TaxTMI 
TaxTMI 
2001 (8) TMI 1370
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....even till then, was once again appointed as a Minister w.e.f. 23.11.1996. 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 ....
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.... India" (Seventh Edition, 1992) referring to the Parliamentary 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 unw....
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....f that man is not elected by the people of the country, then that 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 constitue....
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.... the Chief Minister is required, with a view to continue in office 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 th....
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....n the proceedings thereof. The petitioner admits that in the thirty-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 L....
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.... The absence of the expression "from amongst members of the 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-app....
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....na, if we may adopt a riverine imagery. In this thesis, we are 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 Mi....
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.... "It is well-settled convention that these minister should be either peers or members of the House of Commons. There have been occasional exceptions. Mr. Gladstone once held office out of Parliament for nine months. The Scottish law officers sometimes, as in 1923 and 1924, are not in Parliament. General Smuts was minister without portfolio and a member of the War Cabinet from 1916 until 1918. Mr. Ramsay MacDonald and Mr. Malcolm MacDonald were members of the Cabinet though not in Parliament from the general election of November 1935 until early in 1936." According to Wade and Bradley, "Constitutional and Administrative Law", page 268: "It is the convention that ministerial officer-holders should be members of one or other House of 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, Osgoo....
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....n Constitution provides "a responsible Minister of the Crown shall not hold office for a longer period than three months unless he is or becomes a members of the Council or the Assembly". Dealing with conventions being followed in Australia, Mr. Peter Hanks, in his commentary "Australian Constitutional Law"; (Second Edition) says : "In every State we can confidently predict that ministers will be appointed from amongst the current members of parliament. Indeed the South Australian and Victorian legislation provide that ministers must be (or become within three months) members of one of the houses of parliament." The following observations of the High Court of Australia in State of New South Wales vs. Commonwealth of Australia and another, 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....
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....icates that non-member's inclusion in the cabinet was considered to be a 'privilege' that extends only for six months', during which period the member must get elected otherwise he would cease to be a Minister. It is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the Court to find out the intention of the framers of the Constitution. We must remember that a Constitution is not just a document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in 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 f....
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....lowed by his election to the legislature, would not permit him to be appointed a Minister once again without getting elected to the legislature during the term of the legislative assembly. 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 of the concerned legislative assembly. It exhausts itself if the individual is unable to get himself elected within the period of grace of "six consecutive months". The privilege is personal for the concerned individual. It is, he who must cease to be a Minister, if he does not get elected during the period of six months. The 'privilege' is not of the Chief Minister on whose advice the 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,....
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....d not even intermittently. It would commence from the time a non-legislator is either appointed as a Minister or a Minister who becomes a non-legislator, is allowed to continue as such, and comes to an end at the expiry of that period. The use of the expression "consecutive" is significant. It cannot be defeated by interpreting Article 164(4) as permitting appointment even for a total period of six months, during the term of a legislative assembly, let alone, that the appointment of such a non-legislator as a minister can be for six months "at a time", without his getting mandate from the electorate in the meanwhile. As already noticed Article 164(4) in terms provides only a disqualification or a restriction for a Minister, who for any 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,....
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....al traditions of the people and its spirit and determination to workout its constitutional salvation through the chosen system of its political organisation." India is a Democratic Republic. Its chosen system of political organisation is reflected in The Preamble to the Constitution, which indicates the source from which the Constitution comes, viz., "WE, THE PEOPLE OF INDIA". By permitting a non-legislator Minister to be reappointed, 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 temptations 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 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....
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....ic 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 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, ho....