Har Sharan Verma Vs. Tribhuvan Narain
Singh, Chief Minister U.P. & ANR  INSC 81 (16 March 1971)
SIKRI, S.M. (CJ) SIKRI, S.M. (CJ) SHELAT,
CITATION: 1971 AIR 1331 1971 SCR 1
RF 1985 SC 282 (3,12)
Constitution of India, Art.
164(4)--Appointment as Chief Minister of a person who is not a member of State
Legislature--Validity of appointment.
The first respondent was appointed as Chief
Minister of U.P.
on October 18, 1970. His appointment was
challenged on the ground that he was not a member of either house of
legislature at the time of appointment. In appeal to this Court against the
High Court's judgment dismissing the petition under Art. 226,
HELD : (i) Clause (4) of Art. 164 must be
interpreted in the context of Arts. 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 advice the Governor in the exercise of his
functions except in so far as he is by or under this Constitution required to
exercise his functions or any of them in his discretion." Under cl.(1) of
Art. 164 the Chief Minister has 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 Chief Minister or minister. But cl. (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. There is thus no reason why the plain words' of
cl.(4) of Art. 164 should be cut down in any manner and confined to a case
where a Minister loses for some reason his seat in the Legislature of the
State. That this is the correct meaning to be given to Art 164(4) is supported
by the proceedings of the Constituent Assembly and the position as it obtains
in England, Australia and South Africa. [12GH, 3E].
(ii) -If the Governor of a State appoints a
Chief Minister and Council of Ministers none of whom are members of the State
Legislature, and the Legislative Assembly of the State to whom the Council of
Ministers would be responsible endorses this unlikely Council of Ministers, there
is nothing in the Constitution which would make this appointment illegal.
(iii) There can be no difficulty in Ministers
who are not members of the Legislature being present at the time of the
Governor's address because by virtue of Art. 177 they would be entitled to be
present at the meeting of the Legislature addressed by the Governor. [3C-D].
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2205 of 1970.
Appeal from the judgment and order dated
November 4, 1970 of the Allahabad High. Court in Lucknow Bench in writ petition
No. 1402 of 1970.
The appellant appeared in person.
1-1 S. c India/71 2 L. M. Singhvi, R. Bana
and O. P. Rana, for the respondents.
The Judgment of the Court was delivered by
Sikri, C. J. In this appeal by certificate granted by the High Court under Art.
132 of the Constitution a short question as to the interpretation of cl. 4 of
Article 164 of the Constitution arises. This question has arisen in connection
with the appointment on October, 18, 1970, of Shri Tribhuvan Narain Singh as
Chief Minister of Uttar Pradesh. He was not a member of either House of
Legislature of the State of Uttar Pradesh at the time of his appointment.
The appellant, who is a rate-Payer of the
Lucknow Constituency to the Uttar Pradesh Legislative Assembly, filed a
petition under Art. 226 of the Constitution in the High Court challenging the
appointment of the respondent as Chief Minister. The High Court dismissed the
petition but granted a certificate under Art. 132 of the Constitution, and the
appeal is now before us.
Article 164(4) reads as follows :
" 164(4) 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 appellant
contends that this clause only applies when a Minister, who is a Member of the
Legislature of the State, loses his seat and the idea behind cl. (4) of Art.
164 is to give him a period of six months to get himself. reelected.
The learned Counsel for the respondent, Mr.
Singhvi, contends that the scope of cl. (4) cannot be whittled down in this
manner as there is no warrant in the language of the article. He further says
that even in England a person can be a Minister without being a Member of the
House of Commons or the House of Lords. He further points out that a number of
constitutions contain similar provisions.
It seems to us that cl. (4) of Art. 164 must
be interpreted in the context of Arts. 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 in so far as he is by or
under this Constitution required to exercise his functions or any of them in
his discretion." Under cl.(1) of Art. 164, the Chief Minister has to be
appointed by the Governor and the 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 cl. (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.
3 The appellant says that if the
interpretation put by the High Court is correct it would be possible for a
Governor to appoint a Chief Minister and Ministers none of whom are Members of
the State Legislature. He said that this could not have been contemplated. But
if the Legislative Assembly of the State to whom this Council of Ministers
would be collectively responsible endorses this unlikely Council of Ministers
there is nothing in the Constitution which would make this appointment illegal.
The appellant drew our attention to Art. 175
in which it is provided that "the Governor may address the Legislative
Assembly or, in the case of a State having a Legislative Council, either House
of the Legislature of the State, or both Houses assembled together, and may for
that purpose require the attendance of Members." He said that it would be
rather strange that the Ministers, who were not members of either the
Legislative Assembly or the Legislative Council would not be present. But it
seems to us that by virtue of Art. 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 referred to above there is no reason why the
plain words of cl. (4) of Art. 164 should be cut down in any manner and
confined to a case where a, Minister loses for some reason his seat in the
Legislature of the State.
We are assured that the meaning we have given
to cl. (4) of Art. 164 is the correct one from the proceedings of the
Constituent Assembly and the position as it obtains in England, Australia and
An amendment(1) was proposed in the
Constituent Assembly that the following be substituted :
"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, however,
It is interesting to note the position in
According to Jennings(2) :
"It is a well-settled convention that
these ministers should be either peers or members of the House of the Commons.
There have been occasional exceptions. Mr. (1) Constituent Assembly Debates dated
June 1, 1949 Official Report Vol. VIII. P. 521.
(2) Cabinet Government by Jennings-third
edition, page 60.
4 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." "The
House of Commons is, however, critical of such exceptions." S. 64 of the Commonwealth
of Australia Constitution Act inter alia provides that "after the first
general election no Minister of State shall hold office for a longer period
than three months unless he is or becomes a senator or a member of the House of
representatives." Commenting on this Quick & Garran(3) state as,
"The appointment of a Federal Ministry
will necessarily precede the election of the first Federal Parliament. There
must be a Ministry to assist and advise the Governor General in the performance
of Executive Acts essential for the conduct of the first general election. The
first Federal Ministry cannot at their appointment be members of the Federal
Parliament, because at the time of their appointment there is no such
Parliament in existence. After the first general election, however, no Federal
Minister is permitted to hold office for a longer ,,period than three months,
unless he is or becomes a senator or a member of the House of Representatives.
Section 32 of the Constitution Act of South
Australia (4th January, 1856) contained a similar provision, viz., that after
the first general election of the South Australian Parliament, no person should
hold the offices of Chief Secretary, Attorney-General, Treasurer, Commissioner
of Crown Lands and Immigration, or Commissioner of Public Works, for more than
three calendar months, unless he should be a member of the Legislative Council
or House of Assembly." This shows that Art. 164 (4) has an ancient
lineage. Section 14(1) of the South Africa Act, 1909 reads thus "The
Governor-General may appoint officers not exceeding (twelve) in number to
administer such departments of State of the Union as the Governor-General in
(3) "Annotated Constitution of the Australian Commonwealth" by Quick
& Garran, p. 711.
5 Council may establish; such officers shall
hold office during the pleasure of the Governor-General. They shall be members
of the Executive Council and shall be the King's ministers of State for the
Union. After the first general election of members of the House of Assembly, as
hereinafter provide, no minister shall hold office for a longer period than
three months unless he is or becomes a member of either House of Parliament."
Hahlo and Kahn(4) state thus :
"The rule of responsible government that
Ministers must be Members of Parliament is ensured by the statutory requirement
that they be or within three months become members of either House." In
the result the appeal fails and is dismissed. There will be no order as to
(4) "The British Commonwealth--The
Development of its Laws and Constitutions" by Hahlo & Kahn (Vol. 5 P.