(1) IN the elections held to the Legislative Assembly of the State of Andhra Pradesh in early 1983, and again in late 1984, the Telugu Desam Party, headed by Sri N. T. Rama Rao (hereinafter referred to as "the Respondent"), captured a majority of seats. Sri N. T. Rama Rao became the Chief Minister. The term of the Legislative Assembly is coming to an end in or about Dec., 1989 March, 1990.

(2) IN Jan. , 1987, the respondent made a statement that he is going to act in a Telugu movie, styled "brahmarishi Viswamithra" as "viswamithra". Immediately thereupon, W. P. No. 310; 1987 was filed seeking issuance of a writ of mandamus "restraining the respondent herein from enacting in any films including brahmarishi Viswamithra while in office as the Honble Chief Minister of Andhra Pradesh as he is a public servant of State of Andhra Pradesh. . . The petitioner is a practicing advocate at Narasaraopet. He is an elector and also the Organizing Secretary of District Youth Congress, Gnter District. The main allegations in his writ petition are:-In Jan. 1987 the Government of Andhra Pradesh announced that elections will take place to Mandal Praja Parishads in the State on 15-3-1987. Prior to his entering the politics in 1982, the respondent was in cine-field. He was elected and came to power "only due to the film glamour the respondent enjoyed with the illiterate and gullible masses. However, during the three years of his stewardship, the respondent found that people have lost faith in his party. With a view to recapture the votes of illiterate and gullible public, he has hit upon a plan to enter cinema field again. Accordingly, he made a statement on 12-11987 that he is going to play the part of `viswamithra in a Telugu movie "brahmarishi Viswamithra". "The respondent is the sole Director, Producer, Editor, and also the Hero and his son Sri Balakrishna to enact three roles of Sri Rama, Dushyanatha, and Satya Harishchandra". The respondent is a "public servant" as defined in S. 21 (12) of the Indian Penal Code, and is amenable to the jurisdiction of Criminal courts for his acts, misdeeds, and omissions committed by him while in office. The Supreme Court has also held that Chief Minister is a "public servant", in AIR 1975 SC 1685 [LQ/SC/1975/161] . The office of Chief Minister is a full-time post. A Chief Minister should be accessible to the public as a full-time public servant all the 24 hours. As a matter of fact, there is no provision for a Chief Minister "to go on casual leave, sick leave, earned leave and the other benefits available to the other public servants". By entering the cinema-field the respondent is not only promoting the interests of his party but is also augmenting the resources of his party. He is doing it by misusing his official position. The picture Brahmarishi Viswamithra is to be inaugurated on 22-1-1987 at 12-00 Noon, according to the respondents statement made on 16-1-1987, published in all local papers on the next day. It is therefore necessary to issue a writ of mandamus restraining the respondent from acting in any films including "brahmarishi Viswamithra". The writ petition was filed on 19-1-1987. It was admitted on 20-1-1987.

(3) ALONG with W. P. No. 310/87 the petitioner filed W. P. M. P. No. 360/87 for an interim direction restraining the respondent from acting in the said film. Notice was directed to the respondent, who appeared and filed a counter, common to the writ petition as well as the Miscellaneous Petition. In this counter-affidavit the respondent made the following submissions:-The writ petition is politically motivated and is, accordingly, liable to be rejected in liming. The Chief Minister may be a "public servant" within the meaning of S. 21 of the Indian Penal Code, but that aspect has no relevance to the issue in question. There is no law prohibiting a Chief Minister from acting in films. The several allegations made in the writ affidavit are highly irresponsible and wholly irrelevant. There will not be any misuse of official position if a Chief Minister acts in a film. Even an ordinary public servant, governed by Conduct Rules, is entitled to engage himself in pursuits/activities which are not wholly connected with the discharge of his official duties, with the permission of the appropriate authority. "As a matter of fact, the Chief Minister and other Ministers of the Council of Ministers are governed by the Code of Conduct for Ministers duly adopted through G. O. Ms. No. 374, General Administration (Political C) Department dated 7-8-1985. Clause 4, sub-cl. (b) of the said Code of Conduct stipulates "no Minister should. . . Associate himself with the raising of funds except for the benefit of (i) a registered Society or a charitable body, or an institution recognized by a public authority, and (ii) a political Party". In other words, the Code of Conduct explicitly permits the Chief Minister or any other Minister engaging himself in a pursuit/ activity for the purpose of mobilizing funds for the political party to which he belongs; such pursuit includes acting in films. It can neither be construed as misuse of official position, nor forbidden by law. " no case is made out for grant of any relief, either interim or final, and hence the writ petition and the WPMP may be dismissed.

(4) W. P. M. P. No. 360/ 87 was dismissed by a learned single Judge on 18-2-1987. The writ petition remained pending.

(5) SOMETIME in May 1989 it was reported in newspapers that the shooting of the film "brahmarishi Viswamithra" will begin on 18th June, 1989. Immediately thereupon two voters who were also the members of Congress (1) Party, came forward with two writ petitions, viz. , W. P. Nos. 7327 and 7328 of 1989. An identical affidavit was filed in support of both the writ petitions. W. P. No. 7327 89 was filed for issuance of a writ of mandamus directing the respondent to discharge his duties as the Chief Minister of Andhra Pradesh as a full-time public servant without engaging himself in producing, acting, directing, and collaborating in any cinema including "brahmarishi Viswamithra". W. P. No. 7328, 89 is a petition for issuance of a Writ of Quo Warrantor against the respondent "commanding to show under what authority he holds the office of Chief Minister since he has committed constitutional infraction and forfeited the tight to hold the office of Chief Minister by becoming an actor, Producer, Director, and participant in the commercial activities of producing a cinema called "brahmarishi Viswamithra" though he is a public servant in the eye of law and as per the constitutional scheme. . . . ". In W. P. No. 732789 a Miscellaneous Petition i. e. . . WPM P. No. 9553 89 was filed for an injunction restraining the respondent from acting or participating in any manner in the production of the said film, pending the writ petition. In W. P. No. 7328 89 too a Miscellaneous Petition, i. e., WPM P. No. 9554/89, was filed asking for an injunction restraining the respondent from functioning as the Chief Minister of Andhra Pradesh.

(6) A learned single Judge referred the said two writ petitions to a Bench for orders. The Bench directed the petitioners to impaled the State of Andhra Pradesh as a respondent in both the writ petitions, and directed notice to the respondent, as well as to the State of Andhra Pradesh, to show because why the writ petitions should not be admitted and why the interim orders prayed for should not be granted. The matters were directed to be placed before a Full Bench for orders. Accordingly the two writ petitions along with W. P. No. 310/1987 were posted before a Full Bench. Even at the outset we informed the counsel for the parties that the two writ petitions would be admitted, inasmuch as a similar writ petition, i. e., W. P. No. 310/87 was admitted as far back as February 1987. We requested the counsel to confine their arguments to the Miscellaneous Petitions. We heard the counsel for both the parties at quite some length, and by our order dated 4-7-1989 dismissed both the Miscellaneous Petitions viz. , WPM P. Nos. 9553 and 9554 of 1989. We admitted W. P. Nos. 7327 and 7328 of 1989 and posted the same along with W. P. No. 210/87 for final hearing to Aug. 7, 1989. We also directed a notice to the Attorney General of India to assist the Court as amicus, curiae in the matter. On 7-8-1989 when the matters came up for hearing, Sri S. Ramachandra Rao sought to withdraw W. P. No 7327/89 (for issuance of a writ of mandamus). We permitted him to do so and, accordingly dismissed the same. Thus, only two writ petitions survive for our consideration, viz., W. P. 310/1987 and W. P. No. 7328/ 1989.

(7) WE have referred hereinbefore to the averments in the writ affidavit and the counter-affidavit in W. P. No. 310/87. On 25-6-1989 the day the Full Bench commenced hearing arguments in the Miscellaneous Petitions, WPMP. Nos. 9553 and 9554 of 1989 an additional affidavit, styled as "reply Affidavit, was filed by the petitioner in W. P. No. 310/87. The petitioner averred that "since a long time has elapsed after the writ petition was filed, the petitioner is advised to file an additional affidavit bringing the facts of the case up to date. This affidavit also traverses by way of reply to the contentions raised by the respondent. . . . . . . ". In this additional affidavit the petitioner made the following averments:-In his counter-affidavit filed in Feb. 1987 the respondent took the stand that the income from the said picture would go to his political party. But now his stand is that the income is earmarked for a Trust, known as "n. T. R. Trust". The Trust is evidently meant to confer some benefit upon the members of the family of the respondent. To that extent there is profit motive. The respondent is not really inspired by artistic temperament in choosing to act in and direct the said film. It is with an ulterior motive and object, namely, to exploit his position as a Chief Minister and to gain enormous profit from the said picture and also to have all India publicity for himself. It is meant to give an impetus to his political ambitions. The said activity is bound to interfere, with his duties and functions as a Chief Minister. He appears to be totally absorbed in, the said film, which is bound to adversely affect the performance of his duties as Chief Minister which, in turn, will prejudice the administration and the people. Acting in, and directing a film by a Chief Minister is incompatible with the office being opposed to the Code of Conduct evolved by the Government of Andhra Pradesh itself. The reliance placed by the respondent upon the fundamental freedoms guaranteed by sub-cls. (a) And (g) of Cl. 1 of Art. 19 of the Constitution is misconceived. "to pursue a profession would involve making a living out of it, then such right cannot be affected. But the respondent says that he is not earning anything out of acting and directing the film. So it is only a hobby and not a profession that he is pursuing. In such a case, Art. 19 (1) (g) does not apply. If on the other hand he is earning money by acting and directing, then he is guilty of a corrupt practice because he is a Chief Minster and he should not utilize his post for making money, directly or indirectly, or surreptitiously. "The mere fact that a Chief Minister is acting in and directing the said film would enhance its value and the Distributors would be prepared to pay Crores of rupees for obtaining the distribution rights thereof. It is reported that the picture would fetch 70 Crores of rupees, mainly because of the participation of the respondent therein. A Chief Minister of a State cannot simultaneously carry on a business or profession. The State is already beset with several serious problems which are likely to become more acute because of the pre-occupation of the respondent with the said film. The respondent is the de facto producer of the picture. It is meant for the benefit of the members of his family and his party. The claim that the respondent intends to realize his lifes ambition of producing the said film is a disingenuous claim. The abuse of office is inherent in such a situation. Such an activity has never been undertaken by any Chief Minister or Prime Minister either in this country or in England. The fact that a Chief Minister or a Prime Minister is entitled to engage him self in political activity does not mean that he is also entitled to carry on a profession, or a business for profit, while in office. By so doing the respondent is causing irreparable damage to the democratic setup in this country. The Courts have the power and the duty to uphold the democratic system. The Constitution, it is true, does not provide for any such contingency. There are many aspects which are not explicitly stated in the Constitution, but are prohibited by it, as spelt out by the Supreme Court in several decisions. The resort to electorate, or to the Legislature, is neither effective nor prompt. The letter and spirit of the Constitution and the interests of democracy warrant the issuance of a writ of mandamus sought for by the petitioner.

(8) AN additional counter-affidavit has been filed by the respondent to the additional reply affidavit of the petitioner in W. P. No. 310 1987. It contains the following averments:-The additional affidavit styled as a reply Affidavit, filed at a late stage and containing several new facts and allegations, ought not to be entertained by this Court. In any event, they are untrue and untenable. The writ petition filed against the respondent in his individual capacity is not maintainable in law. It is untrue that the respondent has changed the stand. The allegations of ulterior motive and enormous gain accruing from the production of the said film are all false. All the said allegations are made with a malicious motive. There has been, and there will be no misuse of official machinery on account of the respondents participation in the said film. The writ petition ought to be dismissed in liming, as it does not satisfy the criteria evolved by the Supreme Court for public interest litigation. The respondent is not engaging himself in the said film for any personal gain. The proceeds of the film will go to a public Charitable Trust, the objects of which are purely charitable. The Chief Minister cannot be treated as a public servant for all purposes. The Code of Conduct referred to by the petitioner is a voluntary one and self-regulatory in nature. It is not justifiable in a Court of law. The respondent has nothing to do with either the production or distribution of the said film, or with the finances involved in the same. His sons, who are Trustees of the said Trust, have become divided from him about four years ago. The allegation that the respondent intends to benefit the members of his family, or party, is untrue and mischievous. In Feb. 1987, i. e., at the time of filing the counter in W. P. No. 310/87, the idea of acting in the film was only at the stage of contemplation. It is only much later that the concept took a concrete shape. "n. T. R. Trust" was formed and the Trust Deed registered on 8-12-1988 and submitted before the Income-tax authorities. To meet their objections, a Supplemental Trust Deed was executed on 6-6-1989. Both the deeds have to be read together to appreciate the objects and activity of the Trust. The allegation of the respondent neglecting his official duties is untrue. He is participating in the said film only during the spare time available to him, after attending to his official work. This Court should not concern itself with political issues. The writ petitioner is merely trying to ventilate his political grievances through this writ petition. No constitutional or legal questions are involved therein.

