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Judgment
E. Padmanabhan, J.—The present Writ Petition has been filed praying for the issue of a Writ of Quo Warranto calling upon the first
respondent to show cause as to how and the authority under which the first respondent continues to be the Member of the Tamil Nadu State
Legislature and the Chief Minister of Tamil Nadu. The petitioner herein, a resident of Ganguvarpatti and claiming to be a devout Hindu, claims that
his family known as ""Periyanaicker family"" carried out various services in the local temples, that his ancestors have given large properties to
Arulmigu Kamakshi Amman and to Arulmigu Muthallamman temple, that in those temples more than 1000 devotees gather and carry fire pot on
their hands and take processions around the temples, that the petitioner is a social worker, keenly interested in the integrity of Indian community
and that the present writ petition has been filed with respect to larger issue of constitutional importance.
The petitioner further claims that the respondent No. 1 is the President of Dravidar Munnetra Kazhagam, which according to the petitioner
commands majority in the State Legislature, that the first respondent has been elected as a member of the State Legislature and has been chosen as
leader of the Party in the Assembly, that he was invited by the Governor of the State to form the Ministry, and he had become the Chief Minister
of the State, that the first respondent is holding the post of Chief Minister as per the terms of our National Constitution that as a Chief Minister, the
first respondent has got greater responsibilities than an ordinary citizen and has to behave and conduct himself as a common man and set an
example to the other members of public and that he is also a guardian of public life and public morality.
The petitioner refers to the Kundam Festival in Arulmighu Pannariamman temple, where devotees, irrespective of caste, creed or religion
participate in fire walk, which is the main ritual during the said festival.
According to the petitioner, the general belief of the fire-walkers-devotees is that the God Almighty had fulfilled their pleas already made to the
deity or that the deity should fulfill their particular prayer and it is an universally accepted religious ceremony.
The petitioner states that on 25.3.1997, the annual Kundam Festival was held, that one of the Ministers in the State Cabinet and certain
members of the Legislature also participated in the ""fire-walk"", which was published widely in the media, that on 26.3.1997, the first respondent
while participating in a marriage, addressed the marriage gatherings, referred to the said Kundam Fire Walk as well as the participation of Minister
and the members of the Legislative Assembly in the fire walk and had commented that such acts are ""Katumirandithanam (barbaric), that the first
respondent also referred to the rituals like wearing neem leaves as dress, perforating the body and dragging chariots, taking food in the mud pot
itself and carrying kavadies are uncivilised and that this speech of the first respondent was widely covered by the media.
The petitioner further states the first respondent had also warned the Ministers and members of the Legislative Assembly concerned to make an
apology for their participation in the religious ceremony, that any occurrence of this nature will be viewed seriously, and that the concerned
Ministers and members of the Legislative Assembly have tendered apology and there was no further action.
It is also stated that on the floor of the Legislative Assembly on 3.4.1997, the leader of the opposition sought for a clarification from the first
respondent in this respect, that the first respondent did not deny the observations made by him, such as ""barbaric"" and ""uncivilised"", but sought to
justify that his remarks were intended only to his party men and not against the general devotees of the land, that the first respondent clarified that
his party men had participated in the ""fire-walk"" with a prayer for the continuance of his Ministry and therefore, he had to warn them, that on the
floor of the Assembly, the respondent No.1 declared that his party had lost power in the State on two prior occasions and that he is now prepared
to lose power for upholding ""rationalism"".
The petitioner further states that he was shocked by such a statement and he and his colleagues in the study circle, through Mr.D. Gurusamy
sent a communication on 25.4.1997 demanding his resignation, as according to them, the first respondent had violated his oath taken under Article
164 of the Constitution and also infringed the Fundamental Rights guaranteed under Articles 25 and 26 of the Constitution, that the said acts of the
first respondents are contrary to norms of the Constitutional Morality and that the first respondent has got no right to continue as a member of the
State Legislature and as the Chief Minister of the State.
Under these circumstances, the petitioner had come before this Court and had filed the present writ petition.
