath on 26-5-1986 was also not legally permissible.
xxx xxx xxx
When the Full Bench held that the question as to whether there was breach of oath is outside judicial review under Art. 226 of the Constitution, and that it is a question which is within the discretionary domain of the Chief Minister, and/or the Governor, that authority has the discretion to remove or not to remove the Minister on the ground of breach of oath. It is a matter left entirely to the discretion of the Chief Minister and/or the Governor as to what is the proper action to be taken, if he is satisfied that the Minister has committed a breach of oath. It is so held because the Minister holds his office at the pleasure of the Chief Minister and/or the Governor and neither the Constitution nor any law made by the Parliament either prescribes breach of oath as a disqualification for holding the office of a Minister or provides forfeiture of office as a penalty for breach of oath.
24. Thus, we find that the Full Bench has clearly laid down the following propositions:
(1) That breach of oath of office taken by the Minister is not a disqualification constitutionally listed under Art. 191 of the Constitution or specified under any law made by the Parliament;
(2) That the oath of office is the prescription of a fundamental code of conduct in the discharge of the duties of a Minister and not a mere moral obligation and binds him throughout his tenure of office.
(3) That the office of the Minister is held at the pleasure of the Governor/Chief Minister and therefore termination at their will may be the possible outcome of breach of oath;
(4) That the question as to whether there was breach of oath can be considered by the appointing authority under Art. 164(1) of the Constitution and not by the High Court under Art. 226. It falls within the discretionary domain of the Governor and/or the Chief Minister;
(5) That breach of oath requires termination and this power can be exercised by the appointing authority at its discretion and not by the Court under Art. 226 of the Constitution;
(6) That the Court has no jurisdiction under Art. 226 to oust a Minister on the ground that he has committed breach of oath.”
6. From the Judgment of the Division Bench of the Kerala High Court, two things are clear:
(1) That a breach of oath of office by a Minister is not prescribed by the Constitution as a disqualification for being or continuing as a Minister. Therefore, it does not constitute a ground for the issue of a writ of quo-warranto under Art. 226 of the Constitution;
(2) That breach of oath of office even if it creates a disqualification, it does not create any permanent disqualification.
7. This question was also considered by a Full Bench of the Andhra Pradesh High Court in D. Satyanarayana v. N. T. Rama Rao, . In that case also the question for consideration before the Full Bench was whether the High Court has the power under Art. 226 of the Constitution to issue a writ of quo-warranto directing removal of the Chief Minister on the ground that he had forfeited his right to continue in his office on various grounds. The Full Bench of Andhra Pradesh High Court held that under Art. 226 of the Constitution, the High Court has no power to issue any writ. The same view has been taken by Chandrakantaraj Urs, J., in A. K. Subbaiah v. Ramakrishna Hegde, . In that Judgment, the learned Judge has followed the Division Bench decision of the Kerala High Court referred, to above.
8. I respectfully agree with the views expressed by the Full Bench and the Division Bench of the Kerala High Court and the Full Bench of the Andhra Pradesh High Court and the view taken by Chandrakantaraj Urs, J., in the case of A. K. Subbaiah v. Ramakrishna Hegde.
9. Further, in this case, the learned counsel for the petitioner does not dispute that the alleged breach of oath which is made the basis for this writ petition was long before the respondent took oath of office on 16-8-1988. A breach of oath can only be subsequent to the taking of the oath. Hence, there is no basis at all for the contention raised by the petitioner. Learned counsel for the petitioner frankly submitted that the breach of oath, during an earlier tenure even if true, constitutes no disqualification for again becoming a Minister as held by the Kerala High Court.
10. For these reasons, I answer the question set out first, as follows: –
This Court has no jurisdiction under Art. 226 of the Constitution of India to issue a writ of quo-warranto on the allegation that a person, who happens to be a Member of the Council of Ministers of the State, had committed a breach of his oath which he had taken under Art. 164(3) of the Constitution of India.
and dismiss the writ petition.
11. Petition dismissed.