LexB.R. KAPUR versus STATE OF TAMIL NADU AND ANR.
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B.R. KAPUR
A
v.
STATE OF TAMIL NADU AND ANR.
SEPTEMBER 21, 2001
[S.P. BHARUCHA, G,B. PATTANAIK, Y.K. SABHARWAL, RUMA PAL
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AND BRIJESH KUMAR, JJ.]
Constit~ttion of India-Articles 164.:__Appointment of Chief Minister-
Govemor's power-Person convicted and sentenced to more than two years'
imprisonment-Her party winning large majofity in general election-Party
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electing her as their leader-Governor appointing her as the Chief Minister-
Held, a person convicted for a criminal offence and sentenced to imprisonment
for a period not less than two years cannot be appointed the Chief Minister-
Hence her appointment quashed-Representation of the People Act, 195I-
Section 8( 3 ).
Constitution of India-Articles I64, 173 and 191-Chief Minister/
Minister-Qual{fications for appointment-Held, person appointed as Chief
Minister/Minister should possess qualifications enumerated in Article 173 and
should not.be disqualified.from seeking membership of legislature under Article
I91.
Constitution of lndia-,-Article 164( 4 )-Appointment of Ministers for six
months-Held, cannot be used to induct short term Ministers who do not.fulfil
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the requirements of Articles 173 and 191-Person appointed as Chief Minister
though convicted and sentenced for more than two years-Held, such
appointment is illegal for being appointed under Article 164(4) the person
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should be qual(fied to be a member of the legislature under Article 173 and
should not be disqual(fied under Article 191-Articles 173 and 191.
Constitution of India-Artie!~ 164-Govemor s power under-Not obliged
to appoint the nominee of the majority party as Chief Minister if the nominee
is ineligible to be appointed as Chief Minister-Governor cannot do anything
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contrary to the Constitution and laws-Will of the People-Held, cannot prevail
over the constitutional mandate.
Constitution of India-Article 361-Scope of Judicial Review-lllegal
appointment made by Governor not protected-Appointment of a person to the
post of Chief Minister/Minister made by the Governor can be challenged in quo
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191
192
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
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warranto proceedings-Quo warranto proceeding lie against the appointee to
show by what authority is he entitled to hold the office-Appointing authority
may not be made party to such proceeding-Articles 226 and 32.
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c
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Constitution of India-Articles 226 and 32-Writ of quo warranto-
Meaning of.
Doctrines-De facto doctrine-Meaning o.f-Setting aside of the
appointment o.f Chief Minister-Serious consequences resulting from-De facto
doctrine used to validate the acts of the Chief Minister, cabinet and the
govemmentfrom the date o.f appointment to the date of judgment.
Code of Criminal Pro!edure, 1973:
Section 389-Power of appellate court-Sentence cannot be stayed by
appellate court-Appellate court can suspend only execution of sentence-
Order of suspension o.f execution of sentence does not alter the conviction o.f the
accused.
Section 374-Appeal-Pendency-E.ffect o.f.
Representation of the People Act, I 95 /-Section 8( 3 )-Held, Presumption
of innocence comes to end on conviction by the trial court-Conviction and
sentence operate against accused until set aside in appeal-Accused filed
appeal against her conviction-Execution of sentence suspe1uled by the appellate
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court-In the meanwhile she filed nomination for election-Her party wins
Assembly elections and she was elected leader of her party-She was sworn in
by Governor as Chief Minister-Held, as she was convictedfor an offence and
sentenced to more than two years imprisonment she could not have been
appointed Chief Minister/Minister.
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Respondent No. 2, who was the Chief Minister of the State of Tamil
Nadu, was convicted of offences punishable under section 120B of the
Penal Code read with sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention
of Corruption Act and for offence punishable under section 409 of the
Indian Penal Code. She was sentenced to undergo three years' rigorous
imprisonment and a fine of Rs. 10,000 in the first case and to undergo two
years' rigorous imprisonment and a fine of Rs. 5000/- in the second case.
Against her conviction, respondent No. 2 filed appeals before the
High Court. By order dated 3.11.2000, the High Court, under Section
389(2) of the Code of Criminal Procedure suspended the sentences of
imprisonment pending the criminal appeals and directed the release of
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