The French Constitution

France is an indivisible, secular, democratic and social republic

Constitution du 4 octobre 1958

Constitution of October 4, 1958 (JORF No. 0238 of October 5, 1958, page 9151)

Edition: March 3, 2017

Contents

PREAMBLE
First article.
Title I – SOVEREIGNTY
Article 2.
Article 3.
Article 4.
Title II – THE PRESIDENT OF THE REPUBLIC
Article 5.
Article 6.
Article 7.
Article 8.
Article 9.
Article 10.
Article 11.
Article 12.
Article 13.
Article 14.
Article 15.
Article 16.
Article 17.
Article 18.
Article 19.
Title III – THE GOVERNMENT
Article 20.
Article 21.
Article 22.
Article 23.
Title IV – THE PARLIAMENT
Article 24.
Article 25.
Article 26.
Article 27.
Article 28.
Article 29.
Article 30.
Article 31.
Article 32.
Article 33.
Title V – REPORTS BETWEEN PARLIAMENT AND GOVERNMENT
Article 34.
Article 34-1.
Article 35.
Article 36.
Article 37.
Article 37-1.
Article 38.
Article 39.
Article 40.
Article 41.
Article 42.
Article 43.
Article 44.
Article 45.
Article 46.
Article 47.
Article 47-1.
Article 47-2.
Article 48.
Article 49.
Article 50.
Article 50-1.
Article 51.
Article 51-1.
Article 51-2.
Title VI – TREATIES AND INTERNATIONAL AGREEMENTS
Article 52.
Article 53.
Article 53-1.
Article 53-2.
Article 54.
Article 55.
Title VII – THE CONSTITUTIONAL COUNCIL
Article 56.
Article 57.
Article 58.
Article 59.
Article 60.
Article 61.
Article 61-1.
Article 62.
Article 63.
Title VIII – JUDICIAL AUTHORITY
Article 64.
Article 65.
Article 66.
Article 66-1.
Title IX – THE HIGH COURT
Article 67.
Article 68.
Title X – CRIMINAL RESPONSIBILITY OF GOVERNMENT MEMBERS
Article 68-1.
Article 68-2.
Article 68-3.
Title XI – THE ECONOMIC, SOCIAL AND ENVIRONMENTAL COUNCIL
Article 69.
Article 70.
Article 71.
Title XI bis – THE DEFENDER OF RIGHTS
Article 71-1.
Title XII – TERRITORIAL COMMUNITIES
Article 72.
Article 72-1.
Article 72-2.
Article 72-3.
Article 72-4.
Article 73.
Article 74.
Article 74-1.
Article 75.
Article 75-1.
Title XIII – TRANSITIONAL PROVISIONS RELATING TO NEW CALEDONIA
Article 76.
Article 77.
Title XIV – FRANCOPHONIE AND ASSOCIATION AGREEMENTS
Article 87.
Article 88.
Title XV – THE EUROPEAN UNION
Article 88-1.
Article 88-2.
Article 88-3.
Article 88-4.
Article 88-5.
Article 88-6.
Article 88-7.
Title XVI – REVISION
Article 89.The French


The Government of the Republic, in accordance with the Constitutional Law of 3 June 1958, has proposed,

The French people adopted,

The President of the Republic promulgates the constitutional law whose content follows:


Le Gouvernement de la République, conformément à la loi constitutionnelle du 3 juin 1958, a proposé,

Le peuple français a adopté,

Le Président de la République promulgue la loi constitutionnelle dont la teneur suit :


PREAMBLE

The French people solemnly proclaim their commitment to human rights and the principles of national sovereignty as defined by the Declaration of 1789 , confirmed and supplemented by the preamble to the 1946 Constitution , as well as the rights of the people. and duties defined in the 2004 Environmental Charter .

By virtue of these principles and of the free determination of the peoples, the Republic offers the Overseas Territories which express the will to adhere to it new institutions based on the common ideal of freedom, equality and equality. fraternity and designed for their democratic evolution.


PRÉAMBULE

Le peuple français proclame solennellement son attachement aux Droits de l’homme et aux principes de la souveraineté nationale tels qu’ils ont été définis par la Déclaration de 1789, confirmée et complétée par le préambule de la Constitution de 1946, ainsi qu’aux droits et devoirs définis dans la Charte de l’environnement de 2004.

En vertu de ces principes et de celui de la libre détermination des peuples, la République offre aux territoires d’Outre-Mer qui manifestent la volonté d’y adhérer des institutions nouvelles fondées sur l’idéal commun de liberté, d’égalité et de fraternité et conçues en vue de leur évolution démocratique.


First article.

France is an indivisible, secular, democratic and social republic. It ensures equality before the law of all citizens without distinction of origin, race or religion. She respects all beliefs. Its organization is decentralized.

The law promotes equal access for women and men to electoral mandates and elective functions, as well as to professional and social responsibilities.


Article premier.

La France est une République indivisible, laïque, démocratique et sociale. Elle assure l’égalité devant la loi de tous les citoyens sans distinction d’origine, de race ou de religion. Elle respecte toutes les croyances. Son organisation est décentralisée.

La loi favorise l’égal accès des femmes et des hommes aux mandats électoraux et fonctions électives, ainsi qu’aux responsabilités professionnelles et sociales.


Title I – SOVEREIGNTY
Article 2.

The language of the Republic is French.

The national emblem is the tricoloured flag, blue, white, red.

The national anthem is the “Marseillaise”.

The motto of the Republic is “Freedom, Equality, Fraternity”.

Its principle is: government of the people, by the people and for the people.

Article 3.
National sovereignty belongs to the people who exercise it through their representatives and by referendum.

No section of the people nor any individual can assume the exercise.

Suffrage may be direct or indirect under the conditions provided by the Constitution. it is always universal, equal and secret.

The electors, under the conditions determined by law, are all major French nationals of both sexes, enjoying their civil and political rights.

Article 4.
Political parties and groups contribute to the expression of suffrage. They form and exercise their activity freely. They must respect the principles of national sovereignty and democracy.

They contribute to the implementation of the principle set out in the second paragraph of Article 1 under the conditions determined by law.

The law guarantees pluralistic expressions of opinion and the equitable participation of political parties and groups in the democratic life of the nation.

 

Title II – THE PRESIDENT OF THE REPUBLIC

Article 5.
The President of the Republic ensures the respect of the Constitution. It ensures, by its arbitration, the regular functioning of the public authorities as well as the continuity of the State.

It is the guarantor of national independence, territorial integrity and respect for treaties.

Article 6.
The President of the Republic is elected for five years by direct universal suffrage.

No one may serve more than two consecutive terms.

The methods of application of this article are laid down in an organic law.

Article 7.
The President of the Republic is elected by an absolute majority of the votes cast. If it is not obtained in the first ballot, a second ballot shall be taken on the fourteenth day following. Only the two candidates who, if necessary after the withdrawal of more advantaged candidates, are to have the highest number of votes in the first round.

Voting is open upon convocation of the Government.

The election of the new President shall take place at least twenty days and not more than thirty-five days before the expiry of the powers of the President-in-Office.

In the event of vacancy of the Presidency of the Republic for any reason whatsoever, or of impediment noted by the Constitutional Council seized by the Government and acting by an absolute majority of its members, the functions of the President of the Republic, at the except those provided for in Articles 11 and 12 below, are provisionally exercised by the President of the Senate and, if he is in turn prevented from exercising these functions, by the Government.

In case of vacancy or when the impediment is declared definitive by the Constitutional Council, the ballot for the election of the new president takes place, except in cases of force majeure recognized by the Constitutional Council, twenty days at least and thirty-five days at more after the opening of the vacancy or the declaration of the definitive nature of the impediment.

If, in the seven days preceding the closing date for submitting nominations, one of the persons who, less than thirty days before that date, publicly announced his decision to become a candidate dies or is prevented from doing so, the Constitutional Council may decide to postpone the election.

If, before the first round, one of the candidates dies or is prevented, the Constitutional Council pronounces the postponement of the election.

In the event of the death or incapacity of one of the two most favored candidates in the first round before any withdrawals, the Constitutional Council declares that all the electoral operations must be carried out again; the same applies in the event of the death or incapacity of one of the two candidates remaining in the presence for the second round.

In all cases, the Constitutional Council is seized under the conditions set in the second paragraph of Article 61 below or in those determined for the presentation of a candidate by the organic law provided for in Article 6 above.

The Constitutional Council may extend the time limits provided for in the third and fifth paragraphs without the vote being held more than thirty-five days after the date of the decision of the Constitutional Council. If the application of the provisions of this paragraph has had the effect of postponing the election to a date subsequent to the expiry of the powers of the incumbent President, the latter shall remain in office until the proclamation of his successor.

Articles 49 and 50 and 89 of the Constitution can not be applied during the vacancy of the Presidency of the Republic or during the period between the declaration of the definitive nature of the President’s incapacity of the Republic and the election of his successor.

Article 8.
The President of the Republic appoints the Prime Minister. He terminates his duties on the presentation by him of the resignation of the Government.

On the proposal of the Prime Minister, he appoints the other members of the Government and terminates their functions.

Article 9.
The President of the Republic chairs the Council of Ministers.

Article 10.
The President of the Republic promulgates the laws within fifteen days following the transmission to the Government of the definitively adopted law.

He may, before the expiry of this period, ask the Parliament for a new deliberation of the law or some of its articles. This new deliberation can not be refused.

Article 11.
The President of the Republic, on the proposal of the Government during the duration of the sessions or on the joint proposal of the two Assemblies, published in the Official Gazette , may submit to the referendum any draft law on the organization of the public authorities, on reforms relating to the economic, social or environmental policy of the nation and the public services which contribute to it, or tending to authorize the ratification of a treaty which, without being contrary to the Constitution, would affect the functioning of the institutions.

When the referendum is organized on a proposal from the Government, the latter makes a statement before each assembly, which is followed by a debate.

A referendum on an object mentioned in the first paragraph may be organized on the initiative of one fifth of the members of Parliament, supported by one-tenth of the voters registered on the electoral lists. This initiative takes the form of a legislative proposal and can not be used to repeal a legislative provision that has been in place for less than a year.

The conditions of its presentation and those in which the Constitutional Council controls compliance with the provisions of the preceding paragraph are determined by an organic law.

If the bill has not been examined by both assemblies within a deadline set by the organic law, the President of the Republic submits it to the referendum.

When the bill of law is not adopted by the French people, no new proposal for a referendum on the same subject can be presented before the expiry of a period of two years following the polling date.

When the referendum concludes the adoption of the bill or bill, the President of the Republic promulgates the law within fifteen days after the proclamation of the results of the consultation.

Article 12.
The President of the Republic may, after consultation with the Prime Minister and the presidents of the assemblies, pronounce the dissolution of the National Assembly.

General elections shall be held not less than twenty days and not more than forty days after the dissolution.

The National Assembly meets as of right on the second Thursday following its election. If this meeting is held outside the period provided for the ordinary session, a session shall be open for a period of fifteen days.

There can be no further dissolution in the year following these elections.

Article 13.
The President of the Republic signs orders and decrees deliberated in the Council of Ministers.

He appoints to the civil and military jobs of the State.

The State Councilors, the Grand Chancellor of the Legion of Honor, the ambassadors and envoys extraordinary, the master advisers to the Court of Auditors, the prefects, the representatives of the State in the oversea communities governed by Article 74 and in New Caledonia, the general officers, the rectors of the academies, the directors of the central administrations are appointed in the Council of Ministers.

An organic law determines the other posts to which it is provided in the Council of Ministers as well as the conditions under which the power of appointment of the President of the Republic may be delegated by him to be exercised on his behalf.

An organic law determines the jobs or functions, other than those mentioned in the third paragraph, for which, because of their importance for the guarantee of rights and freedoms or the economic and social life of the Nation, the power of appointment of the President of the Republic is exercised after public notice from the competent standing committee of each assembly. The President of the Republic can not make an appointment when the addition of negative votes in each committee represents at least three-fifths of the votes cast in both committees. The law determines the competent standing committees according to the jobs or functions concerned.

Article 14.
The President of the Republic accredits ambassadors and envoys extraordinary to foreign powers; foreign ambassadors and envoys are accredited to him.

Article 15.
The President of the Republic is the chief of the armies. He chairs the councils and senior committees of national defense.

Article 16.
When the institutions of the Republic, the independence of the Nation, the integrity of its territory or the performance of its international commitments are threatened in a serious and immediate manner and the regular functioning of the constitutional public authorities is interrupted, the President of the Republic takes the measures required by these circumstances, after official consultation of the Prime Minister, the presidents of the assemblies as well as the Constitutional Council.

He informs the Nation by a message.

These measures must be inspired by the desire to provide the constitutional public authorities, as quickly as possible, with the means to accomplish their mission. The Constitutional Council is consulted about them.

Parliament meets as of right.

The National Assembly can not be dissolved during the exercise of exceptional powers.

After thirty days of exercise of exceptional powers, the Constitutional Council may be seized by the President of the National Assembly, the President of the Senate, sixty deputies or sixty senators, for the purpose of examining whether the conditions set out in the first paragraph remain met. . It pronounces as soon as possible by a public notice. It proceeds automatically to this examination and pronounces under the same conditions after 60 days of exercise of the exceptional powers and at any time beyond this period.

Article 17.
The President of the Republic has the right to pardon individually.

Article 18.
The President of the Republic communicates with the two assemblies of the Parliament by messages that he has read and that do not give rise to any debate.

He may address the Parliament convened for this purpose in Congress. His statement may give rise, in his absence, to a debate which is not subject to any vote.

Outside the session, the parliamentary assemblies are convened specifically for this purpose.

Article 19.
The acts of the President of the Republic other than those provided for in articles 8 (1st paragraph), 11, 12, 16, 18, 54, 56 and 61 are countersigned by the Prime Minister and, where appropriate, by the ministers responsible.

Title III – THE GOVERNMENT

Article 20.
The Government determines and conducts the policy of the Nation.

He has the administration and the armed force.

