The Uttarakhand High Court on Tuesday declared that the Uttarakhand Former Chief Ministers Facility Act, 2019 which allows former chief ministers of the State to stay in government bungalows without paying market rent, is "ultra vires".
The division bench comprised by Chief Justice Ramesh Ranganathan and Justice RC Khulbe has held that a Chief Minister, once he demits office, is on par with the common man and is not entitled to any preferential treatment, other than security and other protocols.
"Once such persons demit the public office earlier held by them, there is nothing to distinguish them from the common man. The public office held by them earlier is a matter of history, and cannot form the basis of a reasonable classification to categorise previous holders of public office as a special category of persons entitled to the benefit of special privileges," the court observed.
The decision has come in a PIL filed by the Rural Litigation and Entitlement Kendra, a Dehradun-based NGO, against the 2019 Act.
In March 2019, the another division bench of the High Court had in Rural Litigation and Entitlement Kendra Rlek v. State of Uttarakhand & Ors., WP PIL No. 90/2010, had directed the Ex-Chief Ministers to pay the market rent for the bungalows allotted to them by the State Government after they had demitted office as Chief Minister, as also to pay for the various amenities provided to them by the State Government at the cost of the public exchequer. It was held therein that the government bungalows constitute "public property", and are thus amenable to writ jurisdiction.
However in January this year, the Uttarakhand Government enacted the impugned legislation, to exempt the former CMs from paying rent for Government accommodations.
The Petitioner-organization had thus moved the High Court, stating that the Act had been made with the specific purpose of over-ruling the abovementioned judgment and was a measure of "statutory over-ruling".
The court has observed that the impugned Act does not serve any public purpose, and it merely confers "undeserved largesse" on the former Chief Ministers.
As mentioned above, the bench was of the view that after demitting office, the former Chief Ministers are at par with the common man and therefore, any discrimination between the two is violative of Article 14 of the Constitution.
The bench concurred with the Petitioner's submission that the impugned legislation arbitrarily creates a separate and special class of citizens i.e. former Chief Ministers, and treats them differently from any other citizen of India without a reasonable basis, intelligible differentia or lawful consideration recognised by the Constitution.
"Conferment of the benefits, of concessional accommodation, and various other facilities being provided free of cost, on the former Chief Ministers is without any adequate determining principle, excessive and grossly disproportionate, and must, therefore, be held to suffer from manifest arbitrariness and to fall foul of Article 14 of the Constitution," the court said.
The justification put forth by the Government that the former Chief Ministers had rendered priceless service as Chief Ministers and, taking into consideration their contribution and as a reward for the services rendered by them, they have been extended these benefits after they demitted office, was rejected by the Court.
Law enacted to overrule a judicial decision violates the doctrine of Separation of Powers
The court held that any attempt by the State Legislature to enact a law only to overrule a judicial decision violates the doctrine of separation of powers, an entrenched principle in the Indian Constitution.
In context to the ruling of the division bench in RLEK (supra), the court held that "a legislature has no legislative power to render ineffective the earlier judicial decisions by making a law which simply declares the earlier judicial decisions invalid and not binding, for such powers, if exercised, would not be a legislative power exercised by it, but a judicial power exercised by it by encroaching upon the judicial power of the State".
The bench clarified that if the legislature wants to pass a "Validating Act", it must ensure that that the cause for ineffectiveness or invalidity of the prior Act "must be removed" before validation can be said to take place effectively.
"The essence of a validating enactment is a pre-existing act, proceedings or rule being found to be void or illegal with or without a judicial pronouncement of the Court. It is only when an act committed, or a rule in existence or a proceeding taken, is found to be invalid that a Validating Act may validate the same by removing the defect or illegality which is the basis of such invalidity," the bench expounded.
Impugned Act does not suffer from lack of legislative competence of the state legislature
During the course of arguments, the Petitioner-organization had also contended that the state Government was not empowered to make laws for "Ex-Chief Ministers".
Rejecting this argument at the outset, the court said that the legislation, though violative of the fundamental rights of the citizens, draws strength from Entry 40 of List II in the Seventh Schedule to the Constitution- "Salaries and Allowances of Ministers for the State".
The court said that it is trite law that Entries have to be given a wide and liberal meaning.
In the present case, the court said, though Entry 40 of List II only refers to Ministers, a Chief Minister (who, while heading the Council of Ministers, is also a Minister) would also fall within the ambit of the said Entry.
"Giving a wide and liberal meaning to the word "Ministers" in Entry 40 would require Chief Ministers also to be brought within its ambit, and consequently Ex-Chief Ministers also. Accepting the submission, urged on behalf of the petitioner, that Ex-Chief Ministers would not fall within the ambit of Entry 40, would completely denude the State Legislature of the power to make any law relating to Ex-Chief Ministers," the bench added.
Locus Standi of the Petitioner
The State Government had argued that the Petitioner-organization does not have a leg to stand in a writ proceeding.
Rejecting this argument the court held,
"as this Writ Petition is neither actuated by malice nor does the petitioner hold any personal grudge against the respondent-Ex-Chief Ministers, and they have invoked the jurisdiction of this Court in larger public interest, we see no reason to non-suit them on the ground of lack of standing to file the present Writ Petition."
The judgment rendered by the High Court has placed heavy reliance on the Supreme Court's verdict in Lok Prahiri v. State of UP & Ors., (2016) 8 SCC 389.
In the said case, while examining the validity of the UP Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981, the Top Court had held that the Respondents therein "had no entitlement in law to occupy any accommodation, provided by the State Government free of cost, post their demitting office as Chief Ministers."
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