CWJC No.5178 of 2009 ------- In the matter of an application under Artile 226 of the Constitution of India. --------- S.N.PATHAK son of lat Sidh Nath Pathak, 115, Lawyer‟s Chamber, Bihar Bar Council Bhawan, East High Court, Building, Patna ……..Petitioner Versus 1. THE STATE OF BIHAR through the Chief Secretary, Govt. of Bihar Old Secretariat, Patna. 2. The Union of India through the Cabinet Secretary, Cabinet Secretariat, Rashtrapati Bhawan, New Delhi-110004. 3. Sri Laloo Prasad, Minister of Railways, 25 Tuglak Road, New Delhi- 110001, Presently residing at 5, Deshratna Marg, Patna. ……. Respondents. ----------- For the petitioner : Mr. S.N. Pathak, Advocate For the State : Mr. Harendra Pd. Singh, GA-VI Rajiv Kumar A.C. to GA-VI ------- P R E S E N T THE HON‟BLE THE CHIEF JUSTICE THE HON‟BLE DR. JUSTICE RAVI RANJAN J.B. Koshy CJ This writ petition was filed for issuance of quo-warranto against the Union Minister, Shri Laloo Prasad for ousting him from the chair as the Union Minister, Railway. The allegation against him is that Shri Laloo Prasad had made derogatory statement that he would have crushed roller over the chest of Varun Gandhi who had given speech against the Muslim community. 2. A supplementary affidavit has been filed thereafter for issuance of writ of mandamus commanding the respondents to discharge his obligation as enjoined upon them by the Constitution of India in compelling the respondent no. 3 to abide by the constitutional obligation which lies upon them. And also for issuance of a writ or an order including a writ in the nature of prohibition to the respondent no.3 prohibiting him not to make derogatory and unconstitutional statement in public meeting. 3. At the outset, we shall consider the question what is meant - 2 - by „writ of quo warranto‟ and under circumstances it can be issued. A writ of quo warranto poses a question to the holder or occupier of a public office - what is your warrant of appointment by which you are holding the office? If the answer is not satisfactory, the usurper can be ousted by issuance of a writ of quo warranto. In other words, the usurper of a public office is asked by what authority or warrant he is in such office. Quo warranto is a remedy or a procedure whereby the legality of the claim by a person asserts to an office or franchise is looked into and ousts such persons from the enjoyment of public office if he has no authority to hold such office. Ingredients necessary for the quo warranto writ was considered by the Constitution Bench of the Supreme Court in University of Mysore and another v. Govinda Rao and another (AIR 1965 SC 491),wherein the Court defined the broad principles as follows (at paragraph 7): “……. Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty, if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions, it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person - 3 - entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not”. (emphasis supplied) This doctrine is explained in the Halsbury‟s Laws of England is as follows (at paragraph 169, 4th Edition, Volume I): “An information in the nature of quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.” In Corpus Juris Secundum, Volume 74, paragraph 1, it is stated as follows: “Quo warranto is a proceeding to determine the right to the exercise of a franchise or office and to oust the holder if his claim is not well founded, or if he has forfeited his right.” 4. The second question to be considered is, whether the High Court or the Supreme Court has got power to issue a writ of quo warranto, as it is a common law remedy of a prerogative nature. In Shri Kumar Padma Prasad v. Union of India (AIR 1992 SC 1213) it was held that the High Courts and the Supreme Court can issue a writ of quo warranto in appropriate circumstances. In that case, the President of India, by a warrant dated 15.10.1991 under his hand and seal, appointed K.N Srivastava as a Judge of the Gauhati High Court. He has not as yet made and subscribed an oath/affirmation as required under Article 219 of the Constitution of India and as such has not entered upon his office. The question under consideration was whether the appointment of Srivastava as High Court Judge is infraction of Articles 217(2) and 217(1) of the Constitution of India. Is he qualified for - 4 - appointment as a Judge? If so, has the mandatory process of consultation under the Constitution been followed? He had no mandatory judicial experience or experience in the Bar. His experience was only six months in the assignment for doing judicial work in the Mizoram Government while he was Secretary of Law and he had exercised quasi judicial functions earlier. The Supreme Court issued a quo warranto writ preventing him from taking oath. In those circumstances, quo warranto cannot be issued. While issuing a writ of quo warranto, the apex Court further held as follows: “41. We allow transferred writ petition of Kumar Padma Prasad and declare that K.N Srivastava, on the date of issue of the warrant by the President of India, was not qualified to be appointed as a Judge of the High Court. As a consequence, we quash his appointment as a Judge of the Gauhati High Court. We direct the Union of India and other respondents present before us not to administer oath or affirmation under Art. 219 of the Constitution of India to K.N Srivastava. We further restrain K.N Srivastava from making and subscribing an oath or affirmation in terms of Art. 219 of the Constitution of India and assuming office of the Judge of the High Court”. In view of the above authoritative pronouncement, we are of the view that the Supreme Court or the High Courts can issue writ of mandamus in appropriate circumstances. 