He shall be responsible to Parliament in accordance with the conditions and procedures provided for in Articles 49 and 50.

Article 21.
The Prime Minister directs the action of the Government. He is responsible for national defense. He ensures the execution of the laws. Subject to the provisions of Article 13, he exercises regulatory power and appoints civil and military posts.

He can delegate some of his powers to ministers.

It replaces, if need be, the President of the Republic in the chairmanship of the councils and committees envisaged in article 15.

He may, exceptionally, substitute him for the presidency of a council of ministers by virtue of an express delegation and for a specific agenda.

Article 22.
The acts of the Prime Minister are countersigned, if necessary, by the ministers in charge of their execution.

Article 23.
The functions of a member of the Government are incompatible with the exercise of any parliamentary mandate, any function of national professional representation and any public employment or any professional activity.

An organic law lays down the conditions under which the replacement of the holders of such mandates, functions or jobs is provided.

The replacement of members of Parliament shall take place in accordance with the provisions of Article 25.

Title IV – THE PARLIAMENT

Article 24.
Parliament votes the law. It controls the action of the Government. It evaluates public policies.

It includes the National Assembly and the Senate.

Members of the National Assembly, whose number may not exceed five hundred and seventy-seven, are elected by direct suffrage.

The Senate, whose number of members may not exceed three hundred and forty-eight, is elected by indirect suffrage. It ensures the representation of the territorial collectivities of the Republic.

French people living outside France are represented in the National Assembly and the Senate.

Article 25.
An organic law fixes the duration of the powers of each assembly, the number of its members, their indemnity, the conditions of eligibility, the system of ineligibilities and incompatibilities.

It also lays down the conditions under which the persons appointed to ensure, in the event of vacancy, the replacement of deputies or senators until the general or partial renewal of the assembly to which they belonged or their temporary replacement in case acceptance by them of governmental functions.

An independent commission, whose law determines the composition and rules of organization and operation, decides on a public opinion on the draft texts and draft laws delimiting constituencies for the election of deputies or modifying the distribution of seats deputies or senators.

Article 26.
No Member of Parliament may be prosecuted, investigated, arrested, detained or judged on the occasion of opinions or votes cast by him in the exercise of his functions.

No member of Parliament may be subject to arrest or any other privative or restrictive measure of liberty in criminal or correctional matters except with the authorization of the Bureau of the Assembly of which he is a member. This authorization is not required in the event of a crime or flagrant offense or final conviction.

Detention, privative or restrictive measures of liberty or the prosecution of a Member of Parliament shall be suspended for the duration of the session if the Assembly to which it belongs so requests.

The assembly concerned is automatically reunited for additional sessions to allow, if necessary, the application of the above paragraph.

Article 27.
Any imperative mandate is null.

The voting rights of Members of Parliament are personal.

The organic law may exceptionally authorize the delegation of vote. In this case no one can receive delegation of more than one mandate.

Article 28.
Parliament meets as of right in an ordinary session which begins on the first working day of October and ends on the last working day of June.

The number of sitting days that each assembly may hold during the ordinary session may not exceed one hundred and twenty. The weeks of sitting are fixed by each assembly.

The Prime Minister, after consultation with the president of the assembly concerned, or the majority of the members of each assembly may decide to hold additional days of sitting.

The days and times of the sessions are determined by the rules of each meeting.

Article 29.
The Parliament meets in extraordinary session at the request of the Prime Minister or the majority of the members composing the National Assembly, on a determined agenda.

When the extraordinary session is held at the request of the members of the National Assembly, the closing decree comes as soon as the Parliament has exhausted the agenda for which it was convened and at the latest twelve days from its meeting .

The Prime Minister can only request a new session before the end of the month following the closing decree.

Article 30.
Except in cases where the Parliament meets as of right, the extraordinary sessions are opened and closed by decree of the President of the Republic.

Article 31.
Government members have access to both assemblies. They are heard when they ask for it.

They can be assisted by government commissioners.

Article 32.
The President of the National Assembly is elected for the duration of the legislature. The President of the Senate is elected after each partial renewal.

Article 33.
The sessions of both assemblies are public. The full report of the proceedings is published in the Official Journal .

Each assembly may sit in a secret committee at the request of the Prime Minister or one-tenth of its members.

Title V – REPORTS BETWEEN PARLIAMENT AND GOVERNMENT

Article 34.
The law sets the rules concerning:

civil rights and fundamental guarantees granted to citizens for the exercise of public freedoms; freedom, pluralism and independence of the media; the subjections imposed by the national defense on the citizens in their person and in their property;
nationality, state and capacity of persons, matrimonial regimes, inheritances and liberalities;
the determination of the crimes and offenses and the penalties applicable to them; criminal procedure; the amnesty; the creation of new orders of jurisdiction and the status of magistrates;
the base, the rate and the methods of recovery of taxes of all kinds; the regime of issue of the currency.
The law also sets the rules for:

the electoral system of parliamentary assemblies, local assemblies and representative bodies of French nationals established outside France, as well as the conditions for the exercise of the electoral mandates and elective functions of the members of deliberative assemblies of local authorities;
the creation of categories of public institutions;
basic guarantees granted to civil and military officials of the state;
nationalizations of enterprises and transfers of ownership of companies from the public to the private sector.
The law determines the fundamental principles:

the general organization of National Defense;
the free administration of local authorities, their powers and their resources;
Education ;
the preservation of the environment;
property rights, rights in rem and civil and commercial obligations;
labor law, trade union law and social security.
The finance laws determine the resources and the expenses of the State in the conditions and under the reserves provided for by an organic law.

The social security financing laws determine the general conditions of its financial equilibrium and, taking into account their revenue forecasts, fix its spending objectives, under the conditions and under the reserves provided for by an organic law.

Programming laws determine the objectives of state action.

The multiannual public finance guidelines are defined by programming laws. They are part of the objective of balancing the accounts of general government.

The provisions of this article may be specified and supplemented by an organic law.

Article 34-1.
Meetings may vote resolutions under the conditions set by the organic law.

Proposed resolutions of which the Government considers that their adoption or rejection would be such as to call into question its responsibility or contain injunctions against it are inadmissible and may not be placed on the agenda.

Article 35.
The declaration of war is authorized by Parliament.

The Government informs Parliament of its decision to involve the armed forces abroad, no later than three days after the start of the intervention. It specifies the objectives pursued. This information may give rise to a debate which is not followed by any vote.

When the duration of the intervention exceeds four months, the Government submits its extension to the authorization of Parliament. He may ask the National Assembly to decide in the last resort.

If the Parliament is not in session at the end of the four-month period, it shall take a decision at the opening of the next session.

Article 36.
The state of siege is decreed in the Council of Ministers.

Its extension beyond twelve days can only be authorized by Parliament.

Article 37.
Subjects other than those which fall within the scope of the law are of a regulatory nature.

Legislative texts in these matters may be amended by decrees issued after consulting the Council of State. Those of those texts that would come into force after the coming into force of this Constitution can only be amended by decree if the Constitutional Council has declared that they are of a regulatory nature under the preceding paragraph.

Article 37-1.
The law and the regulations may include, for a limited purpose and duration, provisions of an experimental nature.

Article 38.
The Government may, in the execution of its program, request Parliament to authorize, for a limited period of time, measures which are normally within the scope of the law.

Ordinances are issued by the Council of Ministers after consulting the Council of State. They come into force as soon as they are published but lapse if the ratification bill is not tabled in Parliament before the date set by the enabling law. They can only be ratified expressly.

At the expiry of the period mentioned in the first paragraph of this article, ordinances may only be amended by law in matters which are in the legislative domain.

Article 39.
The initiative of the laws belongs concurrently to the Prime Minister and the members of Parliament.

Bills are deliberated by the Council of Ministers after consulting the Council of State and deposited on the desk of one of the two assemblies. The bills of finance and social security financing law are submitted in the first place to the National Assembly. Without prejudice to the first paragraph of Article 44, bills whose main purpose is the organization of local and regional authorities shall be submitted first to the Senate.

The presentation of bills introduced in the National Assembly or the Senate meets the conditions set by an organic law.

Bills can not be placed on the agenda if the Conference of Presidents of the first meeting seized finds that the rules set by the organic law are ignored. In the event of disagreement between the Conference of Presidents and the Government, the President of the Assembly concerned or the Prime Minister may refer the matter to the Constitutional Council within eight days.

Under the conditions provided for by law, the chairman of a meeting may submit to the Conseil d’État, for consideration before the committee’s consideration, a proposal for a law tabled by one of the members of that meeting, unless the latter opposes it.

Article 40.
Proposals and amendments formulated by Members of Parliament are not admissible when their adoption would result either in a diminution of public resources or the creation or aggravation of a public office.

Article 41.
If it appears during the course of the legislative procedure that a proposal or an amendment is not within the scope of the law or is contrary to a delegation granted under Article 38, the Government or the President of the Assembly seizure may preclude the inadmissibility.

In case of disagreement between the Government and the President of the assembly concerned, the Constitutional Council, at the request of one or the other, shall rule within eight days.

Article 42.
At the meeting, the debate on bills and bills shall refer to the text adopted by the committee seized pursuant to Rule 43 or, failing that, to the text before the assembly.

However, the discussion at the meeting of constitutional revision projects, draft finance bills and draft social security financing bills bears, in first reading before the first assembly seized, the text presented by the Government and, for other readings, on the text transmitted by the other assembly.

The debate at the first reading session of a bill or a bill may only take place before the first meeting seized at the end of six weeks after it has been tabled. It may not intervene before the second meeting seized until the expiry of a period of four weeks from its transmission.

The preceding paragraph does not apply if the expedited procedure has been initiated under the conditions provided for in Article 45. It does not apply either to draft finance bills, to draft security financing laws. social security and crisis projects.

Article 43.
Proposals and bills are sent for consideration to one of the standing committees, which is limited to eight in each assembly.

At the request of the Government or the Assembly which is seized of it, the bills or proposals of law are sent for examination to a commission specially designated for this purpose.

Article 44.
Members of Parliament and the Government have the right of amendment. This right is exercised in session or in committee according to the conditions fixed by the by-laws of the assemblies, within the framework determined by an organic law.

After the opening of the debate, the Government may oppose the examination of any amendment which has not previously been submitted to the Committee.

If the Government so requests, the Assembly shall decide by a single vote on all or part of the text under discussion, retaining only the amendments proposed or accepted by the Government.

Article 45.
Any bill or bill is examined successively in both Houses of Parliament with a view to the adoption of an identical text. Without prejudice to the application of Articles 40 and 41, any amendment shall be admissible at first reading if it presents a link, even indirectly, with the text deposited or transmitted.

When, as a result of a disagreement between the two assemblies, a bill or a bill could not be adopted after two readings by each assembly or, if the Government decided to initiate the accelerated procedure without the Conferences of the presidents jointly opposed, after a single reading by each of them, the Prime Minister or, for a proposal for a law, the presidents of the two assemblies acting jointly, have the faculty to provoke the meeting of a joint commission parity responsible for proposing a text on the provisions still under discussion.

The text prepared by the Joint Committee may be submitted by the Government for approval to both Assemblies. No amendment is admissible unless the Government agrees.

If the Joint Committee fails to adopt a common text or if this text is not adopted under the conditions set out in the preceding paragraph, the Government may, after a further reading by the National Assembly and by the Senate, ask the National Assembly to rule definitively. In this case, the National Assembly may adopt either the text drafted by the joint committee or the last text voted by it, modified if necessary by one or more of the amendments adopted by the Senate.

Article 46.
The laws to which the Constitution confers the character of organic laws are voted and modified under the following conditions.

The draft or proposal may, at first reading, be submitted to the deliberation and vote of the assemblies only at the expiry of the time limits set in the third paragraph of Article 42. However, if the accelerated procedure has been initiated in the conditions set out in Article 45, the draft or the proposal may not be submitted to the deliberation of the first meeting before the expiry of a period of fifteen days after its submission.

The procedure of Article 45 is applicable. However, if there is no agreement between the two assemblies, the text can only be adopted by the National Assembly at last reading by an absolute majority of its members.

The organic laws relating to the Senate must be voted in the same terms by the two assemblies.

Organic laws can be promulgated only after the declaration by the Constitutional Council of their conformity to the Constitution.

Article 47.
The Parliament votes the finance bills in the conditions provided for by an organic law.

If the National Assembly has not taken a decision at first reading within forty days after the tabling of a draft, the Government shall refer the Senate to a decision within a period of fifteen days. It is then carried out under the conditions provided for in Article 45.

If the Parliament has not pronounced within seventy days, the provisions of the draft can be put into effect by ordinance.

If the budget law fixing the resources and expenses of a financial year has not been submitted in time to be promulgated before the beginning of this financial year, the Government urgently requests from Parliament the authorization to collect the taxes and opens the A-base vote by order in council.

The time limits provided for in this Article shall be suspended when Parliament is not in session.

Article 47-1.
The Parliament votes the bills of financing of the social security in the conditions envisaged by an organic law.

If the National Assembly has not taken a decision on first reading within twenty days after the submission of a draft, the Government shall refer the Senate to a decision within fifteen days. It is then carried out under the conditions provided for in Article 45.

If Parliament has not reached a decision within fifty days, the provisions of the draft can be implemented by ordinance.

The time limits provided for in this article shall be suspended when the Parliament is not in session and, for each assembly, in the weeks in which it has decided not to hold a meeting, in accordance with the second paragraph of Article 28.

Article 47-2.
The Court of Auditors assists the Parliament in controlling the action of the Government. It assists the Parliament and the Government in the control of the execution of the financial laws and the application of the laws of financing of the social security as well as in the evaluation of the public policies. Through its public reports, it contributes to the information of citizens.

The accounts of the general government are regular and sincere. They give a true picture of the results of their management, their wealth and their financial situation.

Article 48.
Without prejudice to the application of the last three paragraphs of Article 28, the agenda shall be fixed by each meeting.

Two weeks out of four shall be reserved by priority, and in the order that the Government has fixed, for the examination of the texts and debates for which it requests the inclusion on the agenda.

