TMI Blog2001 (8) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.11.1996. The Appellant filed a petition seeking writ of quo warranto against Respondent No.2. It was stated in the petition that appointment of Respondent No.2 for a second time during the term of the same legislature, without being elected as a Member of the Legislature was violative of constitutional provisions and, therefore, bad. The Division Bench of the High Court vide order dated 3.12.1996 dismissed the writ petition in limine. This appeal by special leave calls in question the order and judgment of the High Court dismissing the writ petition in limine. Since, the meaningful question involved in this appeal revolves around the ambit and scope of Article 164 and in particular of Article 164(4) of the Constitution of India - let us first examine that 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. Provided that in the States of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debates on the enactment of clause ( 2 ) of Section 10 of Government of India Act, 1935, the author says: Clause(2).-This clause follows the recent Constitutions of Australia and South Africa, but it is not in the Canadian Constitution, and is no part of the English Constitution. As a matter of practice, however, even in England appointments are not made from outside Parliament except incase of some national emergency such as war. While the law in England does not require that a Minister must be a member of Parliament, there is a strong convention to the effect that a Minister who has not a seat in Parliament must get one, the reason being the advantage of the interplay between the Executive and the Legislature. An amendment was moved by Sir Charles Oman to leave out clause (2) of Section 10 (supra). Viscount Wolmer referred to the difficulties which made the Amendment (provision) desirable, such as the occasional practical difficulty in forming a suitable Ministry without breaking the normal practice, and emphasised the advisability of securing that elasticity in the choice of Ministers which exists under an unwritten Constitution. It was also stated that the objection to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at man used to be appointed as Minister through the backdoor as has been provided in the Constitution and in 1935 Act. But now the people of the States will elect members of the Legislative Assembly and certainly we should think they will send the best men of the States to be their representatives in the Council or Legislative Assembly. Therefore I do not find any reason why a man who till then was not elected by the people of the States and which means that, that man was not liked by the people of the States to be their representative in the Legislative Assembly or the Council, then Sir, why that man is to be appointed as the Minister. Dr. Ambedkar opposing the amendment replied : 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, - 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, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice as a Chief Minister, get himself elected to the legislature within a period of six consecutive months from the date of his appointment. The issue was once again raised by the same writ petitioner and was considered by a Division Bench of this Court in Har Sharan Verma v. State of U.P. and another, (1985) 2 SCC 48. The writ petitioner argued that a Governor cannot appoint a person, who is not a Member of the Legislature, as a Minister under Article 164(1). According to the writ petitioner Article 164(4) of the Constitution in terms would only be applicable to a person, who has been a Minister but who ceases to be a member of the Legislature for some reason or the other such as the setting aside of his election in any election petition . Sustenance, for this argument was sought from the provisions of amended Article 173(a) which provides : Article 173. Qualification for membership of the State Legislature.- A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he- (a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irty-seven years of constitutional regime in this country there have been several instances where a person has held the office as Minister either at the Centre or in the State (there are corresponding provisions for the State), not being a member of the appropriate legislature at the time of appointment. (Emphasis ours) Thus, this Court once again held that a person, not being a Member of either House of Legislature could be appointed a Minister, but he could continue as a Minister for a period of six consecutive months only during which period he should get himself elected to the Legislature or else he must cease to be a Minister after expiry of that period. 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 put in issue in S.P. Anand, Indore v. H.D. Deve Gowda and others, (1996) 6 SCC 734. After noticing various provisions of the Constitution, this Court while upholding his appointment observed: A Constitution Bench of this Court had occasion to consider whether a person who is not a member of either House of the State Legislature could be appointed a Minister of State and this ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislature in Article 164 (1) is indicative of the position that whereas under that provision a non-legislator can be appointed as a Chief Minister or a Minister but that appointment would be governed by Article 164(4), which places a restriction on such a non-member to continue as a Minister or the Chief Minister, as the case may be, unless he can get himself elected to the Legislature within the period of six consecutive months, from the date of his appointment. Article 164(4) is, therefore, not a source of power or an enabling provision for appointment of a non-legislator as a Minister even for a short duration. It is actually in the nature of a disqualification or restriction for a non-member, who has been appointed as a Chief Minister or a Minister, as the case may be, to continue in office without getting himself elected within a period of six consecutive months. It is not the case of the appellant that respondent No.2 Shri Tej Prakash Singh suffered from any constitutional or statutory disqualification to contest an election on the date of his first appointment as a Minister or even on the date of his re-appointment as a Minister. The challenge is confined to the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fortified by the precedent of this Court, strengthened by Constituent Assembly proceedings and reinforced by the actual working of the organs involved for about a 'silver jubilee span of time'. In the Westminster system, it is an established convention that Parliament maintains its position as controller of the executive. By a well settled convention, it is the person who can rely on support of a majority in the House of Commons, who forms a government and is appointed as the Prime Minister. Generally speaking he and his Ministers must invariably all be Members of Parliament (House of Lords or House of Commons) and they are answerable to it for their actions and policies. Appointment of a non-member as a Minister is a rare exception and if it happens it is for a short duration. Either the individual concerned gets elected or is conferred life peerage. In Halsbury's Laws of England (Fourth Edition) Volume 8 Para 819) dealing with British conventions it is observed: 819. The paramount convention is that the Sovereign must act on the advice tendered to her by her ministers, in particular the Prime Minister. She must appoint as Prime Minister that member of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament. Such membership is essential to the maintenance of ministerial responsibility............When a Prime Minister appoints to ministerial office someone who is not