According to the petitioner, the petitioner and others have got a fundamental right to practise and profess their respective religion, nobody can
infringe this fundamental right, there may be many citizens in the country, who do not have belief in religion, but such persons cannot hurt the
religious faith of others and they do not have a fundamental right to make inroad in the feelings and practices of others.
The petitioner further alleges that a person may claim to be an atheist or rationalist, but he cannot outrage the religious feelings of others
deliberately or maliciously, which will attract criminal action u/s 295A of the Criminal Procedure Code as the freedom of religion is guaranteed
under Articles 25 and 26 of the Constitution, that the observations of the respondent No. 1. viz., Kattumirandithanam (barbaric) and uncivilised are
only deliberate and malicious, that the justification of the first respondent on the floor the Legislative Assembly with reference to the prior remarks
that it is intended only to his party men and not against others, which according to the petitioner is pure jugglery and that the first respondent as the
Chief Minister, has to restrain himself from making calculated, deliberate and malicious remarks.
The petitioner further alleges that by making such statement and the justification attempted thereof, the first respondent had violated the oath
taken by him under Article 165 of the Constitution and hence, had lost his right to continue as the Member of the State Legislature and also to
continue as the Chief Minister of the State.
The petitioner apprehends that in other temples, wherein fire walking, taking kavadies are regular rituals it is uncertain as to whether the officials
will allow performance of such rituals.
Heard Mr.V. Subramaniam Senior Counsel for petitioner.
The learned Senior Counsel for petitioner, while referring to the averments in the affidavit filed in support of the writ petition as well as the
material papers placed before, this Court, contended that the first respondent had committed breach of oath of office and he has forfeited his right
to continue as a member of the Legislative Assembly as well as the Chief Minister of the State. Hence, a Writ of Quo Warranto has to be issued
under Article 226 of the Constitution as the first respondent had committed breach of oath, which disentitles him from continuing in office.
The learned Senior Counsel referred to the provisions of the Constitution and also placed reliance upon the following judgments;
(i) Seshammal and Others, Vs. State of Tamil Nadu,
(ii) Anbazagan v. The Secretary, The Tamil Nadu Legislative Assembly (1987 Writ L.R. 568) and
(iii) Public Prosecutor v. Ramaswami (AIR 1964 Madras 258)
The learned Senior Counsel also referred to the Constitutional provisions of Articles 164 (3), 188 and the Form of Oath or Affirmation to
which a member of the Legislature of a State and Chief Minister for a State prescribed in III Schedule of the Constitution. There is no controversy
with respect to taking of oath by member of the Legislature of a State as well as Chief Minister for the State. It is relevant to set out the Form of
Oath of Office taken by the first respondent under Article 188 and 164 (3) prescribed in III Schedule of the Constitution.
Form of Oath of office for a Minister for a State:- 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 conscientiously
discharge my duties as a Minister for 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 ill will.
Form of Oath or Affirmation to be made by a Member of the Legislature of a State:-- I, A.B., having been elected (or nominated) a member of the
Legislative Assembly (or Legislative Council), 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 and that I will faithfully discharge the duty upon
which I am about to enter
According to the learned Senior Counsel, the first respondent had violated the oath of office taken by him under Articles 188 as well as Art.
164(3) of the Constitution and he has incurred disqualification and he is no longer entitled to continue in office.
The learned Senior Counsel for the petitioner fairly states that the first respondent had been validly elected ''as a member of the Legislative
Assembly, that the respondent No. 1 had been validly appointed as Chief Minister of the State by the Governor of Tamil Nadu, that the first
respondent still commands majority in the State Legislature and that the first respondent had not incurred any of the disqualification prescribed in
the Constitution of India.
The learned Senior Counsel contended that the disqualification, which the first respondent had incurred, had not been provided for in the
Constitution as a disqualification ,but this Court could issue a Writ of Quo Warranto on the facts of the case, as the first respondent had violated
the oath of office taken by him and in fact, it is an act of perjury by the respondent, which disentitles the first respondent from continuing the office.