In addition, the examination of bills of finance, social security financing bills and, subject to the provisions of the following paragraph, texts transmitted by the other assembly for six weeks at least, projects relating to states of crisis and requests for authorization referred to in Article 35 shall, at the request of the Government, be placed on the agenda by priority.

One out of four sitting weeks is reserved by priority and in the order set by each assembly for the control of the Government’s action and the evaluation of public policies.

One sitting day per month is reserved for an agenda decided by each assembly at the initiative of the opposition groups of the assembly concerned as well as that of the minority groups.

At least one sitting per week, including the special sessions provided for in Rule 29, shall be preceded by questions from Members of Parliament and Government replies.

Article 49.
The Prime Minister, after deliberation of the Council of Ministers, engages before the National Assembly the responsibility of the Government on its program or possibly on a declaration of general policy.

The National Assembly questions the responsibility of the Government by voting a motion of censure. Such a motion is admissible only if it is signed by at least one tenth of the members of the National Assembly. The vote can not take place until forty-eight hours after its deposit. Only the votes in favor of the motion of censure, which can only be adopted by a majority of the members of the Assembly, are counted. Except as provided in the following paragraph, a Member may not sign more than three motions of censure during the same ordinary session and more than one during the same extraordinary session.

The Prime Minister may, after deliberation of the Council of Ministers, engage the responsibility of the Government before the National Assembly on the vote of a bill of finance or financing of social security. In this case, the project is deemed to be adopted, unless a motion of censure, tabled within twenty-four hours, is voted under the conditions set out in the preceding paragraph. The Prime Minister may, in addition, use this procedure for another project or a proposal for a law per session.

The Prime Minister has the right to ask the Senate for approval of a general policy statement.

Article 50.
When the National Assembly adopts a motion of censure or when it disapproves of the program or a statement of general policy of the Government, the Prime Minister must submit to the President of the Republic the resignation of the Government.

Article 50-1.
Before any of the assemblies, the Government may, on its own initiative or at the request of a parliamentary group within the meaning of section 51-1, make a declaration on a specific subject giving rise to to debate and may, if it so decides, be votable without liability.

Article 51.
The closure of the ordinary session or the extraordinary sessions is by law delayed to allow, if necessary, the application of article 49. For the same purpose, additional sessions are by right.

Article 51-1.
The rules of each assembly determine the rights of the parliamentary groups formed within it. It recognizes specific rights for opposition groups in the assembly concerned as well as for minority groups.

Article 51-2.
For the exercise of the monitoring and evaluation missions defined in the first paragraph of Article 24, commissions of inquiry may be set up within each assembly to collect, under the conditions provided for by law, elements of information.

The law determines their rules of organization and operation. Their conditions of creation are fixed by the rules of each assembly.

Title VI – TREATIES AND INTERNATIONAL AGREEMENTS

Article 52.
The President of the Republic negotiates and ratifies the treaties.

He is informed of any negotiations leading to the conclusion of an international agreement not subject to ratification.

Article 53.
Peace treaties, commercial treaties, treaties or agreements relating to the international organization, those that commit the finances of the State, those that modify provisions of a legislative nature, those that relate to the state of the people those containing assignment, exchange or addition of territory may be ratified or approved only by law.

They take effect only after they have been ratified or approved.

No cession, no exchange, no addition of territory is valid without the consent of the populations concerned.

Article 53-1.
The Republic may conclude with the European States which are bound by identical commitments to its own on asylum and the protection of human rights and fundamental freedoms, agreements determining their respective powers for the examination of applications for asylum that are presented to them.

However, even if the request does not fall within their competence under these agreements, the authorities of the Republic always have the right to give asylum to any foreigner persecuted by reason of his action for the freedom or which seeks the protection from France for another reason.

Article 53-2.
The Republic may recognize the jurisdiction of the International Criminal Court under the conditions provided for in the treaty signed on 18 July 1998 .

Article 54.
If the Constitutional Council, seized by the President of the Republic, by the Prime Minister, by the president of one or the other assembly or by sixty deputies or sixty senators, declared that an international commitment contains a clause contrary to the Constitution, the authorization to ratify or approve the international commitment in question can only be made after the revision of the Constitution.

Article 55.
Treaties or agreements duly ratified or approved have, from their publication, an authority superior to that of the laws, subject, for each agreement or treaty, to its application by the other party.

Title VII – THE CONSTITUTIONAL COUNCIL

Article 56.
The Constitutional Council comprises nine members, whose term of office lasts nine years and is not renewable. The Constitutional Council is renewed by thirds every three years. Three of the members are appointed by the President of the Republic, three by the President of the National Assembly, three by the President of the Senate. The procedure provided for in the last paragraph of Article 13 is applicable to these appointments. The appointments made by the chairman of each meeting are subject to the sole opinion of the relevant standing committee of the relevant meeting.

In addition to the nine members provided for above, the former Presidents of the Republic are entitled to life for life from the Constitutional Council.

The president is appointed by the President of the Republic. He has a casting vote in case of sharing.

Article 57.
The functions of member of the Constitutional Council are incompatible with those of minister or member of Parliament. The other incompatibilities are fixed by an organic law.

Article 58.
The Constitutional Council ensures the regularity of the election of the President of the Republic.

He examines the claims and proclaims the results of the ballot.

Article 59.
The Constitutional Council decides, in case of dispute, on the regularity of the election of deputies and senators.

Article 60.
The Constitutional Council shall ensure the regularity of the referendum operations provided for in Articles 11 and 89 and Title XV. He proclaims the results.

Article 61.
The organic laws, before their promulgation, the legislative proposals mentioned in article 11 before they are submitted to the referendum, and the regulations of the parliamentary assemblies, before their implementation, must be submitted to the Constitutional Council which decides on their conformity to the Constitution.

For the same purpose, the laws may be referred to the Constitutional Council, before their promulgation, by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate or sixty deputies or sixty senators.

In the cases provided for in the two preceding paragraphs, the Constitutional Council must decide within one month. However, at the request of the Government, if there is urgency, this period is reduced to eight days.

In these same cases, the seizin of the constitutional council suspends the delay of promulgation.

Article 61-1.
Where, in proceedings pending before a court, it is alleged that a legislative provision infringes the rights and freedoms guaranteed by the Constitution, the Constitutional Council may be seized of this matter by reference from the Council. State or the Court of Cassation which pronounces within a specified period.

An organic law determines the conditions of application of this article.

Article 62.
A provision declared unconstitutional on the basis of Article 61 can not be promulgated or enforced.

A provision declared unconstitutional on the basis of Article 61-1 is repealed from the publication of the decision of the Constitutional Council or a later date fixed by this decision. The Constitutional Council determines the conditions and limits within which the effects that the provision has produced are likely to be challenged.

Decisions of the Constitutional Council are not subject to any appeal. They are binding on public authorities and all administrative and jurisdictional authorities.

Article 63.
An organic law determines the rules of organization and functioning of the Constitutional Council, the procedure that is followed before it and in particular the deadlines open for the seizure of disputes.

Title VIII – JUDICIAL AUTHORITY

Article 64.
The President of the Republic guarantees the independence of the judicial authority.

He is assisted by the Superior Council of the Judiciary.

An organic law bears the status of magistrates.

The judges of the seat are irremovable.

Article 65.
The Superior Council of the Judiciary includes competent training for magistrates at headquarters and competent training for prosecutors.

The competent training for magistrates is chaired by the first president of the Court of Cassation. It includes, in addition, five judges and a prosecutor, a State Councilor appointed by the Council of State, a lawyer and six qualified persons who do not belong to Parliament or the judiciary. nor to the administrative order. The President of the Republic, the President of the National Assembly and the President of the Senate each appoint two qualified persons. The procedure provided for in the last paragraph of Article 13 shall apply to the appointments of qualified persons. Appointments made by the president of each assembly of Parliament are submitted to the sole opinion of the competent standing committee of the assembly concerned.

The competent training for prosecutors is chaired by the public prosecutor at the Court of Cassation. It includes, in addition, five magistrates of the public prosecutor’s office and a magistrate of the seat, as well as the councilor of state, the lawyer and the six qualified persons mentioned in the second paragraph.

The formation of the Superior Council of the Judiciary competent with regard to the magistrates of the seat makes proposals for the appointments of the magistrates sits at the Court of Cassation, for those of first president of court of appeal and for those of president of court of high instance. The other judges of the seat are appointed on his assent.

The formation of the Superior Council of the Judiciary with regard to the prosecutors gives its opinion on the appointments concerning the prosecutors.

The formation of the Superior Council of the Judiciary with jurisdiction over the magistrates of the seat judges as a disciplinary council of the magistrates of the seat. It includes, in addition to the members referred to in the second paragraph, the magistrate of the seat belonging to the competent formation with regard to the magistrates of the public prosecutor’s office.

The formation of the Superior Council of Magistrates with regard to the prosecutors gives its opinion on the disciplinary sanctions which concern them. It then includes, in addition to the members referred to in the third paragraph, the public prosecutor belonging to the competent formation with regard to the magistrates of the head office.

The Superior Council of the Judiciary meets in plenary session to respond to the requests for opinion made by the President of the Republic under Article 64. It gives its opinion, in the same formation, on the questions relating to the ethics of the magistrates as well as on any question relating to the functioning of justice, which is referred to the Minister of Justice. The plenary session shall include three of the five judges of the seat mentioned in the second paragraph, three of the five public prosecutors mentioned in the third paragraph, as well as the State Councilor, the lawyer and the six qualified persons mentioned in the second paragraph. It is presided over by the first president of the Court of Cassation, who can replace the attorney general at this court.

Except in disciplinary matters, the Minister of Justice may participate in the sessions of the formations of the Superior Council of the Judiciary.

The Superior Council of the Judiciary can be seized by a litigant in the conditions fixed by an organic law.

The organic law determines the conditions of application of this article.

Article 66.
No one can be arbitrarily detained.

The judicial authority, guardian of individual liberty, ensures the respect of this principle under the conditions provided for by law.

Article 66-1.
No one can be sentenced to death.

Title IX – THE HIGH COURT

Article 67.
The President of the Republic is not liable for acts done in this capacity, subject to the provisions of Articles 53-2 and 68.

He may not, during his mandate and before any French jurisdiction or administrative authority, be required to testify or be the subject of an action, an act of information, instruction or prosecution. Any limitation period or foreclosure is suspended.

Proceedings and procedures so obstructed may be resumed or brought against him within one month of the termination of his duties.

Article 68.
The President of the Republic may be dismissed only in the event of a breach of his duties manifestly incompatible with the exercise of his mandate. The dismissal is pronounced by the Parliament constituted in High Court.

The proposal for a meeting of the High Court adopted by one of the Assemblies of Parliament is immediately forwarded to the other, which shall decide within fifteen days.

The High Court is presided over by the President of the National Assembly. It decides within a month, by secret ballot, on the dismissal. His decision is of immediate effect.

Decisions taken pursuant to this Article shall be by a two-thirds majority of the members of the relevant meeting or the High Court. Any delegation of vote is forbidden. Only votes in favor of the proposed High Court meeting or dismissal are counted.

An organic law lays down the conditions of application of this article.

Title X – CRIMINAL RESPONSIBILITY OF GOVERNMENT MEMBERS

Article 68-1.
The members of the Government are criminally responsible for the acts done in the exercise of their functions and qualified as crimes or misdemeanors at the time they were committed.

They are judged by the Court of Justice of the Republic.

The Court of Justice of the Republic is bound by the definition of crimes and offenses as well as by the determination of the penalties as they result from the law.

Article 68-2.
The Court of Justice of the Republic comprises fifteen judges: twelve members of parliament, elected from among them and in equal numbers, by the National Assembly and the Senate after each general or partial renewal of these assemblies and three judges sitting at the Court of Justice. cassation, one of which presides over the Court of Justice of the Republic.

Anyone claiming to be aggrieved by a crime or misdemeanor committed by a member of the Government in the performance of his duties may lodge a complaint with a petition commission.

This commission orders either the filing of the proceedings or its transmission to the public prosecutor at the Court of Cassation for the purpose of referral to the Court of Justice of the Republic.

The public prosecutor at the Court of Cassation may also appeal ex officio to the Court of Justice of the Republic with the assent of the petitions commission.

An organic law determines the conditions of application of this article.

Article 68-3.
The provisions of this title shall apply to acts committed before its entry into force.

Title XI – THE ECONOMIC, SOCIAL AND ENVIRONMENTAL COUNCIL

Article 69.
The Economic, Social and Environmental Council, seized by the Government, gives its opinion on draft laws, ordinances or decrees as well as on proposed laws submitted to it.

A member of the Economic, Social and Environmental Council may be appointed by the Council to present to the Parliamentary Assembly the opinion of the Council on the projects or proposals submitted to it.

The Economic, Social and Environmental Council can be petitioned under the conditions set by an organic law. After examining the petition, it informs the Government and Parliament of the action it proposes to take.

Article 70.
The Economic, Social and Environmental Council may be consulted by the Government and the Parliament on any economic, social or environmental problem. The Government can also consult it on the draft programming law defining the multiannual orientations of the public finances. Any economic, social or environmental programming plan or bill is submitted for opinion.

Article 71.
The composition of the Economic, Social and Environmental Council, whose number of members may not exceed two hundred and thirty-three, and its rules of operation are set by an organic law.

Title XI bis – THE DEFENDER OF RIGHTS

Article 71-1.
The Defender of Rights ensures the respect of rights and freedoms by the State administrations, local authorities, public institutions, as well as by any organization entrusted with a public service mission, or in respect of which the organic law gives him skills.

It may be seized, under the conditions provided for by the organic law, by any person who feels aggrieved by the operation of a public service or an organization referred to in the first paragraph. He can seize automatically.

The organic law defines the powers and modalities of intervention of the Defender of Rights. It determines the conditions under which it may be assisted by a college for the exercise of certain of its attributions.