(9) THE averments made in the writ-affidavit filed in support of W. P. No, 7328/1989 are to the following effect:-The first-petitioner is an Ayurvedic Doctor. He was a founder-member of Telugu Desam Party along with the respondent. He resigned from the party later, unable to adjust to the ways of the respondent. Later he joined Congress (I) Party. Then second-petitioner is a member of the Publicity Cell of A. P. Congress Committee. He is also a social-worker. They "are aggrieved both personally, politically, and in the interest of public regarding the activities of Sri N. T. Rama Rao". They are entitled to be governed by a democratically elected Chief Minister under the Constitution who is wholly committed to the public interest of Andhra Pradesh". It however appears from the newspapers dated 24-5-1989 that the respondent is fully engrossed in the production of the film "viswamithra". The shooting of the film is going to commence on June 18, 1989. Sri S. Rajeswara Rao, a Minister in the respondents Cabinet, and who is said to be the President of "all India N. T. R. Fans Association", has informed the newsmen that Distributors are vying with each other for the distribution rights of the said film, and that several Crores of rupees will be collected by the respondent in the name of the said picture, which is nothing but a corrupt practice, besides being unconstitutional and illegal. The respondent is the Producer, Director, Actor, and all-in-all of the said picture. On 2-6-1989 the Chief Minister delegated his governmental duties and constitutional functions to other Ministers till the completion of the said film. He has thus abandoned his constitutional duties and responsibilities as the Chief Minister of Andhra Pradesh. A Chief Minister is a public servant as held by the Supreme Court in (1979) 3 SCC 431 [LQ/SC/1979/137] . Moreover, the constitutional conventions require that a Prime Minister or a Chief Minister should be a full-time constitutional functionary who should not involve himself in any other activity, which consumes his time and attention. A Chief Minister is the real Ruler of the State. Articles 162 to 167 of the Constitution should be read as an integrated code of comprehensive constitutional conduct of the Chief Minister. No Chief Minister can involve himself in full-time or part-time commercial activity, particularly with the heavy responsibility of producing, directing, acting, and overall supervision of a film. The respondent "wants to use the cinema with an ulterior purpose of influencing the entire Indian electorate by religious propaganda through the media of cinema in the name of Brahmarishi Viswamithra". Through the said film the respondent is appealing to the religious sentiments and communal feelings of the electorate. It is a corrupt practice. The entire activity is thoroughly improper, besides being illegal and unconstitutional. The respondent must either act as a Chief Minister, or should engage himself in the said film. He cannot do both simultaneously.

(10) A counter-affidavit has been filed by the respondent (Sri N. T. Rama Rao),in this writ petition, denying the allegations in the writ-affidavit. It is submitted that the writ petition is actuated by political vendetta. It is not a bona fide invocation of this Courts power, nor does it satisfy the requirements of public interest litigation. The petitioners have not established their locus standi. The issues raised in the writ petition are not justifiable; the writ petition is based upon hearsay, and on reports in newspapers, which are not admissible in law. The allegations of abdication of functions and the neglect of official duties on the part of the respondent are all false. The respondent is not receiving any remuneration, or other financial benefit from the said film. It is being produced by a Charitable Trust. The Chief Minister is not a public servant for all purposes. A Chief Minister is elected by the people and is responsible to the House and the people. He is not bound to devote his entire time to administrative functions. Reference to Arts 163 to 167 of the Constitution is irrelevant. The Chief Minister is primarily under the control of the Legislature. His conduct cannot be called in question in a Court of law. It might be a matter for the Legislature and the electorate, but certainly not for Courts. A Chief Minister is not prohibited from devoting part of his time to Party activities, political activities, or cultural activities. Several great figures have engaged themselves in such activities while holding high public offices. In any event, a Chief Minister cannot be equated to a civil servant, nor can the Code of Conduct applicable to civil servants be made applicable to a Chief Minister. There is no constitutional or statutory provision prohibiting a Chief Minister from involving himself in the activity of acting in, or directing a film. In the absence of any such prohibitory provision, a writ of quo warrantor is misconceived. On the contrary, Art. 51-A imposes a duty upon every citizen to value and preserve the rich heritage of our culture. By acting in the said film the respondent is indeed discharging the said constitutional duty. A Chief Minister is also entitled to exercise his fundamental rights guaranteed by sub-cls.-(a) and (g) of Cl. (1) of Art. 19 of the Constitution The allegation that the respondent is appealing to the religious sentiments or communal feelings of the electorate through the said film is totally untrue and mischievous. The issues raised in the writ petition cannot be adjudicated, or pronounced upon by this Court.

(11) THE Government of Andhra Pradesh has filed a counter-affidavit practically on the same lines.

(12) SRI R. Venugopal Reddy, learned counsel for the petitioner in W. P. No. 310/ 1987, urged the following contentions :-The petitioner, a responsible citizen and a practicing advocate, has approached this Court in the interest of good Government, preservation of democracy and of constitutional values. He is not actuated by any ulterior motive. The mere fact that he is the Organizing Secretary of the District Youth Congress, Gnter, is not evidence of ulterior motive, or political vendetta. He is concerned with the abuse of the high office of Chief Minister and the consequent prejudice to public interest. It is true that a Chief Minister, by becoming a Chief Minister, is not deprived of the fundamental freedoms guaranteed to him by Part III of the Constitution; but, at the same time, it cannot be gainsaid that he has to subordinate his fundamental freedom to the requirements of his office. He should not engage himself in any activity which is inconsistent with the nature of, and the duties and functions attaching to his office. He should not engage himself in an activity which tends to, or is likely to lead to the abuse of the office and post held by him. The Chief Minister of a State is the king-pin of the entire State administration. His conduct must be an example to other Ministers and Members of Legislative Assembly. By undertaking to act in, and direct the film "brahmarishi Viswamithra", while holding the office of Chief Minister, the respondent is compromising his office. The abuse of the office and the position occupied by him is inherent in such a situation. Distributors, Suppliers, Exhibitors and other concerned in the said field would be more than anxious to please the respondent knowing that it is after all his venture and his product. In the public eye the respondent has become identified with the said film. The respondent is the Chief Minister of a premier State in the country, beset with several serious problems. The administration of this State calls for his total attention. Even the whole time available to him is not enough to attend to these problems. In such a situation, his getting engrossed in the said film is bound to prejudice the administration and the governance of the State. Though not expressly mentioned in the Constitution, there are certain limitations upon the conduct of a high dignitary like a Chief Minister or a Prime Minister, arising from the very scheme and text of the Constitution. These implied limitations regulate the conduct of a high constitutional functionary like Chief Minister. Our democracy being a nascent one, conventions governing the conduct of such high functionaries have not yet developed. They must be developed and preserved. Indeed, the Code of Conduct evolved by the State Government headed by, the respondent, and also by the Union Government, emphasizes the significance and the need for such a Code of Conduct. Having evolved such a Code" of Conduct, the respondent ought to abide by it himself. This Court, being the sentinel qui vive of the Constitution, should not shirk from defining the constitutional limitations and conventions relating to conduct of such high functionaries, nor should it decline to enforce the same. In the interests of democracy, constitutional values, and good Government, this Court should follow an activist role, more so because the appeal to electorate is too distant, and appeal to Legislature is too unrealistic. A Minister while holding the office cannot engage himself in a profession, occupation, or business for gain, which is bound to result in abuse of his office, and of the position and power that go with the office. Even in the name of freedom of speech and expression they cannot be allowed to indulge in an activity which provides an opportunity to, or which tends to abuse of office. In this case, indeed, the activity of the respondent complained of is purely a business and the invocation of the freedom of speech and expression is a mere excuse for the said objectionable activity.

(13) MR. S. Ramachandra Rao, learned counsel for the petitioner in W. P. No. 7328/89, submitted that by engaging himself in a business, viz. , acting in, and directing of the said film, the respondent has violated his oath of office, and has abused the constitutional office held by him. Articles 162 to 167 of the Constitution indicate that a Minister cannot engage himself in any business. If he does so, he becomes disqualified to hold the office of Minister, and this Court should declare so by issuing a writ of quo warrantor. The Code of Conduct contained in G. O. Ms. No. 312, dated 24-5-1984 issued by order and in the name of the Governor of Andhra Pradesh, is statutory in nature and, in any event, binding upon the respondent. A similar Code of Conduct has been issued by the Government of India. The said Codes have been issued in exercise of the executive power of the Governor, or the President, as the case may be and are therefore enforceable by this Court by way of a writ petition. The respondent has forfeited his office by acting in, and directing the said film.

(14) THE learned Attorney-General, to whom a notice was directed, expressed his inability to appear before this Court on account of his engagements in the Supreme Court. He has, however, communicated his propositions in writing to this Court. They read thus:-

"1. Article 163 of the Constitution provides that there shall be a Council of Ministers with the Chief Minister as the head. 2. Article 164 provides that the Chief Minister shall be appointed by the Governor. Sub-Article (3) of Art 164 provides that the Governor shall administer the oath of office and secrecy according to the forms set out in the third schedule. The oath of office which the Chief Minister takes at the time of his being sworn in includes allegiance to the Constitution of India and further that he would `faithfully and `conscientiously discharge his duties as a Chief Minister. 3. The degree of time which a Chief Minister devotes to the functions of his office cannot be viewed in any axiomatic and canonical way. The performance of official functions is a matter of individual judgment and cannot be construed as involving legal sanctions. 4. The degree of commitment of an individual to the due discharge of his functions depends upon internal considerations and cannot be made the subject-matter of a legal issue unless and until it involves a breach of written provisions contained in the Constitution or a statute. These are matters of `sober second thought. 5. In a country where there is a written Constitution, moral issues must be susceptible of being translated into justifiable legal disputes. It is only such disputes which involve legal principles and not policy, which can be taken note of by Courts. Individual patterns of behavior or choice cannot be justifiable unless and until they offend any constitutional provision or provision of a statute. 6. Propositions (1-5) are not meant to undermine the importance of conventions in our political life. Obedience to a convention is something more than a matter of political judgment or prudence. Conventions are rules that not only are followed but have to be followed. Conventions are rules which define major non-legal rights, powers and obligations of office-holders; the main general aim is the effective working of the machinery of political accountability; they are distinguishable from rules of law though they may be equally important or more important than rules of law. 7. The freedom of a Chief Minister to engage himself in any activity cannot be denied while holding a constitutional office like that of the Chief Minister. However, in the interests of the general public and to sustain the purity of public life, the holder of such office should not engage himself in any activity which leads directly to personal gain in material terms or which will undermine the dignity of the office".

(15) THE learned Advocate-General appearing for the State of Andhra Pradesh in W. P. No. 310/1987, submitted that the theory of implied limitations, or implied restrictions, arising from the scheme and text of the Constitution has not been accepted by the Supreme Court in Kesavananda Bharati (AIR 1973 SC 1461 [LQ/SC/1973/159] ). Indeed, a majority of Judges have rejected the theory in the said case. The petitioner cannot, therefore, rely upon the said theory to infer or impose any limitations upon the conduct of the Chief Minister. No such rules can be evolved by the Court. The Constitution does not prescribe a Code of Conduct for Ministers, nor does any other statute. The Codes of Conduct evolved by the State Government and the Central Government are voluntary in nature and are not enforceable by Court. The Court, indeed; should not enter this arena. The Constitution also has not chosen to prescribe any qualifications, or disqualifications for the office of Minister: The Court cannot supply the omission. All these are matters for Legislature, and ultimately the electorate. The conventions have to be evolved in the political field, and not by Courts. A writ of Quo Warrantor is totally misconceived.

