Can A Person Who Lost Election Be Appointed As Chief Minister?

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.