The Defender of Rights is appointed by the President of the Republic for a non-renewable six-year term, following the procedure set out in the last paragraph of article 13. His duties are incompatible with those of a member of the Government and a member of the Parliament. The other incompatibilities are fixed by the organic law.

The Defender of Rights reports to the President of the Republic and Parliament.

Title XII – TERRITORIAL COMMUNITIES

Article 72.
The territorial units of the Republic are the communes, the departments, the regions, the special-status communities and the overseas collectivities governed by Article 74. Any other territorial collectivity is created by law, if any place and place of one or more communities mentioned in this paragraph.

Local and regional authorities are responsible for making the decisions for all the skills that can best be implemented at their level.

Under the conditions provided for by law, these communities freely administer themselves through elected councils and have regulatory power to exercise their powers.

Under the conditions provided for by the organic law, and except where the essential conditions for the exercise of a public freedom or a constitutionally guaranteed right are at issue, local authorities or their groupings may, where, as the case may be, the law or the regulation provides for it, to derogate, on an experimental basis and for a limited purpose and duration, from the legislative or regulatory provisions governing the exercise of their powers.

No territorial authority can exercise guardianship over another. However, where the exercise of a jurisdiction requires the assistance of several local authorities, the law may authorize one of them or one of their groupings to organize the terms of their joint action.

In the territorial communities of the Republic, the representative of the State, representing each of the members of the Government, is responsible for national interests, administrative control and compliance with the laws.

Article 72-1.
The law lays down the conditions under which the electors of each territorial collectivity may, by the exercise of the right of petition, request the inclusion on the agenda of the deliberative assembly of that collectivity of a question within its competence. .

Under the conditions provided for by the organic law, projects of deliberation or act within the jurisdiction of a local authority may, on its own initiative, be submitted, by way of referendum, to the decision of the electors of that collectivity.

When it is envisaged to establish a territorial collectivity with a particular status or to modify its organization, it may be decided by law to consult registered voters in the communities concerned. The modification of the limits of the territorial collectivities can also give rise to the consultation of the voters under the conditions envisaged by the law.

Article 72-2.
Local and regional authorities benefit from resources freely available to them under the conditions set by law.

They can receive all or part of the product of impositions of all kinds. The law may authorize them to fix the base and rate within the limits it determines.

Tax revenues and other own resources of local authorities represent, for each category of community, a decisive part of their total resources. The organic law sets the conditions under which this rule is implemented.

Any transfer of powers between the State and the local authorities is accompanied by the allocation of resources equivalent to those devoted to their exercise. Any creation or extension of powers which has the effect of increasing the expenditure of local authorities is accompanied by resources determined by law.

The law provides for equalization schemes designed to promote equality between local and regional authorities.

Article 72-3.
The Republic recognizes, within the French people, the populations of overseas, in a common ideal of freedom, equality and fraternity.

Guadeloupe, Guyana, Martinique, Reunion, Mayotte, Saint Barthelemy, Saint-Martin, Saint-Pierre-et-Miquelon, the Wallis and Futuna Islands and French Polynesia are governed by Article 73 for the departments and territories. regions, and for local authorities created under the last paragraph of Article 73, and Article 74 for other communities.

The status of New Caledonia is governed by Title XIII.

The law determines the legislative regime and the particular organization of the French Southern and Antarctic Lands and Clipperton.

Article 72-4.
No change, for all or part of one of the communities referred to in the second paragraph of section 72-3, from one to the other of the plans provided for in sections 73 and 74, may take place without the consent electors of the community or part of the community concerned have been previously collected under the conditions set out in the following paragraph. This change of regime is decided by an organic law.

The President of the Republic, on the proposal of the Government during the duration of the sessions or on a joint proposal of the two assemblies, published in the Official Journal , may decide to consult the electors of a territorial collectivity located overseas on a question relating to its organization. , its jurisdiction or its legislative scheme. When the consultation concerns a change provided for in the preceding paragraph and is organized on the proposal of the Government, the latter makes a statement before each assembly, which is followed by a debate.

Article 73.
In the overseas departments and regions, laws and regulations are automatically applicable. They can be adapted to the particular characteristics and constraints of these communities.

These adaptations may be decided by these communities in the areas in which their powers are exercised and if they have been authorized, as the case may be, by the law or the by-law.

By way of derogation from the first subparagraph and to take account of their specificities, the authorities governed by this Article may be empowered, as the case may be, by law or by the regulation, to lay down the rules applicable in their territory, in a limited number of matters that may fall within the scope of the law or regulation.

These rules can not relate to nationality, civil rights, guarantees of civil liberties, the state and capacity of persons, the organization of justice, criminal law, criminal procedure, foreign policy, defense, public security and order, money, credit and foreign exchange, and the electoral law. This enumeration may be specified and supplemented by an organic law.

The provision provided for in the two preceding paragraphs is not applicable to the department and the region of Reunion.

The authorizations provided for in the second and third paragraphs are decided, at the request of the community concerned, under the conditions and under the reservations provided for by an organic law. They can not intervene when the essential conditions for the exercise of a public freedom or a constitutionally guaranteed right are involved.

The creation by law of a collectivity substituting for a department and an overseas region or the institution of a deliberative assembly unique for these two communities can not intervene without having been collected, according to the forms provided for in the second paragraph of section 72-4, the consent of the electors registered in the jurisdiction of those communities.

Article 74.
The overseas communities governed by this article have a status that takes into account the interests of each of them within the Republic.

This status is defined by an organic law, adopted after consulting the deliberative assembly, which sets:

the conditions under which the laws and regulations apply;
the skills of this community; subject to those already exercised by it, the transfer of powers of the State may not relate to the matters listed in the fourth paragraph of Article 73, specified and supplemented, where appropriate, by the organic law;
the rules of organization and operation of the institutions of the community and the electoral system of its deliberative assembly;
the conditions under which its institutions are consulted on bills and proposals for legislation and draft ordinances or decrees containing specific provisions for the community, as well as on the ratification or approval of international commitments concluded in matters falling within of its competence.
The organic law can also determine, for those of these self-governing communities, the conditions under which:

the Council of State exercises a specific judicial control over certain categories of acts of the deliberative assembly intervening in respect of the competences it exercises in the field of the law;
the deliberative assembly can modify a law promulgated after the entry into force of the statute of the collectivity, when the Constitutional Council, seized in particular by the authorities of the collectivity, found that the law had intervened in the field of competence of this community;
measures justified by local needs may be taken by the community in favor of its population, in terms of access to employment, right of establishment for the exercise of a professional activity or protection of land assets;
the community can participate, under the control of the State, in the exercise of the competences that it preserves, in the respect of the guarantees granted on the whole national territory for the exercise of the civil liberties.
The other methods of the particular organization of the communities covered by this article are defined and modified by law after consulting their deliberative assembly.

Article 74-1.
In the overseas collectivities referred to in Article 74 and in New Caledonia, the Government may, by ordinance, in matters which remain under the jurisdiction of the State, extend, with the necessary modifications, the provisions of legislative nature in force in mainland France or adapting the provisions of a legislative nature in force to the particular organization of the collectivity concerned, provided that the law has not expressly excluded, for the provisions in question, recourse to this procedure.

Orders are made in the Council of Ministers after consulting the deliberative assemblies concerned and the Council of State. They come into force as soon as they are published. They lapse in the absence of ratification by Parliament within eighteen months of publication.

Article 75.
Citizens of the Republic who do not have ordinary civil status, the only one referred to in Article 34, retain their personal status as long as they have not renounced it.

Article 75-1.
The regional languages ​​belong to the heritage of France.

Title XIII – TRANSITIONAL PROVISIONS RELATING TO NEW CALEDONIA

Article 76.
The populations of New Caledonia are called upon to decide before 31 December 1998 on the provisions of the agreement signed in Noumea on 5 May 1998 and published on 27 May 1998 in the Official Journal of the French Republic.

Candidates are eligible to participate in the ballot if they fulfill the conditions set out in Article 2 of Law No. 88-1028 of 9 November 1988.

The measures necessary for the organization of the vote are taken by decree in Council of State deliberated in the Council of Ministers.

Article 77.
After approval of the agreement during the consultation provided for in article 76, the organic law, taken after the opinion of the deliberative assembly of New Caledonia, determines, to ensure the evolution of New Caledonia in the respect the guidelines defined by this agreement and in the manner necessary for its implementation:

the powers of the State which will be definitively transferred to the institutions of New Caledonia, the staggering and the modalities of these transfers, as well as the distribution of the burdens resulting from them;
the rules of organization and operation of the institutions of New Caledonia and in particular the conditions under which certain categories of acts of the deliberative assembly of New Caledonia may be submitted before publication to the control of the Constitutional Council;
rules relating to citizenship, electoral system, employment and customary civil status;
the conditions and deadlines in which the interested populations of New Caledonia will have to decide on the accession to full sovereignty.
Other measures necessary for the implementation of the agreement referred to in Article 76 shall be defined by law.

For the definition of the electorate elected to elect the members of the deliberative assemblies of New Caledonia and the provinces, the table to which refer the agreement mentioned in article 76 and articles 188 and 189 of the organic law n ° 99 -209 of 19 March 1999 on New Caledonia is the table drawn up on the occasion of the ballot provided for in Article 76 and comprising persons who are not allowed to take part in it.

Title XIV – FRANCOPHONIE AND ASSOCIATION AGREEMENTS

Article 87.
The Republic participates in the development of solidarity and cooperation between states and peoples with French as a common language.

Article 88.
The Republic may enter into agreements with States wishing to associate with it to develop their civilizations.

Title XV – THE EUROPEAN UNION

Article 88-1.
The Republic participates in the European Union consisting of States which have freely chosen to exercise jointly certain of their powers under the Treaty on European Union and the Treaty on the Functioning of the European Union, as they result of the Treaty signed in Lisbon on 13 December 2007.

Article 88-2.
The law lays down the rules on the European arrest warrant in accordance with the acts of the institutions of the European Union.

Article 88-3.
Subject to reciprocity and in the manner provided for by the Treaty on European Union signed on 7 February 1992 , the right to vote and to stand as a candidate in municipal elections may be granted only to Union citizens residing in France. These citizens can not serve as mayor or deputy nor participate in the appointment of senatorial electors and the election of senators. An organic law passed in the same terms by the two assemblies determines the conditions of application of this article.

Article 88-4.
The Government submits to the National Assembly and to the Senate, as soon as they are transmitted to the Council of the European Union, the draft European legislative acts and the other projects or proposals for acts of the European Union.

In accordance with the rules laid down in the Rules of Procedure of each Assembly, European resolutions may be adopted, if necessary outside the sessions, on the projects or proposals referred to in the first paragraph, as well as on any document emanating from an institution of the Union. European.

Within each parliamentary assembly a commission for European affairs is set up.

Article 88-5.
Any bill authorizing the ratification of a treaty relating to the accession of a State to the European Union is submitted to referendum by the President of the Republic.

However, by voting on a motion adopted in identical terms by each assembly by a three-fifths majority, Parliament may authorize the adoption of the bill in accordance with the procedure provided for in the third paragraph of section 89.

[This article is not applicable to accessions following an intergovernmental conference whose convocation was decided by the European Council before 1 July 2004.]

Article 88-6.
The National Assembly or the Senate may issue a reasoned opinion on the conformity of a draft European legislative act with the principle of subsidiarity. The opinion is sent by the President of the Assembly concerned to the Presidents of the European Parliament, the Council and the European Commission. The Government is informed.

Each Assembly may appeal to the Court of Justice of the European Union against a European legislative act for breach of the principle of subsidiarity. This appeal is transmitted to the Court of Justice of the European Union by the Government.

To this end, resolutions may be adopted, if necessary outside the sessions, according to the methods of initiative and discussion fixed by the rules of each assembly. At the request of sixty deputies or sixty senators, the remedy is ex officio.

Article 88-7.
By the vote of a motion adopted in identical terms by the National Assembly and the Senate, the Parliament may object to a modification of the rules for the adoption of European Union acts in the cases envisaged, under the simplified revision of the Treaties or judicial cooperation by the Treaty on European Union and the Treaty on the Functioning of the European Union, as they result from the Treaty signed in Lisbon on 13 December 2007.

Title XVI – REVISION

Article 89.
The initiative for the revision of the Constitution belongs concurrently to the President of the Republic on the proposal of the Prime Minister and members of Parliament.

The draft or the proposal for revision must be examined under the conditions of time set in the third paragraph of Article 42 and voted by both assemblies in identical terms. The review is final after being approved by referendum.

However, the draft revision is not presented to the referendum when the President of the Republic decides to submit it to the Parliament convened in Congress; in this case, the draft revision is approved only if it receives a three-fifths majority of the votes cast. The bureau of the Congress is that of the National Assembly.

No review procedure may be initiated or continued where the integrity of the territory is impaired.

The republican form of the Government can not be revised.


 

Bharati Reddy Vs. State of Karnataka & Ors.[ ALL SC 2018 MARCH]

KEYWORDS:- WRIT APPEAL-Zilla Panchayat-Caste Certificate-writ of quo warranto –

c

DATE:-March 6, 2018-

  • NATURE OF WRIT “QUO WARRANTO” EXPLAINED-

The post of Adhyaksha of Zilla Panchayat is a public office in relation to which a writ of quo warranto can be issued, if the post is occupied by a person who is not eligible to be so appointed or incurs disqualification to continue to occupy the post. Indeed, when a statutory remedy is provided for removal of disqualified person from the public office who is allegedly usurper of public office, the writ court would be ordinarily slow in interfering, much less, issuing a writ of quo warranto.

ACTS:-Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment etc.) Act, 1990-Article 243-O of the Constitution of India

SUPREME COURT OF INDIA

Bharati Reddy Vs. State of Karnataka & Ors.

[Civil Appeal No. 1763 of 2018 arising out of SLP (Civil) No.1532 of 2018]

A.M. Khanwilkar, J.

1. This appeal, by special leave, takes exception to the judgment and order passed by the Division Bench of the High Court of Karnataka, Dharwad Bench dated 04.12.2017 in Writ Appeal No.5872 of 2017.