(16) SARVASRI E. Ayyapu Reddy and M. Chandrasekhara Rao, who appeared for the respondent, submitted that the writ petitions ought not to be entertained by this Court for more than one reason, viz. , they do not satisfy the requirements of public interest litigation as enunciated by the Supreme Court; by these writ petitions the rights of exploited or weaker sections of the society are not sought to be promoted; indeed, they are actuated by political vendetta. The petitioners have not approached this Court bona fide, or with a view to promote public interest. They are all members of Congress (I) Party which was defeated at the polls by Telugu Desam Party headed by the respondent, both in 1983 and in 1984. The petitioners are seeking to use this Court to serve their political ends and to dislodge the respondent from the office to which he has been elected by the people of this State. The respondent is entitled to exercise all fundamental rights guaranteed to him by the Constitution, and by accepting the office of Chief Minister he is not deprived of any of them, or to any extent whatsoever. Be that as it may, the present activity of the respondent is relatable to his freedom of speech and expression. The respondent is not receiving any remuneration for acting in, or for directing the film. For him, it is only a means and medium of expressing and conveying his thoughts and philosophy to the public. `viswamithra is a great sage and a revered personality in Hindu mythology. He preached the doctrines of equality and brotherhood. His life and philosophy have great relevance in the present day context when the ills of inequality, communalism and castism are afflicting our society. It is to that end that the respondent is working, and not for any gain. The theory of implied limitations arising from the constitutional scheme is an untenable one. The Code of Conduct is voluntary; not statutory, and not enforceable in Courts. The respondent is not guilty of any wrong, or undesirable conduct. He has not violated any constitutional or statutory provision, and hence a plea for mandamus and more so for a quo warrantor, is totally misconceived. The respondent is answerable and responsible only to the Legislative Assembly, and it is for that body to question his conduct, if it finds the same objectionable. The ultimate sanction lies with the electorate. This Court should not venture into political thickets, nor should it seek to adjudicate issues not governed by statutory provisions. Ministers, Constitution, and the Code of Conduct (evolved by Union and State Governments):

(17) THE Constitution of India, elaborate as it is does not provide for the qualifications or disqualifications attaching to the office of a Minister or for that matter a Chief Minister or Prime Minister. It has also not chosen to prescribe the duties and functions of their office, much less does it provide any Rules of Conduct. Indeed, there are only three Articles in the Constitution relating to Ministers. Article 163 provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions. The question whether any, and if so, what advice was tendered by the Ministers to the Governor, cannot be enquired by Court. Article 164 provides that the Chief Minister shall be appointed by the Governor, and other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and that the Ministers shall hold office during the pleasure of the Governor. The Council of Ministers is made collectively responsible to the Legislative Assembly of the State. Before entering upon his office, a Minister has to take an oath of office and secrecy in the prescribed form. Article 167 casts a duty upon the Chief Minister to communicate to the Governor of the State all decisions of the Council of Ministers relating to administration of the affairs of the State and proposals for legislation, and to furnish such information relating to administration of the affairs of the State and proposals for legislation as the Governor may call. If the Governor so requires, he must submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council of Ministers. Similar provisions are contained in Arts. 74, 75, and 78 of the Constitution with reference to Ministers of the Union, Articles 190 and 191 prescribe the disqualifications for Members of State Legislature, while Articles 101 and 102 provide disqualifications for Members of Parliament. The disqualifications prescribed by these Articles for Members of Parliament and State Legislature are, it is admitted, irrelevant on the question at issue. Articles 191 (1) (e) and 102 (1) (e) empower the Parliament to prescribe disqualifications in addition to those prescribed in the Constitution. The Parliament has exercised that power; but the laws made in that behalf, it is admitted, have no relevance on the question at issue. It is equally beyond dispute that there is no other law which prescribes any disqualification on the grounds upon which the petitioners say, the respondent should be held disqualified, nor is there any statutory rule of conduct on the basis of which he can be restrained from following the aforesaid course of activity. Probably for this reason, both the Union Government and the State Government have thought it appropriate to evolve a Code of Conduct. The Government of India, Ministry of Home Affairs, has issued a "code of Conduct for Ministers (both Central and State)", a copy of which has been placed before us. It will be appropriate to set out the said Code in its entirety:-

"in addition to the observance of the provisions of the Constitution, the Representation of the People Act, 1951, and any other law for the time being in force, a person, before taking office as a Minister shall - (a) disclose to the Prime Minister, or the Chief Minister, as the case may be, details of the assets and liabilities, and of business interests, of himself and of members of his family. The details to be disclosed shall consist of particulars of all immovable property and the total approximate value of (i) shares and debentures, (ii) cash holdings and (iii) jewelers; (b) sever all connections, short of divesting himself of the ownership, with the conduct and management of any business in which he was interested before his appointment as Minister; and (c) with regard to a business concern which supplies goods or services to the Government concerned or to undertakings of that Government (excepting in the usual course of trade or business and at standard or market rates) or whose business primarily depends on licenses, permits, quotas, leases, etc. , received or to be received from the Government concerned, divest himself of all his interests in the said business and also of the management thereof. Provided, however, that he may transfer in the case of (b) his interest in the management and in the case of (c) his ownership and management, to any adult member of his family or adult relative, other than his wife (or husband as the case may be), who was prior to his appointment as Minister associated with the conduct or management or ownership of the said business. The question of divesting himself of his interests would not arise in case of holding of shares in public limited companies except where the Prime Minister, or the Chief Minister, as the case may be, considers that the nature or extent of his holding is such that it is likely to embarrass him in the discharge of his official duties. 2. After taking office, and so long as he remains in office, the Minister shall- (a) furnish annually by the 31st March to the Prime Minister, or the Chief Minister, as the case may be, a declaration regarding his assets and liabilities; (b) refrain from buying from, or selling to, the Government any immovable property except where such property is compulsorily acquired by the Government in the usual course; (c) refrain from starting, or joining, any business; (d) ensure that the members of his family do not start or participate in, business concerns, engaged in supplying goods or services to that Government or to undertakings under that Government (excepting in the usual course of trade or business and at standard or market rates) or dependent primarily on grant of licenses, permits, quotas, leases, etc. from that Government; and (e) report the matter to the Prime Minister, or the Chief Minister as the case may be, if any member of his family sets up, or joins in the conduct and management of, any other business. 3. No Minister should - (a) personally, or through a member of his family, accept contributions for any purpose, whether political, charitable or otherwise; if any purse or cheque intended for a registered society, or a charitable body, or an institution recognized by a public authority, or a political party is presented to him, he should pass it on as soon as possible to the organization for which it is intended; (b) associate himself with the raising of funds except for the benefit of (i) a registered society or a charitable body, or an institution recognized by a public authority, and (ii) a political party. He should, however, ensure that such contributions are sent to a specified office-bearer, etc. of the society or body or institution or party concerned and not to him. Nothing hereinbefore shall prevent a Minister from being associated with the operation or disbursement of funds rose as above. 4. A Minister should- (a) not accept valuable gifts except from close relatives, and he or members of his family should not accept any gifts at all from any person with whom he may have official dealings: (b) not, nor permit a member of his family, to contract debts of a nature likely to embarrass or influence him in the discharge of his official duties. 5. A Minister should - (a) while on official tour, as far as practicable, stay in accommodation belonging to himself or maintained by Government, Government undertakings, public bodies or institutions (such as circuit houses, dark bungalows, etc.) or in recognized hotels; and (b) discourage ostentation or lavishness in parties given to him. 6. The authority for ensuring the observance of the Code of Conduct will be the Prime Minister in the case of Central Ministers, the Prime Minister and the Union Home Minister in the case of Chief Ministers, and the Chief Minister concerned in the case of State Ministers. The said authority would follow such procedure as might deem fit, according to the facts and circumstances of each for dealing with or determining any alleged or suspected breach of this Code. Explanation: In this Code a Ministers family shall include his wife (or the husband as the case may be) not legally separated from him (or her), minor children, and any other person related by blood or marriage to, and wholly dependent, on the Minister".

(18) IN our opinion, the Code of Conduct aforesaid is of great significance and sanctity. The several rules contained therein are conceived with an eye upon public interest, and fair and impartial administration, which is not only fair and impartial in action, but also in appearance. Let us now analyze the Code. It says:

(a) a Minister shall observe the provisions of the Constitution, the Representation of the People Act. 1959, and any other law for the time being in force; (b) Before taking office as a Minister, such person shall - (i) disclose to the Prime Minister, or Chief Minister, as the case may be, "details of the assets and liabilities and of business interest of himself and all members of his family". The statement shall contain particulars specified in cl. (a) of Para 1 of the Code; (ii) sever all connections with the conduct and management of any business in which he was interested before his appointment as a Minister. He is, of course, not required to divest himself of the ownership in such business, provided such business has no dealings with the Government. It is open to him to transfer the management in such a case to any adult member of his family, or adult relative other than his wife (or her husband, as the case may be) who was prior to his appointment as a Minister associated with the conduct, management, or ownership of the said business. (iii) If he is interested in any business which has dealings with the Government, he must "divest himself of all interest in the said business and also of the management there of". In other words, he can have no interest whatsoever in such business. He may, however, transfer his ownership and management to any adult member of his family, or adult relative other than his wife (or her husband, as the case may be) who was prior to his appointment as Minister associated with the conduct or management or ownership of the said business. In case, however, the interest of the Minister is in the form of holding of shares in public limited companies, he is not required to divest himself of the said shares, except where the Prime Minister Chief Minister considers that the nature or extent of his holding is such that it is likely to embarrass him in the discharge of his official duties. (c) After becoming the Minister, a Minister shall - (i) furnish annually, by 31st March, to the Prime Minister Chief Minister, as the case may be a declaration regarding his assets and liabilities; (ii) report the matter to the Prime Minister/chief Minister "if any member of his family sets up or joins in the conduct and management of any other business". It is significant to notice the language of this clause and the underlying concern. (iii) while on official tour, he must, as far as practicable, stay in Government accommodation, and (iv) discourage ostentation or lavishness in parties given to him. (d) while continuing as a Minister, he shall - (i) refrain from buying from, or selling to the Government any immovable property except where the property is compulsorily acquired by the Government in usual course; (ii) "refrain from starting or joining any business"; (iii) ensure that members of his family do not start, or participate in business concerns engaged in dealings with the Government; (iv) not accept any "contributions for any purpose, whether political, charitable, or otherwise", whether personally or through a member of his family. Any purse or cheque received by him shall be made over by him immediately to the organization for which it is intended; (v) not associate himself with the raising of funds except for the benefit of a registered society/charitable society/institution recognized by a public authority, or a political party. In other words, a Minister is not entitled to carry on any business or join any business even for the purpose of raising funds for the benefit of a registered society/ charitable society/institution recognized by a public authority/political party. Any contributions received by him must be sent by him immediately to the body concerned; (vi) not accept valuable gifts except from close relatives. He or members of his family should not accept any gifts at all from any person - be his a close relative, or otherwise, with whom he may have official dealings; (vii) not permit any member of his family to contract debts of a nature likely to embarrass or influence him in the discharge of his duties. For the purpose of this Code, a Ministers family is defined to include his wife (or husband, as the case may be) not legally separated from him (or her), minor children, and any other person related by blood or marriage to and wholly dependent on the Minister.

(19) PARAGRAPH 6 of the Code says that the Prime Minister/chief Minister shall be the authority to ensure observance of the Code, and that in case of any alleged or suspected breach of the Code, he shall follow such procedure as he may deem appropriate to the facts of each case, while enquiring into the same. It is evident that the nature of action to be taken as a result of such enquiry is also left to his discretion and judgment.

(20) THE Government of Andhra Pradesh has also issued a Code of Conduct for Ministers contained in G. O. Ms. No. 312, General Administration (POL. A) Department dated 24-5-1984. (Indeed, the respondent refers to a similar Code in his counter -affidavit, purported to have been issued in G. O. Ms. No. 374, dated 7-8-1985) The only difference is that in the case of Ministers in the State Government, the authority to enforce the Code is the Chief Minister.

