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IN

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
PIL Writ Petition (C) No. 864 of 2016

In the matter of:

Lok Prahari …Petitioner

Versus

State of UP & Ors., ...Respondents

BRIEF NOTE ON BEHALF OF

Mr. Gopal Subramanium, Amicus Curiae

The Question

1. While the present matter relates to an attempt by the State of Uttar

Pradesh to overcome the judgment in Lok Prahari v. State of UP.,
(2016) 8 SCC 389 which quashed the allotment of Government
bungalows to former Chief Ministers. The matter raises a substantial
question of law:
Whether the equality clause contained in Article 14 of the Constitution
of India enables public houses to be retained by persons even after
they demit office?

The Constitutional Scheme

Republican Democracy

2. Constituent power derives from the people of India. This is expressed

in the preamble to the Constitution of India. It is “we the people” who
constitute India into a “sovereign, socialist, secular, democratic
republic”. It follows from this that all State institutions and holders of
public office are the servants of the People and subject to the Rule of
Law and the Constitution of India. It is this balance of power between
the citizens and the State institutions and public officials that is
necessary to maintain the Republican Democracy and conception of
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active citizenship envisaged by the Constitution of India. This balance

of power was affirmed by a majority of this Hon’ble Court in the case
of P. V. Narasimha Rao v State (CBI/SPE) (1998) 4 SCC 626. Whilst
the court was in disagreement with respect to the question of whether
criminal proceedings could be instituted against an MP, the Court
unanimously agreed that an MP was a public servant. In paragraph 61
of their judgment, Agrawal J, Anand J with whom Ray J agreed stated
that the office of an MP “was under constituted authority”.

3. Barucha J and Babu J went on to emphasise the representative nature

of an elected official and that the primary purpose of such officials is
to serve the public.

“162…In a democratic form of Government it is the Member of

Parliament or a State Legislature who represents the people of his
constituency in the highest law making bodies at the Centre and the
State respectively. Not only is he the representative of the people in
the process of making the laws that will regulate their society, he is
also their representative when deciding how the funds of the Centre
and the States shall be spent”.

4. Further Barucha J and Babu J also stated in paragraph 162 that:

“Members of Parliament and State Legislatures would do well to
remember that if they have privileges it is the better to perform their
duty of effectively and fearlessly representing constituencies”.

5. The Republican tradition finds its origins in ancient Greece in the work
of Plato and Aristotle and in ancient Rome in the work of Livy, Plutarch
and Polybius. As Professor Sunstein describes in ‘Beyond the
Republican Revival’ 97 Yale Law Journal 1539 (1988), Republican
ideals of liberty were revived during the French and American
revolutions and formed the basis of the constitutions that were created
as a result. From these origins, the idea of Republican liberty took root
as a central tenet of Indian democracy.
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6. In ‘Beyond the Republican Revival’, Professor Sunstein explains that

the basic Republican commitments involve: (1) Deliberation in
Government, (2) Political Equality (3) Universality or Agreement as a
Regulative ideal and (4) Crucially, Republican society is characterised
by citizenship and the absence of arbitrary exercises of power by the
Sovereign Government and by all the Sovereign Government’s
delegates.

7. In his comprehensive account of the origins and contemporary

relevance of the Republican tradition, Republicanism: A Theory of
Freedom and Government (Oxford University Press 2002), Professor
Philip Pettit describes the Republican conception of freedom as based
on popular revolt against arbitrary Sovereign power, non-domination
of citizens by the State and centred on a vision of state-societal
relations that is founded on civility and trust.

8. It is therefore respectfully submitted that for a republican society to

exist, public officials must not be artificially exalted into a superior
class at the expense of the citizenry through the conferment of
arbitrary privileges upon them by their colleagues. Such exaltation of
the ruling elite is a characteristic of authoritarian and totalitarian
regimes and antithetical to our Republican democracy.

