Ordinarily, a Minister should be a member of the State Legislature. A basic feature of the parliamentary system of governments that all Ministers ought to be members of a House of State Legislature. This ensures accountability of the Council of Ministers to the Legislature. However, a non-member may also be appointed as a Minister, but he would cease to be a Minister if he does not become a member of the State Legislature within six months Article 164 (4). Therefore, there have been cases when non-members have been appointed as Chief Ministers. For example, Kamraj Nadar was appointed as the Chief Minister of Madras in 1954 although he was not a member of the State Legislature.
CURRENT SCENARIO IN MAHARASHTRA
Chief Minister Uddhav Thackeray took oath on November 28th 2019 as Chief Minister of Maharastra. It was the first time that any Shiv Sena’s MP was elected as CM of the Maharastra. Further, he has to become a member of State legislature (MLA/MLC) before May 28th 2020 or resign. Incase, he does not resign he will automatically stand removed. Also, taking oath again is controversial as said by Supreme Court in many of the cases, which we discuss in this article later. Since getting elected in State legislature is ruled out due to COVID-19 pandemic therefore Uddhav Thackeray is focusing on nomination to Legislative Council by Governor under Article 171(5), which states that the Governor can nominate “persons having special knowledge or practical experience in respect of literature, science, art, co-operative movement and social service” to LC. Further, Terms of two vacancies in Legislative Council ends on June 6. While Representation of People Act prohibits filling of a vacancy if remainder of the term is less than one year, this bar does not apply for nomination.
According to Article 164(4) of Indian Constitution: ‘a Minister who for any period of six consecutive months is not a member of Legislature of the State shall at expiration of that period cease to be a Minister.‘
WHAT SUPREME COURT SAID EARLIER IN SAME SITUATION?
In Harsharan verma vs T.N. Singh AIR 1971 SC, the Hon’ble Supreme Court held appoinment in the view of article 164(4) to be valid.
Shri T.N.Singh who was not a member of either. House of the State legislature was appointed the Chief Minister of Uttar Pradesh. The High Court rejected the challenge to his appointment in view of Article 164(4) of the Constitution and the Supreme Court upheld the High Court. A non-member can be appointed as Chief Minister for a period of six months.
S.R. Chaudhari v. State of Punjab is very important to understand the current scenario in Maharastra. A question of crucial significance has been considered by the Supreme Court in S.R. Chaudhari v. State of Punjab. (Very Important)
FACTS: Shri Tej Prakash Singh was appointed as a Minister in the State of Punjab on the advice of Chief Minister, Sardar Harcharan Singh Brar, on 9th September 1995. At the time of his appointment as a Minister, he was not a member of the State Legislature. As he failed to get elected to the State Legislature, he resigned from the Council of Ministers after 6 months on 8th March 1996. This was in accordance with Article 164(4). During the term of the same Legislature, there was a change in the office of the Chief Minister. The new Chief Minister, again appointed Tej Prakash Singh as a Minister on 23rd November 1996. He was not a member of the Legislature at that time. A petition was filed for a writ of quo warranto against the Minister.
The High Court quashed the Minister’s appointment. The Supreme Court stated that Arts. 164 (1) and 164(4) should be so construed as to “further the principles of a representative and responsible Government.”
Referring to Article 164, the Court observed that its scheme clearly suggests that ideally, every Minister must be a member of the Legislature at the time of his appointment. In an exceptional case, a non-member may remain a Minister for six months. Such a person must get elected to the House during the period of six months. If he fails to do so, he must cease to be a Minister. He cannot be reappointed thereafter during the life time of the same Legislature by the same or even a different Chief Minister.
The Court has observed: The “privilege” of continuing as a Minister for six months without being an elected member is only a one time slot for the individual concerned during the term to get himself elected to Legislative Assembly. It exhausts itself if the individual is unable to get himself elected within the period of grace of six consecutive months. To appoint a person repeatedly as a Minister while he is not a member of the Legislature would amount to subversion of the constitutional and democratic process.
The Court further observed criticizing the appointment of a non-member repeatedly as a Minister. “By permitting a non-legislator Minister to be re-appointed without getting elected within the period prescribed by Article 164(4), would amount to ignoring the Electorate in having its say as to who should represent it-a position which is wholly unacceptable. The seductive temptation to cling to office regardless of constitutional restraint must be totally eschewed. Will of the people cannot be permitted to be subordinated to political expediency of the Prime Minister or the Chief Minister as the case maybe, 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.”
So best option available to the Uddhav thackrey is to resign from the office of Chief Minister office before 28th May, 2020. But I think this dispute will be finally settled by the Supreme Court. But Supreme Court itself has answer such question in negative.
In B.R. Kapur v. State of Tamil Nadu JT 2001 (8) SC 40: (2001)7 SCC 231: In this case, Jayalalitha was contesting election for State Legislative assembly in Tamil Nadu but it was rejected on the ground of having criminal charges. So she used article 164(4) for getting selected as CM of Tamil Nadu because she was disqualified to contest election. The Governor of Tamil Nadu appointed her as the Chief Minister under Art 164 (4) as she was not a member of the State Legislature at his time. Her appointment as the CM was challenged and the Supreme Court declared the same as null and void.
The Court has stated that it would be “unreasonable and anomalous to conclude that a minister who is a member of the Legislature is required to meet the constitutional standards of qualification and disqualification but that a Minister who is not a member of the Legislature need not, “Logically the standards expected of a Minister who is not a member should be the same as, if not greater than, those required of a member.”
The Supreme Court beautifully said in this case that: “The Constitution prevails over the will of the people as expressed through the majority party. The will of the people as expressed through the majority party prevails only if it is in accord with the Constitution.”
So, it looks the hard road for the CM Uddhav Thackrey ahead. Both elected as MLA as well as nomination as MLC looks very difficult for him. If he fails to get elected as member of Legislative Assembly or nominated as member of Legislative Council before 28th May 2020, he must cease to be a Chief Minister. As clearly said by Supreme Court in S.R. Chaudhari v. State of Punjab that minister cannot be reappointed thereafter during the life time of the same Legislature by the same or even a different Chief Minister. The Court has observed: The “privilege” of continuing as a Minister for six months without being an elected member is only a one time slot for the individual concerned during the term to get himself elected to Legislative Assembly. It exhausts itself if the individual is unable to get himself elected within the period of grace of six consecutive months.
- Image: https://electionfacts.in/2019/11/latest/maharashtra-elections-deadlock-over-power-sharing-between-bjp-shiv-sena/
2. News coverage: NDTV & livelaw.in
3. Books: J.N.Pandey (Constitution)