User:Yksubba/sandbox

Of Unprecedented Decisions and Flouting of Constitutional Provisions: The Extraordinary Case of Sikkim.

The founding father of our Constitution, B.R Ambedkar articulated that however good a Constitution may be, it is sure to turn out bad if those who are called to work on it happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The foregoing proposition can be applied to the political history of Sikkim in respect of the appointment of 6th Chief Minister of Sikkim, Shri. P S Golay on 27th May, 2019 by the Hon'ble Governor of Sikkim Shri. Ganga Prasad Chaurasia wherein His Excellency had utterly misinterpreted the Article 164 of Constitution and failed to execute his discretionary power conferred upon him therein as it is inferred from the facts that his Excellency appointed Shri. P.S Golay as the 6th Chief Minister of Sikkim despite the knowledge that the latter was ineligible to be a member of the Legislative Assembly of Sikkim. His Excellency was aware of the fact that the incumbent Chief Minister of Sikkim, Shri P S Golay was ineligible to be a member of the Sikkim Legislative Assembly since he was barred from contesting election for six years from the date of his release under section 8(1)(m) of Representation of people Act, 1951 since he  was convicted under the  provisions of the Prevention of Corruption Act and was sentenced to imprisonment for a period of 1 year.

The question over which we need to ponder is whether a non elected member, who is not eligible for contesting the election to the Legislative Assembly could still be appointed as the Chief Minister under Article 164 of the Constitution, merely because the largest number of elected members to the Legislative Assembly elects such person to be their leader. The Article 164 of the Constitution conferring power on the Governor to appoint a non elected member as Chief Minister, and then appoint Ministers on the advice of such Chief Minister, does not prescribe any qualification for being appointed as Minister or Chief Minister, and on the other hand, Sub-Article (4) of Article 164 enables such a Minister to continue as a Minister for a period of six months and the said Minister ceases to be a Minister unless he gets elected as a member of the Legislature of the State within a period of six months. It is true that Articles 164(1) and 164(4) do not provide any qualification or disqualification, for being appointed as a Chief Minister or a Minister. It is well settled law that the Article 164 confers power upon the Governor to appoint a non elected member as Chief Minister. However, the Article 173 prescribes the qualification for a person to be chosen to fill a seat in the Legislature of a State and the Article 191 provides the disqualification for a person for being chosen as or being a member of the Legislative Assembly or Legislative Council of a State. It is the ugly truth that the incumbent Chief Minister, Shri. P S Golay was ineligible to be a member of the Legislative Assembly in accordance with the Article 171 (1)(c) and Article 191(1)(e) since Shri. P S Golay was barred from contesting any election for 6 years under section 8(1)(m) of the Representation of People Act, 1951. In view of foregoing circumstance, the Hon'ble Governor Shri. Ganga Prasad Chaurasia grossly misinterpreted the Article 164 and he was misconceived and failed to exercise his discretionary power in appointing the 6th Chief Minister of Sikkim and such appointment is a gross violation of the Constitution.

The second question that we need to ask ourselves is whether the orders of the President and Governors are subject to be questioned before the Courts of the land. The clause 1 of the Article 361 says that the President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. However, the immunity of  a  Governor under the Article 361 is not absolute as it is inferred from the ruling titled " Bommai vs Union  of India1994(3) SCC"  wherein the Hon'ble Supreme Court held that a proclamation issued by the President on the advice of the council of ministers headed by the Prime Minister is amenable to judicial review. In view of the foregoing ruling, it can be said that the immunity of Governor under Article 361 cannot stand as a bar from issuing a writ of quo warranto if such order breaches the provisions of the Constitution.