(21) THE Codes of Conduct issued by the Union Government and the State Government are not statutory in nature. They lay down rules of conduct which the Ministers must observe. They are in the nature of guidelines. They also prescribe the authority who should ensure compliance with the said Code; it is to him that the statements contemplated by paragraphs 1 (a), 2 (a) and 2 (e) have to be furnished. Even the procedure to be followed in the case of an alleged or suspected breach of the Code is also left to the discretion of such authority. Having regard to the facts and circumstances of the Code, the authority shall evolve the appropriate procedure. Evidently, the nature of action to be taken on such enquiry is also left to him. Not being statutory, Courts will not enforce them.

(22) IT is true that in several instances, Courts have enforced non-statutory orders/ rules. For example, rules relating to admission to educational institutions, rules governing service conditions in the absence of a law or Rules made under Art, 309 or proviso thereto, and so on. The principle, however, is that where such orders/rules create or confer rights upon citizens, they can be enforced. Having made those orders /rules the Government is held bound by them. It is also held that leaving the compliance with such orders/rules entirely to the will and pleasure of the Government will lead to inherently arbitrary and discriminatory situations for, in one case, the Government will follow those orders/rules, in another case, they will follow them only partially, and in yet another case the Government will not at all follow those orders/rules. In some cases, Courts have enforced such orders etc., applying the rule of promissory/ equitable estoppel. Where, however, such orders/rules do not confer any rights upon citizens, the Courts has refused to enforce them. The correct principle in this behalf is stated in a recent judgment of Supreme Court in N. K. Maheshwari v. Union of India, (1989) 1 Scale 1353 [LQ/SC/1989/306] where it is stated:

"It may, however, be stated that being not statutory in character, these guidelines are not enforceable. See the observations of this Court in Fernandez v. State of Mysore (1967) 3 SCR 636. [LQ/SC/1967/139] (Also see R. Abdullah Rowther v. State Transport Appellate Tribunal AIR 1959 SC 896 [LQ/SC/1959/21] ; Asst. Iron and Steel Controller v. Manekchand Proprietor, (1972) 3 SCR 1 Andhra Industrial Works v. CCI and E, (1975) 1 SCR 321 [LQ/SC/1974/168] ; K. M. Shanmugham v. S. R. V. S. Pvt. Ltd. (1964) 1 SCR 809. [LQ/SC/1963/24] A policy is not law. A statement of policy is not a prescription of binding criterion. In this connection, reference maybe made to the observations of Sagnata Investments Ltd. v. Norwich Corporation (1971) 2 QB 614 and p. 626). Also the observations in British Oxygen Co. v. Board of Trade 1972 AC 610 See also Foulkes Administrative Law, 6th Ed. at pages 181-184. In Ex. P. Khan, (1985) 1 All ER 40; the Court held that a circular of self made rule can become enforceable on the application of persons if it was shown that it had created legitimate expectation in their minds that the authority would abide by such a policy/ guideline. However, the doctrine of legitimate expectation applies only when a person had been given reason to believe that the State will abide by certain policy or guideline on the basis of which such applicant might have been led to take certain actions. This doctrine is akin to the doctrine of promissory estoppels. See also the observations of Lord Wilberforce in IRC v. National Federation, 1982 AC 617. However, it has to be borne in mind that the guidelines on which the petitioners have relied are not statutory in character. These guidelines are not judicially enforceable. The competent authority might depart from these guidelines where the proper exercise of his discretion so warrants. . We would also like to refer to one more aspect of the enforceability of the guidelines by persons in the position of the petitioners in these cases. Guidelines are issued by Governments and statutory authorities in various types of situations. Where such guidelines are intended to clarify or implement the conditions and requirements precedent to the exercise of certain rights conferred in favour of citizens or persons and a deviation there from directly affects the rights so vested, the persons whose rights are affected have a clear right to approach the court for relief. Sometimes guidelines control the choice of persons competing with one another for the grant of benefits largesses or favours and, if the guidelines are departed from without rhyme or reason, and arbitrary discrimination may result which may call for judicial review. In some other instances (as in the Ramanna Shetty case AIR 1979 SC 1628 [LQ/SC/1979/277] ), the guidelines may prescribe certain standards or norms for the grant of certain benefits and a relaxation of, or departure from, the norms may affect persons, not directly but indirectly, in the sense that though they did not seek the benefit or privilege as they were not eligible for it on the basis of the announced norms, they might also have entered the fray had the relaxed guidelines been made known. In other words, they would have been potential competitors in case any relaxation or departure was to be made. "

(23) REFERENCE may also be made to another decision of the Supreme Court in J. R. Raghupathy v. State of A. P. , AIR 1988 SC 1681 [LQ/SC/1988/356] Sen, J. , speaking for the Division Bench, had this to say regarding the enforceability of non-statutory administrative rules and instructions (para 18) :-

"broadly speaking, the contention on behalf of the State Government is that relief under Art. 226 of the Constitution is not available to enforce administrative rules, Regulations or instructions which have no statutory force, in the absence of exceptional circumstances. It is well-settled that mandamus does not lie to enforce departmental manuals or instructions not having any statutory force, which do not give raise to any legal right in favour of the petitioner. The law on the subject is succinctly stated in Durga Das Basus Administrative Law, 2nd Edn. At p.144: "administrative instructions, rules or manuals, which have no statutory, are not enforceable in a court of law. Though for breach of such instructions, the public servant may be held liable by the State and disciplinary action may be taken against him, a member of the public who is aggrieved by the breach of such instructions cannot seek any remedy in the courts. The reason is, that not having the force of law, they cannot confer any legal right upon anybody, and cannot, therefore, be enforced even by writs under Art. 226"

The learned author however rightly points out at p. 145 :-"even though a non-statutory rule, bye-law or instructions may be changed by the authority who made it, without any formality and it cannot ordinarily be enforced through a Court of law, the party aggrieved by its non-enforcement may, nevertheless, get relief under Art.226 of the Constitution where the non-observance of the non-statutory rule or practice would result in arbitrariness or absence of fairplay or discrimination particularly where the authority making such non-statutory rule or the like comes within the definition of `state under Art 12."

Moreover, it is not even clear that the Code issued by the Ministry of Home, Government of India, is issued in the name of, and by order of the President, and whether it can be said to be an Order issued in exercise of the executive power of the President. (So far as the Code issued by the State Government is concerned, it is not applicable to the Chief Minister but only to Ministers). The Code does not say, the citizens can enforce it and if so, where Be that as it may, since no rights are conferred upon, or created in citizens by the said Code, and also because the Code itself prescribes the authority who shall ensure compliance with the said Code, leaving it to him the procedure to be followed in case of any alleged/ suspected breach and the action to be taken in that behalf, this Court cannot undertake to enforce the same. It is in this situation that the petitioners counsel has been obliged to resort to the theory of implied limitations, conventions, and inherent restrictions. The respondent, on the other hand, invokes the fundamental freedoms guaranteed to citizens of this country by Art. 19, and in particular the freedoms guaranteed by sub-cls. (a) And (g) of Art.19 (1). Each of these issues bears a separate scrutiny. Ministers and Fundamental Rights:

(24) THERE is little doubt about the proposition that a citizen does not forego, nor is he deprived of the several fundamental rights guaranteed to him by Part III of the Constitution, merely because he accepts the office of the Minister. But, at the same time, the nature of office, the duties, functions, and powers attaching to the said office do call for certain restrictions thereon. We may in this connection refer to the case of civil servants. Not that we are treating the Ministers and civil servants on the same par. We are very much conscious of the distinction between them; while the relationship of master and servant obtains in the case of civil servants, no such relationship can be conceived of in the case of Ministers. The analogy is being drawn for the limited purpose of examining the extent of restrictions that can be placed upon the fundamental rights of such persons. In Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 [LQ/SC/1962/83] , the Supreme Court, after referring to several American cases and after explaining why those decisions cannot be imported pro tan to into the Indian context, observed thus (Para 11) :-

"We find ourselves unable to accept the argument that the Constitution excludes Government servants as a class from the protection of the several rights guaranteed by the several Articles in Part III save in those cases where such persons were specifically named. In our opinion, this argument even if otherwise possible has to be repelled in view of the terms of Art. 33. That Article selects two of the Services under the State - members of the armed forces and forces charged with the maintenance of public order and saves the rules prescribing the conditions of service in regard to them - from invalidity on the ground of violation of any of the fundamental rights guaranteed by Part III and also defines the purpose for which such abrogation or restriction might take place, this being limited to ensure the proper discharge of duties and the maintenance of discipline among them. The Article having thus selected the Services members of which might be deprived of the benefit of the fundamental rights guaranteed to other persons and citizens and also having prescribed the limits within which such restrictions or abrogation might take place, we consider that other classes of servants of Government in common with other persons and other citizens of the country cannot be excluded from the protection of the rights guaranteed by Part III by reason merely of their being Government servants and the nature and incidents of the duties which they have to discharge in that capacity might necessarily involve restrictions of certain freedoms as we have pointed out in relation to Art.19 (1) (e) and (g). . "

(The last words in the above extract refer to what is said in Para 10, where it was stated that" limitations might be imposed on the exercise of these rights by Cls. (5) and (6) under which restrictions on the exercise of the rights conferred by sub-cl. (d) and (g) may be imposed if reasonable in the interest of the general public). Again, in Para 19, the Court observed: "we have rejected the broad contention that persons in the service of Government form a class apart to whom the rights guaranteed by Part III do not, in general, apply. By accepting the contention that the freedoms guaranteed by Part III and in particular those in Art 19 (1) (a) apply to the servants of Government we should not be taken to imply that in relation to this class of citizens the responsibility arising from official position would not by itself impose some limitations on the exercise of their rights as citizens. . "

Reference was made to S. 54 (2) of the Indian Income-tax Act, 1922 and S. 128 (1) of the Representation of the People Act, 1951, by way of illustration. On the same principle, and having due regard to the high status and the political nature of the office of Minister, certain limitations are inherent. For example, a Minister holding the portfolio of P. W. D. cannot say that Art. 19 (1) (g) entitles him to carry on his profession or business of a contractor and that there is nothing that prevents him from tendering for, or accepting Government contracts. Doing so may provide room for open abuse of office. It matters little whether he does the said business as an individual or as a partner of the firm - which submits tenders etc., - or as the Kartha of a H. U. F. He cannot also have any dealings with the Government by way of sales or supplies to, or purchases from the Government. Same position obtains whether he holds the P. W. D. portfolio or some other portfolio. This is because of the inherent - nay obvious inconsistency between the office and the said business. He cannot carry on any business or profession, actively for gain, while holding the office. This restriction is called for in the interest of general public - which means and includes a fair administration and good Government. Thus, it would be permissible for Parliament to make a law placing the above and or other reasonable restrictions, in the interest of general public, upon the right of the Ministers guaranteed by Art.19 (1) (g). In other words, if a law were to be made by Parliament imposing restrictions of the nature contained in the Code of Conduct issued by the Union Home Ministry, it may probably be upheld, as warranted by cl. (6) of Art. 19. of course, if any such restriction tends to restrict the right under Art. 19 (1) (a), it would be bad, unless it can be justified with reference to any of the grounds mentioned in cl. (2) of Art. 19. This academic discussion is merely to emphasize that the office of a Minister carries with it certain limitations of the nature referred to in the Code of Conduct. It may be that the Court may not enforce the restrictions provided by the said Codes of Conduct for the reason that they are not statutory and also because the restrictions provided thereby cannot be said to be provided by law as contemplated by, and within the meaning of, Art. 19 (6); yet, the fact remains that the Governments, both at the Centre and the State, have thought it fit to evolve such a Code of Conduct. Indeed, they may be rules of self-preservation conceived with a sense of enlightened self-interest. We are sure that no Minister would claim, or would have the temerity to claim, that he is not bound by the restrictions contained in the Code of Conduct. We reiterate that the binding nature of the said restrictions is entirely different from their enforceability by Courts. We need not express any opinion on Para 6 of the Code.

