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APPOINTMENT OF NON-MEMBER OF PARLIAMENT OR STATE LEGISLATURE AS MINISTER—SCOPE
by Dr. R. Prakash*
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Seminal principles
Generally, Ministers are appointed from the legislature.1 But an exception to this rule is carved out by the Constitution itself under Article 164(4). The corresponding provision for the Union is contained in Article 75(5). In Har Sharan Verma v. Tribhuvan Narain Singh2, the appellant challenged the appointment of the respondent, who was appointed as Chief Minister of U.P. on 18-10-1970 and who was not a Member of the legislature at the time of his appointment. The High Court dismissed the writ of quo warranto filed under Article 226 but granted the certificate under Article 132 of the Constitution. A five-Judge Constitution Bench of the Supreme Court interpreted Article 164(4) for the first time. It was contended on behalf of the appellant that Article 164(4) applied only to a person who was already a Minister but for some reason or the other ceases to be a Minister. Such person can continue for 6 months but there cannot be an initial appointment of a non-Member of the legislature of a State as Minister. This contention was negatived by the Constitution Bench. Chief Justice Sikri speaking for a unanimous Constitution Bench, observed as follows:3
"3. It seems to us that Article 164(4) must be interpreted in the context of Articles 163 and 164 of the Constitution. Article 163(1) provides that 'there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion'. Under Article 164(1), the Chief Minister has to be appointed by the Governor and other Ministers have to be appointed by him on the advice of the Chief Minister. They all hold office during the pleasure of the Governor. Clause (1) does not provide any qualification for the person to be selected by the Governor as the Chief Minister or Minister, but clause (2) makes it essential that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. This is the only condition that the Constitution prescribes in this behalf."
The Constitution Bench referred to the proceedings in the Constituent Assembly wherein an amendment was proposed, which read that a Minister shall, at the time of his being chosen as such, be a Member of the Legislative Assembly or Legislative Council of the States as the case may be. This amendment was negatived by the Constituent Assembly. In this case, the appellant also relied on Article 175 of the Constitution.
Relying on the words "and may for that purpose require the attendance of Members" in Article 175 the appellant contended that a person who was appointed as Minister and at the time of his appointment was not a Member of the legislature, cannot be required to attend the House. The Constitution Bench answered this argument by holding that by virtue of Article 177, Ministers, even if they are not Members of the Legislative Assembly or Legislative Council, would be entitled to be present at such a meeting. It is submitted
"though it is correct that a Minister who is not a Member of legislature would be entitled to be present by virtue of Article 177, but he cannot be compelled to be present since he does not fall under Article 175 of the Constitution".
The ratio of this decision is that a non-Member of the legislature of a State can be appointed as a Minister under Article 164(1) read with Article 164(4) of the Constitution and the said provision is not confined only to a case where a person who was already appointed as a Minister loses the membership of the legislature for some reason.4
In Har Sharan Verma v. State of U.P.4 the appellant in the earlier case once again challenged an appointment made under Article 164(1) read with Article 164(4). K.P. Tiwari was appointed as Minister of the Government of U.P. who was not a Member of either House of the State Legislature at the time of his appointment. The challenge was made in a writ petition under Article 32 of the Constitution. Here, an additional contention was advanced before a two-Judge Bench of the Supreme Court that in the earlier case the Constitution Bench did not consider the amendment made to Article 173(a)4a which requires that a person who contests the election to a legislature of a State should make and subscribe before some person authorised in that behalf by the Election Commission on oath of affirmation according to the form set out for the purpose in the third Schedule. Rejecting the challenge, the Supreme Court held that there is no material change brought about by reason of the amendment to Article 173(a) in the legal position that a person who is not a Member of the State Legislature may be appointed as a Minister subject to Article 164(4).
In Har Sharan Verma v. Union of India5 another two-Judge Bench of the Supreme Court considered the validity of appointment of a person who was not a Member of Parliament as a Minister in the Union of India. This time, the petitioner challenged the appointment of Sitaram Kesari as a Minister of State in the Union of India and who was not a Member of either House of Parliament at the time of his appointment. When this case came up for decision, Sitaram Kesari had ceased to be a Minister and it was held that it is a well-accepted practice that courts do not undertake interpretation of the Constitution unless there be a live issue before the court.6
Yet, the Court ruled that the combined effect of Articles 75(5) and 88 is that a person not being a Member of either House of Parliament can be a Minister up to a period of 6 months. Though he would not have any right to vote, he would be entitled to participate in the proceedings thereof. In this case also, a reference to the proceedings in the Constituent Assembly was made. The ratio of this case is the same as in Tribhuvan Narain Singh case2.
In S.P. Anand v. H.D. Deve Gowda7 the appointment of Deve Gowda as Prime Minister was challenged on the ground that he was not a Member of Parliament at the time of his appointment. Following the earlier cases, the Supreme Court rejected the challenge and held that a person who is not a Member of either House of Parliament or of either House of State Legislature, can be appointed as a Minister in the Central Cabinet (which would include the Prime Minister) or a Minister in the State Cabinet (which would include a Chief Minister), as the case may be. In this case, the Supreme Court held that the English convention that the Prime Minister should be a Member of either House, preferably House of Commons, is not a part of our constitutional scheme since our Constitution clearly permits a non-Member to be appointed as Chief Minister or a Prime Minister for a short duration of 6 months.
Duration for which a non-member may continue as Minister
In S.R. Chaudhuri v. State of Punjab8 the question that was raised was whether a non-Member of a legislature, who fails to get elected during the period of 6 consecutive months, after he is appointed as a Minister be reappointed as a Minister without being elected to the legislature. The Supreme Court held that the privilege to continue as a Minister for 6 months without being an elected Member is only a one-time slot for the individual concerned during the term of the Legislative Assembly concerned.