already in Parliament, a life peerage is usually conferred on him. Canada as well as Australia also follow parliamentary system of government of Westminister style. In his treatise on the Constitutional Law of Canada , (4th Edition), Peter W. Hogg, Professor of Law, Osgoode Hall Law School, York University (page 243), discusses the characteristics of a responsible Government in a parliamentary system and the appointment of the Prime Minister and other Ministers of his cabinet. He says: The narrative must start with an exercise by the Governor General of one of his exceptional reserve powers or personal prerogatives. In the formation of a government it is the Governor General's duty to select the Prime Minister. He must select a person who can form a government which will enjoy the confidence of the House of Commons. For reasons which will be explained later, the Governor General rarely has any real choice as to whom to appoint: he must appoint the parliamentary leader of the political party which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other, 108 A.L.R. 577, are also educative : The Constitution none the less brought into existence a system of representative government in which those who exercise legislative and executive power are directly chosen by the people. ...The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their representatives. The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act. Thus, we find from the positions prevailing in England, Australia and Canada that essentials of a system of representative government, like the one we have in our country, are that invariably all Ministers are chosen out of the members of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spirit. The debates clearly indicate the 'privilege' to extend only for six months. The very concept of responsible Government and representative democracy signifies Government by the People. In constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their chosen representatives and for exercise of those powers, the representatives are necessarily accountable to the people for what they do. The Members of the Legislature, thus, must owe their power directly or indirectly to the people. The Members of the State Assemblies like Lok Sabha trace their power directly as elected by the people while the Members of the Council of State like Rajya Sabha owe it to the people indirectly since they are chosen by the representative of the people. The Council of Minister of which a Chief Minister is head in the State and on whose aid and advice the Governor has to act, must, therefore, owe their power to the people directly or indirectly. The sequence and scheme of Article 164, which we have referred to in an earlier part of our order, clearly suggests that ideally, every minister must be a member of the legislature at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individual is appointed. Therefore, it is not permissible for different Chief Ministers, to appoint the same individual as a Minister, without him getting elected, during the term of the same assembly. The individual must cease to be a Minister, if during a period of six consecutive months, starting with his initial appointment, he is not elected to the assembly. The change of a Chief Minister, during the term of the same assembly would, therefore, be of no consequence so far as the individual is concerned. To permit the individual to be reappointed during the term of the same legislative assembly, without getting elected during the period of six consecutive months, would be subversion of parliamentary democracy. Since Article 164(4) provides a restriction for a non-legislator Minister to continue in office, beyond a period of six consecutive months, without being elected, it clearly demonstrates that the concerned individual appointed as a Minister under Article 164(1) without being a member of the Legislature must cease to be a Minister unless elected within six consecutive months. Re-appointing that individual without his getting elected, would, therefore, be an abuse of Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of six consecutive months, is not a Member of the Legislature of the State to continue as such. It expressly provides that he shall on the expiration of that period cease to be a Minister unless he gets elected during that period by direct or indirect election. We must also bear in mind that no right is conferred on the concerned non-member Minister even during the period of 'six months' , when he is permitted to continue in office, to vote in the House. The privilege to vote in the House is conferred only on Members of the House of the Legislature of a State (Article 189). It does not extend to non-elected ministers He may address the House but he cannot vote as an MLA. None of the powers or privileges of an MLA extend to that individual. Though under Article 177, the individual shall have a right to speak and to otherwise take part in the proceedings of the Legislative Assembly, he does not carry with him the usual free speech legislative immunity as provided by Article 194(2). The individual cannot draw any of the benefits of an MLA without getting elected. All these disabilities also clearly go to suggest that 'six months clause' in Article 164(4) cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hewed. Will of the people cannot be permitted to be subordinated to political expediency of the Prime Minister or the Chief Minister as the case may be, to have in his cabinet a non-legislator as a Minister for an indefinite period by repeated reappointments without the individual seeking popular mandate of the electorate. Chief Ministers or the Governors, as the case may be, must for ever remain conscious of their constitutional obligations and not sacrifice either political responsibility or parliamentary conventions at the alter of political expediency . Prof.. B.O. Nwabueze in his book Constitutionalism in the Emergent States (1973 Edition - page 139), almost thirty years ago warned : Experience has amply demonstrated that the greatest danger to constitutional government in emergent states arises from the human factor in politics, from the capacity of politicians to distort and vitiate whatever governmental forms may be devised. Institutional forms are of course important, since they can guide for better or for worse the behaviour of the individuals who operate them. Yet, however carefully the institutional forms may have been constructed, in the final analysis, much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the core of our Constitution schemes cannot be permitted to be flouted in this manner. It may be of some interest to notice certain provisions of the Constitution of Jammu Kashmir, 1957. Section 36 of the J K Constitution corresponds to Article 164(1) of the Constitution of India, with the difference that the expression the Minister shall hold office during the pleasure of the Governor is missing from Section 36. This expression has, however, been separately incorporated in Section 39, which provides that all Ministers and Deputy Ministers shall hold office during the pleasure of the Governor. Section 37(2) corresponds to Article 164(4) of the Constitution. Section 38 of the J K Constitution is, however, a provision which has no corresponding provision in the Constitution of India. This section reads thus: 38- Deputy Ministers. - The Governor may on the advice of the Chief Minister appoint from amongst the members of either House of Legislature such number of Deputy Ministers as may be necessary. If constitutional provisions of Article 164(1) and 164(4) are permitted to be perverted or distorted in the manner as was done in the present case, Section 38 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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