(25) WE may point out in this context that the evolving of a Code of Conduct by the Union Government, or a State Government, is not something unique or novel. Such rules of conduct have been evolved in England as well, and have been given the shape of a resolution of the Parliament. Sir Ivor Jennings refers to them in his book "cabinet Government". They are not only elaborate but also very instructive. In Chapter V, "ministers at Work" (Third Edition), he states thus at pages 109-110:-

". . . . . . . . . The question of shareholding was raised in the Marconi debate of 1913. Mr. Asquith then laid down the following propositions. The first and the most obvious is that ministers ought not to enter into any transaction whereby their private pecuniary interest might, even conceivably, come into conflict with their public duty again, no minister is justified under any circumstances in using official information, information that has come to him as a minister, for his own private profit or for that of his friends, Further, no minister ought to allow or to put himself into a position to be tempted to use his official influence in support of any scheme or in furtherance of any contract in regard to which he has an undisclosed private interest. . . . . . . . Again, no minister ought to accept from persons who are in negotiation with or seeking to enter into contractual or proprietary or pecuniary relations with the State any kind of favour. I will add a further proposition, which I am not sure has been completely formulated, though it has no doubt been adumbrated in the course of these Debates, and that is that ministers should scrupulously avoid speculative investments in securities as to which, from their special means of early or confidential information, they have or may have an advantage over other people in anticipating market changes. These he stated as `rules of obligation. He added that there were certain `rules of prudence which had never been formulated and which could hardly be put in precise or universal terms. `one of those rules is that in these matters such persons should carefully avoid all transactions which can give color or countenance to the belief that they are doing anything which the rules of obligation forbid. Certain general principles were also laid down in 1937 by Sir John Simon, speaking for the Prime Minister, during the debate on practice as a solicitor, mentioned above. In the first place, it is plain that in no circumstances must a man who holds the position of a minister ever allow himself to be in such a situation that his public duty will conflict with his private interests The second principle is that no man should allow himself to occupy any portion of the time which he is bound to devote to his public duties in disregard of his public duties, whether it is in playing golf or in the nature of business. The third principle is that inasmuch as the secrets of the Government are specially in charge of Cabinet ministers, no minister, and particularly, no Cabinet minister, must in any circumstances put himself in a position where he is not able to be the complete guardian of those secrets in that there is any possibility of any private interests being served through a knowledge of those secrets. "

Then again, at page 111, the learned author states:- "Mr. Churchill minted more precisely in 1945: the rules about ministers writing for the press arise from a decision taken in Mr. Baldwins Government that ministers may not write for newspapers on any subject. Connected with their departments, whether for payment or not, nor may they write for payment on any Governmental or political matter. They may of course take part in controversy in defense of Government policy. It would be unsuitable for a minister to make a particular newspaper his organ. On the other hand, a minister is entitled to write on literary, historical, scientific, or philosophical topics not connected with current politics at his pleasure, and may receive payment for such work, guarding him self all the time against criticism that he is neglecting his official duties. Many ministers, my self included, have written books in office under the above limits, and these books have been serialized. In times of election greater freedom prevails. In this present election ministers may, without payment, write in any newspapers in prosecution of the Governments aims or defense of its policy. They must however beware that favoritism of particular newspapers, if pronounced, will lead to retaliation by others. The matter might be mentioned in Cabinet"

(26) AGAIN, in 1952, the Prime Minister of Great Britain stated the Code of Conduct, in answer to a question placed by a Member in the following words, at pages 702-703 in "house of Commons Debates", a copy of which is placed before us:

"i have recently issued general guidance on this subject, and as the text is rather long I will circulate a copy in the Official Report. Following is the text: 1. It is a principle of public life that Ministers must so order their affairs that no conflict arises, or appears to arise, between their private interests and their public duties. 2. Such a conflict may arise if a Minister takes an active part in any undertaking which may have contractual or other relations with a Government Department, more particularly with his own Department. It may arise, not only if the Minister has a financial interest in such an undertaking, but also if he is actively associated with any body, even of a philanthropic character, which might have negotiations or other dealings with the Government or be involved in disputes with it. Furthermore, Ministers should be free to give full attention to their official duties, and they should not engage in other activities which might be thought to distract their attention from those duties. 3. Each Minister must decide for himself how these principles apply to him. Over much of the field, as is shown below, there are established precedents; but in any case of doubt the Prime Minister of the day must be the final judge, and Ministers should submit any such case to him for his decision. 4. Where it is proper for a Minister to retain any private interest, it is the rule that he should declare that interest to his colleagues if they have to discuss public business in any way affecting it, and that he should entirely detach himself from the consideration of that business. 5. Ministers include all members of the Government except unpaid Assistant Govt. Whips. Director ships 6. Ministers must on assuming office resign any directorships which they may hold, whether in public or in private companies and whether the directorship carries remuneration or is honorary. The only exception to this rule is that directorships in private companies established for the maintenance of private family estates, and only incidentally concerned in trading, may be retained subject to this reservation - that if at any time the Minister feels that conflict is likely to arise between his private interest and his public duty, he should even in those cases divest himself of his directorship. Directorships or offices held in connection with philanthropic undertakings should also be resigned if there is any risk of conflict between the interests of the undertakings and the Government. Share holdings 7. Ministers cannot be expected, on assuming office, to dispose of all their investments. But if a Minister holds a controlling interest in any company considerations arise which are not unlike those governing the holding of directorships and, if there is any danger of a conflict of interest, the right course is for the Minister to divest himself of his controlling interest in the company. There may also be exceptional cases where, even though no controlling interest is involved, the actual holding of particular shares in concerns closely associated with a Ministers own Department may create the danger of a conflict of interest. Where a Minister considers this to be the case, he should divest himself of the holding. 8. Ministers should scrupulously avoid speculative investments in securities about which they have, or may be thought to have, early or confidential information likely to affect the price of those securities. "

(27) INDUBITABLY, all these restrictions were evolved, or imposed, as the case may be, in the interest of good Government, fair administration, purity of public life, and ultimately in the interests of general public.

(28) WE may in this connection refer to the oath/ affirmation which a Minister has to make before entering upon his office: third Schedule

". . . . (Articles 75 (4), 99, 124 (6), 148 (2), 164 (3)188 and 219). Forms of Oaths or Affirmations i/v form of oath of office for a Minister for the Union:-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 the Union/minister for the 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".

II/ VI"form of oath of secrecy for a Minister for the Union:-"i, A. B. , do swear in the name of God solemnly affirm that I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the Union/minister for the State of. except as may be required for the due discharge of my duties as such Minister".

Sanctity of these oaths ought to be preserved. The fact that breach of oath is not a matter for the Court, as held in K. C. Chandy v. R. Balakrishna, AIR 1986 Kerala 116 (FB) and Kallara Sukumaran v. Union of India, AIR 1986 Kerala 122 relied upon by the counsel for respondents is really beside the point. The Courts may not investigate alleged breaches of oath; they may not declare anyone as disqualified even in case of breach of oath; but that does not detract in any manner with the sanctity and significance of oath. Theory of implied limitations/ implied restrictions arising from the scheme and text of the Constitution

(29) THE petitioners contend that though the Constitution does not expressly place any limitations upon the powers or conduct of Ministers, such a restriction is implied in the very scheme of the Constitution. The fact that our Constitution has provided for a Parliamentary form of Government, both at the Centre and the State, wherein the Prime Minister/chief Minister occupies a pivotal position, and also because the real power of governance vests in him, they say, certain limitations or restrictions upon his functioning and conduct are implied. These restrictions are inherent in the situation, and arise by necessary implication. It is for the Courts, counsel contend, to evolve them from time to time as the situation demands, and to enforce them. Without them, counsel contend, the democracy would be in peril and the goal of good Government in great danger. According to the counsel, sanction for this theory is provided by Bharati, AIR 1973 SC 1461 [LQ/SC/1973/159] . Learned Counsel also pointed out that in subsequent decisions, the Supreme Court has understood Bharati as affirming the said proposition. On the other hand, the learned Advocate-General says that, so far as the theory of implied limitations, or implied restrictions, as it may be called, is concerned, a majority of Judges in Bharati rejected the same, though by a majority of 7 : 6 they accepted the theory of basic structure/framework of the Constitution which cannot be amended by Parliament under Art. 368. The majority held that the word `amend in Article 368 cannot be construed as `repeal or "substitution, but only as `amend, and that the power of amendment cannot be exercised to alter or change the basic structure/framework/features of the Constitution. In short, the learned Advocate-Generals argument is that, in so far as the theory of implied limitations is concerned, the majority has rejected the same. This involves a brief examination of the decision in Bharati.

(30) SO far as Sikri, C. J. , Shelat, Hegde, Grover, and Mukherjea, JJ. are concerned, there is no dispute that they have accepted the theory of implied limitations. It is equally not in dispute that six other taught Judges, namely, Ray. Palekar, Mathew, Beg. Dwivedi and Chandrachud, JJ. Clearly rejected this theory The only controversy is: what did the other two Judges, namely. Jaganmohan Reddy and Khanna, JJ. Say about this theory At page 1746, P. Jaganmohan Reddy, J., said this in Para 1152:

"though there are naturally some limitations to be found in every organic instrument, as there are bound to be limitations in any institution or any other set up brought into existence by human agencies, and though my Lord the Chief Justice has gone into this aspect fully, it is in my view - not necessary- to consider in this case the question of the existence or non-existence of implied or inherent limitations, because if the amending power is wide and plenary, those limitations can be overridden as indeed the non obstinate clause in the amended cl. (1) of Art. 368 were intended to sub serve that end. What has to be considered is whether the word amendment is wide enough to confer a plenitude of power including the power to repeal or abrogate" the learned Advocate-General reads this paragraph to say that the learned Judge has declined to go into the said theory and preferred to rest his decision on the meaning of the word `amend, and also upon the theory of basic features of the Constitution, whereas Mr. Venugopal Reddy says that the said Para amounts to acceptance of the theory of implied limitations though the learned Judge did not choose to elaborate it, or to base his judgment thereon. Mr. Venugopal Reddy further points out that in the subsequent decisions of the Supreme Court, it has been so understood. He relies upon certain observations in the opinion of Mathew, J. in Indira Gandhi Election case, AIR 1975 SC 2299 [LQ/SC/1975/439] , and the observations of Chandrachud, J. in Minerva Mills Ltd. , v. Union of India, AIR 1980 SC 1789 [LQ/SC/1980/252] in support of his contention. We do not. However, think it necessary to go into this particular aspect, because even if we agree with Mr. Venugopal Reddy in this behalf, it would still appear that a majority of Judges have rejected the theory, inasmuch as the opinion of Khanna, J. in Bharati makes it clear beyond any doubt that he has rejected the said theory. Now we turn to the judgment of Khanna, J. While summarizing his conclusions in Para 1550, at page 1904 the learned Judge stated:-" (ix) There are no implied or inherent limitations on the power of amendment apart from those which inhere and are implicit in the word amendment. The said power can also be not restricted by reference to natural or human rights. Such rights in order to be enforceable in a Court of law must become a part of the statute, or the Constitution. . "

Indeed, during the course of discussion, the learned Judge said, in paras 1456, 1457, 1458 and 1459, at pages 1867 and 1868, thus: I may at this stage clarify that there are certain limitations which inhere and are implicit in the word `amendment. These are limitations which flow from the use of the word `amendment and relate to the meaning or construction of the word amendment. This aspect has been dealt with elsewhere while construing the word amendment. Subject to this clarification, we may now advert to the two facets of the concept of implied limitations referred to above. So far as the first facet is concerned regarding a limitation which flows by necessary implication from an express provision of the Constitution, the concept derives its force and is founded upon a principle of interpretation of statutes. In the absence of any compelling reason, it may be said that a constitutional provision is not exempt from the operation of such a principle. I have applied this principle to Art. 368 and despite that, I have not been able to discern in the language of that Article or other relevant Articles any implied limitation on the power to make amendment contained in the said Article. We may now deal with the second aspect of the question which pertains to limitation on the power of making amendment because such a limitation, though not flowing from an express provision, is stated to be based upon higher values which are very dear to the human heart and are considered essential traits of civilized existence. So far as this aspect is concerned, one obvious objection which must strike every one is that the Constitution of India is one of the lengthiest constitutions, if not the lengthiest of the world. The framers of the Constitution dealt with different constitutional matters at considerable length and made detailed and exhaustive provisions about them. It is then conceivable that after having dealt with the matter so exhaustively and at such great length in express words, they would leave things in the realm of implication in respect of such an important article as that relating to the amendment of the Constitution If it was intended that limitation should be read on the power of making amendment, question would necessarily arise as to why the framers of the Constitution refrained from expressly incorporating such limitations on the power of amendment in the Constitution itself. The theory of implied limitations on the power of making amendment may have some fascination and attraction for political theorists, but a deeper reflection would reveal that such a theory is based upon a doctrinaire approach and not what is so essential for the purpose of construing and working a Constitution, viz., a pragmatic and practical approach. This circumstance perhaps accounts for the fact that the above theory of implied limitations has not been accepted by the highest Court in any country. As the concept of implied limitations on the power of amendment under the second aspect is not based upon some express provision of the Constitution, it must be regarded as essentially nebulous. The concept has no definite contours and its acceptance would necessarily introduce elements of uncertainty and vagueness in a matter of so vital an importance as that pertaining to the amendment of the Constitution. Whatever might be the justification for invoking the concept of implied limitations in a short constitution, so far as the Constitution of India with all its detailed provisions is concerned, there is hardly any scope or justification for invoking the above concept. What was intended by the framers of the Constitution was put in express words, and in the absence of any words which may expressly or by necessary implication point to the existence of limitations on the power of amendment, it is, in my opinion, not permissible to read such limitations in the Constitution and place them on the power of amendment. I find it difficult to accede to the submission that the framers of the Constitution after having made such detailed provisions for different subjects left something to be decided by implication, that in addition to what was said there were things which were not said but which were intended to be as effective as things said. The quest for things not said, but which were to be as effective as things said, would take us to the realm of speculation and theorizing and must bring in its wake the uncertainty which inevitably is there in all such speculation and theories. All the efforts of the framers of the Constitution to make its provisions to be definite and precise would thus be undone. We shall be in doing so, not merely ignoring but setting at naught what must be regarded as a cardinal principle that a Constitution is not a subject of fastidious and abstract dialectics but has to be worked on a practical plane so that it may become a real and effective vehicle of the nations progress. As observed by Story in para 451 of the Constitution of the United States, Vol. I, constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or judicial research. They are instruments of practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. . . . ".

