Strangely unique that a Chief Minister lost her seat, but the party registered a bigger victory than achieved in the previous Assembly Election. West Bengal Chief Minister Mamata Banerjee earned this distinction on May 02, 2021 as the results for West Bengal Assembly election were announced. Mamata Banerjee pushed the Modi-Shah juggernaut of the BJP off the track in West Bengal as her Trinamool Congress won 213 of 292 seats that went to the polls between March 27 & April 29, 2021. But she lost the election from Nandigram Constituency to Suvendu Adhikari of the BJP.
 
The results left a dilemma involving political morality giving rise to the following questions of law:

• Whether a non-member of the Legislature can be appointed as Chief Minister under the Constitution of India?
• If the answer to the said question is in the affirmative, then what is the time period for a non-member of the Legislature to be permitted to become the Chief Minister?
• Whether the appointment of a person, who is not a member of the House, as Chief Minister will not be against the democratic principles and national interest?
• If the answer to the said questions is in the affirmative, then whether a non-member, who fails to get elected during the period of six consecutive months after he/she is appointed as a Minister or while a Minister has ceased to be a Legislator, can be reappointed as a Minister, without being elected to the Legislature after the expiry of the period of six consecutive months?

Article 164 (4) of the Constitution of India provides 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. This clause [originally taken from Section 10 (2) of the Government of India Act, 1935], provides that there is no bar for anyone who is not a member of Legislature to become Minister.

However, some important objections were raised in the Constitutional Assembly during the enactment of Article 164 (4) [Article 144 (3) of the Draft Constitution], which is relevant to discuss before proceeding to deal with issue in hand. Prof. Shibban Lal Saksena in the Constituent Assembly Debates on June 01, 1949 Part I (Volume III) suggested to change the word Legislative Assembly in place of Legislature of the State in Article 144 (3) of the Draft Constitution.

He opined that:
That means that if a person is not a Lower House but is made a Minister, and supposing that the man fails to get elected to the Lower House on the basis of adult suffrage in six months, then under this Article we are providing that he/she can still continue to remain a Minister if he/she is nominated to the Upper House by the Governor. I think it is undemocratic that our Ministers should be persons who cannot even win an election by adult suffrage. I have therefore suggested that we should say Legislative Assembly instead of Legislature’ in this Article.

In the Assembly nobody is nominated and all Ministers shall therefore have to win an election by adult suffrage within six months of their appointment in order to continue to be Ministers. Otherwise persons who are not representatives of the people but are favourites of the Premier may be nominated to the Upper House in the provincial Legislatures and they can continue to remain Minister under this clause (3) of the Article. I desire that only members who are able the post of a Minister. Anybody who is not able to get elected by member of the Council of Minister.

Another important objection was raised by Shri R. K. Sidhva (C.P. and Berar: General) in the Constituent Assembly Debates on June 01, 1949 Part I (Volume III) in the following words:
…I feel that this is merely a repetition or imitation of a clause which exists in the present Government of India Act of 1935. I do not think is necessary now, because, under the new Constitution, the number of members in the provincial legislatures will be ranging from 300 to 600 and I do not think we will be wanting in people to fill even special posts. I am opposed to an outsider who is not a member of the Legislature, however highly qualified he/she may be, being called upon to hold the very responsible Office of a Minister even for six months. From the experience we have gained, we find that in some cases where Ministers have been so appointed, eventually it has led to corruption.

After the period of six months, somebody has to vacate a seat and it has so happened in one or two provinces that to make room for this Minister, that gentleman had to be provided with some job for which he/she was not qualified. Therefore, when we are going to have large Houses in which there will be members with vast experience, and experts in many respects, I feel that it is not proper, and it is not a very good principle to imitate what is existing in the Government of India Act, 1935, and say that if the Chief Minister feels that so and so who is not a member is required for expert advice, he/she should be taken as a Minister.

Sometimes, the Chief Minister would like to favour somebody. In the name of the special qualifications that he/she may possess, he will be asked to become a Minister, and at the end of six months, he/she will have to be made a member of the Legislature, because he/she cannot hold the Office after six month. As I stated, Sir, some other member who will be asked to vacate will have to be offered something and this will lead to corrupt public life.

Dr. Ambedkar rejected the said objections or any other proposal on the said Article on two grounds:

1. 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 which, although it may be perfectly good, might have annoyed the Constituency and he/she might have incurred the displeasure of that particular Constituency. It is not a reason why a member so competent as that should be not permitted to be appointed a member of the Cabinet on the assumption that he/she shall be able to get himself/herself elected either from the same Constituency or from another Constituency. After all the privilege that is permitted is a privilege that extends only for six months. It does not confer a right to that individual to sit in the House without being elected at all.
    