9. It is a pre-requisite of democratic republican government that public

officials must act in a manner that reflects that ultimate authority is
vested in the citizens. It is also a pre-requisite of democratic
republican government that citizens are readily able to hold all public
officials to account. This is only possible within a framework of equality
where all privileges, rights and benefits conferred on public office
holders are reasonable, rational and proportionate.
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10. The Preamble to the Constitution embodies the principles of equality

and fraternity on which the Constitutional scheme is premised. It is on
the basis of the principles of equality and fraternity that the
Constitution recognises only a single class of citizens, within which
there are provisions made for the backward classes, women, children,
SC/ST, minorities and Anglo-Indians. This is also why, apart from
Article 14, several provisions combine to form the fabric of the equality
code [Articles 15, 16, 17, 18, 29, 30 & 31].

11. The principles of equality and fraternity are also manifest through the
Objectives Resolution moved by Jawahar Lal Nehru on 13.12.1946
which includes the following

“The Resolution placed before you to-day has equality as its

underlying theme. The different sections of the country have been
given autonomy and India as a whole remains one with full
sovereignty. We shall stand united in affairs which demand our unity.
The one important thing in the Resolution is the recognition of India
as a free country. Our country is one and yet we shall give full
freedom to its various sections to have for themselves whatever
administration they liked. The present division of our country into
provinces may change. We shall do justice to all communities and
give them full freedom in their social and religious affairs.The word
'people' means all the people. I am myself a servant of the farmers.
To work with them is my highest glory. The term ‘people' is
comprehensive and contains all the people, It is, therefore, my
opinion that no adjective should be attached to it.

12. The exaltation or elavation of a certain class of retired public officials

over all other citizens would clearly violate the scheme of equality
created by the Constitution.

Public Faith and Confidence in Government

13. Further, it is important to emphasise that Constitutional democracy is
also premised upon public faith and confidence in the institutions of
Government and its functionaries. In P. V. Narasimha Rao v State
(CBI/SPE) the entire Court was in agreement with respect to the
nature and role of an MP. All the justices in the case emphasised the
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immense trust and confidence vested in elected officials as well as the

position of immense responsibility they occupied.

14. Agrawal J and Ananad J with whom Ray J agreed stated that:

“61…the word office is normally understood to mean a position to

which certain duties are attached, especially a place of trust,
authority or service”.

15. Barucha J and Babu J added that:

“162…It is difficult to conceive of a duty more public than this or of a

duty in which the State, the public and the community at large would
have greater interest”.

16. It is respectfully submitted that a statute which confers public

property on private citizens, who are no longer serving any public
function, would undermine trust and confidence in the institutions of
Governnment. This is because it would create a public perception that
the relevant officials seek and obtain these positions motivated by self
interest as opposed to public interest. Such a perception would taint
all individuals entitled to this benefit in the eyes of the public. In
Vineet Narain v Union of India (1998) 1 SCC 226, this Hon’ble Court
also emphasised the trust and confidence vested in holders of public
office and the ensuing responsibilities that this created in all officials.
The Court held:

“55. It is trite that the holders of public offices are entrusted with
certain powers to be exercised in public interest alone and, therefore,
the office is held by them in trust for the people. Any deviation from
the path of rectitude by any of them amounts to a breach of trust and
must be severely dealt with instead of being pushed under the
carpet”.

17. This Hon’ble Court in Vineet Narain cited The Seven Principles of Public
Life Report by Lord Nolan. In paragraph 54 of its judgment, it stated
that these principles of public life are of general application in every
democracy and one is expected to bear them in mind while
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scrutinising the conduct of every holder of a public office. In particular

it relied on the following principles of public life:

"55. Selflessness: Holders of public office should take decisions solely

in terms of the public interest. They should not do so in order to gain
financial or other material benefits for themselves, their family, or their
friends.

Integrity: Holders of public office should not place themselves under

any financial or other obligation to outside individuals or organisations
that might influence them in the performance of their official duties.

Objectivity: In carrying out public business, including making public

appointments, awarding contracts, or recommending individuals for
rewards and benefits, holders of public office should make choices on
merit.