5. The third question is, whether a writ of quo warranto can be issued against a Minister? It is settled law that a writ of quo warranto can be issued against a Minister as he is holding a public office without any legal authority. If his initial assumption of office is valid and subsequently disqualified to hold the office, a writ of quo warranto can be issued. In S.R Chowdhury v. State of Punjab and others (AIR 2001 SC 2707), while considering the case of a person who was appointed as Chief Minister though not a Member of the Legislative Assembly, the Supreme Court held that even though under Article 164(4) of the Constitution of India he could be appointed for an initial period - 5 - of six months, he cannot be allowed further to hold the office beyond the period of six months without the authority of law. Holding so, the Supreme Court, in that particular case, a writ of quo warranto was issued. In B.R Kapur v. State of Tamil Nadu and another (AIR 2001 SC 3435), the Supreme Court also held that if a person is disqualified to become a member of the legislature, he cannot be appointed as a Minister or Chief Minister under the guise of Article 164(4) and a quo warranto writ can be issued to oust such person from office. In that case, Smt. Jayalalitha, who was convicted and sentenced by a court of law for imprisonment for more than two years, without becoming a member of the Legislative Assembly occupied office of Chief Minister of Tamil Nadu by virtue of Article 164(4) of the Constitution. The apex Court held that if she is not qualified to become a member of the Legislative Assembly, she cannot be appointed as a Minister or a Chief Minister. Holding so, it further held thus: “51. 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 Art. 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 the constitutional provisions it will be struck down. The submission to the contrary - unsupported by any authority – must be rejected.” 6. The next important question is, whether a writ of quo warranto can be issued against a Minister for his alleged speech? A Full Bench of the Kerala High Court in K.C Chandy V.R. Balakrishna Pillai (1985 KLT 762) (F.B) held that quo warranto cannot be issued for the alleged violation. The Court held that breach of oath is different from absence of oath and if there is - 6 - breach of oath, action has to be exercised by the appointing authority under the Constitution. Whether breach of oath of office and of secrecy of India. The Full Bench held as follows: “7. Breach of oath may thus be a betrayal of faith. The appointing authority, the Governor, in such cases, can consider whether there was, in fact, any breach of oath. It is not for this Court to embark on any such enquiry. 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 is, 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 Article 164(3) of the Constitution. A person without authority cannot function; and the jurisdiction under Article 226 could be envoked to prevent that surper in office from functioning. 9. Breach of oath requires a termination of the tenure of office. This power can be exercise 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 Article 226 in such cases. Proceedings under Article 226 in such cases do not lie. It was Jefferson 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) 10. The question as to whether there was breach of oaths of office and of secrecy committed by a Minister is outside judicial review under Article 226 of the Constitution.” 7. In the decision reported in Raju Puzhankara v. Kodiyeri Balakrishnan (2009(1) KLT 901), a Division Bench of the Kerala High Court, in which one of us (Koshy, Ag.C.J) was a party, held that a writ of quo warranto cannot be issued even if there is violation of oath and the remedy lies elsewhere and not a writ petition under Article 226 of the Constitution. A writ of quo warranto can be issued by the Court only sparingly in very rare circumstances where it is fully convinced that the occupier is holding office without any authority of law. Whether there is breach of oath of office is - 7 - outside the scope of judicial review under Article 226 of the Constitution. We do not think that in a proceeding under Article 226 of the Constitution of India, there is any necessity to consider whether the expression made by the Cabinet Minister is proper or not. Impropriety of a statement by the Minister is non justiciable. Violation of oath is different from impropriety. In any event, a writ of quo warranto cannot be issued on the ground of impropriety in the conduct of a Minister. In the above circumstances, we are of the view that a writ of mandamus cannot be issued against respondents 1 and 2 to compel them to take action against the third respondent. 8. The alternate prayer of the petitioner is to issue a writ of mandamus to the authorities to take action against the third respondent for making such offensive speech. Mandamus is a command issued to any person or authority requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Mandamus will lie to any person who is under a duty imposed by statute or by the common law to do a particular act. If that person refrains from doing the act or refrains, from wrong motives, from exercising a power which it is his duty to exercise, the Court will, by order of mandamus, direct him to do what he should do. While „mandamus‟ is a per-emptory order of the Court commanding somebody to do that which he is under a clear legal duty to do, „quo warranto lies‟ lies against a person who has claimed or usurped an office, franchise or liberty, to enquire by what authority he supported his claim in order that the right to the office or franchise might be determined (see University of Mysore v. C.D Govinda Rao - AIR 1965 SC 491). It is also settled law that the writ of mandamus will not lie against the President, or the Governor of a State, 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 exercise and performance of those powers and duties. In Nagaraj v. State of - 8 - Karnataka (AIR 1977 SC 876), it was held that it is only a person whose rights have been infringed who may apply for mandamus. In this case, it is not stated how the rights of the petitioner has been infringed by any of the respondents named herein to issue a writ of mandamus against them. The petitioner has not approached any of the authorities before filing