All India Trinamool Congress won the election to the legislature of West Bengal, while its leader Mamata Banerjee lost in Nandigram, where she contested. She is reportedly going to swear in as the Chief Minister of the state.
Is there any legal or constitutional bar in a person who lost election becoming Chief Minister? This column attempts to discuss the law and precedents in this regard.
Article 164 of the Constitution deals with appointment of Chief Minister and other ministers. It reads as follows:
Article 164. Other provisions as to Ministers.—(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor.
However Article 164(4) provides as follows: "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."
In Har Sharan Verma vs Tribhuvan Narain Singh AIR 1971 SC 1331, the Constitution Bench of the Supreme Court considered the issue whether a person who is not a member of State Legislature can be appointed as the Chief Minister? In the said case, the appointment of Tribhuvan Narain Singh as Chief Minister of Uttar Pradesh was challenged on the ground that he was not a member of either house of legislature at the time of appointment.
Before the High Court, Har Sharan Verma contended that Clause (1) of Article 164 of the Constitution prohibits the appointment of any person not a member of the Legislature as Chief Minister.
Rejecting the challenge, the Allahabad High Court held that a Chief Minister, like any other Minister, can hold office for six months without being a member of the Legislature.
The High Court held:
"Article 164 is divided into five clauses. The first deals with the appointment of the Chief Minister and other ministers; the second enjoins the collective responsibility of the council of ministers to the Legislative Assembly of the State; [the third makes it incumbent upon the Governor to administer the oath of office and of secrecy to every minister before he enters upon his office; the fourth provides that a minister who is not a member of the Legislature tor six consecutive months shall vacate his office; and the fifth confers upon the Legislature the power to fix the salaries and allowances of ministers by law. If the word. "Minister" .throughout this Article was not intended to include the Chief Minister, it would follow that the Chief Minister is exempt from the Constitutional duty to take the oath of office, and shall not cease to be a minister if after his appointment his election to the Legislature is set aside and he is not re-elected within six months of being unseated. Moreover, the salary and allowances of the Chief Minister, unlike those of his colleagues, will not be under the control of the Legislature of the State as in the case of his other colleagues. The Court cannot accept an interpretation which will lead to such absurd results. It is clear that the word 'minister' in clauses second, third, fourth and fifth of Article 164 includes the Chief Minister. Under clause five (sic) a Chief Minister like any other minister can hold office for six months without being a member of the Legislature"
Another issue raised was whether a person who has been elected by the majority of the members of the Legislative Assembly as their party leader be appointed Chief Minister before he acquires membership of the legislature? The court held as follows:
"I think Clause (4) of Article 164 does not prohibit : such a "stop-gap" arrangement. It says that a minister who for any period of six consecutive months is not a member of the State Legislature of the State shall at the expiration of that period cease to be a minister. This implies that any minister can hold office for six months without being a member of the legislature. I have indicated that the word "minister" in this clause includes the Chief Minister. It follows that the appointment as Chief Minister of a person who is not a member of the Legislative Assembly but commands its support, pending his election to that House within six months, is not prohibited by the Constitution nor does it violate the basic principle of parliamentary government that the Chief or the Prime Minister must have the confidence of the legislature. Whether such a "stop-gap" appointment is politically desirable or proper is not a matter for this Court to consider. It appears to me, therefore, that the appointment of the first respondent as Chief Minister was not illegal"
The Allahabad High Court thus dismissed the challenge and thus the case reached the Supreme Court and finally before the Constitution Bench.
Upholding the High Court judgment, the Supreme Court said :
"It seems to us that by virtue of Art. 177 the Ministers, even if they are not Members of a Legislative Assembly or Legislative Council would be entitled to be present at such a meeting. It seems to us that in the context of the other provisions of the Constitution referred to above there is no reason why the plain words of cl. (4) of Art. 164 should be cut down in any manner and confined to a case where a, Minister loses for some reason his seat in the Legislature of the State".
About 14 years later, Verma again approached the Apex Court challenging the appointment of K.P. Tewari as Minister of the Government of Uttar Pradesh who was not a member of either House of the State Legislature. He contended that in the judgment of Har Sharan Verma v. Shri Tribhuvan Narain Singh, where it had been held that the appointment of a person as Chief Minister could not be challenged on the ground that he was not a member of the Legislature of a State at the time of appointment, the Court had not considered the effect of the amendment of Article 173 (a) of the Constitution by the Constitution (Sixteenth) Amendment Act, 1963. According to him, after the amendment of Article 173 of the Constitution by the Constitution (Sixteenth) Amendment Act, 1963, it was not open to the Governor to appoint a person who was not a member of the Legislature of the State as a Minister and that Article 164(4) of the Constitution would only be applicable to a person who had been a Minister but who ceased to be a member of the Legislature for some reason such as the setting aside of his election in any election petition. He also contended that the debates of the Constituent Assembly suggested that a person should be a member of the Legislature at the time of his being chosen as a Minister.