2. Briefly stated, pursuant to notification dated 04.12.2015, elections were held and the appellant was elected on 28.03.2016 as a member of the Zilla Panchayat from 13 – 2 Badanahatti Constituency, Ballari District, Karnataka which was reserved for General (Women) Category. Later, the State Government published a notification on 15.04.2016 declaring the reservation for the post of Adhyaksha and Upa-Adhyaksha of Zilla Panchayats in the State. In Ballari Zilla Panchayat, the post of Adhyaksha was reserved for the category of Backward Caste-B (Women).

After the said notification, since the appellant intended to contest the election to the post of Adhyaksha of Ballari Zilla Panchayat, she made an application on 22.04.2016 to the jurisdictional Tahshildar for issuance of Income and Caste Certificate, a certificate which was a prerequisite for submitting the nomination form for the election to the post of Adhayaksha. That certificate was issued by the Tahshildar on 26.04.2016 on the basis of which the appellant contested the election held on 29.04.2016 and was declared elected. As required in terms of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment etc.) Act, 1990 and the Rules framed thereunder, the Income and Caste Certificate has been forwarded to the District Caste Verification Committee Ballari. The process of verification thereof is still in progress.

3. According to the appellant, at the behest of the unsuccessful candidates who could not file any election petition to challenge the election of the appellant, respondent Nos.6 to 9 filed a writ petition before the High Court of Karnataka, Dharwad being Writ Petition No.106417 of 2016, about 3 months after the election of the appellant as Adhyaksha.

The substance of the allegation made in the said writ petition against the appellant was that she played fraud on the Government and public by submitting a false affidavit before the Tahshildar for issuance of Income and Caste Certificate, on the basis of which she contested the election for the post of Adhyaksha Zilla Panchayat and got elected to the said post, to which she was otherwise not entitled to or qualified for. The allegation about the nature of fraud committed by the appellant can be discerned from the assertions made in paragraphs 6 and 7 of the writ petition, which read thus:

“6. It is submitted that the 6th Respondent in order to grab the post of Adhyaksha of Zila Panchayat has submitted a bogus and false caste certificate to show that she belongs to the Backward community-B Category obtained from the 5th Respondent. It is further submitted that in the application filed by 6th Respondent to 5th Respondent for issuance of caste certificate, she filed an affidavit stating that her livelihood is agriculture and that she owns 1.03 acres of agricultural land in Badanahatti village and 3.50 Acres of land in Sy. No. 36A in Yarrangaligi village. Further she also declared that her family income is not more than Rs.3,50,000/- per annum from all other sources and that she and her husband are not assessed to Income Tax and Commercial Tax.

The said declaration made by the 6th Respondent is totally false to the knowledge of herself, which is clear from the Affidavit filed by the 6th Respondent before the 2nd Respondent while contesting for the member of Bellary Zilla Panchayat General Elections. It is further submitted that the 6th Respondent in her affidavit dated 06.02.2016 declared that she is getting rent of Rs.1,40,000/- per annum and her husband getting 4,80,000/- per annum, which details are found in paragraph 4-A. This itself shows that her family income from one source only is more than 3,50,000/- as declared in the affidavit dated 26.04.2016 filed before the 5th Respondent for issuance of Caste and Income Certificate.

That apart she has also declared in the said affidavit dated 26.04.2016 that she and her husband are not assessed to the Income Tax and Commercial Tax, which are also contrary to the declaration made in the affidavit dated 06.02.2016 filed before 2nd Respondent that she has been assessed to Income Tax and has paid Income Tax, the said details are stated in paragraph 5 of the said affidavit. It is also reliably learnt that the husband of the 6th Respondent is Class-I contractor and is having more than income of Rs. 1,00,00,000/- per annum and is assessed to Income Tax and Commercial Taxes. True copies of the Affidavit dated 06.02.2016, 26.04.2016 and Caste and Income Certificate issued by the 5th Respondent dated 26.04.2016 are produced herewith as Annexure-E, F and G respectively.

7. It is further submitted that in the proceedings held on 29.04.2016 under the Chairmanship of Regional Commissioner, Kalburgi Division, Kalburgi, the 6th Respondent was successful in getting elected as Adhyaksha under the Category-Backward Community-B based on the above said false Caste and Income Certificate which was issued by the 5th Respondent on the same day of application without any proper enquiry as required under the law. A true copy of the said proceedings dated 29.04.2016 is produced herewith as Annexure-H.”

(emphasis supplied)

On the basis of these allegations, the respondent Nos.6 to 9 prayed for the following reliefs in the said writ petition:

“PRAYER

Wherefore, this Hon ble Court may be pleased to

a. Issue a writ of Quo Warranto directing the 6th Respondent to vacate the office of the Adhyaksha, Zilla Panchayat, Bellary.

b. set aside the proceedings dated 29.04.2016 bearing No. SUM./KAM/Pra HaGu/chunavana/05/2016-17 declaring the 6th Respondent as Adhyaksha of Zilla Panchayat, Bellary vide Annexure-H.

c. consequently quash the caste certificate issued to the 6th Respondent vide order dated 26-04-2016 in application No. 01/16-17 issued by the 5th Respondent vide Annexure-G.

d. pass such other or further orders or directions as this Hon ble Court may deem fit, in the interest of justice”.

(emphasis supplied)

4. This writ petition was contested by the appellant inter alia on the ground that the same was not maintainable in view of the bar contained in Article 243-O of the Constitution of India. Further, the writ petitioners were only voters and therefore, had no locus to challenge the election of the 6 appellant as Adhyaksha, which was an indirect election. Rule 7 of the Karnataka Panchayat Raj Rules explicitly envisages that only a member of the Panchayat may challenge the validity of the election of Adhyaksha and Upa-Adhyaksha.

It was also pointed out that the writ petition filed by the said respondents was a politically motivated petition and filed at the behest of unsuccessful candidates who could not prevent the appellant from getting elected as Adhyaksha. As regards the allegations in the writ petition that the appellant had made false declarations and filed incorrect affidavits, the appellant contended that the Income and Caste Certificate was issued in favour of the appellant by the competent authority after completing all the formalities and procedure. So long as the said certificate was valid and in force, issuance of writ of quo warranto was misplaced. For, there is legal presumption about the validity of the said certificate in terms of Rules 3-C of the Rules of 1992 framed under the 1990 Act.

The said Rule makes it amply clear that the certificate would remain valid until it is cancelled by the jurisdictional Caste Verification Committee. The appellant also pointed out that the allegation made in the writ petition, regarding the false or incorrect income disclosure made by the appellant, was wrong and ill-founded. Such allegation was based on far-fetched logic and untenable assumptions. The affidavit dated 06.02.2016 submitted along with the nomination form filed for contesting elections from 13-Badanahatti Constituency was in reference to the factual position stated therein. Similarly, the affidavit filed by the appellant dated 26.04.2016 was also true, faithful and accurate as it disclosed facts in reference to the qualification required for contesting the election of Adhyaksha at the relevant time, in respect of post reserved for “B” Category (Women) Backward Caste.

In other words, both the affidavits and the information disclosed therein were truthful, accurate and contextual, as noted in the respective affidavit. The appellant also asserted that the fact that the Income and Caste Certificate was issued within five days from the date of application for the said certificate or on the same date the affidavit dated 26th April, 2016 was filed before the Tahshildar, could not give rise to a presupposition, inference or assumption that the same was issued without necessary and proper enquiry. On the other hand, there is legal presumption that the same was valid, having been issued by the jurisdictional Tahshildar competent in that regard. The circumstances, of the time of issue of E-stamps at about 5:27 P.M. or the date of affidavit being 26.04.2016, cannot be a just basis to assume that the certificate was fraudulent, in the face of the statutory provision making it explicit that it would be valid until cancelled by the Caste Verification Committee.

Thus, the circumstances relied upon by the writ petitioners were neither relevant nor sufficient to draw any inference on fact, much less legal inference, so as to conclude that the certificate was fraudulently issued.

The fact that the appellant belongs to “Kapu Caste”, which is notified as B Category Backward Class; and the declaration regarding income made by the appellant, are issues which are intrinsically mixed with the issuance of the Income and Caste Certificate. It is not open to question the validity of the said certificate much less to entertain the prayer for issuance of a writ of quo warranto on the assumption that the said certificate was fraudulent because of some fortuitous circumstances.

It was pointed out by the appellant that the writ of quo warranto is not an ordinary power to be exercised by the High Court and moreso, in the matter involving disputed questions of fact.

The High Court may be justified in issuing such a writ only if it is indisputable that the elected public representative was ineligible or disqualified to contest the election or had incurred disqualification at a later point of time. In either case, such a person cannot justify holding on to the public post such as that of Adhyaksha. That situation will arise only if the Caste Verification Committee was to invalidate and cancel the Income and Caste Certificate issued in favour of the appellant and not otherwise. On these contentions, the appellant prayed for dismissal of the writ petition.

5. Preliminary objection regarding bar of jurisdiction in terms of Article 243-O of the Constitution of India and locus of the writ petitioners raised by the appellant commended to the learned Single Judge, who dismissed the writ petition vide judgment and order dated 21.10.2016.

6. Being aggrieved by the dismissal of the writ petition, the writ petitioners (respondent Nos.6 to 9 herein) carried the matter in Writ Appeal No.101459 of 2016. The Division Bench reversed the judgment of the learned Single Judge and allowed the writ appeal vide judgment and order dated 05.06.2016. It remanded the matter to the learned Single Judge for fresh decision.

7. The appellant therefore, approached this Court by way of Special Leave Petition (Civil) No.17059 of 2017 (converted to Civil Appeal No.10587 of 2017) wherein the preliminary objection regarding the bar under Article 243-O of the Constitution of India and locus of the writ petitioners, as also the contention that the only remedy to challenge the election of the appellant would be an election petition, was reiterated.

The two-Judge Bench of this Court disposed of the appeal preferred by the appellant on the finding that the voter of the Panchayat cannot be rendered remediless and if he is aggrieved by the election of the Adhyaksha of the Panchayat, it is open to him to seek the remedy of judicial review under Articles 226/227 of the Constitution of the India. In such proceedings, it is open to the High Court to undertake judicial review of the subject matter. In paragraph 13 of its judgment, this Court observed thus:

“13. It is thus clear that power of judicial review under Articles 226/227 of the Constitution is an essential feature of the Constitution which can neither be tinkered with nor eroded. Even the Constitution cannot be amended to erode the basic structure of the Constitution. Therefore, it cannot be said that the writ petition filed by respondent Nos. 6 to 9 under Article 226 of the Constitution is not maintainable. However, it is left to the discretion of the court exercising the power under Articles 226/227 to entertain the writ petition.”

Again in paragraph 15, the Court observed thus:

“15. As noticed above, though respondent Nos. 6 to 9 are the voters are not the members of the Zilla Panchayat. They are aggrieved by the election of the appellant to the office of the Adhyaksha. They cannot challenge the election of the appellant to the office of Adhyaksha by filing an election petition as they are not the members of the Zilla Panchayat in question. In our view, a voter of the Zilla Panchayat who is not a member cannot be denied an opportunity to challenge the election to the office of Adhyaksha under Articles 226/227 of the Constitution. Therefore, we hold that the writ petition filed by respondent Nos. 6 to 9 before the High Court is maintainable.”

After this decision, the preliminary objections regarding the maintainability of writ petition stood concluded. An attempt was made by the appellant to question the correctness of the view expressed by this Court in the aforesaid decision. Concededly, even if the arguments of the appellant may appear to be attractive, it cannot be entertained in relation to the decision inter partes.

8. Be that as it may, in light of the view expressed by this Court, the parties were relegated before the learned Single Judge of the High Court. Before the remanded writ petition was taken up for hearing by the learned Single Judge, the appellant filed a writ petition bearing Writ Petition No.108700 of 2017 (LB-RES) before the High Court of Karnataka, Dharwad Bench, challenging the note appended to the notification dated 13.01.1995. That notification had been issued by the State Government in exercise of powers conferred under Section 2(2) of the Karnataka Panchayat Raj Act, 1993, for classifying and notifying the classes of citizens as Backward Class, for the purpose of reservation of seats and office of Chairperson in Zilla Panchayat, Taluk Panchayat and Gram Panchayat.

The note predicates that no person falling under category “B” would be entitled to the benefit of reservation in the seats and office of Adhyaksha and Upa- Adhyaksha of Zilla Panchayat, Taluk Panchayat and Gram Panchayat if, inter alia, he/she or either of his/her parents/guardians was an income tax assessee/wealth tax assessee (Clause ii). This stipulation has been assailed by the appellant as being in the teeth of the exposition of this Court in K. Krishna Murthy (Dr.) and Others Vs. Union of India and Another1 and Indra Sawhney and Others Vs. Union of India2. The High Court being prima facie convinced with the said contention granted interim stay to the said stipulation (Clause ii) in the notification dated 13.01.1995.

9. Reverting to the remanded writ petition from which the present appeal arises as aforesaid, the same was to be heard by the learned Single Judge on merits of the controversy for grant of reliefs prayed in the writ petition including for issuance of a writ of quo warranto. The learned Single Judge, after examining the rival contentions and after taking note of the original documents forming part of the original file produced by the Government advocate, opined vide judgment and order dated 21.09.2017 as under:

“11. Learned AGA appearing for respondents 1,3 to 5 filed following documents pertaining to issuance of caste and income certificate to respondent No. 6-Smt. Bharati Reddy w/o Sri Thimmareddy for perusal of this Court.

1. Application dated 22.04.2016 for issue of caste and income certificate (Xerox copy).

2. Notice dated 23.04.2016 issued by the Revenue Inspector.

3. Report of the Revenue Inspector dated 26.04.2016 bearing No. Sam.Kam.Jaa and Aa Zi. Pam.Chu/01/16-17 dated 26.04.2016.