(31) WE may also mention that this theory has been rejected by Ray, J. in Para 1078 at page 1718 (conclusion No. 5); by Palekar, J. in Para 1343 at page 1826 (conclusion No. 2); Mathew, J. in Para 1799 at page 1967; by Beg, J. in Para 1851, at pages 1979-1980; by Dwivedi, J. in Para 2008, at page 2019 (conclusion No. 3), and by Chandrachud, J. , in Para 2156, at page 2055 (conclusion No. 6).

(32) IT must be remembered further in this context that the entire controversy in BHARATI (AIR 1973 SC 1461 [LQ/SC/1973/159] ) was, whether there are any implied limitations or restrictions on the power of amendment conferred upon Parliament by Art. 368. It was not a case where a new provision or rule was sought to be culled out from the scheme and text of the Constitution. Whereas in the case before us, the counsel for the petitioners want this Court to deduce a set of limitations or restrictions upon the conduct of the Ministers/chief Minister from the general scheme and spirit of the Constitution Such an attempt, we must say, has never been made in any other case. It is not possible for us to deduce a Code of Conduct, or a set of rules of conduct, applying the theory of implied limitations. That would clearly amount to amendment of Constitution - at any rate to substantive legislation. The impermissibility of such an exercise is too self-evident to require any emphasis or elaboration. We have not only to deduce a set of rules of conduct, but we may have to define them with precision, and then enforce them. 32a. Mr. Venugopal Reddy argued that the theory of implied limitations has also been relied upon by Supreme Court to declare that the form of Government established by the Constitution is Parliamentary form of Government. He says, the Constitution does not specifically say that the form of Government established by it is Parliamentary form of Government. He points out that the several Articles in the Constitution purport to confer all powers on the President, or the Governor, as the case may be, and that the Constitution is singularly silent with respect to the powers of the Prime Minister, or Chief Minister. Reference is made to Ramjawaya Kapur. AIR 1955 SC 549 [LQ/SC/1955/38] ; U. N. R. Rao AIR 1971 SC 1002 [LQ/SC/1971/189] , and Samsher Singh, AIR 1974 SC 2192 [LQ/SC/1974/248] We are not impressed. Art. 74 (1) and Art 163 (1) say that there shall be a council of Ministers, with the Prime Minister! Chief Minister at the head to aid and advice the President/governor, in the discharge of his functions It is the Council of Ministers who are made responsible to the Parliament; Legislative Assembly of the State, as the case may be. Whereas the Parliament is directly elected, the President is elected indirectly. So far as the Governor is concerned, he is not even elected. He is merely an appointee of the President. Reading all these provisions together, the Supreme Court held that our Constitution has adopted the Parliamentary form of Government, and that the power of governance is vested in the Council of Ministers, and not in the President/governor, as the case may be. It was more a case of harmonious construction of the several provisions in the Constitution, than the application of the theory of implied limitations. This would be evident from a perusal of the judgment of the Supreme Court in U. N. R. Rao, AIR 1971 SC 1002 [LQ/SC/1971/189] . It must also be remembered that a Constitution is not a purely legal document but a politics legal document. It represents and symbolizes a historical and political process. It enshrines social, political and economic aspirations of a nation. It not only has a goal, it points out the path to that goal. A literal or wooden interpretation may lead one to miss its true spirit and real meaning. It also misses the significance and role the constitutional conventions play in understanding and in working the Constitution. We do not think it is necessary to say more on this aspect for the purposes of this case.

(33) IN sum, we find not only that the theory of implied limitations/ implied restrictions has not been accepted by the majority in Bharati (AIR 1973 SC 1461 [LQ/SC/1973/159] ), we also find that the application of the said theory -assuming that such a theory is available - is of little help to the petitioners herein. We cannot infer and evolve a set of restrictions governing conduct of Ministers/chief Minister from the scheme and text of the Constitution, though we agree no less with the desirability of such restrictions. Yet, what the Constitution has chosen not to provide, the Court ought not to provide. What the Parliament has chosen not to do, the Court ought not to do. We repeatedly asked the counsel to point out to us the specific Article or Articles from which such a limitation must flow. They could not point out any, except to say that that is the requirement of the Constitution, read as a whole and that, such a restriction must be conceived to ensure good Government, democratic norms, and constitutional values. They request the Court to step in to fill the void to "save the democratic values" as they put it rhetorically. We refuse to be tempted. Preservation of democratic values, or for that matter, the ideal of good Government, is not, the function or prerogative of the judiciary alone. It is, and it ought to be the concern of all the three wings - nay of all concerned. The entire burden cannot be shifted to the shoulders of the judiciary. Its shoulders are not strong or broad enough to bear all that burden. It will introduce an imbalance in the polity, which will impair rather than repair the democratic system. The remedy in such a case may prove worse than the disease. We are not knight-errants to rush headlong into every situation, not provided for by the Constitution or the laws, in the name of upholding the norms of democracy or constitutional values. Our value judgments may not always be acceptable to the people. Nor are we their elected representatives to presume to speak on their behalf. Conventions and Rules of Conduct:

(34) THERE is no precise definition of political conventions. Geoffrey Marshall defines conventions as "rules that define major non-legal rights, powers and obligations of officeholders in the three branches of Government, or relations between the Government and organs of Government". This may be taken as the most acceptable one. According to Hood Phillips, the working definition of constitutional Conventions is "rules of political practice which are regarded as binding on those to whom they apply but which are not laws, as they are not enforced by Courts or by the House of Parliament. . . . ". The learned author further distinguishes constitutional conventions from mere practice, usage, habit, or fact and also from non-political rules, i. e. , Rules of Conduct. The author says, "this definition distinguishes constitutional conventions from: (ii) non-political rules, i. e. , rules of conduct, which are not referable to the needs of the constitutional government, e. g. , ethical or moral rules, or the almost invariable custom of Crowning the Queens consort which has no constitutional significance. . ". The learned author says further "it is also helpful to distinguish conventions from such. . . Alike concepts as `traditions, principles, and doctrines the purpose of convention may be seen as to give effect to these traditions, principles, or values ". It, therefore, appears that the Rules of Conduct, or Code of Conduct which the petitioners are speaking of, do not fall within the concept "constitutional Conventions", as it is ordinarily understood. Even if we take a broader view of the expression conventions and say that conventions may also pertain to Rules of Conduct of such high constitutional functionaries, even so the fact remains that these conventions are not laws, and that they are not enforceable in Courts. Moreover, no material has been placed before us to show that any such conventions relating to rules of conduct of Ministers, are evolved in England, or are evolved in this country, or that the Courts have proceeded to enforce such conventions, if any.

(35) WE may in this connection refer to the decision of the Canadian Supreme Court in Reference Re Amendment Of The Constitution Of Canada (Nos. 1, 2 and 3) 125. Dominion Law Reports, page 1. One of the questions that fell for consideration was :

"is it a constitutional convention that the House of Commons and Senate of Canada will not request Her Majesty the Queen to lay before the Parliament of the United Kingdom of Great Britain and Northern Ireland a measure to amend the Constitution of Canada affecting federal provincial relationship or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments without first obtaining the agreement of the provinces".

While answering the question, the majority consisting of Martland, Ritchie, Dickson, Beetz, Choninard, and Lamer, JJ dealt with the nature and enforceability of conventions. The following observations are relevant for our purposes:"those parts of the Constitution of Canada which are composed of statutory rules and common law rules are generically referred to as the law of the Constitution. In cases of doubt or dispute, it is the function of the Courts to declare what the law is and since the law is sometimes breached, it is generally the function of the Courts to ascertain whether it has in fact been breached in specific instances and, if so, to apply such sanction as are contemplated by the law, whether they be punitive sanctions or civil sanctions such as a declaration of nullity. Thus, when a federal or a provincial statute is found by the Courts to be in excess of the legislative competence of the Legislature which has enacted it, it is declared null and void and the Courts refuse to give effect to it. In this sense it can be said that the law of the Constitution is administered or enforced by the Courts. But many Canadians would perhaps be surprised to learn that important parts of the Constitution of Canada, with which they are the most familiar because they are directly involved when they exercise their right to vote at federal and provincial elections, are where to be found in the law of the Constitution. For instance it is a fundamental requirement of the Constitution that if the Opposition obtains the majority at the polls, the Government must tender its resignation forthwith. But fundamental as it is, this requirement of the Constitution does not form part of the law of the Constitution. It is also a constitutional requirement that the person who is appointed Prime Minister or Premier by the Crown and who is the effective head of the Government should have the support of the elected branch of the Legislature; in practice this means in most cases the leader of the political party which has won a majority of seats at a general election. Other ministers are appointed by the Crown on the advice of the Prime Minister or Premier when he forms or reshuffles his cabinet. Ministers must continuously have the confidence of the elected branch of the Legislature, individually and collectively. Should they lose it, they must either resign or ask the Crown for dissolution of the Legislature and the holding of a general election. Most of the powers of the Crown under the prerogative are exercised only upon the advice of the Prime Minister or the Cabinet which means that they are effectively exercised by the latter, together with the innumerable statutory powers delegated to the Crown in council. Yet none of these essential rules of the Constitution can be said to be a law of the Constitution. It was apparently Dicey who, in the first edition of his Law of the Constitution, in 1885, called them "the conventions of the constitution" (W. S. Holds worth, "the Conventions of the Eighteenth Century Constitution, 17 Iowa Law Rev. 161 (1932), an expression which quickly became current. What Dicey described under these terms are the principles and rules of responsible Government, several of which are stated above and which regulate the relations between the Crown, the Prime Minister, the Cabinet and the two Houses of Parliament. These rules developed in Great Britain by way of custom and precedent during the nineteenth century and were exported to such British colonies as were granted self-government. ".

"The main purpose of constitutional conventions is to ensure that the legal framework of the Constitution will be operated in accordance with the prevailing constitutional values or principles of the period. For example, the constitutional value which is the pivot of the conventions stated above and relating to responsible government is the democratic principle; the powers of the State must be exercised in accordance with the wishes of the electorate; and the constitutional value or principle which anchors the conventions regulating the relationship between the members of the Commonwealth is the independence of the former British colonies. Being based on custom and precedent, constitutional conventions are usually un-written rules. Some of them, however, may be reduced to writing and expressed in the proceedings and documents of Imperial conferences, or in the preamble of statutes such as the Statute of Westminster, 1931, or in the proceedings and documents of federal-provincial conferences. They are often referred to and recognized in statements made by members of governments. The conventional rules of the Constitution present one striking peculiarity. In contradistinction to the laws of the Constitution, they are not enforced by the Courts. One reason for this situation is that, unlike common law rules, conventions are not judge-made rules. They are not based on judicial precedents but on precedents established by the institutions of Government themselves. Nor are they in the nature of statutory commands which it is the function and duty of the Courts to obey and enforce. Furthermore, to enforce them would mean to administer some formal sanction when they are breached. But the legal system from which they are distinct does not contemplate formal sanctions for their breach. Perhaps the main reason why conventional rules cannot be enforced by the Courts is that they are generally in conflict with the legal rules which they postulate and the Courts are bound to enforce the legal rules. The conflict is not of a type which would entail the commission of any illegality. It results from the fact that legal rules create wide powers discretions and rights which conventions prescribe should be exercised in a certain limited manner, if at all. . ".

