JUDGMENT
B. Subhashan Reddy, C.J.
1. Issuance of writ is sought for directing the second respondent to induct an M.L.A. from Muslim community in the Council of Ministers of the State of Tamil Nadu.
2. The petitioner is an advocate and he filed this writ petition as pro bono publics representing the Muslim minority community in the State of Tamil Nadu and pleading that right from 1954 to 2001, regardless of the parties governing the State, be it Congress, D.M.K. or A.D.M.K., there was at least one Muslim Minister in all those Governments representing the Muslim minority populace of the State of Tamil Nadu and
that only presently, after Dr. J. Jayalalithaa took over the reins as Chief Minister of this State on 2-3-2002, there Is no representation from Muslim community in the Council of Ministers, and because of the fact of continuous Muslim representation in the Council of Ministers right from 1954 to 2001, the said custom has become a force of law under Article 13(3) of Constitution of India. One more reason stated is that for administration of wakfs, a Minister from Muslim community is necessary, taking objection that presently. Minister for Labour is also holding the portfolio of Wakfs.
3. Mr. S.B. Faziluddin, learned counsel appearing for the petitioner, reiterated the said contentions, and has cited the judgment of the Supreme Court in S. C. Advocates-on-record Assocn. v. Union of India, , in support of his contention. The learned counsel submits that under Article 13 of Indian Constitution, ‘law’ includes any ordinance, order, bye-law, rule, regulation notification custom or usage having, in the territory of India, the force of law, that because of the induction of public representatives from Muslim community in the successive Ministries, right from 1954 to 2001, a custom has been recognised to have a representative from Muslim community in the Council of Ministers in the State of Tamil Nadu, that as such, there is a fundamental right in that regard, and because of the non-inclusion of any Muslim candidate in the Council of Ministers, the said Fundamental Right is violated and he points to Article 14 in that regard. He also cited Sections 13 and 14 of Wakfs Act and basing on the same, submits that only a Muslim Minister can administer and monitor the Wakfs and a non-Muslim Minister cannot do that. Apart from the decision mentioned supra, he also relies upon the decision in Krishna Singh v. Mathura Ahir, .
4. Taking notice on behalf of the second respondent and countering the arguments of the learned counsel for the petitioner, Mr. N. R. Ghandran, learned Advocate General, submits that a matter like this is not justiciable, and it is the sole privilege of the Chief Minister under Article 164 of the Indian Constitution, to choose his/her Council of Ministers and that Courts cannot impose any candidate or even issue directions to have representation from this or that particular community. He also submitted that Article 13 has got absolutely no application to this case.
5. Article 13 of the Indian Constitution speaks of a limited Government in the sense that any existing law on the commencement of the Constitution or any law to be made by the State, inconsistent with Part III of Indian Constitution, dealing with Fundamental Rights, is void. The learned Advocate General is correct in saying that the definition of ‘law’ in Sub-article 3 of Article 13 of Indian Constitution has to be understood only in the context that even a custom or usage, which is inconsistent with Part III, is void, and for that purpose, they have been included in the definition of ‘law’ in Clause (a) of Sub-article 3 of Article 13 of the Constitution. The relief sought for cannot be traced to Part III of Indian Constitution. Krishna Singh’s case (second cited supra) is also of no help to support the petitioner as it only says that Part III of Indian Constitution does not touch upon the personal law of the party. The Wakf Act has got no relevance in so far as the formation of Ministry is concerned. It is not the case of the petitioner that the functions to be discharged by the members of Muslim community under Wakfs Act are being interfered with. Wakf is a creation of a statute and that is to be administered by a body or authority constituted under the Wakfs Act, and there is no complaint of any sort that functions of such bodies/authorities constituted under Wakfs Act, are being interfered with. What is stated by the Supreme Court in paragraphs 353 to 355 in the decision of the Supreme Court in S.C. Advocates on Record Assocn. (mentioned supra), has got no bearing on the facts of this case. In the said case, the Supreme Court was dealing with the interpretation of Articles 124, 217 vis-a-vis Article 50 of Indian Constitution. If we have to say, the ratio laid down in the said judgment, runs contra to the argument of the learned counsel for the petitioner as the said judgment stresses on the independence of the judiciary and that appointments to judicial posts should be within the realm of the High Court and Supreme Court with primacy for the Chief Justice of India and that the Executive has no say in the said matters. On the same analogy, the Judiciary also cannot have any say in the formation of Ministry. That is a matter left to the discretion of the Chief Minister alone and nobody else, as rightly pointed by the learned Advocate General referring to Article 164 of the Indian Constitution. Article 164 reads.
“164. Other provisions as to Minister,–(1) The Chief Minister shall be appointed by the Governor and the other Minister 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 or any other work.
(2) to (5)…………………”
The said Constitutional provision is very clear and does not admit of any interpretation, and it is only the sole prerogative of the Chief Minister to form the Ministry by choosing such Ministers as the Chief Minister may deem fit. Such is the absolute discretion of the Chief Minister without permitting outside intervention. Indian Constitution earmarks the functions of each of the three organs of the State, Legislature, Executive and Judiciary. Article 50 aims at separation of powers of each of the above wings. Interference of one organ in the functions assigned to the other organ is impermissible. As Article 13 of the Constitution limits the right of the Government to legislate laws infringing the Fundamental Rights guaranteed in Part III, other Constitutional provisions relating to the Legislature and the Executive also limit the power of the Judiciary. Article 164 is one such provision curtailing the right of Judiciary from intervening in the matter relating to appointment of Ministers. Who has to be appointed a Minister, whether a particular community needs representation in the Ministry, and the subjects to be allocated to each of the Ministers, are all within the domain and absolute discretion of a Chief Minister. Such matters fall outside the ambit of Article 226 of Constitution of India. We feel it apt to extract the statement of the Supreme Court in State of Bihar v. Bihar Distillery Ltd., .
“18…………. The Court must recognise the
fundamental nature and importance of legislative process and accord due regard and deference to it, just as the Legislature and the Executive are expected to show due regard and deference to the Judiciary. It cannot also be forgotten that our Constitution recognises and gives effect to the concept of equality between the three wings of the State and the concept of ‘checks and balances’ inherent in such scheme.”
Thus, we refrain from entering into the said forbidden political field. In view of what is stated supra, the writ petition is dismissed. No costs.