4. Mahazar

5. Statement

6. Affidavit of the applicant sworn before the Advocate Notary

7. Applicant s identity card (Xeroxcopy)

8. Applicant s voter identity card (Xerox copy)

9. Transfer Certificate (certified copy)

10. Study Certificate (certified copy)

11. Original Caste and Income Certificate bearing No. Sam.Kam.01/06-07 dated 26.04.2016.

12. Form No. 24 regarding applicant s land holding.

12. On perusal of the documents it is seen that on 22.04.2016 the respondent No. 6 has filed application for issue of caste and income certificate; on 23.04.2016 the jurisdictional Revenue Inspector has issued notice to respondent No. 6 pointing out the discrepancies with regard to issuance of caste and income certificate; on 26.04.2016 the Revenue Inspector has submitted a report recommending to issue caste certificate to the petitioner in Backward Caste II(B); revenue inspector had conducted mahazar along with the Village Accountant and opined that there is no objection for issue of caste certificate to the petitioner in Backward Caste II(B); statement of Smt. C. Bharathi w/o V.C. Thimma Reddy before the Revenue Inspector; affidavit of Smt. C. Bharathi w/o V.C. Thimma Reddy sworn before the Advocate Notary, Ballari Tq. Rev. Area on 26.04.2016; Xerox copy of the original voters list of the year 2015; Xerox copy of the voter s identity card; certified copy of the transfer 15 certificate; certified copy of the study certificate and also the original certificate issued by the Special Tahasildar, Kurugodu, declaring the caste of the respondent No. 6 as Kapu which comes under Backward Category “B on 26.04.2016 so also the original of Form No. 24 regarding holding of land by the respondent No. 6.

13. The entire process of issuance of caste certificate is concluded in five days, i.e., application was filed on 22.04.2016 and the caste certificate was issued on 26.04.2016, which cannot be said to be illegal, as contended by the learned counsel for respondent No.6. However, on perusal of the affidavit filed by the respondent No. 6 before the Notary it is seen that the e-stamp paper is purchased at 5.27 PM on 26.04.2016 and after purchase affidavit was sworn before the Notary and on that day itself the caste certificate is issued. It is also seen that the date 26.04.2016 is over-written. This creates a serious doubt about the process of issuance of caste certificate by the respondent No.5.

14. The respondent No. 5 being a responsible officer of the Revenue Department has issued the caste certificate in a mortal hurry. The respondent No. 6 who purchased the E-stamp paper on 26.04.2016 at 5.27 PM and on the same day she files the affidavit on the E-Stamp paper before the Advocate Notary and the same is submitted before the Special Tahsildar and the Tahsildar after verification has issued caste certificate to the respondent No.6, being the contested candidate for the post of Adhyaksha of Zilla Panchayat, Ballari. The same is found in the documents produced by the learned AGA. From this process it can be said that the respondent No. 5 being a responsible officer has not taken care and diligence in issuing the caste certificate and had adopted a casual working nature. Whether this casual attitude of the respondent No.5 can be said as illegality or negligence is to be considered in a separate proceedings”.

(emphasis supplied)

Again, while dealing with the factual matrix of the case, the learned Single Judge, in the same judgment, analysed the issue as follows:

“35. In this writ petition the core issue relates to the holding of the office of Adhyaksha of Zilla Panchayat, Ballari, by the respondent No.6 and also seeking quashing of Annexure-H the notification declaring the respondent No. 6 as Adhyaksha of Zilla Panchayat Ballary. Therefore, the concept of creamy layer as stated supra, does not come in the way of disposal of this writ petition which is filed for issue of writ of quo warranto against the respondent No. 6 to vacate the office of the Adhyaksha of Zilla Panchayat, Ballary and also to quash Annexure-H. In view of the same, the contention of the respondent No.6 does not hold substance.

36. In the instant petition it is relevant to state that the procedure of writ of quo warranto confers jurisdiction and authority on the Court to control executive action in the matter of making an appointment of a person to the public office against the relevant statutory provisions. In the instant case, the petitioners are the voters/electorates and so also the whistle blowers.

It is also relevant to state that, the writ of Quo Warranto protects from illegal deprivation of public office to which they may have a right and also it relates to protect the public from usurping of public office by a person who is not entitled to hold the public office as a result of connivance of executive or that its active help, wherein the respondent No. 5 being the responsible Tahasildar, Kurugodu, issued caste certificate to respondent No. 6, on the basis of which she was able to contest and elect for the post of Adhyaksha of Zilla Panchayat, Ballari. The respondent No.6 was contested and elected for post of Zilla Panchayat Member from 13-Badanahatti Constituency which was reserved for General Category (Woman).

In her affidavit (Annexure-E dated 06.2.2016) itself she has stated that she is an income tax assessee and has even furnished PAN (permanent account number). However, the said fact is suppressed in the subsequent affidavit vide Annexure-F dated 26.04.2016 submitted before the Tahasildar, Kurugodu (respondent No. 5) along with her application for obtaining Backward Class B Community certificate.

xxx xxx xxx xxx

38… However, the respondent No.5 is under suspension pending enquiry with regard to the procedure adopted by him in issuing the caste certificate to the respondent No.6. 39. The respondent No.6 who is elected by a democratic process, she belonged to Kapu caste, which caste falls under Backward Class-B category, which is indicated in the Government Notification dated 13.01.1995 of the Government of Karnataka. However, now the issue is pending before the Caste Verification Committee and that issue cannot be decided under the jurisdiction of this court under Article 226 of the Constitution of India.

40…. whereas in the instant writ petition the Income Tax Returns filed by the respondent No. 6 pertains to the year 2013-14. But she sworn in the affidavit that she is not an assessee for the year 2015-16. It reflects the conduct of the respondent No.6.”

(emphasis supplied)

Finally, the learned Single Judge concluded as under:

“42. It cannot be lost sight of the fact that, the E-stamp paper was purchased at 5.57 pm on 26.04.2016 and the caste cum income certificate was issued on the same day, which fact reveals that the certificate was issued in a mortal hurry. Accordingly, this writ petition is filed for issue of writ of Quo Warranto in respect of quashing the proceedings vide Annexure-H dated 29.04.2016 and also to direct the respondent No. 6 to vacate the office of Adhyaksha of Zilla Panchyat, Ballari.

43. Respondent No. 6 being a responsible member of Zilla Panchayat, Ballari as she was the successful candidate elected from 13 Badanahatti constituency which was reserved for General Category (Woman) as per the notification dated 28.03.2016 published in Karnataka Gazatee. The post of Adhyaksha of Zilla Panchayat was reserved for Backward Category B Woman. The respondent No.6 belonged to Kapu community which belongs to Category B Community.

However, the declaration regarding her family income reveals that it is more than Rs.3,50,000/- p.a. that too only from the rental income. This shows that the respondent No. 6 files an affidavit to secure the caste and income certificate from the respondent No.5, who issued the certificate in a mortal hurry. This creates serious doubt about the genuinity or otherwise of the process of 18 issuing the caste certificate.

However, the issue is now pending before the Caste Verification Committee, which is a fact finding committee and would be decided in its own course. Hence, the question of fact as regarding the caste of respondent No. 6 in this writ petition does not arise for consideration. In view of the aforesaid reasons, I am of the opinion, since the respondent No. 6 has not declared her correct and proper family income only with an intention to hold the post of Adhyaksha which is a public office, must be prevented from holding the office.”

(emphasis supplied)

On the said finding and after recording its opinion, the learned Single Judge passed the following order:

“ORDER

Writ Petition is allowed in part. Accordingly, the proceddings dated 29.04.2016 bearing No. SUM./KAM/PraHaGu/ chunavana/05/2016-17 declaring the 6th respondent as Adhyaksha of Zilla Panchayat, Ballari, vide Annexure-H is hereby quashed. Consequently, writ of quo warranto is issued directing the 6th respondent to vacate the office of Adhyaksha, Zilla Panchayat, Ballari. Rest of the prayers do not arise for consideration and accordingly they are rejected.

The records submitted by the learned A.G.A. before this court on 07.09.2017 are directed to be returned by substituting them with Xerox copies. The observations made in this Writ Petition is restricted for disposal of this case and shall not have any bearing regarding the pending litigation before the Caste Verification Committee. The Caste Verification Committee shall independently hold an enquiry and dispose of the case in accordance with law”.

(emphasis supplied)

10. Aggrieved by the aforesaid decision, the appellant filed Writ Appeal No.5872 of 2017. The writ petitioners (respondent 19 Nos.6 to 9 herein) also filed a cross appeal being Writ Appeal No.100657 of 2017. Both the appeals were heard and decided together by the Division Bench of the High Court of Karnataka, Dharwad Bench vide judgment and order dated 04.12.2017. The Division Bench broadly reiterated the view expressed by the learned Single Judge and affirmed the conclusion of the learned Single Judge both on factual and legal matters. While analysing the factual matrix, the Division Bench observed as follows:

35… “As narrated in the preceding paragraph Nos. 12 and 13, supra, the appellant filed an application before the jurisdictional Tahsildar for issue of Caste cum Income Certificate on 22.04.2016 in the prescribed format as per the Notification dated 13.01.1995.

On considering the same, the jurisdictional Revenue Inspector has issued notice to the appellant calling upon her to rectify the defects pointed out, pursuant to which, the appellant filed an affidavit on India, Non-Judicial, Government of Karnataka, e-stamp paper issued on 26.04.2016 at 5.27 p.m. declaring that the appellant and her husband are neither income tax assesses nor sales tax assesses. Annexure-G to the Writ Petition No. 106417/2016 is the application filed by the appellant in the prescribed format in terms of the notification dated 13.1.1995, whereby in Clause – 11, it is stated that the applicant or their father/mother/guardian are not the assessee of income tax/wealth tax. This is the moot point which requires to be considered to decide whether the appellant has played any fraud on the constitution.”

(emphasis supplied)

11. Again in paragraph 36, the Division Bench noted as follows:

“36. It is not in dispute that any affidavit filed before the authorities has sanctity in the eye of law and the same, if found to be false statement and misrepresentation, it is a case of perjury punishable under criminal law. Based on the statement declared by the appellant, the jurisdictional Tahasildar has issued verification certificate certifying that the appellant belongs to backward Class-B Category in terms of the notification dated 13.1.1995.

It is not in dispute that the statements were made by the appellant on the E-stamp paper issued on 26.04.2016 at 5.27 p.m. and the jurisdictional Tahasildar has issued the certificate on the very same day i.e. 26.04.2016, based on the application bearing No. 01/16-17, dated 25.04.2016. Fraud played by the appellant is manifest from the certificate issued by the jurisdictional Tahasildar. Based on these facts, the Government of Karnataka has now suspended the jurisdictional Tahasildar for providing false certificate.

On 06.02.2016, the appellant swearing to an affidavit that she is an income-tax assessee, furnishing the PAN card details, subsequently giving statements before the Revenue Inspector that she is not a PAN card holder and not an income tax assessee prima facie proves the fraudulent act of the appellant. In addition to that filing a false affidavit in order to usurp a public office is highly deplorable. In such circumstances, if the appellant is continued to chair and hold the office of Adhyaksha, her action would be fraud on the constitution….”

(emphasis supplied)

The other relevant extract of the impugned judgment of the Division Bench in paragraph 44, reads thus: “44. The issue relating to the caste, whether the appellant belongs to Kapu caste or not is a disputed question of fact. It is true that there is no absolute bar under Articles 226 and 227 of the Constitution of India to consider annulment of caste certificate de hors alternative statutory remedy available provided the disputed question of facts are not involved and the circumstances warrant invoking of the extraordinary writ jurisdiction. The judgments relied upon by the respondents on this point do not assist the respondents since the matter is already pending before the Caste Verification Committee, considering this prayer at this stage would be, entertaining the parallel proceedings which is not tenable.

The determination of caste requires a full-fledged enquiry, as such the learned single judge directing the caste verification committee, to proceed with the matter cannot be found fault with. Confirming the order of the learned single Judge, we direct the Caste Verification Committee to proceed with the matter in accordance with law without being influenced by any of the observations made above. All rights and contentions of the parties are left open. Caste Verification Committee shall decide the matter in an expedite manner. In the result, both the appeals stand dismissed.”

(emphasis supplied)

12. We have heard Mr. C.A. Sundaram, learned Senior Counsel appearing for the appellant and Dr. Rajeev Dhawan & Mr. S.M. Chander Shekhar, learned Senior Counsel appearing for the respondents.

13. It is indisputable that the post of Adhyaksha of Zilla Panchayat is a public office in relation to which a writ of quo warranto can be issued, if the post is occupied by a person who is not eligible to be so appointed or incurs disqualification to continue to occupy the post. Indeed, when a statutory remedy is provided for removal of disqualified person from the public office who is allegedly usurper of public office, the writ court would be ordinarily slow in interfering, much less, issuing a writ of quo warranto. The Constitution Bench of this Court in the case of The University of Mysore and Another Vs. C.D. Govinda Rao and Another3 has observed thus.

“6. The judgment of the High Court does not indicate that the attention of the High Court was drawn to the technical nature of the writ of quo warranto which was claimed by the respondent in the present proceedings, and the conditions which had to be satisfied before a writ could issue in such proceedings.

7. As Halsbury has observed : “An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.

8. Broadly stated, the quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the Judiciary a weapon to control the Executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not.”

(emphasis supplied)

14. The moot question in the present case is: whether the High Court, in the facts of the present case, was justified in invoking its extraordinary jurisdiction to issue a writ of quo warranto? Let us advert to the assertion made in the writ petition in support of such a relief claimed by the respondent Nos.6 to 9. The relevant paragraphs have been extracted in paragraph 3 of this judgment, being paragraphs 6 and 7 of the writ petition. The case of the writ petitioners was that the appellant, in order to grab the post of Adhyaksha of Zilla Panchayat, submitted a bogus and false certificate indicating that she belongs to the backward community-B category, which was surreptitiously obtained from respondent No.5.