(Pages 82-83 and 84-85).

(36) INDEED, this decision has given rise to a criticism on the following lines: Once the majority says that the Court has no power to enforce the constitutional conventions, there was no occasion for the Court to go into the question, or to record a finding whether a constitutional convention of the kind pleaded by the Provinces, does, or does not exist. On the other hand, the supporters of the viewpoint who adopted the decision say that the line adopted by the court is a case of judicial statesmanship, and that it helped to clarify an uncertain issue of great importance to the Canadian nation.

(37) OUR Supreme Court too has repeatedly referred to constitutional conventions, but has not held that constitutional conventions are enforceable by Courts. Power of this Court to grant relief in these writ petitions:

(38) FROM the preceding discussion it is clear that the rules of conduct do not have a constitutional or statutory sanction, and cannot be enforced by the Court. The Code of Conduct evolved by the Union or the State Government does not confer any rights upon citizens and, therefore, cannot be enforced through Court. The respective Codes specify the authority empowered to enforce the same. The Court does not enter the picture. Indeed, we had been at pains to point out to the counsel for the petitioners from the very beginning that it would neither be permissible, nor advisable for this Court to evolve a Code of Conduct by itself, though we do not deny the necessity of such a Code in the interest of good Government and fair administration. The Court cannot perform a pure and simple legislative function. It is significant to notice that the Constitution has left several matters unsaid. Even the Parliament or the State Legislature has not thought it fit to make a law regulating the conduct of Ministers. It would be inadvisable for the Court to seek to supply the omission by evolving a law/code itself, and then enforce it. The Ministers are primarily responsible to the Legislature. Any deviation from moral and ethical standards is a matter for the Legislature, and ultimately for the people to deal with. Nor can we say that merely because a Minister is held to be a public servant, within the meaning of S. 21 of the I. P. Code, he becomes a public servant for all purposes and therefore he must devote all his time to his official duties. It must be remembered that it is an elective office. There is no relationship of employer and employee, or master and servant, in the case of a Minister the concept of the people being the masters being really a political concept. It is a political office. Participation in political activities while continuing as a Minister is inherent in the very office. How much time does a Minister devote to his political activities and how much time to official duties is not a matter for the Court to decide. It is well known that at the time of elections, these functionaries devote more time to political work than to official work. No one has said so far that they ought not to do so. We must also say that at the highest levels of Government, or for that matter, of judiciary, what matters is a sense of self-discipline, a commitment to duty, and an adherence to oath of office. There may, in fact, be no check on wrong doing on their part. Experience has shown that in a Parliamentary form of Government, more so in a welfare State, the Prime Minister/chief Minister tends to become all powerful. The notion that a Prime Minister is primus inter pares is no longer valid. Some scholars think that the appellation prime-Ministerial form of Government would be more nearer to reality. Where he says:

"The Prime Minister, as we have seen, forms the Cabinet, and, as we shall see, can secure the removal of ministers in order to maintain Cabinet harmony. He presides over its deliberations, and through the Secretariat supervises the punctual execution of Cabinet decisions. . . . On all Cabinet matters he is the channel of communication with the king. . . . . He has in the past, normally been the leader of the House of Commons. He is expected to answer questions on the business of the Commons, to reply to general interrogations not falling within the sphere of individual departments, and to intervene in debates of general importance, such as those on defense, foreign affairs, and domestic issues of prime character. At the same time, as head of the party, he is concerned with all issues affecting its operations; he fosters promising young adherents and intervenes to prevent the development of fissures in its cohesion. . he must also guide public opinion by receiving deputations and discussing issues, by public speeches at party conferences, and on other set occasions. Finally, it is to the Prime Minister that heads of departments turn in case of urgent emergency, where Cabinet sanction is normally needed, but where time forbids its being obtained. In such a case the prime Minister has implied authority to decide, certain of homologation later by the Cabinet. . . . ". (We have omitted reference to Prime Ministers powers in the field of Defense, International Trade, and Foreign Affairs). All this power carries with it an enormous amount of responsibility. It is in this context that the qualities aforementioned assume significance. High constitutional functionaries should not allow situations to arise where they can be legitimately accused of unseemly conduct. They must remember that if they fall, there is none to correct them, and with them falls the Nation.

(39) DE Smith says at page 465 of his book "judicial Review of Administrative Action" (Fourth Edition):

"The question of qualification to sit as a member of either House of Parliament falls within the scope of parliamentary privilege and is not, therefore, cognizable by courts of law except in so far as Parliament has expressly provided for a judicial determination. The relevant statutory provisions do not empower the courts to award injunctions to restrain persons from sitting as members ".

(The expression `relevant statutory provisions refers to (i) Representation of the People Act, 1949, Part III, which provides for a petition to the Election Court against validity of an election to the House of Commons, which says that the Courts report has to be adopted by the House; (ii) S. 7 of the House of Commons Disqualification Act, 1975, which provides for making an application to Judicial Committee of the Privy Council for declaration that a person is disqualified for membership; and (iii) S. 4 of the Judicial Committee Act, 1833, which provides for a special reference by the Crown to the Judicial Committee of the Privy Council).

(40) WE may reiterate in this behalf what we have said earlier, viz. , that the Code of Conduct evolved - whether by the Union Government or the State Government also prescribes the authority to ensure observance of the said Code. It empowers such authority to adopt such procedure as he thinks appropriate in a given case, having regard to the facts and circumstances thereof, and that by necessary implication the said Code also leaves it to such authority to decide upon the appropriate action that should be taken as a result of his enquiry. In such a situation, the Court does not enter the picture - whatever be the effectiveness of Para 6 of the Code. In this connection, we may refer to Arts. 103 and 192, which provide a special forum for deciding, what may be called `supervening disqualifications. In the case of a Member of Parliament, it is the President; and in the case of Member of a House of Legislature of a State, it is the concerned Governor. In these cases, it has been held that the forum specified by the Constitution alone is the competent forum, and that the Court has no jurisdiction to go into the said questions.

(41) ANOTHER important feature of this case is this: The petitioners are not complaining of any particular executive action, order, act, or omission of the respondent, as was the case before the Full Bench of this Court, in Dhronamraju Satyanarayana v. N. T. Ramarao, AIR 1988 Andhra Pradesh 144, upon which decision both the counsel for the petitioners place strong reliance. This is a case where a certain conduct of the respondent, a certain activity of the respondent, is sought to be restrained on the ground that as a Chief Minister he ought not to undertake such activity. In short, by means of W. P. No. 310/87, the petitioner is seeking to regulate the personal conduct of the respondent on the ground that such conduct, or activity, as it may be called, is inconsistent with the office held by him, and is opposed to democratic norms and public interest. No Court has ever acceded to such a plea, and in the absence of any law or precedent, decline to entertain, or accede to the said plea. So far as the writ of Quo Warrantor is concerned, the position is much worse as we shall point out at the appropriate place hereinafter. The argument is that by undertaking the said activity the respondent is disqualified from holding the said office and should declare him so. In the absence of any specific constitutional/statutory provision disqualifying the respondent on the basis of the said conduct and also empowering this Court to entertain and pronounce upon the said question, the plea for a Quo Warrantor is totally misconceived. Whether a Minister is a public Servant

(42) IN M. Karunanidhi v. Union of India, AIR 1979 SC 898 [LQ/SC/1979/137] it has been held by the Supreme Court that a Chief Minister, or a Minister, is in the pay of the Government and is therefore a public servant, within the meaning of Section 21 (12) of the Indian Penal Code. But, the said definition is relevant only for the purpose of Indian Penal Code, and is intended to provide a certain protection to them against frivolous and vexatious prosecutions. A Minister is also a public servant, as Defined in Section 2 (c) of the Prevention of Corruption Act, 1988; but that definition again is relevant for the purpose of that Act alone. Because of the said definitions, it cannot be held that a Minister is a public servant for all purposes, nor can it be held that he is bound to devote all his time for his official work. While it is required of him that he must do his best to discharge his official functions honestly, fairly and competently, no such limitation as is prescribed in Fundamental Rules 11 and 15 (applicable in the case of civil servants) can be implied. The office of a Minister is a political office, and an elective office. He is not a civil servant. Concept of Master and servant is alien to the said office. Whether acting in, or directing the film "brahmarishi Viswamithra" amounts to a corrupt practice, or an electoral or other offence

(43) THESE writ petitions were filed even before the picture was produced or released. They were filed even before the shooting of the film began. The picture has not yet been released. It is, therefore, premature for the petitioners to say that the said film preaches religious-or communal intolerance, or that it amounts to an electoral or other offence. The petitioners have not even set out the basic script or story of the film. Though Mr. Ayyapu Reddy offered to place the script of the film before us, we declined to look into it for more than one reason. Firstly, the allegation of the petitioners is only a general one, and has not been substantiated by any material. Secondly, the film is not yet made, and there may be changes in the story and script even during the shooting of the picture. Thirdly, it is not for this Court, in this writ petition, to pronounce upon the said aspect. Whether acting in, and directing the film is relatable to freedom of speech and expression, or the freedom to practice profession, occupation, or business

(44) THE petitioners contend that by acting in, and by directing the said film, the respondent has undertaken a commercial venture; that, he is doing a business for gain, and that it amounts to following a profession or occupation, which the respondent has been following till 1982. They say, acting in a film, or directing a film amounts to practicing a profession or occupation, within the meaning of Art.19 (1) (g). It is submitted that a film is a commercial venture. Even the n. T. R. Trust is making the film for earning profit, which it proposes to utilize for charitable purposes. The respondent, even if he is not receiving any remuneration for his participation in the film, is undoubtedly assisting the Trust in a commercial venture, which necessarily means that his activity is also necessarily commercial in character. It is also pointed out that the only profession of the petitioner until 1982 was acting in, and directing and producing films. It is evident that he is now reverting to that profession, they contend. They also say that once this Court does not interdict the respondent, he may as well act in other films on the plea that he is exercising his right of freedom of speech and expression. According to the petitioners, the invocation of freedom of speech and expression is only an excuse and a facade. The real object is to earn money for himself and for the members of his family. The petitioners also refer to, what they call a prevalent notion, that the evil of black money is most rampant in film business. The very fact that a Chief Minister of the State is acting in a film and is directing the film is bound to enhance its commercial value. By participating in the said film and by identifying himself with the said film, the respondent is enhancing the commercial value of the said film and, therefore, it is argued, the nature and character of his participation must also be held to be commercial in nature, and therefore relatable to Art. 19 (1) (g). The whole attempt of the petitioners is to bring the said activity of the respondent within the mischief of Para 2 (c) of the Code of Conduct. The petitioners rely upon the decision of the Supreme Court in Hamdard Dawakhana, AIR 1960 SC 554 [LQ/SC/1959/232] which lays down the tests to be applied in determining whether a particular activity is relatable to one or the other fundamental right guaranteed by Part III. According to the petitioners, the same tests must be applied in determining whether one or the other clause of Art. 19 (1) is attracted.