2. 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 if he/she is a member of the Cabinet, if he/she is prepared to accept the policy of the Cabinet, stands part of the Cabinet and resigns with the Cabinet, when he/she ceases to have the confidence of the House, his/her membership of the Cabinet does not in any way cause any inconvenience or breach of the fundamental principles on which Parliamentary Government is based.

Ultimately after the long-drawn debate Article 164 (4) was finalized. On a plain reading of Article 164 (4) or Article 75 (5), it is evident that the Constitution makers desired to permit a person who is not a member of either House to be appointed as Minister for a period of six months and if during the said period she/he was not elected to either House, he/she would cease to be Minister.

Article 164 of the Constitution of India 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.

The ambit and scope of Article 164 (4) of Constitution of India has already been discussed by the Hon’ble Supreme Court of India in catena of its decision. The Constitution Bench of the Hon’ble Supreme Court in [Har Sharan Verma Vs. Shri Tribhuvan Narain Singh, Chief Minister, U.P. & Anr., 1971(1) SCC 616] dealt with the similar issue in detail. 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 of India 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/she enters upon his/her Office; the fourth provides that a Minister who is not a member of the Legislature for six consecutive months shall vacate his/her 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 exempted from the Constitutional duty to take the Oath of Office, and shall not cease to be a Minister if after his/her appointment his/her election to the Legislature is set aside and he/she is not re-elected within six months of being unseated. Moreover, the salary and allowances of the Chief Minister, unlike those of his/her colleagues, will not be under the control of the Legislature of the State as in the case of his/her 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/she acquires membership of the legislature?

The Supreme 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/her election to that House within six months, is not prohibited by the Constitution of India 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 the case reached the Constitution Bench of Supreme Court of India.

Upholding the High Court Judgment, the Supreme Court said:
It seems to us that by virtue of Article 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 of India referred to above there is no reason why the plain words of clause (4) of Article 164 of Constitution of India should be cut down in any manner and confined to a case where a, Minister loses for some reason his/her seat in the Legislature of the State.

The said issue was once again raised in [Har Sharan Verma Vs. State of U.P. & Anr., (1985) 2 SCC 48]. However, a new argument of the qualification of the Minister was taken that as per the changes brought in Article 173 (1) (a), a person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he:

1.  is a citizen of India, and makes and subscribes before some person authorised on that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule.

Rejecting the above contentions, the Supreme 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 Supreme 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/her 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/she 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 Hon’ble Supreme Court in the case of [Har Sharan Verma Vs. Union of India & Anr., 1987 (Supp.) SCC 310] made the important observation combining the effect of Article 75 (5) [Pari-Materia to Article 164 (4)] and Article 88 that the combined effect of these two Articles is that a person not being a Member of either House of Parliament can be a Minister up to a period of six months. Though he/she would not have any right to vote, he/she would be entitled to participate in the proceedings thereof.

The Supreme Court in the case of [S. P. Anand, Indore Vs. H. D. Deve Gowda & Ors., (1996) 6 SCC 734] considered similar legal issue in a petition filed by one S. P. Anand, where Shri H. D. Deve Gowda, who was not a Member of either House of Parliament was appointed as the Prime Minister of India. His appointment was questioned.

The Hon’ble Supreme Court upheld the appointment of Shri H. D. Deve Gowda as Prime Minister and held that:
…Therefore, even though a Prime Minister is not a member of either House of Parliament, once he is appointed he becomes answerable to the House and so also his Ministers and the principle of collective responsibility governs the democratic process. 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 jeopardised or that we would be running a great risk…

In this Judgment, the Supreme Court also noted the speech made by Dr. B. R. 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, (2001) 7 SCC 126] 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 Supreme 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/her getting himself/herself 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 constitutional schemes cannot be permitted to be flouted in this manner., the Supreme Court said holding  that reappointment of Tej Parkash Singh as a Minister in the State of Punjab was invalid and unconstitutional.

The Hon’ble Supreme Court in the case of [Ashok Pandey Vs. Km Mayawati, AIR 2007 SC 2259] reiterated the fact that person who is not a member of Legislative Assembly or Legislative Council can be appointed as Chief Minister or as a Minister. However, it should also be noted that the period of six months implies that the period must continuously and not even intermittently run.

Thus, the constitutional position in relation to appointment of Minister which includes Chief Minister is clear that even a non-member of Legislature can be appointed as Minister/Chief Minister but only for continuous period of six months. Within six months, a non-member has to become the member of the House. There are instances where a non-member of the Legislature has been appointed as Chief Minister. This took place in the case of Shri C. Rajagopalachari who was made the Chief Minister of Madras in 1952, or of Shri Anajiah, who was made Chief Minister of Andhra Pradesh, in 1980.

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? 

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]