Rejecting the above contentions, the Court held that there is no material change brought about by reason of the amendment of Article 173 (a) of the Constitution in the legal position that a person who is not a member of the State Legislature may be appointed as a Minister subject, of course, to clause (4) of Article 164 of the Constitution which 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. The court also observed that the debates of the constituent Assembly does not suggest that a person shall be a member of the Legislature at the time of his being chosen as a Minister. An amendment was proposed to that effect in the Constituent Assembly to the draft Constitution but was not accepted, the court noted. The court further added that the makers of the Constitution provided for a situation where a Minister may lose a seat in the Legislature after appointment-as the result of an election petition for example- or may not be a member when he is appointed.
Verma, a few years later again filed a petition before the Apex Court challenging the appointment of Sita Ram Kesari as a Minister of State of the Central Cabinet. The Court reiterated the law and dismissed the writ petition.
The Supreme Court considered similar legal issue in a petition filed by one SP Anand challenging appointment of H.D. Deve Gowda as the Prime Minister of India, who was not a member of either House of Parliament at the time of appointment.
Referring to the above three judgments and a couple of High Court judgments, the Court held that a person who is not a member of either House of Parliament or of either House of a State Legislature can be appointed a Minister in the Central Cabinet (which would include a Prime Minister) or a Minister in the State Cabinet (which would include a Chief Minister), as the case may be.
"Even if a person is not a member of the House, if he has the support and confidence of the House, he can be chosen to head the Council of Ministers without violating the norms of democracy and the requirement of being accountable to the House would ensure the smooth functioning of the democratic process. We, therefore, find it difficult to subscribe to the petitioner's contention that if a person who is not a member of the House is chosen as Prime Minister, national interest would be jeopardized or that we would be running a great risk.", the court held. In this judgment, the court also noted the speech made by Dr. BR Ambedkar in constituent assembly in this regard (Reproduced below:)
"Now with regard to the first point, namely, that no person shall be entitled to be appointed a Minister unless he is at the time of his appointment an elected member of the House, I think it forgets to take into consideration certain important matters which cannot be overlooked. First is this and it is perfectly possible to imagine that a person who is otherwise competent to hold the post of a Minister has been defeated in a constituency for 'some reason and which, although it may be perfectly good, might have annoyed the constituency, and he might have incurred the displeasure of that particular constituency. It is not a reason why a member so competent as that should not be permitted to be appointed a member of the Cabinet on the assumption that he shall be able to get himself elected from the same constituency or from another constituency. After all the privileges that he is permitted is a privilege that extends only to six months. It does not confer a right on that individual to sit in the House being elected at all. My second submission is this that the fact that a nominated Minister is a member of the Cabinet does not either violate the principle of collective responsibility nor does it violate the principle of confidence because he is a member of the cabinet if he is prepared to accept the policy of the Cabinet stands part of the Cabinet and resigns with the Cabinet when he ceases to have the confidence of the House, his membership of the Cabinet does not in any way cause any inconvenience or breach of the fundamental principles on which parliamentary government is based. Therefore, this qualification in my judgment is quite unnecessary."
A person cannot be consecutively appointed using the provision of 'six months'
In S.R. Chaudhuri vs State Of Punjab, considered a connected legal issue - Can a non- member, who fails to get elected during the period of six consecutive months, after he is appointed as a Minister or while a Minister has ceased to be a legislator, be reappointed as a Minister, without being elected to the Legislature after the expiry of the period of six consecutive months ?
The Court held that it is illegal to permit an individual, who is not a member of the Legislature, to be appointed a Minister repeatedly for a term of "six consecutive months", without him getting himself elected in the meanwhile. "The practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid. Article 164(4) is at best only in the nature of an exception to the normal rule of only members of the Legislature being Ministers, restricted to a short period of six consecutive months. This exception is essentially required to be used to meet very extraordinary situation and must be strictly construed and sparingly used. The clear mandate of Article 164(4) that if an individual concerned is not able to get elected to the legislature within the grace period of six consecutive months, he shall cease to be a Minister, cannot be allowed to be frustrated by giving a gap of few days and reappointing the individual as a Minister, without his securing confidence of the electorate in the meanwhile. Democratic process which lies at the core of our Constitution schemes cannot be permitted to be flouted in this manner.", the Court said holding that reappointment of Tej Parkash Singh as a Minister in the State of Punjab was invalid and unconstitutional.
These precedents make it clear that there is no embargo in appointing a person who is not a member of the legislature as the Chief Minister of the state. Though technically and legally, one can fairly argue that there is no difference between a non-member (who did not contest the election at all) and a non-member (who contested and lost the election), the question still remains whether it is ethical or moral to appoint a person who lost the election as Chief Minister?