Accountability: Holders of public office are accountable for their

decisions and actions to the public and must submit themselves to
whatever scrutiny is appropriate to their office.

Openness: Holders of public office should be as open as possible

about all the decisions and actions that they take. They should give
reasons for their decisions and restrict information only when the
wider public interest clearly demands.

Honesty: Holders of public office have a duty to declare any private

interests relating to their public duties and to take steps to resolve any
conflicts arising in a way that protects the public interest.

Leadership: Holders of public office should promote and support these

principles by leadership and example."

Scope of Article 14 of the Constitution of India:

18. The allocation of Government Bungalows to public servants and

whether such allocation can continue even after such public servants
demit office will have to be tested on the anvil of Article 14.

19. In Kumari Shrilekha Vidyarthi vs State of U.P & Ors (1991) 1 SCC 212,
this Hon’ble Court held that Article 14 applies to every sphere of the
State’s activity irrespective of the nature of the activity in question. In
that case the court held that Article 14 was also extended to the
private contractual relations of the State. In Kumari Shrilekha
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Vidyarthi, the sphere of activity was the appointment and termination

of Government Counsel by the Government. The courts reasoning was
that for the purposes of judicial review on the basis of Article 14 what
was material was whether the body taking the action was public in
nature as opposed to whether the action which was being carried out
was public in nature. The Court held:

23. “Thus, in a case like the present, if it is shown that the impugned
State action is arbitrary and, therefore, violative of Article 14 of the
Constitution, there can be no impediment in striking down the
impugned act irrespective of the question whether an additional right
contractual or statutory, if any, is also available to the aggrieved
person.

35. It is now too well-settled that every State action, in order to

survive, must not be susceptible to the vice of arbitrariness which is
the crux of Article 14 of the Constitution and basic to the rule of law,
the system which governs us. Arbitrariness is the very negation of the
rule of law. Satisfaction of this basic test in every State action is sine
qua lion to its validity and in this respect, the State cannot claim
comparison with a private individual even in the field of contract. This
distinction between the State and a private individual in the field of
contract has to be borne in the mind”.

20. This Hon’ble Court also affirmed and restated the Kumari Shrilekha
Vidyarthi Priniciple in its 2016 decision in State of Punjab & Anr v
Brijeshwar Singh Chahal & Anr (2016) 6 SCC 1. In this case it
reiterated that every State action is subject to Article 14 and this
includes the private contractual actions and relations of the State. In
Brijeshwar Singh Chahal the Court held that appointments of Law
Officers that were made in an arbitrary fashion without any
transparent method of selection or for political considerations would
be amenable to judicial review and so would be liable to be quashed.

21. Following the decisions in Kumari Shrilekha Vidyarthi, State of Pubjab

& Anr v Brijeshwar Singh Chahal & Anr, the decision with respect to
the allocation of Government Bungalows to public servants and
whether such allocation can continue even after such public servants
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demit office is clearly subject to review on the grounds of Article 14.

Especially as such bungalows constitute public property. Therefore
questions relation to the allocation of such property can in any case be
characterised as questions of a public character. Therefore, such
action will have to be tested under both the ‘Reasonable Classification’
and ‘Arbitrariness’ tests under Article 14.

Reasonable Classification

22. In Special Reference No. 1 of 2012, In re: Natural Resources Allocation

(2012) 10 SCC 1, this Hon’ble Court discussed the scope of Article 14
of the Constitution of India at length:

“96. …The underlying object of Article 14 is to secure to all persons,

citizens or non-citizens, the equality of status and opportunity referred
to in the Preamble to our Constitution. The language of Article 14 is
couched in negative terms and is in form, an admonition addressed to
the State. It does not directly purport to confer any right on any
person as some of the other articles, e.g. Article 19, do. The right to
equality before law is secured from all legislative and executive
tyranny by way of discrimination, since the language of Article 14 uses
the word “State” which as per Article 12, includes the executive organ.
See Basheshar Nath v. CIT [AIR 1959 SC 149, p. 158, para 13 : 1959
Supp (1) SCR 528:
… Coming then to the language of the article it must be noted, first
and foremost that this article is, in form, an admonition addressed to
the State and does not directly purport to confer any right on any
person as some of the other articles, e.g. Article 19, do. The obligation
thus imposed on the State no doubt, enures for the benefit of all
persons, for, as a necessary result of the operation of this article, they
all enjoy equality before the law. That is, however, the indirect,
though necessary and inevitable, result of the mandate. The command
of the article is directed to the State and the reality of the obligation
thus imposed on the State is the measure of the fundamental right
which every person within the territory of India is to enjoy.”
Besides, Article 14 is expressed in absolute terms and its effect is not
curtailed by restrictions like those imposed on Article 19(1) by Articles
19(2) to 19(6). However, notwithstanding the absence of such
restrictions, certain tests have been devised through judicial decisions
to test if Article 14 has been violated or not.”

23. In the initial years of existence of the Constitution of India, this

Hon’ble Court devised the ‘Classification Test’ for the purpose of an
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Article 14 inquiry. This Test was succinctly described in Budhan

Choudhry v. State of Bihar, AIR 1955 SC 191:

… It is now well established that while Article 14 forbids class

legislation, it does not forbid reasonable classification for the purposes
of legislation. In order, however, to pass the test of permissible
classification two conditions must be fulfilled, namely, (i) that the
classification must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from others
left out of the group and, (ii) that that differentia must have a rational
relation to the object sought to be achieved by the statute in question.
The classification may be founded on different bases; namely,
geographical, or according to objects or occupations or the like. What
is necessary is that there must be a nexus between the basis of
classification and the object of the Act under consideration. It is also
well established by the decisions of this Court that Article 14
condemns discrimination not only by a substantive law but also by a
law of procedure.”
[emphasis added]
Arbitrariness

24. In 1974, Bhagwati J. expanded the scope of Article 14 in E.P. Royappa

v. State of Tamil Nadu (1974) 4 SCC 3 and introduced the doctrine of
“arbitrariness”. Bhagwati J. held:

85. … From a positivistic point of view, equality is antithetic to

arbitrariness. In fact equality and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic while the other, to the whim
and caprice of an absolute monarch. Where an act is arbitrary, it is
implicit in it that it is unequal both according to political logic and
constitutional law and is therefore violative of Article 14, and if it
affects any matter relating to public employment, it is also violative of
Article 16. Articles 14 and 16 strike at arbitrariness in State action and
ensure fairness and equality of treatment. They require that State
action must be based on valid relevant principles applicable alike to all
similarly situate and it must not be guided by any extraneous or
irrelevant considerations because that would be denial of equality.
Where the operative reason for State action, as distinguished from
motive inducing from the antechamber of the mind, is not legitimate
and relevant but is extraneous and outside the area of permissible
considerations, it would amount to mala fide exercise of power and
that is hit by Articles 14 and 16. Mala fide exercise of power and
arbitrariness are different lethal radiations emanating from the same
vice: in fact the latter comprehends the former. Both are inhibited by
Articles 14 and 16.”
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25. This Hon’ble Court, in Ramana Dayaram Shetty v. International Airport

Authority of India (1979) 3 SCC 489, while dealing with the fair and
reasonable allocation of Government Contracts, held that:

… It must, therefore, be taken to be the law that where the

Government is dealing with the public, whether by way of giving jobs
or entering into contracts or issuing quotas or licences or granting
other forms of largesse, the Government cannot act arbitrarily at its
sweet will and, like a private individual, deal with any person it
pleases, but its action must be in conformity with standard or norms
which is not arbitrary, irrational or irrelevant. The power or discretion
of the Government in the matter of grant of largesse including award
of jobs, contracts, quotas, licences, etc. must be confined and
structured by rational, relevant and non-discriminatory standard or
norm and if the Government departs from such standard or norm in
any particular case or cases, the action of the Government would be
liable to be struck down, unless it can be shown by the Government
that the departure was not arbitrary, but was based on some valid
principle which in itself was not irrational, unreasonable or
discriminatory.”
[emphasis added]