In support of this plea, the crux of the allegation is that a false, incorrect and misleading declaration was given by the appellant in respect of her financial status and income. In that, in the first affidavit dated 6th February, 2016 she had declared that she was receiving rent of Rs. One lakh forty thousand per annum and her husband was receiving rent of Rs. Four lakh eighty thousand per annum. Whereas in the second affidavit dated 26th April, 2016 filed in support of the application for grant of Income and Caste Certificate, she has stated that the annual income of her family was only Rs. Three lakh fifty thousand; and that she and her husband were not paying income tax and commercial tax. According to the writ petitioners, this declaration was false to the knowledge of the appellant. Further, the caste certificate was issued on the same day of the application without any proper inquiry as required under the law. On these assertions, the matter proceeded before the High Court. We will advert to the explanation offered by the appellant a little later.

15. First, we must notice the other material which had come on record during the hearing of the writ petition and which weighed with the High Court. During the hearing, the original 25 official file relating to the grant of caste certificate to the appellant was produced by the Government Advocate, as noted in paragraph 11 of the judgment of the learned Single Judge and extracted in paragraph 9 above. On analyzing the documents contained in the original file, it is noticed that the certificate was not granted to the appellant on the same day of the application as alleged but it took almost five days time for processing the application and for its issuance. In that, first, a notice was issued by the Revenue Inspector, then, a report of the Revenue Inspector was obtained, Mahazar was prepared, statement was recorded, and then affidavit of the appellant came to be filed along with other documents, as has been noted in the original file.

16. The concurrent finding recorded by the learned Single Judge and the Division Bench of the High Court is that the process of issuance of the certificate to the appellant by the jurisdictional Authority was done in a mortal hurry. This inference has been drawn by the High Court in light of the facts revealed from the original official file – that the appellant purchased stamp paper for preparing affidavit at 5.27 p.m. on 26th April, 2016 and used the same for notarization and also submitted it to the respondent No.5, who then issued the caste certificate on the same day i.e. 26th April, 2016.

The Court has also noted that there was some overwriting in relation to the date. After adverting to these circumstances, the High Court opined that there was something seriously wrong about the process adopted by the respondent No.5 for issuance of caste certificate, which was obviously done to favour the appellant who could then contest the election. The High Court also noted that the respondent No.5 who had issued the stated certificate was later on suspended, pending departmental enquiry against him in reference to the selfsame certificate issued to the appellant.

Additionally, the High Court has found that there was discrepancy in the two affidavits filed by the appellant, which is in the nature of suppression and non-disclosure of material financial information. Finally, the High Court concluded that since the issue regarding the validity of Income and Caste Certificate was pending before the Caste Verification Committee, which was a fact finding Committee, the Committee would decide the same on its own merits. Notably, the High Court did not quash the caste certificate as being void but left it open to the Caste Verification Committee to proceed in accordance with law.

17. It is pertinent to mention that the Division Bench of the High Court, while deciding Writ Appeal No.101459 of 2016, vide judgment dated 5th June, 2017, has recorded in Para 12 of the judgment that there is no dispute as to the caste status of the appellant herein; that she belongs to “Kapu” Caste is not at all in dispute. Considering the above, the issue before the Caste Verification Committee would essentially be one relating to the income eligibility of the appellant. That may be a mixed question of fact and law. Presumably, therefore, the High Court stopped short of quashing the Income and Caste Certificate issued in favour of the appellant as being void.

18. In this backdrop, the controversy will have to be analysed so as to determine whether the High Court was justified in issuing a writ of quo warranto in such a situation. Interfering in exercise of writ jurisdiction is limited to judicial review of the decision making process and not of the decision itself. In this case, the final decision regarding the validity of Income and Caste Certificate issued to the appellant has been advisedly kept open, thereby the same, in law and in fact, is still valid and in force.

There is statutory presumption that such caste certificate shall be valid until it is cancelled by the Competent Authority. However, the only logic that can be deduced from the contemplation done by the learned Single Judge and the Division Bench of the High Court, is that the process followed by the respondent No.5 for issuing the stated certificate to the appellant is replete with serious doubt and, therefore, is prima facie fraudulent.

19. In other words, the existence of the caste certificate or for that matter the fact that it has been so issued by the respondent No.5, is not doubted or in dispute. It is not a case of appellant relying on a non-existing or officially non-issued caste certificate. Thus, enquiry will have to be made about the circumstances warranting issuance of stated certificate in a tearing hurry by the respondent No.5, allegedly to favour the appellant. The other aspect is about the discrepancies in the two affidavits submitted by the appellant and including the suppression and non-disclosure of her truthful financial information.

20. Indubitably, both these aspects will be the subject matter of the enquiry before the Caste Verification Committee, being intrinsically mixed with the question of validity of the stated certificate. Appellant had offered explanation on both these matters. Regarding the factum of mortal hurry allegedly displayed by the respondent No.5 in issuing the caste certificate, she contends that it was not issued on the same day as alleged but after due enquiry. That is evinced from the original official file produced before the Court. In that, the application was made on 22nd April, 2016 whence the process commenced and then concluded on 26th April, 2016.

The process was required to be completed expeditiously as the certificate was required for contesting the impending election of Adhyaksha scheduled on 29th April, 2016. This explanation certainly will have to be examined by the Caste Verification Committee, before invalidating the caste certificate on the ground that proper procedure was not followed. For the present, suffice it to observe that the mere fact that the certificate was issued in a short span of five days from the date of the application, per se, does not lead to an inference that the required procedure has not been followed.

21. The fact as to whether necessary procedure has been complied with or not will be one aspect of the enquiry before the Caste Verification Committee, apart from the core aspect of whether in fact the appellant fulfills the income and financial criteria. The mere fact that the caste certificate has been issued within a short span of five days albeit after following due procedure, can be no just basis to invalidate the certificate by the Caste Verification Committee. The said Committee will be obliged to record a clear finding of fact about the eligibility of the appellant in reference to her financial status and income, keeping in mind the purport of Clause (ii) of the Note to Notification dated 13th January, 1995. While considering that matter, the Committee will have to make an enquiry as to whether the appellant or her parent(s)/guardian(s) “is” an income tax assessee /wealth tax assessee on the date of issuance of the certificate.

As regards this fact, Caste Verification Committee will have to examine the correctness and efficacy of the two affidavits in its proper perspective known to law. According to the appellant, there is no discrepancy in the disclosures made by her in the two declarations concerning her financial matters at the relevant time. The first affidavit dated 6th February, 2016, correctly discloses the fact that the appellant possessed PAN Card and was an income tax assessee, having paid income tax for the Financial Year 2013-14. The second affidavit dated 26th April, 2016 is also accurate and discloses the correct financial position wherein it is stated that the annual income of her family is Rs. Three lakh fifty thousand from all the sources; and neither she nor her husband are income tax and commercial tax payers in reference to the Financial Year (2015-16), for which the affidavit was sworn on 26th April, 2016.

It is also contended by the appellant that Clause (ii) of the Note posits two aspects:- the first is that the incumbent or either of his/her parents/guardian should not be an income tax or wealth tax “assessee” at the relevant time. The expression used in this clause, “is” an income tax assessee/wealth tax assessee, pre supposes that it is in praesenti and for the relevant period. Secondly, the incumbent must necessarily fall within the expression “assessee” given in the concerned tax laws. That means only a person, by whom any tax or any other sum of money is payable under the Act for the concerned period and not otherwise.

No material has been produced or is forthcoming that the appellant, or for that matter, her husband, had paid any tax or are liable to pay tax or a sum of money under the concerned tax legislation, for the relevant period i.e. Financial Year 2015-16. Absence of such evidence, the Income and Caste Certificate issued to the appellant cannot be invalidated. Furthermore, the income of her husband / spouse is not a relevant fact for issuance of the Income and Caste Certificate.

For, Clause (ii) excludes benefit only if the incumbent or either of his/her parent/guardian is an income tax assessee or wealth tax assessee. This provision will have to be interpreted strictly, as in the case of provision 33 for any other disqualification. The appellant also asserts that there is no discrepancy or for that matter suppression or non-disclosure of financial information in the declarations submitted by her. In any case, that would be a disputed question of fact and per se concerning the issue of validity of Income and Caste Certificate.

22. According to the appellant, as long as the Income and Caste Certificate is valid and in force, which has only been doubted by the High Court having been issued by the respondent No.5 in a mortal hurry, the matter must rest at that. We find force in the submission of the appellant that all these issues will be the subject matter during the enquiry into the question of validity of the stated Income and Caste Certificate, which is pending before the Caste Verification Committee. Even the High Court was conscious of this position and perhaps, therefore, did not quash or set aside the Income and Caste Certificate as being void.

A writ of quo warranto cannot be issued on the basis of assumptions, inferences or suspicion regarding the factum of fulfillment of eligibility criteria. Being an extraordinary power, ordinarily such a writ ought to be issued only on the basis of indisputable facts leading to a singular conclusion that the incumbent was in fact or in law disqualified to occupy the public office or has incurred disqualification to continue to remain therein. Only whence such a person would fall within the description of an usurper of public office without legal authority.

On the other hand, for a person possessing an Income and Caste Certificate issued by the jurisdictional Authority and so long as it is valid and in force, in fact and in law, treating such a person as usurper of the public office and occupying it without legal authority, cannot be countenanced. In our opinion, the High Court had plainly erred in engaging itself in an enquiry into a prohibited area which is already the subject matter of the proceedings pending before the Caste Verification Committee, without realizing that the observations made by it were inherently bound to influence the Committee from taking a just and proper decision in accordance with law irrespective of its observation to decide without being influenced by its decision.

23. Strikingly, neither the learned Single Judge nor the Division Bench of the High Court thought it appropriate to quash and set aside the Income and Caste Certificate as being void. If the High Court was to allow that relief or other reliefs claimed by the writ petitioners in entirety after a full-fledged enquiry, the correctness of that approach could have been tested on a different scale. We must immediately clarify that we may not be understood to have said that such a course was open to the High Court. That issue does not arise in this appeal.

24. As aforementioned, the High Court stopped short of concluding that the Income and Caste Certificate issued to the appellant is void. It merely expressed a prima facie opinion that the process adopted by the respondent No.5 to issue the Income and Caste Certificate to the appellant created a serious doubt. At best, it observed that the appellant was instrumental in playing fraud upon the jurisdictional Authority and/or the said Authority colluded with the appellant, by surreptitiously issuing the Income and Caste Certificate to the appellant.

But, finally, it has left the question regarding the validity of the certificate open to be decided by the Caste Verification Committee, in the pending proceedings, dealing with the factum of validity of the certificate issued to the appellant. Having said this, the High Court could not have issued a writ of quo warranto. That writ could be issued only if the Income and Caste Certificate was held to be void or after it was invalidated by the Competent Authority.

25. The distinction between a void and voidable order was considered in the case of Nawabkhan Abbaskhan Vs. State of Gujarat.4 The Court noted the dictum of Rubinstein that, when an act is not voidable but void, it is a nullity and can be disregarded and impeached in any proceedings, before any Court or Tribunal and whenever it is relied upon. In other words, it is made subject to “collateral attack . The Court observed that illegal act of authorities, if can be defied on self-determined voidness, startling consequences will follow.

It, however, made an exception of cases where the order is passed by the jurisdictional authority without hearing the party affected, which entails injury to a Constitutionally guaranteed right to the affected party. It held that such orders may be treated as void and ineffectual to bind the parties from the beginning. That is not the case on hand. The underlying principle is that, in cases such as the one under consideration, the Income and Caste Certificate can only be invalidated after affording opportunity to the holder of the certificate. It will be useful to reproduce the legal position summed up by the Court in paragraph 18 as follows:

“18. …………Decisions are legion where the conditions for the exercise of power have been contravened and the order treated as void. And when there is excess or error of jurisdiction the end product is a semblance, not an actual order, although where the error is within jurisdiction it is good, particularly when a finality clause exists. The order becomes “infallible in error , a peculiar legal phenomenon like the hybrid beast of voidable voidness for which, according to a learned author, Lord Denning is largely responsible. The legal chaos in this branch of jurisprudence should be avoided by evolving simpler concepts which work in practice in Indian conditions. Legislation, rather than judicial law-making will meet the needs more adequately.

The only safe course, until simple and sure light is shed from a legislative source, is to treat as void and ineffectual to bind parties, from the beginning, any order made without hearing the party affected if the injury is to a constitutionally guaranteed right. In other cases, the order in violation of natural justice is void in the limited sense of being liable to be avoided by Court with retroactive force.”

(emphasis supplied)

As the subject certificate still holds the field and until it is invalidated by the Competent Authority, it is unfathomable as to how the appellant can be said to have occupied the public office without legal authority so as to invoke the extraordinary writ jurisdiction of issuing a writ of quo warranto.

26. In K. Venkatachalam Vs. A. Swamickan5, the challenge was to the election of the appellant to the Legislative Assembly in Tamil Nadu by way of a writ under Article 226 of the Constitution filed by the contesting candidate (respondent therein) for a declaration that the appellant was not qualified to be a Member of Tamil Nadu Legislative Assembly, since he was not enrolled as an elector in the electoral roll in the concerned constituency for the general elections in question.

The Court analysed the factual matrix which pointed out that, admittedly, the incumbent was not an elector of the concerned constituency and that he blatantly and fraudulently impersonated himself as another elector in the constituency. Accepting that indisputable position, the Court proceeded to conclude that the appellant was not eligible to contest elections from the concerned constituency, not being a voter in that constituency.

It thus held that the appellant therein lacked the basic qualification under Clause (c) of Article 173 of the Constitution of India read with Section 5 of the 1951 Act, which was quintessential to be elected from the constituency. On such finding, the Court entertained the writ petition under Article 226 and declared the appellant to be occupying the public office without legal authority and issued a writ of quo warranto. In other words, the matter was decided on the basis of indisputable and established facts. This judgment will be of no avail to the writ petitioners in the present case, so long as the Income and Caste Certificate issued to the appellant is in force.

