Can A Non-Member Of A State Legislature Be Elected As A Minister Or Chief Minister?

Who Can Be Appointed As Chief Minister/ Minister Of A State?

As we know, India has a parliamentary form of government. One of the basic features of the parliamentary system is that all ministers including the Chief Minister, ought to be a member of either house of the state legislature.^[1]This unique feature ensures accountability of the Council of Ministers to the legislature.

Now a question arises here that can a non-member be elected as a Minister or Chief Minister? Its answer would be 'yes.' Article-164(4) of the Constitution says that "a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister." It means that a non-member may also be appointed as a Minister, subject to the provision that he would cease to be a Minister if he does not take membership of either house of the State legislature within six months of his appointment. It is important to note here that the term 'Minister' in Article- 164(4) includes the "Chief Minister" as well.

Mr Tirath Singh Rawat took oath as Chief Minister of Uttarakhand on March 10, 2021, after being chosen as a leader of the State legislature by party MLA. As per the Constitutional scheme, he had six months, till September 10, 2021, to become a member of the Uttarakhand Assembly in order to continue in the post. But due to an unanticipated factor and legal provisions under the Representation of People Act-1951, the by-poll election could not be conducted and eventually, he resigned. We have discussed it in the later part.

Scope Of Article-164(4): -

In most Indian states, there is a unicameral state legislature except few states like Bihar, Karnataka, Andhra Pradesh, Telangana, Uttar Pradesh and Maharashtra. As per the constitutional provision, one must take membership of either a house within six months of his appointment as a minister. In a State having a bicameral legislature, this process is not so complex because one can be appointed as a member of the upper house easily (conducting an election for the appointment in Upper house of a state legislature involve less resources), but this becomes complex in the case of a state having only one legislature. This complexity arises because in such a case it becomes very important to conduct the by-poll election on time. It is at the discretion of the Election Commission to hold polls. Due to the COVID-19 pandemic, there is an uncertainty that the election would be conducted on time causing, worrisome for Mamata Banerjee.

If we examine language employed in Article-164(4), it simply asserts that a non-member minister must take membership of a house within six months or otherwise, he ceases to hold the post. Now, a question arises that, in a case where a non-member minister fails to take membership in the meantime. Can he be re-appointed as a minister for another six months? Can a person be appointed repeatedly as a minister for six months at a time even if he is not a member of a House of State legislature? The Constitution is silent on this point. However, in the case of SR Choudhary v.State of Punjab (1995), the Hon'ble Supreme Court has held such practice as "undemocratic". In the instant case, Tej Prakash Singh who was not a member of the Punjab Legislative Assembly was appointed as a minister on the advice of Chief Minister, Sardar Harcharan Singh Barar, on 9 September 1995. As he could not be appointed as a member of the house within the stipulated time of six months so, he eventually resigned on 8 March 1996. But, during the tenure of the same legislation, there was a change in the office of the Chief Minister. The newly-elected Chief Minister appointed Tej Prakash Singh as a minister again. He was not a member of the Punjab Legislative assembly this time too. A writ petition of quo warranto was filed against him. This petition was quashed by the High Court of Punjab and Haryana High court but, on appeal, the Supreme Court of India quashed his appointment and declared it invalid. The court further asserted that it would be derogatory to the constitutional scheme. This means that throughout the lifetime of a state assembly for five years, a non-member can be appointed as a minister only once and that too for a short period of six months only. One factor behind such a strict interpretation of Article-164(4) may be that this provision provides a backdoor entry to those who could not win an election. Therefore, the reason behind such purposive interpretation of the provision was to hold "the principles of representative and responsible government."

Therefore, according to this constitutional scheme, it was vital for Tirath Singh Rawat to be elected in the house before the end of six months to be eligible to continue in the office.

Why By-Poll Could Not Be Conducted In Uttarakhand?

One of the reasons to not conduct by-polls in several states is the outbreak of the COVID-19 pandemic. The second wave of the pandemic has hit the nation hard. Therefore, the Election Commission of India is refraining from holding by-polls in many states including Uttarakhand.

At the same time, the reason behind not conducting by-polls in Uttarakhand is the provision given in section-151 A of the Representation of People Act-1951. It states that "a by-poll for filling any vacancy…shall be held within a stipulated period of six months from the date of the occurrence of the vacancy." However, this is subject to proviso under Section-151 A which says that if "the remainder of the term of a member in relation to a vacancy is less than one year" then, this mandate won't apply. As the term of the Uttarakhand Assembly is less than one year (March 2022), ECI is not legally bound to hold the election.

Is There Any Reason For Mamata Banerjee To Worry?

Rawat's resignation has created a tumultuous situation in the state of West Bengal. Prima facie, it appears that his resignation aims to create a precedent for deferring West Bengal by-polls. The constitutional provision is very clear that if she does not get elected, she cannot hold the post of Chief Minister. Provision II of Sec-151 A of Representation of People Act-1951 states that by-poll election cannot be conducted if the "Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period." We all are well aware of the bitter relation between the Central government and the government of West Bengal. Therefore, the role of the Election Commission of India becomes very crucial at this stage. The ECI is an autonomous constitutional body in character. It should free from political pressure or executive influence and deviations , if any, may be a cause of concern for Mamata Banerjee.