26. In Sharma Transport v. Govt. of Andhra Pradesh (2002) 2 SCC 188,

this court continued to make the following observations on the
Doctrine of Arbitrariness:

… In order to be described as arbitrary, it must be shown that it was

not reasonable and manifestly arbitrary. The expression ‘arbitrarily’
means: in an unreasonable manner, as fixed or done capriciously or at
pleasure, without adequate determining principle, not founded in the
nature of things, non-rational, not done or acting according to reason
or judgment, depending on the will alone.”
[emphasis added]

27. Following Shayara Bano v. Union of India (2017) 9 SCC the question of
whether legislation can be struck down by this Hon’ble Court on the
grounds of arbitrariness under Article 14 is also no longer res integra.
A majority of the five judge Constitutional Bench consisting of Nariman
J, Lalit J and Kurien J held that Article 14 empowers this Hon’ble Court
to strike down legislation on the grounds of arbitrariness.
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28. Nariman J writing on behalf of himself and Lalit J, in Shayara Bano v.

Union of India (2017) 9 SCC 1, concluded that:

“101. It will be noticed that a Constitution Bench of this Court

in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of
India [Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India,
(1985) 1 SCC 641 : 1985 SCC (Tax) 121] stated that it was settled law
that subordinate legislation can be challenged on any of the grounds
available for challenge against plenary legislation. This being the case,
there is no rational distinction between the two types of legislation
when it comes to this ground of challenge under Article 14. The test of
manifest arbitrariness, therefore, as laid down in the aforesaid
judgments would apply to invalidate legislation as well as subordinate
legislation under Article 14. Manifest arbitrariness, therefore, must be
something done by the legislature capriciously, irrationally and/or
without adequate determining principle. Also, when something is done
which is excessive and disproportionate, such legislation would be
manifestly arbitrary. We are, therefore, of the view that arbitrariness
in the sense of manifest arbitrariness as pointed out by us above
would apply to negate legislation as well under Article 14 .”
29. Kurien J in Shayara Bano v. Union of India (2017) 9 SCC 1, writing in
support of Nariman J and Lalit J stated:

“5. In that view of the matter, I wholly agree with the learned Chief
Justice that the 1937 Act is not a legislation regulating talaq.
Consequently, I respectfully disagree with the stand taken by Nariman,
J. that the 1937 Act is a legislation regulating triple talaq and hence,
the same can be tested on the anvil of Article 14. However, on the
pure question of law that a legislation, be it plenary or subordinate,
can be challenged on the ground of arbitrariness, I agree with the
illuminating exposition of law by Nariman, J. I am also of the strong
view that the Constitutional democracy of India cannot conceive of a
legislation which is arbitrary.

30. In the context of Article 18, this Hon’ble Court in Balaji Raghavan v.
Union of India, (1996) 1 SCC 361 observed as follows:

“31. Hereditary titles of nobility conflict with the principle of equality

insofar as they create a separate, identifiable class of people who are
distinct from the rest of society and have access to special privileges.
Titles that are not hereditary but carry suffixes or prefixes have the
same effect, though the degree may be lesser. While other
Constitutions also prohibit the conferment of titles of nobility, ours
may perhaps be unique in requiring that awards conferred by the
State are not to be used as suffixes or prefixes. This difference is
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borne out of the peculiar problems that these titles had created in pre-
independent India and the earnest desire of the framers to prevent
the repetition of these circumstances in Free, Independent India.”