27. In Kurapati Maria Das Vs. Ambedkar Seva Samajan6 the Court distinguished the decision in K. Venkatachalam (supra) being on the facts of that case and reversed the judgment of the High Court under challenge, whereby a writ of quo warranto was issued against the appellant therein. The reason for doing so may have some bearing on the matter in issue as in that case, there was dispute about the caste status of the appellant. The Court opined that the issue regarding the caste status can be decided only by the Competent Authority under the relevant enactment and not by the High Court. The Court accepted the contention of the appellant that continuance of the post of Chairperson depended directly on his election, firstly, as a ward member and secondly as the Chairperson, which election was available only to the person belonging to the Scheduled Caste.

In paragraph of the reported decision, the Court while accepting the contention of the appellant noted that the question of caste and his election are so inextricably connected that they cannot be separated and therefore, when the writ petitioners challenged the continuation of the appellant on the ground of his not belonging to a particular caste what they actually challenged was the validity of the election of appellant though, apparently, the petition was for a writ of quo warranto.

28. We agree with this exposition. It applies on all fours to the case on hand. Inasmuch as, what the writ petitioners (respondents 6 to 9) had questioned was the correctness of the declarations submitted by the appellant about her financial status and income which, according to them was beyond the prescribed limit and disentitled the appellant to get the Income cum Caste Certificate. The firm stand taken by the appellant is that there was no discrepancy between the two declarations muchless indicative of excess income of the appellant at the relevant time. In our opinion, there is no tittle of material forthcoming to show that in fact, the appellant or her parents/guardians had paid income tax or wealth tax during the relevant Financial Year 2015-16.

That indeed could have disentitled the appellant from getting an Income and Caste Certificate. This submission of the appellant is founded on the setting in which Clause (ii) of the Note has been placed and is attracted only to an income tax assessee/wealth tax assessee as per the relevant taxation laws during the current period. An assessee is a person who pays taxes or is liable to pay tax or any other sum of money payable by him/her.

The argument is that the fact that the appellant has been issued PAN number or has filed tax return and paid tax in the past will be of no consequence and does not impair or impinge upon the eligibility of the appellant to get an Income and Caste Certificate for the relevant period in any manner. As noted earlier, these are matters to be considered by the Caste Verification Committee and only if rejected, the caste certificate in question could be invalidated. Until a final decision is taken by the Caste Verification Committee, in law, it will have to be presumed that subject certificate is valid and in force in view of the statutory provision making it explicit to that effect.

29. In the case of Arun Singh alias Arun Kr. Singh Vs. State of Bihar and Others7, this Court over turned the decision of the High Court issuing a writ of quo warranto, on the ground that it was unclear from the orders passed by the Superintendence of Police or the District Magistrate, or for that matter, the State Election Commissioner, suggestive of the fact that the appellant therein was held to have committed any misconduct within the meaning of the Service Rules. In paragraph 13, the Court observed thus:

“13. ……..No cogent or sufficient reasons have been given by the High Court for setting aside the well-considered order of the State Election Commission. Furthermore, issuance of a writ of quo warranto is discretionary and such a writ should be issued only upon a clear finding that the appointment to a public office was contrary to the statute. For the said purpose it was obligatory on the part of the High Court to arrive at a finding that the disqualifying clause contained in Section 139(1)(f) was squarely attracted in the case of the appellant, in the light of the order of the State Election Commission. Evidently, the appellant was not disqualified.”

30. In B.R. Kapur Vs. State of Tamil Nadu & Anr.8 the Constitution Bench was called upon to consider the situation where a person convicted for a criminal offence and whose conviction has not been suspended pending appeal, could be sworn in as the Chief Minister of a State and continue to function as such. The Court was called upon to answer the controversy on the basis of indisputable fact that the incumbent Chief Minister had already been convicted of a criminal offence and such conviction had not been suspended in the pending criminal appeal. After considering the purport of Article 164 and Article 173 of the Constitution, the Court concluded that the appointment of the second respondent in the appeal as the Chief Minister was in clear violation of the constitutional provisions and thus a writ of quo warranto was inevitable.

The substratum of the exposition was the factum of basic ineligibility of the person to be appointed or continue as Chief Minister. In a concurring judgment by Brijesh Kumar, J. (as His Lordship then was) the nature of writ of quo warranto has been explicated in the following words:

“79. ……A writ of quo warranto is a writ which lies against the person, who according to the relator is not entitled to hold an office of public nature and is only a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show, by what authority that person is entitled to hold the office. The challenge can be made on various grounds, including on the grounds that the possessor of the office does not fulfil the required qualifications or suffers from any disqualification, which debars the person to hold such office.

So as to have an idea about the nature of action in the proceedings for writ of quo warranto and its original form, as it used to be, it would be beneficial to quote from Words and Phrases, Permanent Edn., Vol. 35-A, p. 648. It reads as follows: “The original common law writ of quo warranto was a civil writ at the suit of the Crown, and not a criminal prosecution. It was in the nature of a writ of right by the King against one who usurped or claimed franchises or liabilities, to inquire by what right he claimed them. This writ, however, fell into disuse in England centuries ago, and its place was supplied by an information in the nature of a quo warranto, which in its origin was a criminal method of prosecution, as well as to punish the usurper by a fine for the usurpation of the franchise, as to oust him or seize it for the Crown.

Long before our revolution, however, it lost its character as a criminal proceeding in everything except form, and was applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only; and such, without any special legislation to that effect, has always been its character in many of the States of the Union, and it is therefore a civil remedy only.”

80. In the same volume of Words and Phrases, Permanent Edn., at p. 647 we find as follows:

“The writ of “quo warranto is not a substitute for mandamus or injunction nor for an appeal or writ of error, and is not to be used to prevent an improper exercise of power lawfully possessed, and its purpose is solely to prevent an officer or corporation or persons purporting to act as such from usurping a power which they do not have. State ex inf. McKittrick v. Murphy9 Information in the nature of “quo warranto does not command performance of official functions by any officer to whom it may run, since it is not directed to officer as such, but to person holding office or exercising franchise, and not for purpose of dictating or prescribing official duties, but only to ascertain whether he is rightfully entitled to exercise functions claimed.

State ex inf. Walsh v. Thatcher10.”

(emphasis supplied)

81. In Halsbury s Laws of England, 4th Edn., Reissue Vol. I, p. 368, para 265 it is found as follows: “265. In general.- An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.”

31. In the case of High Court of Gujarat and Anr. Vs. Gujarat Kishan Mazdoor Panchayat and Ors.11 (supra) in a concurring judgment S.B. Sinha, J. (as His Lordship then was) noted that the High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. However, the jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari.

The Court went on to observe that a writ of quo warranto can only be issued when the appointment is contrary to the statutory rules as held in Mor Modern Coop. Transport Society Ltd. Vs. Financial Commr. & Secy. To Government of Haryana12. The Court also took notice of the exposition in R.K. Jain Vs. Union of India13. The Court noted that with a view to find out as to whether a case has been made out for issuance of quo warranto, the only question which was required to be considered was as to whether the incumbent fulfilled the qualifications laid down under the statutory provisions or not.

This is the limited scope of inquiry. Applying the underlying principle, the Court ought not to enquire into the merits of the claim or the defence or explanation offered by the appellant regarding the manner of issuance of Income and Caste Certificate by the jurisdictional Authority or any matter related thereto which may be matter in issue for scrutiny concerning the validity of the Caste Certificate issued by the jurisdictional statutory authority constituted under the State Act of 1990 and the rules framed thereunder. That inquiry may require examination of all factual aspects threadbare including the legality of the stand taken by the appellant herein.

32. In the case of Chairman and Managing Director, Food Corporation of India and Others Vs. Jagdish Balaram Bahira and Others14, the question was in reference to the Caste Certificate which was invalidated after the verification done by the jurisdictional Scrutiny Committee. The observations in the said decision may be of some import, if the Caste Verification Committee was to invalidate the Caste Certificate issued to the appellant after due verification. As a matter of fact, the enquiry before the Caste Verification Committee ought to proceed in terms of the procedure prescribed by the Act of 1990 and Rules framed thereunder and including the dictum of this Court in, amongst others Madhuri Patil Vs. Commr., Tribal Development15.

33. In Rajesh Awasthi Vs. Nand Lal Jaiswal and Ors.16, the Court noted that a writ of quo warranto will lie when the appointment is made contrary to the statutory provisions as held in the case of Mor Modern Coop. Transport Society Ltd. (supra) Further, relying on the decision in the cases of B. Srinivasa Reddy Vs. Karnataka Urban Water Supply and Drainage Board Employees Asson.17 and Hari Bansh Lal Vs. Sahodar Prasad Mahto18, wherein the legal position has been restated that the jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued if the appointment is contrary to the statutory rules and the Court has to satisfy itself that the appointment is contrary to the statutory rules.

In that case, the Court after analysing the factual matrix found, as of fact, that there was non-compliance of sub-Section (5) of Section 85 of the Electricity Act, 2003, in the matter of appointment of the incumbent to the post of Chairperson of the Commission for which it became necessary to issue a writ of quo warranto. In the supplementing judgment by one of us Dipak Misra, J. (as His Lordship then was), the settled legal position expounded in B.R. Kapur (supra), University of Mysore (supra), High Court of Gujarat (supra), Centre for PIL Vs. Union of India19 has been recapitulated in paragraphs 29 to 33 of the reported decision.

34. We have adverted to some of those decisions in the earlier part of this judgment. Suffice, it to observe that unless the Court is satisfied that the incumbent was not eligible at all as per the statutory provisions for being appointed or elected to the public office or that he/she has incurred disqualification to continue in the said office, which satisfaction should be founded on the indisputable facts, the High Court ought not to entertain the prayer for issuance of a writ of quo warranto.

35. In the case of K. Krishna Murthy (Dr.) (supra) the Constitution Bench of this Court examined two questions as noted in paragraph 9 of the reported judgment, which read thus:

“9. In light of the submissions that have been paraphrased in the subsequent paragraphs, the contentious issues in this case can be framed in the following manner:

(i) Whether Article 243-D(6) and Article 243_T(6) are constitutionally valid since they enable reservations in favour of backward classes for the purpose of occupying seats and chairperson positions in panchayats and municipalities respectively?

(ii) Whether Article 243-D(4) and Article 243-T(4) are constitutionally valid since they enable the reservation of chairperson positions in panchayats and municipalities respectively?” The Court opined that the objectives of democratic decentralisation are not only to bring governance closer to the people, but also to make it more participatory, inclusive and accountable to the weaker sections of society.

The Court went on to observe that reservations in local self-government are intended to directly benefit the community as a whole, rather than just the elected representatives. It is for this very reason that there cannot be an exclusion of the “creamy layer” in the context of political representation. It also noted that while exclusion of the “creamy layer” may be feasible as well as desirable in the context of reservations for education and employment, the same principle cannot be extended to the context of local self-government.

We may note that this decision may be of relevance to the appellant to pursue his remedy before the High Court in the writ petition No.108700 of 2017, questioning the validity of Clause (ii) of the notification dated 13.01.1995 providing for exclusion of “creamy layer” against the reserved category. We may, however, without any hesitation record that the High Court had justly negatived the argument of the appellant which was founded on the interim relief granted by the High Court in the stated writ petition on the ground that the same cannot validate an action which was illegal so as to alter the eligibility criteria for contesting the election of Adhyaksha conducted on 26th April, 2016. We do not intend to express any opinion either way on the pending issues in that proceedings, which are not the subject matter of this appeal. The High Court is free to deal with that writ petition on its own merits in accordance with law.

36. This, however, will make no difference to the conclusion which we must reach in this case that the High Court could not have issued a writ of quo warranto until the Income and Caste Certificate issued in favour of the appellant, on the basis of which she participated in the election for the post of Adhyaksha and got elected, was to be declared void or invalidated by the Caste Scrutiny Committee. We do not wish to dilate on other incidental aspects/arguments as the same will not have any bearing on the conclusion noted above.

37. In a matter of this nature, the High Court, having kept open the issue regarding the validity of the Income and Caste Certificate to be decided by the jurisdictional Caste Verification Committee and finding no legal basis to declare the certificate as void ab initio or choosing to do so, ought to have instead directed the Caste Verification Committee to expedite the enquiry and conclude the same in a time bound manner. The course adopted by the High Court has only prolonged the consideration of that issue by the competent authority and embroiled the parties in avoidable proceedings.

38. Accordingly, we allow this appeal and set aside the decisions of the learned Single Judge and the Division Bench of the High Court which are impugned in the present appeal. We, however, dispose of the writ petition filed by the respondents 6 to 9 being Writ Petition No.106417 of 2016 only by directing the Caste Verification Committee to expedite the enquiry regarding the validity of the Income and Caste Certificate issued to the appellant by respondent no.5 and conclude the same preferably within two months and also intimate its final decision to the appellant within the same time. Needless to observe that the Caste Scrutiny Committee will decide the matter on its own merit and without being influenced whatsoever by any observations made in the impugned judgments but in accordance with law. Besides, it shall deal with every contention raised before it by recording tangible reasons.

39. The appeal is allowed in the aforementioned terms with no order as to costs.

CJI. (Dipak Misra)

J. (A.M. Khanwilkar)

J. (Dr. D.Y. Chandrachud)

New Delhi;

March 6, 2018.

___________________________________

1 (2010) 7 SCC 202

2 (1992) Supp (3) SCC 210 14

3 (1964) 4 SCR 575 23

4 (1974) 2 SCC 121 37

5 AIR 1999 SC 1723 = (1999) 4 SCC 526 39

6 (2009) 7 SCC 387 40

7 (2006) 9 SCC 375 43

8 (2001) 7 SCC 231 44

9 148 SW 2d 527, 529, 530 : 347 Mo 484

10 102 SW 2d 937, 938 : 340 Mo 865 46

11 (2003) 4 SCC 712

12 (2002) 6 SCC 269

13 (1993) 4 SCC 119 47

14 (2017) 8 SCC 670 48

15 (1994) 6 SCC 241

16 (2013) 1 SCC 501

17 (2006) 11 SCC 731

18 (2010) 9 SCC 655 49

19 (2011) 4 SCC 1 50