(45) ON the other hand, the contention of the respondent is that the whole activity is relatable to his freedom of speech and expression, and not to the freedom guaranteed by Art.19 (1) (g). The respondent contends that he is not the producer of the picture, that he is not concerned with the distribution rights of the film, and that he is not receiving any remuneration for acting in, or for directing the film. According to him, he has undertaken the said activity with a view to propagate the ideals of equality, brotherhood, and egalitarianism. The life and philosophy of Viswamithra, says he, symbolizes and propounds the said doctrines, and he thinks, the most effective way of conveying the said ideals to the people is through the medium of a film, which is undoubtedly a very powerful and popular medium today. According to the respondents counsel, either by speeches or by writings, it is not possible for the respondent to reach as many number of people and as intensely and as effectively as he can do through the medium of the film. It is pointed out by the counsel for the respondent that S. 5-B of the Cinematograph Act, 1952, and the decision of the Supreme Court in S. Rangarajan v. P. Jagjivanram, (1989) 2 SCC 574 [LQ/SC/1989/198] establish that the right to produce and exhibit films is relatable to Art.19 (1) (a), and not Art.19 (1) (g). It is pointed out that S. 5-B of the Cinematograph Act, which lays down the principles for guidance in certifying the films, says that a certificate can be refused only if, in the opinion of the authority, the film is against the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation, or a contempt of Court, or is likely to incite commission of any offence, all of which grounds are the grounds mentioned in CI. (2) of Art. 19. They point out in this connection that activity of running a newspaper, though also a business, is held relatable to freedom of expression in Sakal Newspapers, AIR 1962 SC 305 [LQ/SC/1961/322] ; Bennett Coleman, AIR 1973 SC 106 [LQ/SC/1972/523] , and Express Newspapers, AIR 1986 SC 515 [LQ/SC/1984/332] . On the same reasoning, they say, the activity relating to making of a film must also be held relatable to freedom of speech and expression. Supreme Court has indeed done so in S. Rangarajan v. P. Jagjivanram, (1989) 2 SCC, 574 [LQ/SC/1974/263] , they say. Having pointed out that the activity of the respondent is relatable to Art. 19 (1) (a) and not Art 19 (1) (g), they contend that if Para 2 (c) of the Code of Conduct is understood as prohibiting the said activity, it would be void, being violative of the respondents fundamental right under Art. 19 (1) (a). They point out that in Bank Nationalisation case, AIR 1970 SC 564 [LQ/SC/1970/40] the Supreme Court has overruled the theory expounded in Gopalan, AIR 1950 SC 27 [LQ/SC/1950/19] , and has held that it is not the form and object of the law that is relevant, but it is the effect and impact the law has upon the fundamental rights of a citizen, that is relevant. The Supreme Court has also ruled that even if a law is made with the object of regulating on particular fundamental right, but if the law affects or infringes another fundamental right of the citizens, the law has to satisfy the requirements of that fundamental right as well. In other words, a law made with a view to regulate the right under Art. 19 (1) (g) - if it affects the right under Art 19 (1) (a) - has to satisfy the requirements of Art. 19 (2), besides satisfying the requirements of Art 19 (6). On this basis, they argue that even if a law were to be made in terms of the Code of Conduct, and if such law is interpreted or understood as prohibiting the respondent from exercising his freedom of speech and expression, it would be void, not being saved by Cl. (2) of Art. 19.

(46) WE do not, however, propose to express any opinion upon this aspect, for more than one reason, viz. , (i) the Code of Conduct is not statutory, and cannot be enforced by this Court; (ii) the Code of Conduct itself prescribes the authority who shall ensure observance of the said Code, and it is left to him to evolve appropriate procedure in each case, and also to decide upon the appropriate action to be taken in the matter; (iii) there is no statutory provision prescribing a Code of Conduct for Ministers which can be enforced by this Court; (iv) neither the theory of implied limitations/restrictions, nor the resort to constitutional conventions is of any help, as explained above, in conceiving and evolving any such rules of conduct, or any restrictions of the nature provided by the Code of Conduct, and (v) by expressing any opinion, we would be pronouncing upon a question outside our jurisdiction. Locus Standi of the Petitioners:

(47) COUNSEL for the respondent objected to the locus standi of the petitioners. They say that the petitioners are in no way personally affected by the respondents activity complained of. None of their legal rights are injured. It is also pointed out that this writ petition cannot be treated as a public interest litigation, for, it does not satisfy the requirements of such litigation, as pronounced by the Supreme Court in S. P. Guptas Case, AIR 1982 SC 149 [LQ/SC/1981/463] . It is pointed out that this writ petition is not designed to advance the interests of down-trodden, deprived, and exploited sections of the society, nor is it for enforcement of any of their fundamental rights or basic human rights. It is also not a case where any legal wrong, or legal injury has been inflicted upon the socially or economically disadvantaged sections of the people. According to the respondent, this is indeed a case where certain members of the Congress (I) Party are seeking to wreak vengeance for the successive defeats inflicted upon them by the respondent at two General Elections. The respondents counsel, therefore, pray that this writ petition should be dismissed in liming. On the other hand, the petitioners counsel point out that this case is not really in the nature of public interest litigation. They say here are two or more responsible citizens of this country who are complaining that their Chief Minister is not devoting all his available time to the discharge of his official functions, and that he is engaging himself in a business activity to the detriment of his official/constitutional duties. According to the petitioners, such a course of activity is bound to adversely affect the administration of the State and the interests of public. They also complain that a large number of files requiring the attention of the Chief Minister are remaining unattended because of the preoccupation of the respondent with the film. It is argued that the petitioners being responsible members of public can certainly bring the said prejudice to administration and democratic values to the notice of this Court and seek redress. They submit that merely because the petitioners are members of Congress (I) Party, which is opposed to the respondents Party, the writ petitions should not be thrown out, nor. should it be presumed that the petitioners are acting out of oblique motives, or mala fide. They place reliance upon certain observations in Para 10 of the decision in Chaitanya Kumar v. State of Karnataka, AIR 1986 SC 825 [LQ/SC/1986/117] . They also rely upon para 30 of the Full Bench decision of this Court in Dhronamraju Satyanarayana v. N. T. Ramarao, AIR 1988 Andhra Pradesh 144.

(48) ON this question too, we do not wish to express any opinion. We have already held that this Court has no jurisdiction to grant any relief in these writ petitions. In such a situation, any expression of opinion on this aspect would be really unnecessary. We must, however, reiterate what we have said earlier, viz. , that the petitioners herein are not questioning any particular executive action of the nature complained of in Chaitanaya Kumar, AIR 1986 SC 825 [LQ/SC/1986/117] , or in Dhronamraju Satyanarayana, AIR 1988 Andhra Pradesh144 (FB). They have not established, by placing relevant material before this Court, that the respondents acting in the film has, as a matter of fact, prejudiced the public interest, or 0administration of State. They have also not established how they are prejudicially affected by the activity complained of. Quo Warrantor

(49) SO far as the writ of Quo Warrantor is concerned, it is, in our opinion, totally misconceived. It is not suggested that the respondent suffered, or was suffering from any disqualification when he assumed the office of Chief Minister. The only argument is that by acting in, and by directing the film "brahmarishi Viswamithra", he has forfeited his right to office, and must be declared as such. We repeatedly pointed out to the learned counsel that disqualification is a serious matter and must be provided expressly by law. We asked the counsel repeatedly to point out the provision of law, or Constitution, which disqualifies the respondent on the ground alleged. He could not show any. All that he contended was that such a course of activity is undesirable, adverse to public interest, and opposed to the Code of Conduct referred to above. It is not possible for this Court to infer a disqualification from Arts. 162 to 167, as suggested by the learned counsel for the petitioners, and to declare that the respondent has become disqualified on that basis. The oath of office administered to the respondent also does not say that he must devote his entire time to his official duties, nor does it say that he should devote all his available time to his official work. In the circumstances, we cannot see any violation of law by the respondent in acting in, or directing the said film which disqualifies him from holding the office of Chief Minister. We cannot infer a disqualification from the scheme of the Constitution. In our opinion, therefore, a writ of Quo Warrantor is wholly out of place, and cannot be granted. Summary:

(50) WE may now summaries our findings:

(i) There is no provision in the Constitution, nor is there any provision of law which regulates the conduct of a Minister - which expression includes Chief Minister and Prime Minister. There is also no constitutional or statutory provision prohibiting a Minister from engaging himself in any profession, occupation, or business, whether actively for gain, or otherwise.

(ii) The Code of Conduct issued by the Union Government - and by the State Government - is of great significance and sanctity, though it is not statutory. It fills a great void. The Code is evolved with an eye upon good Government and clean administration, not only in action but also in appearance. It is binding upon all Ministers. It prescribes the authority that shall ensure observance thereof. The procedure to be followed by him and the action to be taken thereon is also left to him. Similar rules have also been evolved in United Kingdom. However, for the reasons given hereinbefore, the petitioners cannot seek to enforce the Code through the Court.

(iii) A person is not deprived of his fundamental rights guaranteed by Part III of the Constitution on account of his accepting the office of Minister. At the same time, the nature and character of the office, the duties and functions attached to it, and the power and position which it carries, necessarily involve and imply certain restrictions on those fundamental rights to the extent they are called for to ensure a proper and effective discharge of the powers and functions of the office. For instance, no Minister may carry on any profession, or business, actively, for gain, while in office. Such activity would be inconsistent with the high office, he holds. It may provide occasion for open abuse. The Code of Conduct evolved by the Union Government - and the State Government - does contain salutary restrictions; but, since the Code cannot be treated as law within the meaning of Cls. (2) to (6) of Art. 19, the restrictions contained therein cannot be enforced by Court.

(iv) It is not possible to infer or deduct limitations - whether of the nature contained in the Code of Conduct or otherwise - from the scheme or text of the Constitution, applying the theory of implied limitations/implied restrictions. Indeed, the theory of implied restrictions has been rejected by a majority of Judges in Kesavananda Bharati, (AIR 1973 SC 1461 [LQ/SC/1973/159] ). In any event, the said theory is not available for evolving a whole set of rules governing the conduct of Ministers. Adopting such a course amounts to amending the Constitution or, at any rate, to an act of substantive law making - which cannot be done by this Court.

(v) Constitutional Conventions relate to the working of the Government. They determine relations between the three wings of the State. They are distinct from the rules of conduct of Ministers, or other high constitutional functionaries. Even otherwise, it is not shown that any particular conventions governing the conduct of Ministers have grown in England, or in India, which have been enforced by Courts.

(vi) The office of a Minister is a political office. It is an elective office. His oath of office obligates him to discharge the duties of Minister faithfully and conscientiously. The oath of office, however, does not say that he shall devote all his time to his official duties. It is a matter left to his good sense and his conscience. Holders of high constitutional offices like Ministers must act with a sense of self-discipline and with due regard to, and understanding of democratic norms and constitutional values - even in the matter of their personal conduct. The fact that Court may not regulate their personal conduct is beside the point.

(vii) The fact that a Minister has been held to be a public servant within the meaning of S. 21 of the Indian Penal Code does not mean that he is a public servant for all purposes. A Minister cannot be equated to a public servant. The concept of Master and servant has no application or relevance to the office of a Minister. The Rules of Conduct applicable to civil servants or the Fundamental Rules requiring civil servants to place all their time at the disposal of the Government) are not applicable to Ministers.

(viii) This Court has no power to enquire into the desirability or otherwise of the respondents conduct, nor has it power to restrain him from engaging himself in the said activity. Much less can it declare him to be disqualified from holding the office of Chief Minister on the said ground. In this case the petitioners are not questioning any particular executive action, or inaction of the respondent, but are questioning his personal conduct. There is no decision of any Court in this country, or for that matter, in England, where the Courts have undertaken to regulate the personal conduct of a Minister, or have sought to enforce moral or ethical rules of personal behavior.

(ix) In the facts and circumstances, we do not wish to - we do not think it necessary to - express opinion on the question whether the activity of the respondent complained of herein is relatable to the fundamental right guaranteed to him by sub-cl. (a) of CI. (1) Of Art.19, or sub-cl. (g) thereof.

(x) The allegation that acting in, and directing of the said film amounts to an appeal to voters on the grounds of religion cannot be enquired into by this Court, at this stage, in a writ petition. It is premature. The occasion for such complaint has not arisen yet. We refuse to look into the allegation.

(51) FOR the reasons given above, both the writ petitions are dismissed. There shall be no order as to costs.

(52) MR. S. Ramchandra Rao, Advocate for the petitioner in W. P. No. 7328 of 1989 has made an oral representation seeking leave of this Court to appeal to the Supreme Court of India against the judgment of this Court dated 31-8-1989 in W. P. No. 7328 of 1989, the Court made the following order.

(53) APPLICATION for leave to appeal to the Supreme Court in Writ Petition No. 7328/89 orally prayed for under Article 133 of the Constitution is declined as no substantial question of law of general importance, which needs to be decided by the Supreme Court, is involved. Petition dismissed.