31. Similarly, when the question of such a separate class of citizens arose
in the context of beacons, insignia and escorts in Abhay Singh v. State
of Uttar Pradesh, (2013) 15 SCC 435, this Court once again observed
as follows:

“21. During the drafting of the Constitution, the Preliminary notes on

Fundamental Rights issued by the Constitutional Advisor, B.N. Rau,
specifically dealt with the issue of equality using examples from
various Constitutions to emphasize its importance. One of the issues
highlighted in the note was that if the instinct of power is concentrated
in few individuals then naked greed for power will destroy the basics
of democratic principles. But, what we have done in the last four
decades would shock the most established political systems. The best
political and executive practices have been distorted to such an extent
that they do not even look like distant cousins of their original forms. ”

32. In fact, in permitting a limited set of constitutional offices the use of

beacons, the Court provided the rationale that it would be for the
limited period of their tenure in office:

“27. When the Framers of the Constitution have considered it

appropriate to treat those occupying constitutional positions as a
special category, there is no reason for the Court to exclude them
from the ambit of the term “high dignitaries”. The use of red lights on
the vehicles carrying the holders of constitutional posts will in no
manner compromise with the dignity of other citizens and individuals
or embolden them to think that they are superior to other people,
more so, because this distinction would be available to them only
while on duty and would be co-terminus with their tenure.”
33. In S.D. Bandi v. Divisional Traffic Officer, Karnataka State Road
Transport Corporation & Ors. (2013) 12 SCC 631, this Hon’ble Court
remarked on the continuous occupation of government
accommodation by high dignitaries:

“34. It is unfortunate that the employees, officers, representatives of

people and other high dignitaries continue to stay in the residential
accommodation provided by the Government of India though they are
no longer entitled to such accommodation. Many of such persons
continue to occupy residential accommodation commensurate with the
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office(s) held by them earlier and which are beyond their present
entitlement. The unauthorised occupants must recollect that rights and
duties are correlative as the rights of one person entail the duties of
another person similarly the duty of one person entails the rights of
another person. Observing this, the unauthorised occupants must
appreciate that their act of overstaying in the premise directly infringes
the right of another. No law or directions can entirely control this act
of disobedience but for the self-realisation among the unauthorised
occupants. The matter is disposed of with the above terms and no
order is required in IAs for impleadment and intervention. ”

32. Non-discrimination under Article 14 of the Indian Constitution

envisages cessation of privileges on cessation of public office for all
public officials. In such circumstances, creating a separate class of ‘ex-
Chief Ministers’ would fall foul of Article 14 for the purpose of
conferring privileges.

Application of Article 14 to Allocation of Government Bungalows

Post Retirement:

34. It is thus evident, that this Court has clearly rejected the proposition
that there would be a separate class of citizens who would be
honoured on the basis of any previous office they may have enjoyed.
It has also unequivocally rejected the proposition that the State would
be entitled to reward them from the public coffers in any manner.
Even assuming the fact that public officials held an office at an
anterior point of time is a historical fact by which they can be
distinguished. This distinction does not carve out any reasonable
category of persons for whom any special privileges should exist. This
does not satisfy the test of intelligible differentia. As a result the test
of reasonable classification itself fails. As far as the retention of public
bungalows by public officials who have demitted office is concerned,
any legislative measure which authorizes such retention is plainly
arbitrary, discriminatory, violates the equality clause and actually
entrenches upon public housing itself.
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35. This conclusion is also supported by the case law of the UK Supreme
Court, formerly House of Lords. The UK Supreme Court has held that
when decisions of public policy are reached taking into account
irrelevant considerations or failing to take into account relevant
considerations as well as for improper purposes this will render the
policy decision ultra vires.

The misadventures by the State of Uttar Pradesh...

36. The present litigation is the second round concerning the same
question, and a mere statutory framework will not save the impugned
provisions of the UP Ministers (Salaries, Allowances and Miscellaneous
Provisions) (Amendment) Act, 2016 and the Allotment of Houses
under Control of the Estate Department Act, 2016 from the binding
observations made in the first round.

37. Section 4 of the UP Ministers (Salaries, Allowances and Miscellaneous

Provisions) (Amendment) Act, 2016 provides:

"4.(1) The Chief Minister and each Minister shall be entitled, without
payment of any rent to the use, throughout the term of his office and
for a period of fifteen days thereafter, of a residence at Lucknow
which shall be furnished and maintained at public expense at the
prescribed scale.