Disqualifications
In B.R. Kapur v. State of T.N.9 a question arose whether a person who has been convicted of a criminal offence and whose conviction has not been suspended pending appeal, can be sworn in and can continue to function as Chief Minister of a State. It was held inter alia that a person who is convicted for a criminal offence and sentenced to imprisonment for a period of not less than two years cannot be appointed as a Chief Minister of a State under Article 164(1) read with clause (4) and cannot continue to function as such.
In the said case, the second respondent was appointed as the Chief Minister of a State by the Governor of that State. At the time of appointment as Chief Minister, the second respondent was not a Member of the Legislative Assembly of the State. The appointment was challenged through a writ of quo warranto contending that since the second respondent had been sentenced to 3 years' imprisonment under the Prevention of Corruption Act and since the conviction had not been suspended, he had incurred disqualification and therefore could not continue to function as the Chief Minister of the State. Upholding the challenge, the Constitution Bench held that a non-legislator can be made a Chief Minister or Minister under Article 164 only if he has the qualifications for membership of the legislature prescribed by Article 173 and is not disqualified from the membership thereof by reason of the disqualifications set out in Article 191.
The opening words of Article 191(1) state that a person shall be disqualified for being chosen as, and for being a Member of the Legislative Assembly or Legislative Council of a State. This means that Article 192 covers both stages of disqualification: both prior to the election and after the election10
Nature of power of appointment of Ministers exercised by Governor or President
It is most respectfully submitted that an analogy drawn by the Court in B.R. Kapur case9 may not actually hold. In this regard, the following observations may be referred to11:
"52. The judgment of this Court in Kumar Padma Prasad v. Union of India12 is a case in point. One K.N. Srivastava was appointed a Judge of the Gauhati High Court by a warrant of appointment signed by the President of India. Before the oath of office could be administered to him, quo warranto proceedings were taken against him in that High Court. An interim order was passed directing that the warrant of appointment should not be given effect to until further orders. A transfer petition was then filed in this Court and was allowed. This Court, on examination of the record and the material that it allowed to be placed before it, held that Srivastava was not qualified to be appointed a High Court Judge and his appointment was quashed. This case goes to show that even when the President, or the Governor, has appointed a person to a constitutional office, the qualification of that person to hold that office can be examined in quo warranto proceedings and the appointment can be quashed."
In Kumar Padma Prasad case12, the appointment of a High Court Judge by the President was on the aid and advice of the Council of Ministers under Article 74(1) of the Constitution. The constitutional scheme is that the Council of Ministers appointed by the President under Article 75(1) advise the President who is bound by that advice under Article 74(1). Therefore, though the decision is of the President, in reality it is the decision of the Union Council of Ministers. The President of India cannot be sued in view of Article 361 of the Constitution, but the second proviso to Article 361 read with Article 300 makes it possible to sue the Government of India on whose advice the President acts. Therefore, the appointment of a Judge of a High Court cannot be equated with the appointment of the Chief Minister of a State by the Governor. In the former, the appointment is made on the aid and advice of the Council of Ministers whose action can be challenged in a court of law whereas in the latter case, the appointment though under the Constitution, is political in complexion and unlike the appointment of a Judge of a High Court, the appointment of Chief Minister is made by the Governor eo nomine. However, it needs to be clarified that this would not affect the maintainability of quo warranto proceedings to challenge such appointments. For, as observed by Pattanaik, J. (as he then was) in B.R. Kapur case13:
"The immunity provided to the Governor under Article 361 is certainly not extended to an appointee by the Governor. In the present proceedings, what has been prayed for is to issue a writ of quo warranto on the averments that Respondent 2 was constitutionally disqualified to usurp the public office of the Chief Minister, who has been usurping the said post unauthorisedly on being appointed by the Governor. In fact the Governor has not been arrayed as a party-respondent to the proceedings... When an application for issuance of a writ of quo warranto is being examined, it is not the Governor who is being made amenable to answer the court. It is Respondent 2 appointee, who is duty-bound to satisfy that there has been no illegal usurpation of public office. Quo warranto protects the public from illegal usurpation of public office by an individual and the necessary ingredients to be satisfied by the Court before issuing a writ is that the office in question must be public, created by the Constitution and a person not legally qualified to hold the office, in clear infringement of the provisions of the Constitution and the law viz. Representation of the People Act, has been usurping the same."
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* Advocate, Supreme Court.
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1 Per Mukherjea, C.J. in Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549. In the Indian Constitution, therefore, we have the same system of a Parliamentary Executive as in England and the Council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, "a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part".
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2 (1971) 1 SCC 616
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3 Ibid. at p. 617, para 3.
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4 (1985) 2 SCC 48
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4a By the Constitution (Sixteenth Amendment) Act, 1963
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5 1987 Supp SCC 310
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6 It is settled practice that the Supreme Court does not decide matters which are only of academic interest. Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147, R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183, Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, 1987 Supp SCC 93 and Arnit Das v. State of Bihar, (2001) 7 SCC 657
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7 (1996) 6 SCC 734
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8 (2001) 7 SCC 126
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9 (2001) 7 SCC 231
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10 Constituent Assembly Debates, Vol. VIII, Book 3, 3rd Reprint, 1999, pp. 866-67 may usefully be referred to in this regard. Article 167-A of the Draft Constitution became Article 192 in the Constitution.
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11 (2001) 7 SCC 231 at p. 301, para 52.
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12 (1992) 2 SCC 428 : 1992 SCC (L&S) 561 : (1992) 20 ATC 239
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13 (2001) 7 SCC 231 at p. 309, para 70.
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