It has to be pointed out that the learned Senior Counsel has to concede that the first respondent had not incurred any of the disqualifications
prescribed by the provisions in the Constitution and with respect to the Constitutional provisions, the first respondent had not incurred
disqualifications and as such, in the light of the Constitutional Provisions, the petitioner cannot compel this Court to issue a Writ of Quo Warranto.
However, the learned Senior Counsel added that the violation of oath of office taken by the first respondent had interfered with the
fundamental rights of the petitioner and hence, the first respondent had lost his right to hold the office and has been disqualified only on the ground
that the first respondent had violated the oath of office taken by him under Article 164(3) as well as Article 188 of the Constitution and that the first
respondent had not only violated the oath of office taken by him, but also had acted with ill will against the petitioner and others, who profess faith
in Hinduism, and their fundamental rights guaranteed under Articles 25 and 26 of the Constitution have been interfered with.
The authorities referred to by the learned counsel for the petitioner in no way advance the case of the petitioner and the learned counsel for the
petitioner had fairly drawn the attention of this Court to the Judgment of the Kerala High Court, which is against the petitioner''s very contention.
Before proceeding further, it has to be pointed out that a writ of Quo Warranto is essentially a judicial remedy against an occupier or usurper
of substantive public office and issue of such a Writ is entirely the discretion of the Court and it is not a writ of right. A Writ of Quo Warranto shall
not be issued, unless the illegalities are grave and manifest or the person who holds office is ineligible to hold the public office or he had incurred
disqualifications.
A Division Bench of this Court in Misa R. Ganesan v. Mr.S. L.Khurana (1985 Writ.L.R.651) has held thus:
The whole argument proceeds on a misconception of the nature of the Writ of Quo Warranto. The Writ of Quo Warranto is issued in the exercise
of jurisdiction of the High Court to protect the public from usurpers of public offices,. Before a Writ of Quo Warranto is issued, it must be
established that the holder of the public office against whom such a Writ is asked does not have legal right to hold that public office. In so far as the
present case is concerned, it is not in dispute that the Governor has been duly appointed in accordance with the Provisions of Article. 155. He has,
therefore, a Constitutional right to hold office under Art. 156 of the Constitution, as long as the President does not withdraw his pleasure, It is also
admitted fact that his eligibility to be a Governor as contemplated by Art. 157 has not in any way ceased. There is no provision in the Constitution
of India under which he can be said to have vacated office. There is, therefore, no doubt that as long as the President of India does not withdraw
his pleasure, he has a right to hold the office of the Governor to which he has been properly appointed.
It is a matter of debate as to whether breach of any Constitutional provision has occurred during the period when only the Chief Minister was
functioning and no other Ministers in the Cabinet were sworn in and appointed. In any case, it is difficult to see how it can be urged that the
Governor must be deemed to have vacated the office of the Governor, when there is no provision to that effect in the Constitution of India.
(Emphasis supplied)
The Division Bench has emphasised that there is no provision in the Constitution of India under which the first respondent in that case can be
said to have vacated office and when there is no provision in the Constitution with reference to which, it cannot be urged that the Chief Minister is
deemed to have vacated office. It is farfetched for the petitioner to come before this Court on the ground that the first respondent might not have
incurred disqualifications to hold the office as per Constitutional provisions but yet, a Writ of Quo Warranto could be issued.
The question as to whether the first respondent has committed breach of oath of office taken by him under Article 164(3) as well as Art. 188
of the Constitution which would either disentitle the first respondent for his continuance in office or as this would be an impediment, was the subject
of consideration before this Court in Ramachandran v. M.G. Ramachandran C.M. (A.I.R 1987 Madras 207=100 L.W.178), K. Sukumaran v.
Union of India (A.I.R. 1987 Kerala 212), B.M. Ganga-dhariah v. H.D. Deveecodda (A.I.R. 1989 Karnataka 294), K.C. Chandy v. R.
Balakrishna (A.I.R.1986 Kerala 116) and Dhronamrajti Satyanarayana Vs. N.T. Rama Rao and Others,
The very questions raised by the learned Senior Counsel is no longer res integra and has already been decided by the said pronouncements.