(2) Where the Chief Minister or a Minister has not been provided with
a residence in accordance with sub-section (1) or does not avail of the
benefit of the said sub-section. he shall be entitled to a compensatory
allowance at the rate of

(a) ten thousand rupees per month in the case of the Chief Minister, a
Minister, a Minister of State (Independent Charge) and a Minister of
State;

(b) eight thousand rupees per month in the case of a Deputy Minister.

(3) A Government residence shall be allotted to a former Chief Minister

of Uttar Pradesh, at his/her request, for his/her life time, on payment
of such rent as may be determined from time to time by the Estate
Department of the State Government."
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38. Section 4(3) of the Amendment Act of 2016 reinstates, by legislation,

the same provision for ex-Chief Ministers as existed in the 1997 Rules.
The 1997 Rules were struck down by this Hon’ble Court in Lok Prahari
v. State of Uttar Pradesh, (2016) 8 SCC 389.

39. In Lok Prahari v. State of UP., (2016) 8 SCC 389, this Court was
pleased to observe, on merits, as follows:

“32. ...In fact, the impugned 1997 Rules give largesse only to former
Chief Ministers without any element of reasonableness.

33. The facts on record also reflect that many of the former Chief
Ministers, who are in occupation of Government Bungalows, are either
serving as Members of Parliament or Governors or Cabinet Ministers in
Central Government and they have already been provided another
accommodation. It would, therefore, not be proper, in any case, to
allot permanent residence at two places to one individual.

35. Moreover, the position of the Chief Minister and the Cabinet
Ministers of the State cannot stand on a separate footing after they
demit their office. Moreover, no other dignitary, holding constitutional
post is given such a facility. For the afore-stated reasons, the 1997
Rules are not fair....

37. If we look at the position of other constitutional post holders like

Governors, Chief Justices, Union Ministers, and Speaker, etc. all of
these persons hold only one “official residence” during their tenure.
The respondents have contended that in a federal set-up, like the
Union, the State has also power to provide residential bungalow to the
former Chief Minister. The above submission of the respondent State
cannot be accepted for the reason that the 1981 Act does not make
any such provision and the 1997 Rules, which are only in the nature of
executive instructions and contrary to the provisions of the 1981 Act,
cannot be acted upon.

38. Moreover, the position of the Chief Minister and the Cabinet
Ministers of the State cannot stand on a separate footing after they
demit their office. Moreover, no other dignitary, holding constitutional
post is given such a facility. For the aforestated reasons, the 1997
Rules are not fair, and more so, when the subject of “salary and
allowances” of the Ministers, is governed by Section 4(2)(a) of the
1981 Act.”
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40. Notwithstanding the findings on the Rules being statutory and ultra-
vires the 1981 Act, the above observations in the context of Article 14
would continue to abide.

Position in Other States:

41. The Order of this Hon’ble Court dated 23.08.2017 did indicate that
there could be implications on different State and Central legislations
which are pari materia. An examination of various sources would yield
that at least 6 States have similar provisions to that of Uttar Pradesh
extending benefits and facilities to former Chief Ministers, some of
which have been discontinued but could be reintroduced. These raise
a question of principle and may be dealt with in the same manner. An
appendix with this document points out some such examples in
different states.

42. Government of India: Former Presidents and Prime Ministers are

granted official residences after they demit office, and in some cases,
even after their deaths, their widows have been permitted to continue
in the residences. There has also been a Cabinet decision of October
2014 to stop the allotment of bungalows as memorials, which had
hitherto become a common practice.