In the context of the Appointment of the 6th Chief Minister of Sikkim, it is futile if issues of late J. Jayalalitha is not referred herein. Late J. Jayalalitha, was Chief Minister of the State of Tamil Nadu between 1991 and 1996. In respect of that tenure in office she was (in CC 4 of 1997 and CC 13 of 1997) convicted for 3 years rigorous imprisonment under Section 120B of the Indian Penal Code read with Sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and for the offence under Section 409 of the Indian Penal Code. She preferred appeals against her conviction before the High Court at Madras and on applications filed by her in the two appeals, the High Court, by an order dated 3rd November, 2000, suspended the sentences of imprisonment under Section 389(3) of the Code of Criminal Procedure and directed the release her on bail on the terms and conditions specified in that order. Thereafter, she filed petitions in the two appeals seeking the stay of the operation of the judgments in the two criminal cases and on 14th April, 2001 a learned Single Judge of the High Court at Madras, Mr. Justice Malai Subramanium, dismissed these petitions since the convictions were, inter alia, for offences under Section 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988 and the orders were not challenged. It is pertinent to note that the incumbent Chief Minister of Sikkim Shri P S Golay was barred from contesting election under the  section 8(1)(m) which  requires sentenced to only fine  for disqualification from contesting election and clause (m) of the Section 8(1) is inserted by act of amendment in 2003. In April, 2001, Ms. J. Jayalalitha filed nomination papers for four constituencies in respect of the general election to be held to the Tamil Nadu Assembly. On 24th April, 2001 three nomination papers were rejected on account of her disqualification under Section 8(3) of the Representation of the People Act, 1951, by reason of her conviction and sentence in the two criminal cases. The fourth nomination paper was rejected for the reason that she had filed her nomination for more than two seats. On 13th May, 2001 the results of the election to the Tamil Nadu Assembly were announced and the AIADMK party, which had projected her as its Chief Ministerial nominee, won by a large majority. On 14th May, 2001, consequent upon the result of the election, the AIADMK elected Ms. J. Jayalalitha as its leader and on 14th May, 2001, she was sworn in as Chief Minister of the State of Tamil Nadu. The writ petitions were filed in the High Court of Madras and the Supreme Court contended thereby that Ms J. Jayalalitha could not  be sworn in as Chief Minister and cannot continue to function as such. They seek directions in the nature of quo warranto against her.

The Constitutional bench of five judges of Hon'ble Supreme Court was pleased to deliver judgment in respect of the appointment of Ms. J. Jayalalitha as Chief Minister on 14th May, 2001 in the writ petition filed by B.R Kapoor along with other petitions in titled "B. R Kapoor vs State Of Tamil Nadu And Anr. on 21 September, 2001", wherein with consensus of all five judges declared that the appointment Ms. J. Jayalalitha   as Chief Minister of the State of Tamil Nadu on 14th May, 2001 was not legal and valid and that she cannot continue to function as such and the appointment order was  quashed and set aside. In the said judgment, the bench observed and held that, which is to be reproduced herein "To accept learned counsels submission is to invite disaster. As an example, the majority party in the legislature could recommend the appointment of a citizen of a foreign country, who would not be a member of the legislature and who would not be qualified to be a member thereof under Article 173, as Chief Minister under Article 164(1) read with (4) to the Governor; and the Governor would be obliged to comply the legislature would be unable to pass a no-confidence motion against the foreigner Chief Minister because the majority party would oppose it; and the foreigner Chief Minister would be ensconced in office until the next election. Such a dangerous such an absurd interpretation of Article 164 has to be rejected out of hand. The Constitution prevails over the will of the people as expressed through the majority party. The will of the people as expressed through the majority party prevails only if it is in accord with the Constitution. The Governor is a functionary under the Constitution and is sworn to preserve, protect and defend the Constitution and the laws (Article 159). The Governor cannot, in the exercise of his discretion or otherwise, do anything that is contrary to the Constitution and the laws. It is another thing that by reason of the protection the Governor enjoys under Article 361, the exercise of the Governors discretion cannot be questioned. We are in no doubt at all that if the Governor is asked by the majority party in the legislature to appoint as Chief Minister a person who is not qualified to be a member of the legislature or who is disqualified to be such, the governor must, having due regard to the Constitution and the laws, to which he is subject, decline, and the exercise of discretion by him in this regard cannot be called in question. If perchance, for whatever reason, the Governor does appoint as Chief Minister a person who is not qualified to be a member of the legislature or who is disqualified to be such, the appointment is contrary to the provisions of Article 164 of the Constitution, as we have interpreted it, and the authority of the appointee to hold the appointment can be challenged in quo warranto proceedings. That the Governor has made the appointment does not give the appointee any higher right to hold the appointment. If the appointment is contrary to constitutional provisions it will be struck down. The submission to the contrary unsupported by any authority must be rejected.”

The evidence is simply unequivocal: that the Honorable Governor Shri Ganga Prasad Chaurasia has grossly failed to honour the oath sworn by him under article 159 and  thumbed his nose to the Supreme Court's verdict to boot and appointed the 6th Chief Minister of Sikkim unconstitutionally. Hence it will be no exaggeration to mark that fateful 27th day of May, 2019 as the darkest day in the political history of India. It is my request to all my countrymen that we owe it to ourselves and to the future generations to observe this day as the Darkest Day for years to come.

Yam Kumar Subba ( lawyer at Delhi High Court and Sikkim High Court)