According to the petitioner, the first respondent, who had taken the oath of office under Article 164(3) and Art.188, is required to do the right
to all people in accordance with The Constitution and the law, without fear or favour, affection or ill will and the respondent ought not to have
interfered with the fundamental rights by his expressions viz, calling the fire walkers as ""Uncivilized and ""barbarjans
The question which arises for consideration in this writ petition is:
Whether this Court has jurisdiction to issue a Writ of Quo Warranto and remove the first respondent from'' the office of the member of Legislative
Assembly as well as the Chief Minister in exercise of its powers under Article 226 of The Constitution.
This question has to be considered. But it is no longer res integra. In AIR 1986 Kerala 116 (supra) a Full Bench of the Kerala High Court has
held thus:
Breach of oath is different from absence of oath. Absence of oath prevents entry into office while breach effects 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 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.
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 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)
The question as to whether there was breach of oaths of office and of secrecy committed by a Minister is outside judicial review under Art.226 of
the Constitution; it is to be decided in to the appropriate forums; and in the case of the Minister in a State, it falls within the discretionary domain of
the Chief Minister and/or the Governor, Breach of oath described by the Constitution may, in certain circumstances, attract the penal provisions
under the Indian Penal Code. When the criminal law is set in motion, it is of course for the criminal Court to decide whether an offence has been
committed or not. That is an independent remedy which does not affect the Constitutional power, of withdrawing the pleasure to continue in office,
ingrained in Art. 164(1). As Raoul Berger refers in a ''Government by Judiciary'' at page 295; ''Judiciary was designed to police constitutional
boundaries, not to exercise supra constitutional police taking decisions. (Hamilton)
Subsequently, the Division Bench of Kerala High Court in A.I.R.1987 Kerala 212 has held thus:-
It is only necessary to note that there is no dispute that a speech was made by Shri R. Balakrishna Pillai on 25.5.1985. There is, however, serious
dispute regarding the contents of the speech and in the counter affidavit in O.P.No.4125 of 1986 dated 26.8.1986 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 reinduction as minister on taking a ''fresh oath'' on 26.5.1986 was also not legally permissible.
The Full Bench has held that there is no express provision in the Constitution or the law made by the Parliament which attaches specifically any
disqualification to the minister who commits breach of his oath. Even then, it is pointed out that it could not be assumed that there is no sanctity to
the oath taken before assumption of office or that there is no authority to take action if there is a violation of that oath.
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 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 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 penalty for
breach of oath.
It is also relevant to refer to the Full Bench decision of the Andhra Pradesh High Court in Dhronamrajti Satyanarayana Vs. N.T. Rama Rao
and Others, The Full Bench of the Andhra Pradesh High Court not only referred to the decisions in A.I.R.1986 Kerala 116 (supra), A.I.R.1987
Kerala 212 (supra) and A.I.R.1987 Madras 207 (supra), but also considered the same, wherein it has been held thus:
We have no doubt in our mind that whatever be the merits of the allegations made, if and when found appropriate, the power to terminate the
tenure of office of the Chief Minister being vested solely in the Governor under Art. 164(1) of the Constitution, no Writ of Quo Warranto as
prayed for would issue from this Court, In that view, the Writ Petition is dismissed.
In AIR 1987 Madras 207 (supra), identical question was considered by Venkataswami, J. (as he then was) and held that the question as to
whether there was breach of oath of office by the Minister is outside the Judicial review under Article 226 of the Constitution and that a Writ of
Quo Warranto could not be issued. In the said case, it was averred that the late Mr.M.G. Ramachandran, while addressing the members of All
World M.G. R.Mandram Conference held at Madurai spoke thus:
I argue to promise me one thing. You must all carry knives with you. Whenever the police fails to punish your enemies, knives will be useful for
your defence. Please abide by this.