the writ petition for performance of a particular duty. On seeing a newspaper report, one cannot immediately rush to this Court seeking issuance of a writ of mandamus. The writ of mandamus is issued for securing enforcement of public duties, performance of which has been wrongly refused. It is a discretionary remedy and an extra-ordinary legal remedy. It cannot be issued at the instance of a person who has not approached the public authorities to do the needful. It can be refused when the petition is not filed in good faith. Here the authorities, who are empowered to act when there is violation of oath, are not made parties. Therefore, without approaching the authorities, the writ petition filed is premature. Firstly the person aggrieved shall request the public authorities to do their duty and if they refuse to do it, then they can approach this Court. This Court cannot issue a writ of mandamus when the petitioner has not made any representation before the authorities concerned. The alternate prayer of the petitioner is to issue a writ of mandamus to the authorities to take action against the third respondent for making such offensive speech. Mandamus is a command issued to any person or authority requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Mandamus will lie to any person who is under a duty imposed by statute or by the common law to do a particular act. If that person refrains from doing the act or refrains, from wrong motives, from exercising a power which it is his duty to exercise, the Court will, by order of mandamus, direct him to do what he should do. While „mandamus‟ is a per-emptory order of the Court commanding somebody to do that which he is under a clear legal duty to do, - 9 - „quo warranto lies‟ lies against a person who has claimed or usurped an office, franchise or liberty, to enquire by what authority he supported his claim in order that the right to the office or franchise might be determined (see University of Mysore v. C.D Govinda Rao - AIR 1965 SC 491). It is also settled law that the writ of mandamus will not lie against the President, or the Governor of a State, 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 exercise and performance of those powers and duties. In Nagaraj v. State of Karnataka (AIR 1977 SC 876), it was held that it is only a person whose rights have been infringed who may apply for mandamus. In this case, it is not stated how the rights of the petitioner has been infringed by any of the respondents named herein to issue a writ of mandamus against them. 9. So far as the writ of prohibition is concerned, it is a judicial writ issued from a Court of superior jurisdiction to an inferior Court or a tribunal or an inferior temporal court or a quasi-judicial authority to prevent those Courts/tribunals from continuing their proceedings in excess or abuse of their jurisdiction, in violation of the rules of natural justice or in contravention of the laws of the land. In Govinda Menon v. Union of India (AIR 1967 SC 1274), it was held that „prohibition‟ is a judicial writ, issuing out of a superior Court, to an inferior Court, preventing the inferior Court from usurping jurisdiction with which it is not legally vested, or in other words, to compel Courts with judicial duties to keep within the limits of their jurisdiction, or to prevent them from violating the rules of natural justice. The writ of prohibition can be issued to an inferior court or Tribunal to forbid that Court from continuing proceedings therein in excess of its jurisdiction or in contravention of the law of the land. It is a discretionary remedy. Where the defect of jurisdiction is not apparent on the face of the proceedings, Courts need not exercise that discretion. It cannot be issued to the third respondent - 10 - for his alleged private speech made during election. If an action of the Court is in violation of statutory provisions or has no statutory basis, writ of prohibition will lie as held in East India Commercial Co. v. Collector of Customs (AIR 1962 SC 1893). Unlike writ of mandamus, a writ of prohibition would lie only against judicial/quasi judicial authorities, as held in East India Commercial Company’s case (supra). It can be filed against a Minister if he is doing any quasi-judicial function, for preventing him from doing any act legally prohibited, like granting licence against the provisions of the statute. The Court has power to issue a writ of prohibition preventing any tribunal from doing any quasi-judicial or statutory function without jurisdiction or in violation of the rules of natural justice or if there is likelihood of doing any act which is unconstitutional or in contravention of the fundamental rights or the statutory provisions. However, a writ of prohibition cannot be issued against a person, even if he is a Minister, preventing him from making speeches of a particular type or in violation of the Code of Election. 10. In view of the above findings, we hold that the writ petition is not maintainable and writ of mandamus, prohibition or quo warranto cannot be issued as prayed for by the petitioner and, therefore, the writ petition is liable to be dismissed in limine. We do so. The petitioner will be free to approach the appropriate authorities for the redressal of his grievances. We are told that the Election Commission is already in seizure of the matter. We make it clear that we have not considered the questions, whether the third respondent had made such a speech, what was the intention of his speech, whether it was offensive, whether any legal action could be taken against him for making such a speech, etc. in this writ petition. We have considered only the question of maintainability. We make it clear that by way of public interest litigation, this Court cannot be made a political battle - 11 - ground and that the Court cannot exceed the jurisdiction vested in it, on the ground of public interest for publicity sake. (J.B. Koshy, CJ) Dr. Ravi Ranjan, J. (Dr. Ravi Ranjan, J) Patna High Court The 24th April 2009 Rahman/ AFR