43. It is important to note that even the Chief Justice of India, the
Comptroller & Auditor General and other Constitutional Authorities also
have to demit office once the Official ceases to hold Public Office. In
such circumstances, there cannot be discriminatory treatment and
allocation of additional privileges in favour of some former Public
Servants. As this phenomenon seems to be a nation-wide one, it might
be necessary for a final quietus to be given to this practice on the anvil
of Article 14 of the Constitution, lest further such claims emanate from
all quarters, including the legislature and the judiciary.
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The possible remedies:

42. It is submitted that:

a. Once an office-holder (President, PM, CM, etc.) demits

office, he or she ceases to be an occupant of that public
office and is therefore shorn of all its adornments. He or she
reverts to being a citizen of India, and ought to be granted
no greater privilege than that afforded to other citizens of
India, except for the minimal courtesies of protocol, pension
and other regular post-retirement benefits.

b. Public property is not to be frittered away to private citizens,

notwithstanding the high offices they may have previously
occupied. Any provision of law that grants accommodation
to the “former” holders of public office is ultra vires the
Constitution as breaching Article 14.

c. The same principle would hold for those eminences who

have passed away. No public property shall be allotted by
the Government as memorials to commemorate any
personalities who are deemed to be eminent. It is in
replicating their noble values that their memory may be truly
preserved.

GOPAL SUBRAMANIUM
Amicus Curiae
04.01.2018
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APPENDIX
POSITION IN STATES OTHER THAN UTTAR PRADESH

1. Rajasthan: The Rajasthan Ministers’ Salaries (Amendment) Bill,

2017 which provides former CMs with a house, car, telephone and 8
employees for the rest of his life at the cost of the public exchequer.

2. Uttarakhand: The Uttarakhand High Court is hearing a petition

challenging the facilities provided to former Chief Ministers on the
ground that they are an “unnecessary burden on the state’s
exchequer”. The state government filed an affidavit in the High Court
on 5th January 2016 stating that it has withdrawn some of the perks,
such as vehicles and staff, provided to former Chief Ministers. (As per
a report1 published in the Hindustan Times, dated 04th March 2016.)

3. Punjab: A report2 published in the Tribune, dated 24th July 2017

states that former Punjab Chief Ministers will be provided official
residence in Chandigarh. An erstwhile provision in the Ministers
(Salaries, Allowances and Privileges) Act allowed the government to
extend facilities, including an official bungalow, to former Chief
Ministers. However, the provision that had been withdrawn in 1972 is
set to be re-introduced through an amendment.

4. Jharkhand: Jharkhand Governor Advisory Council took the decision

to withdraw facilities, including free lifetime housing, to former Chief
Ministers in as back as 2010, citing that the state was spending
millions every year on extending free housing, free vehicles, free fuel,
personal secretary and other facilities to them. Former CMs are
provided free housing for a month post the end of their tenure, and
can avail housing for the next two months by paying rent at market

1 http://www.hindustantimes.com/india/uttarakhand-govt-withdraws-perks-for-ex-cms-but-
exempts-nd-tiwari/story-M0ekY5DqJV8M2y4XfYV4SM.html
2 http://www.tribuneindia.com/news/punjab/former-cms-to-get-official-residence-in-

chandigarh/441278.html
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price. Refund on telephone bills was restricted to rupees 3,000 per

month and security is provided as per intelligence recommendation.
(As per a report3 in the Hindustan Times, dated 30th July 2010).

5. Haryana: In April 2016, the Haryana government decided to

withdraw facilities like rent-free accommodation and staff, provided
to former CMs. The facilities included rent-free furnished
accommodation of the status of a Cabinet Minister, a private
secretary, an assistant, a driver, four PSO, and two peons (As
reported4 in the Tribune, dated 29th April 2016)

6. Madhya Pradesh: The State Cabinet in April 2017 agreed to the

proposal to amend the MP Ministers (Salaries and Allowances) Act,
1972 through an ordinance in order to be able to provide housing
and other facilities to former CMs of the state. (As reported 5 in
Outlook, dated 25th April 2017)

3 http://www.hindustantimes.com/india/jharkhand-withdraws-facilities-to-ex-chief-
ministers/story-IjfPOzkWsRGjKa5CDjTHfJ.Html
4 http://www.tribuneindia.com/news/haryana/haryana-withdraws-cabinet-minister-like-

facilities-to-former-cms/229588.html
5 https://www.outlookindia.com/newsscroll/mp-ordinance-to-provide-home-other-facilities-to-

former-cms/1036485