By the said words, the petitioner in that petition contended that by advocating the above principle, late Mr.M.G. Ramachandran has committed a
breach of oath of office taken by him and such a breach would be a Constitutional impediment for his continuance in office as Chief Minister,
therefore, he should not be allowed to continue as Chief Minister.
After referring to the various decisions reported Venkataswami, J. held that once office is held under valid election and the continuance
depends upon the pleasure of doctrine, no Writ of Quo Warranto could be issued as the question as to whether there was a breach of oath of
office by the First respondent herein is outside the judicial review under Article 226 of the Constitution. I am in respectful agreement with the law
laid down by Venkataswami, J.
On a consideration of the pronouncements referred to above the following propositions emerge:
(a) The breach of oath of office taken by a Minister under Article 164(3) and also a Member of the Legislative Assembly under Article 188 will
not be a disqualification under Article 191 of the Constitution or specified by any other law made by the Parliament as the office of the Chief
Minister is held at the pleasure of the Governor and therefore, termination at the Will of the Governor alone is possible or out-come of alleged
breach of oath of office.
(b) Whether there was a breach of oath could be considered by the appointing Authority under Article 164(1) of the Constitution and it falls within
the exclusive discretionary jurisdiction or domain of the Governor, and for the breach, if any, of oath, the powers can be exercised by the
Appointing Authority alone at his discretion and not by this Court.
(c) This Court sitting under Article 226 has no jurisdiction to oust the Chief Minister on the allegation that he had committed breach of oath and a
Writ of Quo Warranto cannot be issued, Once the office is held under valid title and the continuance depends on the pleasure doctrine, Writ of
Quo Warranto, does not run and
(d) There is no provision in the Constitution, under which it could be said that the first respondent has vacated the office and more so, when the
Governor had not withdrawn his pleasure and he has got the right to hold the office of Chief Minister, to which he has been properly appointed by
the Governor.
Learned Senior Counsel contended that the expression that fire-walk is ''Kattumiraudithanam (barbaric) had offended the feelings of the
petitioner and others like him and this had violated the fundamental rights of the petitioner and others. For this, the petitioner may have to take
appropriate action, if any,
Except setting out the same in the affidavit and making several statements at the time of hearing, no material or authority has been placed
before this Court to show that the said statement would constitute violation of the fundamental rights guaranteed under Articles 25 and 26 of the
Constitution.
Learned Senior Counsel fairly stated that after making the speech in the marriage function, the first respondent justified the same on the floor of
the Assembly, as according to him, he is a rationalist and his party members are also rationalists and the act of his party members and his followers
participating in the fire walk is barbaric. The first respondent in fact, had referred to that it would not refer to others, much less the petitioner herein.
It is also fairly stated that it is not as if there has been any direction or order or a Notification by which the first respondent interfered in performing
fire-walk in any other temple in the State.
Learned Senior Counsel fairly stated that excepting the said expression there has been no further interference or act of ill will or animosity
against the persons, who believe in the same. This statement of the learned Senior counsel itself would be sufficient to hold that the first respondent
had not interfered with any of the fundamental rights of the petitioner or persons like minded.
Learned counsel for the petitioner referred to Seshammal and Others, Vs. State of Tamil Nadu, and contended that protection guaranteed
under Articles 25 and 16 is not limited to matters of doctrine or belief, but they are also extend to acts done in pursuance of religion and therefore
contain a guaranteed protection for rituals, observance, ceremonies and modes of worship, which are integral part of religion.
However, it has to be pointed out that it would constitute an essential part of a religious practice which has to be decided by the Courts, with
reference to the doctrine of a particular religion and includes practices, which are regarded by the community as a part of its religion in this respect.
It has also to be pointed out that learned counsel, despite grant of time had not been successful in placing any proof or material in support of
his contention that the fire walk constitutes an essential part of the religious practice. This has to be pointed out as there has been no attempt to
place the materials before this Court to hold that these ceremonies form part of religious faith and are guaranteed under Articles 25 and 26 of the
Constitution. In the circumstances, this Court holds that there are no merits in this writ petition and it stands dismissed. Consequently,
W.M.P.No.22639 of 1997 is also dismissed.