[Article 164(4)] Who Decides What Are Extraordinary Circumstances For Appointment Of Non-Legislators As Ministers? Asks SC, Directs Petitioner To Approach MP HC
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The Supreme Court on Tuesday disposed off a plea against the appointment of persons who are not MLAs as ministers in the Madhya Pradesh government, granting the liberty to approach the High Court."We have been told that before the power to appoint was exercised, the Speaker had already passed the order disqualifying candidates? If it is so, then the petition is infructuous", observed...
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The Supreme Court on Tuesday disposed off a plea against the appointment of persons who are not MLAs as ministers in the Madhya Pradesh government, granting the liberty to approach the High Court.
"We have been told that before the power to appoint was exercised, the Speaker had already passed the order disqualifying candidates? If it is so, then the petition is infructuous", observed Chief Justice S. A. Bobde.
The counsel for the petitioner, S. B. Talekar advanced, "22 persons had resigned, so 14 others were appointed as ministers, none of whom are legislators".
"Had the Speaker not decided and declared the disqualification?", asked the CJ again.
The governor doesn't possess any such powers...in extraordinary circumstances, one who is not a legislator may be made minister and that too, for a maximum period of 6 months, as per Article 164(4)", submitted Mr. Talekar.
"Who decides what are extraordinary circumstances? To say such appointments may happen in exceptional circumstances is a self-serving argument! It has no basis in the Constitution", noted the CJ.
In response, Mr. Talekar indicated the SC constitution bench authority of B. R. Kapoor (2001) and another decision in S. R. Chaudhuri (2001)- "Article 164(4) was under consideration before Your Lordships. Your Lordships held that it cannot be resorted to as a matter of course",
"I am not aware", said the VJ, inclined to peruse the judgments.
"This matter can be argued even before the High Court", interjected SG Tushar Mehta.
"Yes. Call the MP High Court and argue there. You are already in MP, so stay there only", said the CJ.
The petition by advocate Aradhana Bhargava advanced that " different kind of virus has afflicted our political space. It is causing a pandemic, which surreptitiously causes the downfall of legitimately elected State governments; by unscrupulous legislators resigning from the ruling party and then joining hands with the principal opposition party under influence or due to extraneous reasons. The ugly spectacle, which unfolded in the cabinet formation of the State government in the State of Madhya Pradesh recently, is a manifestation of this malaise"
"Never in the history of any State Government or even the Central Government, have as many as fourteen (14) ministers, i.e., 41% of the total ministers strength, ever been appointed, who were non-legislators at the time of being sworn in", it was averred in the petition through AOR Vipin Nair.
It was urged that the appointment of these 14 non-legislators out of total 34 ministers in Madhya Pradesh Council of Ministers is an unprecedented travesty and a patent perversity, which mocks the nation's democratic edifice and is a sheer abuse of the provisions of Article 164(4) of the Constitution of India.
"The present writ seeks to bring to the judicial notice of this Hon'ble Court, the blatant and gross abuse of the powers conferred by Article 164 of the Constitution of India under which there has been a enbloc appointment of more
than two dozen non-legislators as Ministers in the Madhya Pradesh cabinet, even while the decision on their disqualification has been deliberately kept pending for over 5 months by the Hon'ble Speaker of the Legislative Assembly, Respondent No.1 herein. It is the contention of the Petitioner that this course of action has been adopted solely to overcome the strict constitutional scrutiny
imposed by the Tenth Schedule of the Constitution of India. Such undemocratic political manoeuvring amounting to constitutional impropriety has been severely deprecated by this Hon'ble Court and is in flagrant infraction of the law as declared in a catena of decisions and recently in KEISHAM MEGHACHANDRA SINGH V. HON'BLE SPEAKER MANIPUR LEGISLATIVE ASSEMBLY AND OTHERS", it was advanced.
The petitioner pressed that the specious conduct of the Speaker in this entire episode is also clearly violative of the ratio laid down by the top Court in its recent decision in SHRIMANTH BALASAHEB PATIL V. SPEAKER,
KARNATAKA LEGISLATIVE ASSEMBLY AND OTHERS. In fact, this Court vide its Order dated 22.07.2020, under similar circumstances, has already issued notice in another writ petition titled "N P PRAJAPATI v. GOVERNOR OF MADHYA PRADESH & OTHERS".
"This matter inter alia, among other issues impugns the appointment of 34 ministers, which has exceeded the ceiling of 15% of the total number of members of the Legislative Assembly of the State of Madhya Pradesh contrary to the mandate contained in Article 164(1-A) of the Constitution of India. Needless to state, the several acts of omission on the part of the Speaker in tandem with persons holding other constitutional posts in the State of Madhya Pradesh, who are solemnly vested with the duty to implement the democratic scheme of the Constitution, are grossly violative of the provisions of the Constitution and in fact, their conduct, which openly seeks to encourage horse-trading and throws the Tenth Schedule of the Constitution of India to the wind, needs to be strongly deprecated", it was stressed.
It was submitted that it could never have been the intention of the Constitution makers that persons disqualified to even be elected as legislators could be appointed as Ministers under Article 164 (4), only with a view to overcome the mandate of the Tenth Schedule of the Constitution of India. The said omissions or rather failure to act fairly on the part of the respondents, has rendered the Tenth Schedule completely otiose and a dead letter; and is grossly violative of the scheme of constitutional democracy as enshrined in the Constitution.
"Furthermore, the mandate of Article 164(4) is only meant to be used as an exception in rare circumstances rather than being a general rule, and is being perversely construed by the powers that be to overcome constitutional difficulties occasioned by the lack of a clear democratic mandate or a hung assembly, as categorically held by this Hon'ble Court in S.R. CHAUDHURI V. STATE OF PUNJAB", it was urged.
It was further submitted that despite the disqualification petitions pending before the Speaker, he is deliberately choosing not to decide them in gross abuse of power to ensure that the 14 disqualified non-legislators are not 'formally disqualified' by his decision, and to further ensure that they can continue to hold ministerial berths under Article 164(4), and also to ensure that the said decision is not subject to judicial scrutiny of a Constitutional Bench judgement of the Apex Court in the case of KIHOTO HOLLOHAN V. ZACHILHU AND OTHERS.
"Needless to state, that once disqualified, these 14 persons currently holding Ministerial positions in the Madhya Pradesh Council of Ministers would not even be able to contest the by-elections to be held for their disqualified seats. Therefore, to ensure that they do not face such constitutional difficulties, the decision on their disqualification has been deliberately been kept pending inordinately by the Speaker and the said conduct of the Speaker ought to be strongly deprecated by this Hon'ble Court", read the petition.
It was further submitted that this unethical practice of Speakers of various Legislative Assemblies to prevaricate on disqualification petitions while allowing disqualified members to seek a ministerial berth for themselves on negotiated terms with the relevant political party in power needs to be strongly deprecated by this Hon'ble Court as it seeks to misconstrue and misuse the Tenth Schedule and Article 164 of the Constitution.